Opinion
Case No. 20020293-CA.
Filed August 22, 2002. (Not For Official Publication)
Appeal from the Second District, Farmington Department, The Honorable Rodney S. Page.
Terry M. Dexter, Draper, Appellant Pro Se.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges Jackson, Greenwood, and Orme.
MEMORANDUM DECISION
Appellant Terry Dexter appeals the denial of a petition for post-conviction relief. This case is before the court on Dexter's motion for summary reversal and on Respondent's motion for summary affirmance. We affirm.
Dexter pleaded guilty to Aggravated Burglary, a first degree felony, in 1991. He did not file a direct appeal, but he filed four petitions for post-conviction relief. The district court concluded that, insofar as the fourth petition challenged his guilty plea as unlawfully induced or involuntary, challenged the sentencing procedures, and claimed that trial counsel, sentencing counsel, or appellate counsel were ineffective, the claims were either raised, in whole or in part, or could have been raised, in the three prior petitions. The court concluded that relief on these claims was precluded by Utah Code Ann. § 78-25a-106 (1996) (precluding relief on claim raised or addressed in previous petition for post-conviction relief or that could have been raised in previous petition). We agree.
The district court rejected Dexter's remaining claim that the gun enhancement sentence as applied was unconstitutional. Dexter claims the 2000 amendment to Utah Code Ann. § 78-3-203 (Supp. 2001) made a more lenient sentence possible; accordingly, he asserts that his 1991 sentence denied equal protection under the law and violated the prohibition of cruel and unusual punishment. The district court correctly concluded that the 2000 amendment clarified the statutory sentencing formula, but did not allow a more lenient sentence than the 1990 version under which Dexter was sentenced. See Utah Code Ann. § 76-3-203 (1990). Because the sentence allowed under either version would be the same, we reject the constitutional claim.
Both versions of the statute allow a court sentencing a first degree felon, who is also found to have used a gun in the commission of the offense, to impose an additional consecutive mandatory term of one year and an additional discretionary term of zero to five years. Compare Utah Code Ann. § 78-3-203 (Supp. 2001) with Utah Code Ann. § 78-3-203 (1990).
During proceedings on the petition, counsel for the Respondent informed the court that the gun enhancement sentence in the written judgment was inconsistent with the sentence announced by the court. The sentence orally announced included an additional indeterminate term of zero to five years to run consecutively to the term of five years to life for the first degree felony. However, the written judgment included a determinate five-year term for the gun enhancement. The district court corrected the sentence to impose an indeterminate term of zero to five years, but declined to add the mandatory one-year enhancement allowed under either the 1990 or 2000 version of the statute. We reject Dexter's claim on appeal that his entire sentence should be vacated to allow him immediate release. See State v. Higginbotham, 917 P.2d 545, 551 (Utah 1996) (remanding for correction of incorrect gun enhancement sentence); State v. Arviso, 1999 UT App 381, ¶ 8, 993 P.2d 894 (stating correction of sentence, not release, is remedy for illegal sentence).
We affirm the district court's dismissal of the petition and the correction of the sentence.
Norman H. Jackson, Presiding Judge, Pamela T. Greenwood, Judge, Gregory K. Orme, Judge.