State v. Schmidt

2015 UT App 96THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JOSHUA GENE SCHMIDT,
Defendant and Appellant.
Memorandum Decision
No. 20131124-CA
Filed April 23, 2015
Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 981300443
Douglas A. Gubler, Attorney for Appellant
Sean D. Reyes, Deborah L. Bulkeley, and Jeffrey S.
Gray, Attorneys for Appellee
JUDGE JOHN A. PEARCE authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and MICHELE M.
CHRISTIANSEN concurred.
PEARCE, Judge:
¶1 Defendant Joshua Gene Schmidt appeals from a district
court order denying his motion to review and modify his
sentence. We conclude that the district court lacked jurisdiction
to entertain the motion.
¶2 In 1998, the district court accepted Defendant’s guilty plea
on a third-degree felony and sentenced him to an indeterminate
prison term of up to five years. The court then suspended that
sentence in favor of probation supervised by Adult Probation
and Parole (AP&P).
State v. Schmidt
¶3 In 2000, the district court issued an order for Defendant to
show cause upon AP&P’s allegations that Defendant had
violated the terms of his probation. AP&P was unable to serve
the order to show cause.
¶4 In 2005, Defendant was arrested on unrelated charges.
AP&P filed an updated probation violation report and served
the resulting order to show cause on Defendant. Defendant
appeared before the district court and denied some of the
alleged violations but admitted others. Based upon those
admissions, the district court revoked Defendant’s probation.
The court then effectively restarted Defendant’s probation by
‚requir[ing] that he serve a hundred days in jail to run
concurrent to any time he’s presently serving on any other
matters‛ to ‚close this case out.‛ See Utah Code Ann. § 77-18-
1(12)(e)(ii) (LexisNexis Supp. 2005) (‚Upon a finding that the
defendant violated the conditions of probation, the court may
order the probation revoked, modified, continued, or that the
entire probation term commence anew.‛); see also State v.
Anderson, 2009 UT 13, ¶ 15, 203 P.3d 990; State v. Vazquez, 2014
UT App 159, ¶ 5, 330 P.3d 760. Defendant did not appeal this
ruling.
¶5 In 2013, Defendant filed a motion pursuant to rule 22(e) of
the Utah Rules of Criminal Procedure, seeking to set aside the
2005 revocation of the probation resulting from his 1998
conviction and to retroactively terminate that probation at its
original expiration date in December 2000. He contested ‚any
allegation that [he] did not . . . comply with the original terms of
[his] probation.‛ Defendant claimed, ‚*I+n approximately
summer of 2000, I was told by my probation officer that I had
completed my probation all except payment of some
costs/fines.‛ Defendant stated that because he had then paid
those costs and fines, he had believed that his probation had
been successfully completed. Defendant noted that he had lived
20131124-CA 2 2015 UT App 96State v. Schmidt
at the same address since 1998 and asserted that the court or
AP&P could have contacted him there at any time.
¶6 The district court conducted a hearing in October 2013
and then denied Defendant’s motion to set aside his probation
revocation in an extensive written ruling. Defendant timely
appealed that ruling, asserting several grounds of error. In
addition to responding to those assertions, the State argues that
we lack jurisdiction to review the 2013 court ruling insofar as it
concerns the 2005 probation revocation. Because the
jurisdictional question resolves this matter, we do not analyze
the other issues the parties raise.
¶7 Defendant filed his motion to review and modify his sen-
tence under rule 22(e) of the Utah Rules of Criminal Procedure.
Rule 22(e) allows a court to ‚correct an illegal sentence, or a
sentence imposed in an illegal manner, at any time.‛ The district
court reached the merits of Defendant’s claim without
considering whether it possessed jurisdiction to consider
Defendant’s challenge. Rule 22(e), however, did not confer
jurisdiction upon the district court, because the 2005 revocation
and restarting of Defendant’s 1998 probation was neither a
sentence nor illegal under the meaning of rule 22(e).
¶8 We first address whether rule 22(e) allows a party to
challenge an order revoking probation. This court addressed a
similar situation in State v. Waterfield, 2011 UT App 27, 248 P.3d
57. There, a defendant was sentenced to a period of incarceration
and that sentence was suspended in favor of probation. One of
the terms of probation required the defendant to participate in a
specific substance abuse treatment program. Id. ¶ 5. When it
became apparent that the defendant was not eligible to enter that
program, the district court revoked his probation and imposed
the original sentence. Id. The district court characterized this as
‚‘resentencing’‛ in subsequent proceedings. Id. On appeal, we
clarified that a probation revocation (and the concomitant
20131124-CA 3 2015 UT App 96State v. Schmidt
reinstatement of the original sentence) is not a sentencing. Id. We
therefore held that it was error to treat the district court’s
decision to revoke probation as a sentence susceptible to
challenge under rule 22(e). See id.¶9 We see no distinction between the revocation in the case
before us and the revocation in Waterfield. Here, Defendant’s
probation was revoked in 2005, and he did not appeal or
otherwise challenge that decision for nearly eight years. Rule
22(e) does not provide Defendant with a mechanism to challenge
that unappealed probation revocation by calling it an illegal
sentence. Because a decision to revoke and restart probation
does not constitute sentencing, the district court erred by
entertaining Defendant’s challenge to the revocation of his
probation under rule 22(e).
¶10 Furthermore, neither Defendant’s 1998 sentence nor the
2005 probation revocation and reinstatement can be
characterized as an ‚illegal sentence‛ within the meaning of rule
22(e). The Utah Supreme Court has defined an illegal sentence as
‚‘one which 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. Candedo, 2010 UT 32, ¶ 12,
232 P.3d 1008 (quoting State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d
984).
¶11 Defendant was originally sentenced to an indeterminate
term of up to five years in prison. That sentence was suspended
in favor of two years of probation. After Defendant admitted to
violating the terms of probation, the district court revoked
probation and restarted it, ordering Defendant to spend 100 days
in the Tooele County Detention Center. Defendant does not
identify which of the enumerated grounds that may render a
sentence illegal are present in his case. It appears that the
20131124-CA 4 2015 UT App 96State v. Schmidt
sentence was not ambiguous, was not contradictory, did not lack
a required term, was not uncertain in substance, and was within
the statutory range. See id.; Waterfield, 2011 UT App 27, ¶ 3
(noting that an illegal sentence under rule 22(e) is generally one
‚where the sentencing court has no jurisdiction‛ or ‚where the
sentence is beyond the authorized statutory range‛ (citation and
internal quotation marks omitted)).
¶12 Because neither Defendant’s sentence nor the revocation
and reinstatement of his probation constitutes an illegal sentence
within the meaning of rule 22(e) of the Utah Rules of Criminal
Procedure, we conclude that the district court lacked jurisdiction
to consider Defendant’s 2013 rule 22(e) motion. We therefore
vacate the district court’s ruling on that motion and remand the
case to the district court with instructions to dismiss the motion
for lack of jurisdiction.1
1. Defendant also asserts that the State stipulated to set aside and
successfully terminate his probation. Defendant contends that
the district court erred because stipulations between parties are
binding upon district courts. The State disputes the existence of a
stipulation and interprets Defendant’s contention as an
argument that the district court obtained jurisdiction via a
stipulation between the parties. To the extent that Defendant’s
contention concerns jurisdiction, the State is correct that
‚*j+urisdiction cannot be conferred upon *a+ court by
stipulation.‛ Dixie Stockgrowers’ Bank v. Washington County, 19
P.2d 388, 389 (Utah 1933); see also Bailey v. Sound Lab, Inc., 694
P.2d 1043, 1044 (Utah 1984).
20131124-CA 5 2015 UT App 96