                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2018 UT 63


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                 STATE OF UTAH and UTAH COUNTY,
                             Appellees,
                                       v.
                                 ISAAC BURR
                                  Appellant.

                              No. 20160176
                        Filed December 21, 2018

                            On Direct Appeal

                       Fourth District, Provo
                   The Honorable Lynn W. Davis
                          No. 141402499

                                 Attorneys:
                 Neil Skousen, Orem, for appellant
   Sean D. Reyes, Att’y Gen., Jeanne B. Inouye, Asst. Solic. Gen.,
William M. Hains, Asst. Solic. Gen., Salt Lake City, for appellee State
                               of Utah

          M. Cort Griffin, Provo, for appellee Utah County

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
                     JUSTICE PETERSEN joined.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1      After Isaac Burr was released from jail on misdemeanor
charges he received an invoice from Utah County seeking
reimbursement for the costs of his incarceration. By then Burr’s
criminal case had been closed. But he sought to file a motion in the
closed criminal action. His motion asked the judge in the criminal
case to “vacate” the county’s invoice. The judge denied the motion
and Burr filed this appeal.
                             STATE v. BURR
                         Opinion of the Court


    ¶2       We vacate and dismiss on jurisdictional grounds. We
hold, for reasons explained below, that the district court lacked
jurisdiction to entertain Burr’s motion because he failed to identify
any basis for reopening the final judgment entered in the criminal
case (or for vacating an invoice issued by a nonparty to the criminal
proceedings). And we vacate the district court’s decision and dismiss
the appeal on this basis.
                                    I
    ¶3      The original charges against Burr included one count of
dealing in materials harmful to a minor and three counts of stalking.
These charges were set forth in an information filed in August of
2014. In October of 2014 Burr pled guilty to two reduced
misdemeanor counts—one count of attempted dealing in materials
harmful to a minor and one count of stalking. He also waived the
statutory time for sentencing and signed onto a joint sentencing
recommendation.
    ¶4      The court sentenced Burr to 365 days in jail on each of
these two counts but suspended the jail time. It also imposed a fine
of $5,000 (which was also suspended), put him on probation for 24
months, and ordered that he be released from custody after 30 days.
Neither the State nor Burr sought a restitution order in the criminal
proceedings—and no such order was entered.
    ¶5       Burr was released from jail on November 7, 2014. A few
days later the Utah County Sheriff’s Office sent him an invoice for
$3,171.58—the claimed cost of his stay in the Utah County Jail. About
a month later Burr filed a motion in the district court under the case
number for his criminal case. He styled the motion as one seeking to
“vacate” the county’s invoice. And he argued, in support of the
motion, that the invoice was invalid in the absence of a court order
of restitution, that the amount of the invoice should be reduced
under factors set forth in the Crime Victims Restitution Act (CVRA),
and that the denial of his right to assert those factors violated his due
process and other constitutional rights. The district court denied the
motion.
   ¶6      In so doing the district court held that jurisdiction
“remain[ed]” because Burr “brought the motion pursuant to UTAH




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                         Opinion of the Court

CODE § 76-3-201(6).”1 And it denied Burr’s motion on the merits. The
court first concluded that the pay-to-stay statute was self-
executing—that Utah County was entitled to bill Burr for the costs of
his incarceration even absent a restitution order on the matter. It also
concluded that the amount of the invoice could not be reduced on
the basis of the factors set forth in the CVRA. And it declined to
reach Burr’s constitutional arguments, concluding that any
constitutional challenge was “premature” because no attempt had
yet been made to collect on the invoice.
    ¶7       Burr seeks to challenge these determinations on this
appeal. He raises both statutory and constitutional objections to the
district court’s conclusions. First he challenges the district court’s
determination that the “pay-to-stay” statute, Utah Code section 76-3-
201(6)(a), is self-executing. Burr views this provision as requiring a
court order—as in a restitution proceeding—to provide a legal basis
for the county to impose the pay-to-stay charge. And because no
such order was entered here Burr claims that the county had no basis
for issuing its invoice.
    ¶8      Alternatively, Burr claims that the terms and conditions
of the CVRA—including provisions mandating that the court
consider indigency or inability to pay in determining the restitution
amount, see Utah Code § 77-38a-302(5)(c), should be deemed to
apply here. And because Burr had no occasion to raise this issue
prior to sentencing (given that there was no restitution hearing), he
claims that he should have that opportunity now.
    ¶9      Burr also asserts a constitutional challenge to the
imposition of a pay-to-stay charge in these circumstances. He claims
that his due process rights would be infringed if the pay-to-stay
statute were viewed as self-executing and also deemed to foreclose a
defendant’s right to assert his inability to pay as a basis for
challenging the county’s invoice.
                                   II
  ¶10     Burr has raised some serious questions on this appeal.
We have not had occasion to decide whether the pay-to-stay statute

_____________________________________________________________
   1  This is the “pay-to-stay” statute. It states that “the defendant
shall pay restitution to the county for the cost of incarceration and
costs of medical care” provided during the defendant’s time in a
“county correctional facility.” UTAH CODE § 76-3-201(6)(a).


