State of Utah v. Casey Phillip Perkins

¶1 Defendant Casey Phillip Perkins appeals from the amended

sentence entered after he pleaded guilty to two counts of child

abuse. Perkins advances multiple theories to challenge the entry of

an amended judgment sometime after the original sentence was

entered on the day of the sentencing hearing. We affirm.

State v. Perkins

20111103-CA 2 2014 UT App 60

BACKGROUND

¶2 In 2009, Perkins's eight-week-old son was taken to the

hospital because he was not moving one of his arms. When the

child was examined at the hospital, the X-rays showed several

injuries, including arm and rib fractures, that were likely inflicted

at three different times. Perkins was thereafter charged with four

counts of child abuse.

¶3 Prior to trial, the State obtained permission to present

evidence of two prior bad acts: (1) evidence of Perkins's 1997

conviction for abuse of a three-year-old he was babysitting, which

abuse caused permanent brain damage and other lifelong

disabilities, and (2) evidence of an episode when, while in Perkins's

charge, a five-year-old was left with permanent brain damage after

enduring severe head and abdominal trauma. The State also sought

to present a third bad act—a prior incident involving his infant

son—but Perkins successfully sought suppression of that evidence.

¶4 Perkins eventually pleaded guilty to two counts of child

abuse. In exchange for Perkins's plea, the State dropped the

remaining two charges and agreed to remain silent as to whether

Perkins's sentences should run concurrently or consecutively to

each other and to another prison term that Perkins was then

serving. A presentence investigation report (the PSI) was also

prepared, which recognized the "concerning” and repetitive nature

of Perkins's criminal history but made no recommendation as to

whether the sentences should run consecutively or concurrently.

¶5 The trial judge reviewed the PSI as well as victim impact

statements from the infant victim's mother and foster mother. At

the sentencing hearing, the trial judge stated,

Well, I have to say this is one of the more

troubling cases I've ever seen. I've never—in many,

many years in this business I've never seen a serial

child abuser like I'm looking at right now. A person

who I don't know what kind of enjoyment, what

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kind of a fascination, I can't even imagine what it

must be you get through hurting these little tiny

people and it makes absolutely no sense to me. You

have a history of it and now this little person has all

the ages of all these different injuries you've caused

and you claim here you rolled on top of him which is

just absolutely absurd and you had nothing to do

with this, which I can't even imagine. Quite frankly,

I wish there was more I can do, I'll be honest with

you and I rarely think that, but that's certainly this

case because I think, I quite frankly don't think you

should ever walk the streets again with what you've

done to these children.

What I'm going to do is I'm going to sentence

you to two third degree felonies, zero to five years on

each one to run concurrently with each other, as well

they'll run concurrently to what you're doing down

there [at the prison]. Good luck.

¶6 Later that day, however, the trial judge was made aware of

the apparent inconsistency between his harsh comments and his

order for Perkins's sentences to run concurrently instead of

consecutively. The trial judge then immediately tried to locate

Perkins and to bring him back to the courtroom to correct the

mistake. When that attempt was unsuccessful, the trial judge then

told his clerk to set the matter for his next possible criminal

calendar so that he could fix the mistake. Accordingly, a notice of

resentencing was prepared and entered in the record that day,

setting resentencing for two weeks in the future. However, the

clerk also mistakenly prepared a judgment ordering concurrent

sentences, stamped the judge's name on it, and faxed it to the

prison. The next day, this mistake was discovered and the clerk

faxed an order to the prison explaining that the prior day's

judgment was incorrect, asking that it be disregarded, and listing

the resentencing date. Thereafter, a resentencing hearing was held

and the trial judge explained that the ordering of concurrent

sentences had been a clerical error and, over Perkins's objection,

resentenced Perkins to consecutive sentences. Perkins now appeals.

State v. Perkins

20111103-CA 4 2014 UT App 60

ISSUES AND STANDARDS OF REVIEW

¶7 Perkins first argues that the trial court did not have

jurisdiction to amend his sentence. Addressing this issue requires

our interpretation of a rule of criminal procedure, and "'[t]he

interpretation of a rule of procedure is a question of law that we

review for correctness.'” State v. Rodrigues, 2009 UT 62, ¶ 11, 218

P.3d 610 (quoting Brown v. Glover, 2000 UT 89, ¶ 15, 16 P.3d 540).

