State of Utah v. Chadley Keith Calvert

¶1 More than nine years ago, Dennis Terry Wynn (Defendant) was sentenced to prison and ordered to pay restitution in excess of $700,000. Now he argues, among other things, that that amount renders his sentence illegal. Because we conclude that Defendant is not entitled to relief under the many theories he advances, we affirm the district court’s denial of his several motions.

BACKGROUND

¶2 In 2006, the State charged Defendant with nineteen felonies, including securities fraud, theft, and a pattern of

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unlawful activity. The district court dismissed two of these

charges at a preliminary hearing and Defendant was bound over

on the remaining seventeen. Defendant was shortly thereafter

indicted in federal court on seven counts of mail and securities

fraud. The state district court stayed proceedings until

Defendant resolved his federal indictments. In November 2007,

Defendant pled guilty to a single count of mail fraud in the

federal court. In conjunction with that plea, Defendant was

sentenced to federal prison and ordered to pay more than

$15 million in restitution.

¶3 Before he surrendered to federal prison, Defendant and

the State reached an agreement on his seventeen state charges.

Defendant agreed to plead guilty to four counts of securities

fraud—two second degree felonies and two third degree

felonies. The parties also agreed that “Defendant will serve any

state prison sentence concurrent with his federal prison time”

and that “Defendant shall pay $100,000 to [the] State at

sentenc[ing]; final amount of restitution to be determined by Oct

6, as between counsel.”

¶4 When Defendant entered his guilty pleas, the state district

court explained that it would order “full and complete

restitution in an amount of at least $100,000, but probably . . .

many times more than that” and asked Defendant, “Is that what

you understand?” Defendant responded, “Yes, sir.” Defendant

also indicated that he understood the sentence the district court

planned to enter: “on two of the counts one to fifteen years in

prison . . . and two other counts zero to five years in prison, all

counts to run concurrently and to run concurrent with the

federal time.”

¶5 On October 6, 2008, the State submitted a request for a

restitution order, indicating the full amount of restitution was

$782,068.63. Defendant did not object to that amount or to the

request for a restitution order, and on October 23, 2008, the

district court signed the order for the amount requested. Both

the State’s request and the district court’s order indicated that

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the restitution would be paid to twenty-three victims named in

an attached list.

¶6 After he completed his federal prison sentence, Defendant

was transferred to the Utah State Prison. In May 2013, Defendant

appeared at a hearing before the Utah Board of Pardons and

Parole (the Board). The hearing officer, in discussing

Defendant’s outstanding restitution, explained, “So at this point

I have restitution is owed in the amount of $782,068.63. It says

$100,000 of this has been paid, and there’s a balance of $682,068;

is that correct?” Defendant indicated that he had not “seen those

figures” but that it “sounds correct.”

¶7 Nearly two years after that hearing, Defendant filed a

motion under rule 22(e) of the Utah Rules of Criminal

Procedure, seeking to correct an illegal sentence. He argued that

his sentence “was illegally imposed through the violation of [his]

constitutional right to effective assistance of counsel.” He

claimed that his plea agreement assured he “would serve no

time in the Utah State Prison” but that his counsel “failed to

ensure that [Defendant] would serve no time in state prison.” He

further claimed that his sentence was “unconstitutional because

the restitution ordered is inaccurate, and trial counsel entirely

forfeited [Defendant’s] right to an accurate determination of

restitution in the state case.” Defendant contended that the

State’s restitution request “encompassed restitution for

dismissed counts[] . . . and for other people who were not tied to

any count at all.” In his view, “As there was no conviction or

agreement by [Defendant] to pay restitution for anything

beyond the counts he pled to, trial counsel should have objected

to the restitution request, which exceeded what [Defendant] was

legally required to pay by hundreds of thousands of dollars.”

¶8 The State opposed Defendant’s rule 22(e) motion, and

Defendant replied by filing an additional motion that set forth

alternative claims: If the district court determined that the

sentence was not an illegal sentence under rule 22, it should

nevertheless set the sentence aside because either (1) the

restitution amount was a clerical error that could be corrected at

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20150492-CA 4 2017 UT App 211

any time under rule 30(b) of the Utah Rules of Criminal

Procedure, or (2) Defendant was entitled to relief under rule

60(b)(6) of the Utah Rules of Civil Procedure because the

restitution order was entered by default. Defendant

contemporaneously requested discovery pertaining to “plea

bargaining and negotiations in this case”; “restitution in this

case, to include an accounting of who received the $100,000

originally paid”; “written or recorded statements of [Defendant]

or any other potential or actual witnesses in this case”; “physical

evidence gathered by the prosecution team members”;

exculpatory evidence; a list of potential and actual witnesses;

and other information seemingly unrelated to the motions

pending before the district court.