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                             STATE v. BURR
                         Opinion of the Court


is self-executing, or how that provision is supposed to interact with
the terms and conditions of the CVRA. And an appellate decision on
these questions would surely be valuable. Burr’s constitutional
arguments are also substantial. Whether or not it would violate
Burr’s due process rights to hold that his pay-to-stay obligation kicks
in without a restitution hearing (and in a manner foreclosing his
right to argue the terms and conditions of the CVRA), it would at
least cut against the grain of fairness to so conclude. 2 And that
prospect seems to heighten the need for resolution of these issues in
an appellate proceeding.3
    ¶11      Yet need, by itself, is no foundation for appellate
jurisdiction. To decide a case on appeal we must do more than
conclude that the questions before us are significant. We must
identify an established basis in law for the invocation of the judicial
power. And such a basis is lacking in a case in which Burr filed a
motion in the closed criminal case without identifying any basis for
reopening the district court’s jurisdiction.
   ¶12       Burr’s criminal proceeding was resolved on final
judgment when the district court entered Burr’s sentence. See State v.
Gerrard, 584 P.2d 885, 886 (Utah 1978) (“It is the sentence itself which
constitutes a final judgment . . . .”). The entry of that sentence thus
_____________________________________________________________
   2  The State suggests a possible way around this dilemma—in the
possibility that Burr could still raise his statutory arguments in the
course of any civil enforcement proceedings brought by the county
in attempts to collect on the invoice, or in a declaratory judgment
proceeding that Burr could file. But the State did not commit itself to
this position. It seemed to reserve the right to argue in subsequent
civil proceedings that Burr is still foreclosed from raising some or all
of the issues presented here. And that adds another dimension to the
significant questions identified in the briefing in this case.
   3  The questions presented here may also highlight the need for
legislative intervention. It is safe to say, at a minimum, that the effect
of the pay-to-stay statute is less than crystal clear on the face of the
statute. And the anticipated means of enforcement of this provision
is also a bit uncertain—as is the proper interplay between this
provision and the CVRA. We raise these points in case they may
prompt the legislature to intervene—to clarify the law and forestall
some of the problems raised by Burr that we are unable to reach due
to the jurisdictional problems identified herein.


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                         Opinion of the Court

closed the criminal case. And when that case was closed the court
generally lost any continuing jurisdiction in the matter.4
   ¶13       This is the general rule. It is admittedly “subject to a
number of exceptions”—as where a party invokes an applicable rule
or statute authorizing the district court to reopen the proceedings
“even after the sentencing phase.” Ralphs v. McClellan, 2014 UT 36,
¶ 27, 337 P.3d 230. Our criminal rules include some such provisions.
Rule 22(e) sets forth limited grounds for reopening a criminal case.
UTAH R. CRIM. P. 22(e). And civil rules may have some applicability
in criminal proceedings. So a post-judgment motion could
conceivably be filed in a criminal case under civil rule 60(b). UTAH R.
CIV. P. 60(b).
    ¶14     Yet Burr invoked none of these rules. Instead he filed a
“motion to vacate” an invoice issued by a third party. And he
pointed to the Declaratory Judgment Act, Utah Code § 78B-6-401 et
seq., and the pay-to-stay provision, Utah Code § 76-3-201(6), as
purported jurisdictional grounds for his motion.5
    ¶15      These provisions provide no footing for jurisdiction in a
case like this one. The Declaratory Judgment Act gets Burr nowhere
because he filed no declaratory judgment proceeding (but instead
tried to reopen a closed criminal case). A declaratory judgment
action is a civil proceeding. See UTAH R. CIV. P. 57 (procedure for
obtaining declaratory judgment “shall be in accordance” with the
rules of civil procedure). And this case is on appeal from a motion
filed in a criminal case. So the Declaratory Judgment Act only
highlights the jurisdictional defect of Burr’s chosen path (while
perhaps identifying an alternative avenue for him to raise these
issues in a future action).6
_____________________________________________________________
   4  See, e.g., Ralphs v. McClellan, 2014 UT 36, ¶ 27, 337 P.3d 230
(stating that the “court’s jurisdiction over a criminal matter generally
ends after sentencing”); State v. Montoya, 825 P.2d 676, 679 (Utah Ct.
App. 1991) (noting that if the sentence “was valid, the trial court
would have had no further subject matter jurisdiction”).
   5 Burr initially asserted an additional basis for jurisdiction—the
Post-Conviction Remedies Act. But he subsequently (and wisely)
abandoned that argument.
   6  We acknowledge that certain provisions of the CVRA vest the
district court with continuing jurisdiction over restitution matters for
up to one year after sentencing. See, e.g., UTAH CODE
                                                         (continued . . .)
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                            STATE v. BURR
                         Opinion of the Court


   ¶16      The pay-to-stay statute is also unhelpful. This provision
does not speak to jurisdiction—much less to the power to reopen a
criminal case after final judgment is entered. It is addressed only to a
criminal defendant’s responsibility to pay a county for costs of
incarceration, and to factors of relevance to a decision on the
question of whether to reduce or eliminate a restitution award for
such costs.
   ¶17      We conclude for these reasons that the district court
lacked jurisdiction to hear Burr’s motion. And because the district
court lacked jurisdiction we likewise lack jurisdiction on this appeal.
We thus vacate the district court’s decision and dismiss this
proceeding on appeal.




§ 77-38a-302(5)(d)(i) (“The prosecuting agency shall submit all
requests for complete restitution and court-ordered restitution to the
court at the time of sentencing if feasible, otherwise within one year
after sentencing.”). We decline, however, to consider whether these
provisions would allow Burr’s case to be reopened. Burr asserted
that they would at oral argument before the district court. But he
never filed the supplemental briefing the district court requested.
And he has not raised the argument on appeal. We thus have no
occasion to consider the potential application of these provisions.




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