¶8 Perkins next argues that the resentencing violated his

protections against double jeopardy. This constitutional issue is a

question of law, which we review for correctness. Id. ¶ 12.

¶9 Finally, Perkins argues that the trial court failed to

adequately consider his history, character, and rehabilitative needs

when imposing consecutive sentences. "The imposition of a

sentence rests entirely within the discretion of the [trial] court,

within the limits prescribed by law. As such, [w]e review the

sentencing decisions of a trial court for abuse of discretion.” State

v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997) (alterations in

original) (citations and internal quotation marks omitted).

ANALYSIS

I. Jurisdiction

¶10 Perkins argues that the trial court lacked jurisdiction to enter

the amended sentence. "Once a court imposes a valid sentence and

final judgment is entered, the court ordinarily loses subject matter

jurisdiction over the case.” State v. Rodrigues, 2009 UT 62, ¶ 13, 218

P.3d 610. However, rule 30 of the Utah Rules of Criminal Procedure

provides that "[c]lerical mistakes in judgments . . . may be

corrected by the court at any time.” Utah R. Crim. P. 30(b).

"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. On the

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20111103-CA 5 2014 UT App 60

other hand, a judicial error is one made in rendering

the judgment and results in a substantively incorrect

judgment.”

Rodrigues, 2009 UT 62, ¶ 14 (quoting Thomas A. Paulsen Co. v.

Industrial Comm'n, 770 P.2d 125, 130 (Utah 1989)). 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.” Id.

¶11 As to the first factor, Perkins argues that the original

judgment did reflect what was done at the sentencing hearing

because it accurately captured the fact that the trial judge said the

word "concurrently” when announcing the sentence. That is,

Perkins argues that the error here could not be clerical because the

judgment accurately reflected the words uttered by the trial judge.

However, such an interpretation is too narrow, allowing for the

correction of only those errors made by the individuals who

actually commit the judgment to paper. See id. ¶¶ 25, 34

(determining that "the misstatement of the restitution amount and

the subsequent order of restitution based on the misstatement”

qualified as a clerical error); cf. id. ¶ 14 (suggesting that a clerical

error could be "'made by the court clerk, the jury foreman, counsel,

a party, or the judge himself'” (quoting Bishop v. GenTec, Inc., 2002

UT 36, ¶ 30, 48 P.3d 218)). Instead, under our "'broad approach to

correctability,'” id. (quoting Bishop, 2002 UT 36, ¶ 30), "it is

ultimately the intent of the court or fact finder that is binding.” Id.

¶ 15 (emphasis added). And that intent was expressed in the trial

judge's language at sentencing, immediately before announcing

Perkins's sentence: "Quite frankly, I wish there was more I can do,

I'll be honest with you and I rarely think that, but that's certainly

this case because I think, I quite frankly don't think you should

ever walk the streets again with what you've done to these

children.” We think it extremely unlikely that the trial judge would

express his desire that he could keep Perkins locked up forever and

then in the very next breath intentionally order Perkins's sentences

State v. Perkins

2. Further, such an intention was consistent with statutory

provisions regarding concurrent and consecutive sentences.

Because Perkins was apparently on parole at the time the offenses

here were committed, the trial judge was required to run the new

sentences consecutively to the older sentence unless the judge

specifically made a finding "that consecutive sentencing would be

inappropriate.” Utah Code Ann. § 76-3-401(3) (LexisNexis 2012).

20111103-CA 6 2014 UT App 60

to run concurrently. See generally id. ¶ 23 ("We have specifically

defined a judicial error as the deliberate result of the exercise of

judicial reasoning and determination.” (citation and internal

quotation marks omitted)). We are instead convinced that the trial

judge clearly intended to give Perkins the longest sentence possible

and had no intention of giving him the benefit of concurrent

sentences.

