20 15 UT App 96



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Plaintiff and Appell ee ,

v. J OSHUA G ENE S CHMIDT , Defendant and Appell ant

.

Memorandum Decision
N o. 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

, Attorney s for Appellee

J UDGE J OHN A. P EARCE authored th is Memorandum Decision

, in which J UDGES J. F REDERIC V OROS J R

. and M ICHELE M.

C HRISTIANSEN 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 jurisdi ction
to entertain the motion.

¶2 In 1998, the district court accepted Defendant’s guilty plea
on a third

- degree felony and sentenced him t o a n indeterminate prison term of up to five years. The court then susp ended that
sentence in favor of probation supervised by Adult Probation and Parole (AP&P)

.State v. Schmidt

20131124

- CA 2 2015 UT App 96 ¶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 unab le 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 s ome 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

concurr ent 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 vi olated the conditions of probation, the court may order the pro ba tion revoked, modified, continued, or that the entire probation term commence anew.‛); s ee 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 th is ruling

.

¶5 I n 2013, Defendant filed a motion pursuant to r ule 22(e) of
the Utah Rule s of Criminal Procedure , seeking to set aside the
2005 revocation of the probation resulting from his 1998
conviction an d to retroactively terminate that probation a t it s original expir ation date in December 2000. He contested ‚any allegation that [he] did not

. . . comply with the original terms of [his] pro bation.‛ Defendant claimed, ‚*I+n approximately summer of 2000, I was told by my probation officer that I had completed my probati on all except payment of some costs/fines.‛ Defendant stated that because he had then paid those costs and fines, he had be lieved that his probation had been successfully completed. Defendant noted that he had livedState v. Schmidt

20131124

- CA 3 2015 UT App 96 at the same address since 1998 and asse rted that the court or
AP&P could have contacted him there at any time.

¶6 The distri ct 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 appeale d that ruling , asserting several grounds of error

. In addition to respond ing to those assertions , the State argues that we lack jurisdiction to review the 2013 court ruling inso far as it

con cerns the 2005 probation revocation. Because th e jurisdictional question resolves this matter

, we do n ot analyze
the other issues the parties raise

.

¶7 Defendant filed his motion to review and modify his sen

tence under r ule 22(e) of the Utah Rules of Criminal Procedure. Rule 22(e) allows a court to ‚correct an illegal se ntence
, 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. R ule 22(e) , however, did not confer jurisd iction upon the district court, because the 2005 revocation and restarting of Defendant’ s 1998 probation was neither a

sentence no r illegal under the meaning of r ule 22(e).

¶8 We first address whether rule 22(e) allows a party to challenge an order revoking probation. This court addressed a
simi lar 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 req uired the defendant to participate in a specific substance abuse treatment program. Id. ¶ 5. When it became apparent that the defenda nt 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 concomitantState v. Schmidt

20131124

- CA 4 2015 UT App 96 reinstatement of the original sentence ) is not a sentencing. Id. We
therefore held that it wa s error to treat the district court’s decision to revoke pro bation as a sentence susceptible to challenge under r ule 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 proba tion 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 con stitute sentencing, the district court erred by entertaining Defendant’s challenge to the revocation of his probation un der r ule 22(e).

¶10 Furthermore, neither Defendant’s 1998 sentence nor the 2005 pro bation 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
sub stance 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 admitte d to violating the terms of probation, the district court revoked probation and restarted i t
, order ing Defendant to spend 100 days in the Tooele County Detention Center. Defendant does not identify whi ch of the enumerated grounds that may render a

sentence illegal are present in his case . I t appears that theState v. Schmidt

20131124

- CA 5 2015 UT App 96 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 i d. ; Waterfield , 2011 UT App 27, ¶ 3 (noting that an illegal sentence under r ule 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 r ule 22(e) of the Utah Rules of Criminal Procedure, we conclude that the district court lack ed 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 jurisdicti on 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).