¶9 The district court denied Defendant’s motions. It

determined that “Defendant’s claim of ineffective assistance of

counsel does not fall within the narrow parameters of Rule 22(e)

review” and that “Defendant has not shown the sentence itself to

be otherwise illegal.” It further determined that, regarding the

amount of restitution ordered, “there is no clerical error

correctable through Rule 30(b).” And it determined that

Defendant’s rule 60(b) motion was untimely.1 Finally, “[h]aving

determined that [it] [did] not have jurisdiction,” the district court

denied Defendant’s request for discovery.

¶10 Defendant now appeals the denial of his motions.

ISSUES AND STANDARDS OF REVIEW

¶11 On appeal, Defendant challenges the district court’s

reasoning and ultimate decision in denying each of his motions.

We review for correctness the district court’s denial of

1. The district court alternatively decided that “[b]ecause

Defendant’s claims are available under the [Post-Conviction

Remedies Act], they are necessarily unavailable under 60(b) in

this case.”

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Defendant’s rule 22(e) and 30(b) motions. See State v. Rodrigues,

2009 UT 62, ¶ 11, 218 P.3d 610 (explaining that interpretation of

“rule 30(b) of the Utah Rules of Criminal Procedure[] . . . is a

question of law that we review for correctness” (citation and

internal quotation marks omitted)); State v. Fairchild, 2016 UT

App 205, ¶ 16, 385 P.3d 696 (“[W]hen the legality of a sentence is

challenged, a question of law is presented, which we review for

correctness.”). We normally review discovery orders “under an

abuse of discretion standard,” Pinder v. State, 2015 UT 56, ¶ 20,

367 P.3d 968, but because the district court denied Defendant’s

motion for discovery for lack of jurisdiction, we review this issue

for correctness, see State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990

(explaining that denial of a motion based on “lack of subject

matter jurisdiction[] . . . presents a question of law, which we

review for correctness, granting no deference to the district

court”). Finally, we review the district court’s “denial of a 60(b)

motion under an abuse of discretion standard of review.”

Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480.

ANALYSIS

¶12 At the outset, we acknowledge a theme woven

throughout the State’s arguments on appeal: that Defendant’s

motions below were all attempts to avoid the requirements of

our Post-Conviction Remedies Act. See generally Utah Code Ann.

§§ 78B-9-101 to -405 (LexisNexis 2012). Under the PCRA, a

defendant generally must file a petition “within one year after

the cause of action has accrued.” Id. § 78B-9-107(1). The State

argues that Defendant’s “motions below and his arguments on

appeal are nothing more than a transparent attempt to skirt the

statutory time limits—which have long since expired—for

collaterally challenging his sentence.” We decline to consider

whether Defendant could or should have brought his challenges

under the PCRA and instead decide each issue as Defendant

presents it to us. In doing so, we conclude that each of the issues

presented for our review fails on its merits.

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I. Defendant’s Sentence Was Not Illegal

¶13 We first consider the district court’s denial of Defendant’s

motion for review of an illegal sentence, brought under rule

22(e) of the Utah Rules of Criminal Procedure. That rule allows a

court to “correct an illegal sentence, or a sentence imposed in an

illegal manner, at any time.” Utah R. Crim. P. 22(e) (2016).2

¶14 Defendant argues that “because his sentence was imposed

through ineffective assistance of counsel, it was illegally

imposed, and subject to correction under the plain language of

rule 22(e).” He also asserts that the restitution order, being part

of Defendant’s sentence, “was manifestly and patently illegal as

it far exceeded [his] legal responsibility for restitution” and

should be corrected under rule 22(e).