¶12 As to the second factor, Perkins essentially argues that the

concurrent sentencing was a result of judicial reasoning and

decision making simply because the trial judge ordered concurrent

sentences after having heard all the evidence. This argument

speculates that the trial judge must have been persuaded by facts

directly contrary to those the judge himself focused his comments

on during sentencing. However, we need not speculate as to which

facts were persuasive to the trial judge in his sentencing

determination. Immediately before announcing Perkins's sentence,

the trial judge set forth the judicial reasoning supporting the

decision he had made, including that this case was "one of the

more troubling cases [he had] ever seen,” that Perkins was "a serial

child abuser,” and that Perkins refused to take responsibility for his

actions but was instead making up "absurd” excuses for his child's

injuries. Also, at resentencing the trial judge explained that when

he walked into the original sentencing hearing, his initial intention

and decision was to run Perkins's sentences consecutively.2 Thus,

we are convinced that the ordering of concurrent sentences was

simply a misstatement and was not a result of the trial judge's

judicial reasoning and decision making; indeed, concurrent

State v. Perkins

20111103-CA 7 2014 UT App 60

sentencing was inconsistent with the reasoning the trial judge

actually expressed when announcing his decision.

¶13 And as to the third factor, Perkins argues that the error is

not apparent from the record because "[t]here is no indication in

the record prior to judgment that the trial judge misspoke when he

imposed concurrent sentences.” Again, Perkins's argument is too

narrow. He focuses only on the fact that both the oral and written

versions of the judgment unambiguously stated that the sentences

should run concurrently. Perkins again refuses to give weight to

the reasoning expressed by the trial judge immediately before

stating his oral judgment. Such a narrow approach would prevent

us from considering anything beyond the sentence itself in

determining whether an error was apparent from the record. We

see no authority for so severely restricting our consideration of the

trial judge's intent, which intent is what ultimately determines

whether the error here is clerical in nature, id. ¶ 15 ("[I]t is

ultimately the intent of the court or fact finder that is binding.”).

¶14 Nonetheless, we do agree with Perkins that there must be

indications of the trial judge's contrary intent on the record prior

to judgment in order to allow correction of misstatements as

clerical errors. See id. ¶¶ 19, 22, 33–34 (recognizing a clerical error

where the trial judge ordered an incorrect amount of restitution but

had made statements at the sentencing hearing indicating his

intention to order restitution in accordance with the plea

agreement); cf. State v. Denney, 776 P.2d 91, 93 (Utah Ct. App. 1989)

(refusing to change the defendant's sentence as a clerical error

where "remarks made in a later hearing” were the only evidence

of contrary intent). Here, strong indications of the trial judge's

contrary intent are apparent from the record prior to judgment.

The trial judge was very specific that this case was one of the most

troubling that he had seen and that he wanted to keep Perkins

incarcerated for the maximum period possible, specifically wishing

that there was more he could do in sentencing and stating that

Perkins should never be free to walk the streets again. We

determine that such expressions clearly show that the immediately

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20111103-CA 8 2014 UT App 60

following announcement of concurrent sentences was not in

harmony with the intent of the trial judge.

¶15 Further, the trial judge's actions immediately upon learning

of his error later that day provide additional evidence of the trial

judge's intent at the time of sentencing. Upon learning of his

misstatement, the trial judge sought to return Perkins to the

courtroom. After the trial judge was unable to secure Perkins's

attendance, he requested the matter be rescheduled to the next

available criminal calendar so that he could fix the mistake. Thus,

a notice of resentencing was entered in the record that day, setting

resentencing for two weeks in the future. And the following day,

when it was discovered that the clerk had erroneously prepared a

judgment and faxed it to the prison, a new fax was sent with an

order asking that the prior fax be disregarded, indicating that "[t]he

sentencing is incorrect” and identifying the scheduled resentencing

date. All of this evidence leads to the conclusion that the trial judge

misspoke when rendering the sentence and that the later

resentencing was a correction of a clerical error, which rule 30(b)

permits, and not an opportunity for the judge to reconsider his

prior sentence, which rule 30(b) does not allow. See Utah R. Crim.

P. 30(b).

¶16 In sum, we determine (1) that an order of concurrent

sentences did not reflect what the trial judge intended, (2) that

ordering concurrent sentencing was not a result of judicial

reasoning and decision making, and (3) that the record clearly

shows the trial judge's intention was to make Perkins's sentence as

long as possible, that is, to order consecutive sentences. Therefore

the trial judge's use of the word "concurrently” instead of

"consecutively” was a clerical error and the trial judge was allowed

to correct his mistake.