¶15 The district court determined that, concerning his prison

sentence, “Defendant has failed to show that the sentence is

manifestly illegal with regard to sentence length and Defendant

has likewise not asserted any facial constitutional challenge to

2. This rule was amended during the pendency of this appeal.

The quoted language comes from the earlier version of rule

22(e). Whether the amendment applies retroactively or not, see

State v. Guard, 2015 UT 96, ¶ 37, 371 P.3d 1, the result would be

the same. The earlier version of the rule discusses a court’s

ability to “correct an illegal sentence,” see Utah R. Crim. P. 22(e)

(2016), but the amended version no longer uses the term

“illegal,” see id. (2017). Instead, the amended version

incorporates the factors frequently considered by courts in

determining whether a particular sentence was illegal, see, e.g.,

State v. Fairchild, 2016 UT App 205, ¶ 29, 385 P.3d 696, and

directs that when one of those factors is present, “[t]he court may

correct [the] sentence.” See Utah R. Crim. P. 22(e) (2017). Thus,

whether analyzing Defendant’s challenge under the old or new

version of the rule, we would consider the same factors. Compare

infra ¶ 16, with Utah R. Crim. P. 22(e) (2017).

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the sentences.” Concerning the amount of restitution, the court

determined that Defendant had “not shown that the claim can be

easily corrected without the need for fact-intensive analysis” and

thus Defendant’s claim did “not fall within the narrow

parameters of Rule 22(e).” (Citing State v. Houston, 2015 UT 40,

¶ 18, 353 P.3d 55.)

A. Defendant’s Challenge to His Prison Sentence

¶16 The district court was correct in denying Defendant’s rule

22(e) motion because Defendant’s claim of ineffective assistance

of counsel is not the sort of claim properly pursued under rule

22(e). An illegal sentence is one that is “ambiguous with respect

to the time and manner in which it is to be served, is internally

contradictory, omits a term required to be imposed by statute, is

uncertain as to the substance of the sentence, or is a sentence

which the judgment of conviction did not authorize.” State v.

Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (alteration in original)

(citation and internal quotation marks omitted).

¶17 Defendant argues that his sentence was illegal because it

was “imposed in violation of [his] constitutional right to

effective assistance of counsel.” The extent to which rule 22(e)

applies to constitutional challenges was addressed by the Utah

Supreme Court in Houston: “We . . . hold that under rule 22(e), a

defendant may bring constitutional challenges that attack the

sentence itself and not the underlying conviction, and which do

so as a facial challenge rather than an as-applied inquiry.” 2015

UT 40, ¶ 26 (citation omitted).

¶18 Defendant challenges the process by which the district

court arrived at the sentence and judgment; his challenge rests

on the performance of his attorney in this particular case. This is

akin to an as-applied challenge to the process involved and is

not a facial challenge to the sentence and judgment as entered. It

is not the sort of challenge properly pursued under rule 22(e).

Our decision is informed by the following reasoning found in

State v. Headley:

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20150492-CA 8 2017 UT App 211

Defendant’s claims of ineffective assistance of

counsel and erroneous fact findings by the

sentencing judge are simply not cognizable under

Rule 22(e). Defendant has not cited any caselaw

holding otherwise and has also not offered any

reasoned analysis for why Rule 22(e) should apply

to his case. The sentence imposed was permissible

under applicable statutes, and the trial court

properly resolved factual disputes presented to it.

Defendant raises no claims legitimately related to

whether the sentence was illegal or “imposed in an

illegal manner.”

2002 UT App 58U, para. 9 (Greenwood, J., concurring in the

result) (citations omitted). Like the defendant in Headley,

Defendant here cites no case law interpreting rule 22(e) in the

manner he urges. And his sentence was in accordance with

relevant statutes. That Defendant “has been serving concurrent

time since October 9, 2008 on what he expected to be a five year

state and federal sentence” does not change the legality of that

sentence. (Emphasis added.) Defendant’s statement in support of

his guilty plea acknowledged the “maximum sentence that may

be imposed for each crime to which I am pleading guilty,”

including fifteen years for a single second degree felony count of

securities fraud. And that is precisely the sentence imposed by

the district court.

¶19 We thus conclude that the district court properly denied

Defendant’s rule 22(e) motion because, as that court held,

“Defendant’s claim of ineffective assistance of counsel does not

fall within the narrow parameters of Rule 22(e).”

B. Defendant’s Challenge to His Restitution Obligation

¶20 Defendant next argues that his “sentence is also

unconstitutional because the restitution ordered is inaccurate,

and trial counsel was ineffective in entirely forfeiting

[Defendant’s] right to an accurate determination of restitution in

the state case.” This argument fails for the same reason we

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20150492-CA 9 2017 UT App 211

rejected Defendant’s challenge to the length of his prison

sentence: ineffective-assistance claims “are simply not

cognizable under Rule 22(e).” Id.