II. Double Jeopardy

¶17 Perkins next argues that his resentencing violated federal

and state protections against double jeopardy, see U.S. Const.

amend. V; Utah Const. art I, § 12; Utah Code Ann. § 77-1-6(2)(a)

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20111103-CA 9 2014 UT App 60

(LexisNexis 2012). However, "[c]lerical errors do not ordinarily

infringe on protections against double jeopardy because the

correction of the error rarely upsets a defendant's expectation of

finality in the original proceedings.” State v. Rodrigues, 2009 UT 62,

¶ 36, 218 P.3d 610. Thus, "'the Double Jeopardy Clause only

proscribes resentencing where the defendant has developed a

legitimate expectation of finality in his original sentence.'” Id.

(quoting State v. Maguire, 1999 UT App 45, ¶ 8, 975 P.2d 476).

¶18 Perkins argues that he had a legitimate expectation of

finality in the sentence because the trial judge clearly said

"concurrently,” that statement was reduced to a written order, and

Perkins was transported back to prison to start serving his

sentence. But again, when we look to the surrounding

circumstances, we are not convinced that any expectation of finality

on the part of Perkins was legitimate. The trial judge made it clear

that he wished he could sentence Perkins even more harshly than

the law allowed and that Perkins should never walk the streets

again. Considering this severity of expression, Perkins should have

anticipated that concurrent sentencing was contrary to the trial

judge's statements and that the trial judge had actually intended to

say "consecutively” instead of the similarly sounding term

"concurrently.” Further, the timing of the discovery of the mistake

weighs against Perkins having developed any legitimate

expectation of finality. Although the judgment was faxed to the

prison that evening, the following day the prison received a second

fax stating that the judgment faxed the prior evening was incorrect,

that it should be disregarded, and that a resentencing date had

been scheduled. Given these facts, Perkins did not have a legitimate

expectation of finality in the original judgment and the

resentencing did not violate double jeopardy protections.

III. Factors Supporting Consecutive Sentences

¶19 Perkins argues that the trial judge's decision to impose

consecutive sentences was an abuse of discretion because he failed

to adequately consider his history, character, and rehabilitative

needs. Certainly "a trial court may abuse its discretion in imposing

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20111103-CA 10 2014 UT App 60

a sentence without considering all the legally relevant factors.”

State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997).

However, we do not agree that the trial judge failed to adequately

consider these factors here.

¶20 Simply because mitigating factors were ultimately

outweighed by aggravating factors does not indicate inadequate

consideration.

[T]he exercise of discretion in sentencing necessarily

reflects the personal judgment of the court and the

appellate court can properly find abuse only if it can

be said that no reasonable [person] would take the

view adopted by the trial court. Additionally, [t]his

discretion is not to be surrendered to a mathematical

formula by which numbers of circumstances rather

than weight of circumstances are determinative. The

overriding consideration is that the sentence be just.

One factor in mitigation or aggravation may weigh

more than several factors on the opposite scale.

State v. Wright, 893 P.2d 1113, 1120–21 (Utah Ct. App. 1995)

(alterations in original) (citations and internal quotation marks

omitted). The mitigating information on which Perkins relies was

all contained in the PSI or mentioned at the sentencing hearing.

And we cannot say that these factors were so mitigating that no

reasonable person would have imposed consecutive sentences

under the circumstances here. Evidence that Perkins had certain

education and training, had a desire to further his education, could

run a business, and was doing well in an alcoholism treatment

program in prison may not have carried much weight in mitigation

against the court's grave concerns about Perkins's repeated

episodes of child abuse, some of which had left children

permanently damaged. Further, the PSI reports Perkins as being "a

serious threat of violent behavior” and pointed to his repeated and

"unusually extensive” abuse of "particularly vulnerable” victims.

Although Perkins did state that he felt sorry for everyone involved,

he continued to argue that the injuries to his son were due to a

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vitamin D deficiency and that he had not done anything

wrong—an explanation that the trial judge considered "absolutely

absurd.” Thus, considering the severity of the abuse, Perkins's

history of abuse, and Perkins's continued denial of responsibility

for the abuse, we do not agree that it was an abuse of discretion for

the trial judge to sentence Perkins for consecutive sentences.

¶21 We determine that the trial court had jurisdiction to

resentence Perkins due to a clerical error, that such resentencing

did not violate prohibitions against double jeopardy, and that the

sentence ultimately given was not an abuse of the trial court’s

discretion. We therefore affirm.