¶21 But we would affirm the district court’s order in any

event because Defendant cannot show that he was harmed by

any purported deficiency in his counsel’s performance. It is well

settled that to succeed on a claim of ineffective assistance of

counsel, a defendant must demonstrate “that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶22 At sentencing, Defendant agreed that the final restitution

amount would likely be “many times more than” $100,000. And

at his hearing before the Board, Defendant indicated that the

purported remaining balance of $682,068 “sounds correct.” Now,

on appeal, Defendant concludes, without analysis or

explanation, that the correct restitution amount is “apparently

$138,116.18.” Defendant’s agreement at the time of his plea, and

his representations at the hearing before the Board, stand in

direct conflict with the assertions he now makes on appeal.

Given the position taken by Defendant closer to the time of his

sentencing, it is difficult to see how a change in his counsel’s

performance could have resulted in a different restitution

amount. Thus, even if rule 22(e) could be used to remedy

deficient performance by Defendant’s counsel, his underlying

ineffective-assistance claim is unmeritorious.

¶23 We affirm the district court’s denial of Defendant’s rule

22(e) motion as it pertained to the amount of restitution.

II. The Amount of Restitution Ordered Was Not a Clerical Error

¶24 Defendant alternatively argues that the restitution

amount ordered could be corrected under rule 30(b) of the Utah

Rules of Criminal Procedure. That rule provides: “Clerical

mistakes in judgments, orders or other parts of the record and

errors in the record arising from oversight or omission may be

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20150492-CA 10 2017 UT App 211

corrected by the court at any time and after such notice, if any, as

the court may order.” Utah R. Crim. P. 30(b).

In determining whether an error was clerical, we

generally focus on three factors: (1) whether the

order or judgment that was rendered reflects what

was done or intended, (2) whether the error is the

result of judicial reasoning and decision making,

and (3) whether the error is clear from the record.

State v. Perkins, 2014 UT App 60, ¶ 10, 322 P.3d 1184 (citation and

internal quotation marks omitted).

¶25 Defendant suggests that because there was no agreement

that he “would pay restitution for people not named as victims

in the case, or for victims in counts to which he did not plead

guilty,” the first factor weighed in favor of granting his rule

30(b) motion. He asserts that “the restitution order does not

comport with the intent of the parties” because he never agreed

to pay restitution for the dismissed counts. “While the intent of

the parties may be taken into account in the clerical error

analysis, it is ultimately the intent of the court or fact finder that

is binding.” State v. Rodrigues, 2009 UT 62, ¶ 15, 218 P.3d 610.

¶26 Even assuming that Defendant, in entering his plea

agreement, did not intend to pay restitution to all alleged

victims,3 our inquiry must rest on the district court’s intention.

The district court intended to require Defendant to pay

restitution for all alleged victims, as demonstrated by its decision

to enter, in its own words, a restitution order “for the amended

counts to which Defendant entered pleas of guilty, as well as the

3. And this really is an assumption made solely for the purpose

of deciding this issue. We do not reach the question of whether

Defendant’s plea was based on an agreement to pay restitution

for all alleged victims or only the victims associated with the

charges to which he pled guilty.

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20150492-CA 11 2017 UT App 211

remaining counts that were dismissed by plea agreement.” And

any claimed error in that intention actually speaks to the second

factor outlined in Perkins, see 2014 UT App 60, ¶ 10, and

demonstrates that the amount of restitution was the result of a

claimed judicial error rather than a clerical one.

¶27 “[A] judicial error is one made in rendering the judgment

and results in a substantively incorrect judgment.” Rodrigues,

2009 UT 62, ¶ 14 (citation and internal quotation marks omitted).

“A clerical error is one made in recording a judgment that results

in the entry of a judgment which does not conform to the actual

intention of the court.” Id. (emphasis added) (citation and

internal quotation marks omitted). Defendant’s position hints at

an erroneous judicial decision—the decision to require

Defendant to pay full restitution to all alleged victims, rather

than to the specific victims associated with the charges to which

he pled guilty—rather than a scrivener’s error made when the

restitution amount was entered.

¶28 The amount of restitution for all of the charged counts

was, as represented by the State, $782,068.63. The district court

accordingly entered a restitution order for that amount. Where

Defendant assigns error is in the decision to require payment for

the dismissed counts. Defendant does not claim error in the

court’s calculation of restitution. Cf. id. ¶¶ 4, 23–26 (explaining

that an “error in the amount of restitution owed was not the

product of judicial reasoning” where there had been a

miscalculation in multiplying monthly child support arrears

over a set period of time). He does not claim that the court

erroneously memorialized the restitution amount when entering

the order. Cf. State v. Lorrah, 761 P.2d 1388, 1389–90 (Utah 1988)

(per curiam) (allowing correction of a sentence for clerical error

when “the notation ‘maximum mandatory term’ should

properly read ‘minimum mandatory term’”). Thus, he does not

claim the sort of error that can properly be considered clerical.

Accordingly, because the claimed error is “the result of judicial

reasoning and decision making,” see Rodrigues, 2009 UT 62, ¶ 14,

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20150492-CA 12 2017 UT App 211

it is not the sort of error correctible under rule 30(b), and the

district court was correct to deny Defendant’s rule 30(b) motion.4

III. Defendant’s Rule 60(b)(6) Motion Was Untimely

¶29 Next, Defendant argues that the restitution order should

be set aside under rule 60(b) of the Utah Rules of Civil Procedure

because it was entered without objection due to “egregious

ineffective assistance.” See Utah R. Civ. P. 60(b)(6) (allowing

courts to set aside judgments and orders for any “reason that

justifies relief”). This argument essentially attempts to recast

Defendant’s earlier claims of ineffective assistance of counsel. See

supra Part I. We need not decide whether rule 60(b) is a proper

mechanism for asserting claims of ineffective assistance, because

the district court based its denial of Defendant’s motion on its

determination that the motion was untimely. “[A] district court

has broad discretion in ruling on a motion to set aside an order

or judgment under rule 60(b), and ‘[t]hus, we review a district

court’s denial of a 60(b) motion under an abuse of discretion

standard.’” Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf,

2013 UT 27, ¶ 12, 304 P.3d 824 (second alteration in original)

(quoting Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480).

¶30 Rule 60 requires that motions “under paragraph (b) must

be filed within a reasonable time.” Utah R. Civ. P. 60(c). What

4. We note that the third factor referenced in State v. Perkins, 2014

UT App 60, ¶ 10, 322 P.3d 1184, also supports our conclusion.

Any error that Defendant claims in this regard is not clear on the

record. The record indicates that Defendant agreed to pay many

times more than $100,000 in restitution. It also indicates that,

after making a $100,000 payment, Defendant thought that

$682,068 “sound[ed] correct” for the outstanding restitution

amount. See supra ¶ 22. Because the amounts previously

acknowledged by Defendant are consistent with the amount of

restitution ordered, his attempts to now argue that the record

supports his current positions are unconvincing.

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20150492-CA 13 2017 UT App 211

constitutes a reasonable time under rule 60(b)(6) depends on

“the facts of each case, considering such factors as the interest in

finality, the reason for the delay, the practical ability of the

litigant to learn earlier of the grounds relied upon, and prejudice

to other parties.” Menzies, 2006 UT 81, ¶ 65 (citation and internal

quotation marks omitted). The district court determined that,

under the facts of this case, the six and a half years that passed

between entry of the restitution order and the filing of

Defendant’s rule 60(b) motion made his motion untimely. We

cannot say that this determination was an abuse of the district

court’s discretion. See Knight Adjustment Bureau v. Brockbank,

2006 UT App 196U, para. 2 (per curiam) (acknowledging a trial

court’s “broad discretion to rule on a rule 60(b) motion” and

determining that the trial court in that case “did not abuse its

discretion in denying the motion” as untimely when it “was filed

a year and a half after the judgment’s entry” (citation and

internal quotation marks omitted)).

¶31 We focus our discussion on two related factors considered

by the district court—Defendant’s reason for delay in filing his

motion and his practical ability to learn earlier the grounds

relied upon. See Menzies, 2006 UT 81, ¶ 65. Defendant asserts that

the reason for his delay in filing his motion to set aside the

restitution order was that until he “received the default order[5]

from present counsel in December of 2014 and learned that it

illegally held him responsible for paying people other than those

underlying the counts he pled to and had agreed to pay, he had

5. Defendant refers to the restitution order throughout his briefs

as a default order or default judgment. But because Defendant

acknowledges that he agreed to pay restitution, and because

there is no dispute that Defendant appeared for the proceeding

in which he entered a guilty plea, we do not view this particular

order as a default judgment. See Default Judgment, Black’s Law

Dictionary (10th ed. 2014) (defining “default judgment” as a

“judgment entered against a defendant who has failed to plead

or otherwise defend against the plaintiff’s claim”).

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20150492-CA 14 2017 UT App 211

no reason to know that the restitution order was amiss.” But this

flies in the face of his representations to the district court “that

he first learned about the restitution order amount at the May

2013 parole hearing.” Furthermore, the district court found that

Defendant “provide[d] no explanation as to why he did not

learn of the restitution order, filed in this case in October 2008,

between 2008 and 2013.”

¶32 For purposes of our analysis, we assume that Defendant

knew the details of the restitution order either by May 2013 or by

December 2014. If we accept the representations he made to the

district court, he knew by May 2013. If we accept Defendant’s

current contention that he failed to learn about the restitution

order until December 2014, we nevertheless have no difficulty

concluding that he should have known the details of the order by

May 2013. That was when Defendant appeared before the Board

and agreed that the outstanding restitution amount of $682,068

“sound[ed] correct.” It is not reasonable that Defendant would

have heard that outstanding restitution amount in May 2013,

agreed at the time that it seemed correct, and taken until March

2015 to realize that the amount might somehow have been

incorrect notwithstanding his earlier agreement to the contrary.

And aside from reiterating his claims that his original counsel

performed deficiently in 2008, Defendant offers us—and he

offered the district court—no explanation for this delay. In other

words, giving Defendant the benefit of believing that he did not

know about the amount of restitution ordered until May 2013,

there is no excuse given for why it took him nearly two more

years to file a motion to set aside the restitution order.

¶33 Similarly, Defendant’s appearance at the May 2013

hearing before the Board speaks to the “practical ability of the

litigant to learn earlier of the grounds relied upon, and prejudice

to other parties.” See Menzies, 2006 UT 81, ¶ 65 (citation and

internal quotation marks omitted). On this point, we agree with

the district court that Defendant “does not appear to have acted

diligently to pursue a possible relief from judgment.” Once

again, Defendant attempts to explain away his lack of action by

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20150492-CA 15 2017 UT App 211

pointing to the purported inaction of his defense counsel some

six years before filing his rule 60(b) motion. Because Defendant

does not explain why he failed to take action after his May 2013

hearing, we determine that it was not an abuse of discretion for

the district court to conclude that Defendant did not exercise the

diligence necessary for relief under rule 60(b) and that

Defendant’s motion was therefore untimely.6

IV. The District Court Lacked Jurisdiction to Order Discovery

¶34 Finally, Defendant argues that the district court

erroneously denied his motion for discovery. That denial was

based on the district court’s determination that it did not have

jurisdiction to order the discovery requested. Defendant relies on

the court’s “ongoing jurisdiction to correct [his] illegally

imposed sentence, including the default restitution order,[7]

pursuant to Utah [Rules of Criminal Procedure] 30(b) and 22(e)”

to support his contention that the district court did have the

requisite jurisdiction. But because Defendant’s argument is

based on a faulty premise, it fails.

¶35 While district courts generally retain jurisdiction to

correct illegal sentences, Defendant’s sentence was not illegal

and thus this particular district court did not have continuing

jurisdiction to order discovery. See State v. Montoya, 825 P.2d 676,

679 (Utah Ct. App. 1991) (“Once a court imposes a valid

sentence, it loses subject matter jurisdiction over the case.”); see

also Thompson v. Wardley Corp., 2016 UT App 197, ¶ 23, 382 P.3d

682 (“When a court dismisses a rule 60(b) motion as untimely,

6. There are additional considerations in reviewing a district

court’s denial of a rule 60(b) motion than timeliness. See Menzies

v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d 480. But “there is no need to

consider whether there is a basis for setting aside a . . . judgment

if the motion was not made in a timely manner.” See id.

7. See supra ¶ 31 note 5.

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20150492-CA 16 2017 UT App 211

the court lack[s] jurisdiction to consider the merits of the

motion.” (alteration in original) (citation and internal quotation

marks omitted)).

¶36 We therefore affirm the district court’s denial of

Defendant’s motion for discovery.

¶37 Defendant has failed to demonstrate that he was entitled

to relief under rules 22 or 30 of the Utah Rules of Criminal

Procedure or rule 60 of the Utah Rules of Civil Procedure. And

because the district court properly denied each of Defendant’s

motions brought under those rules, it did not have jurisdiction to

order further discovery and properly denied Defendant’s

discovery motion on that basis.

¶38 Affirmed.