State of Utah v. Jones

State of Utah,
Plaintiff and Appellee,

v.

David Thayne Jones,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991086-CA

F I L E D
January 17, 2002 2002 UT App 12 -----

Second District, Ogden Department
The Honorable W. Brent West

Attorneys:
Jerald N. Engstrom and Maurice Richards, Ogden, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Thorne.

GREENWOOD, Judge:

Defendant first argues that the resentencing court erred in sentencing him to one to fifteen years without an explicit order crediting him for the time he served since his original sentencing on March 19, 1990. The State concedes that the time defendant has served must be credited against the new sentence, and defendant pleaded guilty to only one crime carrying a penalty of one to fifteen years in prison. However, the failure of the resentencing court to make such an order does not require reversal. "[The trial judge] simply imposes the statutorily prescribed range of years, and the Board of Pardons determines exactly how long the prisoner is to be confined.'" Rawlings v. Holden, 869 P.2d 958, 960 (Utah Ct. App. 1994). "Thus, it is the Board of Pardons . . . that has the authority to determine the actual time served within the statutory limitations . . . ." Id. at 961 (emphasis added). Therefore, the Board of Pardons will determine how long defendant will serve, but this time shall be no longer than fifteen years, and defendant must be credited with the time he has served on the original sentence to date.

Defendant also argues that the resentencing court erred in holding a presentencing hearing to determine whether he was mentally ill without conducting a mental examination of defendant. The statute in effect at the time of defendant's original sentencing required the hearing and outlined requirements for findings of mental illness. See Utah Code Ann. § 77-35-21.5 (Supp. 1989). The resentencing court, prior to the hearing, ordered two alienists to evaluate defendant's mental status and further indicated that defendant could call any specialists to testify concerning his mental status. Defendant refused to cooperate with either specialist.

However, one of the two specialists, Dr. Hawkes, was able to prepare an evaluation of defendant based on information gathered from prison medical records and other sources, which was presented at the presentence hearing. Dr. Hawkes opined that (1) defendant was mentally ill, (2) with proper medication defendant was under control, but (3) defendant would be dangerous if placed outside of a structured setting. Dr. Hawkes concluded that "the Utah State Prison is providing the [defendant] with treatment, care, and custody appropriate to his condition and needs." Dr. Hawkes's notes supported his conclusions that "the mental health system does not have the capability to monitor [defendant] outside of a locked facility."

The resentencing court concluded, based on Dr. Hawkes's report, that defendant was competent, but mentally ill. The resentencing court further concluded that defendant was dangerous to others and would gain no benefit from commitment to the Utah State Hospital. The resentencing court then resentenced defendant to one to fifteen years in prison. Defendant neither objected to the resentencing court's findings, nor presented any evidence. Accordingly, the resentencing court complied with the hearing requirements of section 77-35-21.5.

Defendant also appeals other aspects of his conviction and sentence. However, defendant appeals the decision of the resentencing court, which corrected an illegal sentence under Rule 22 of the Utah Rules of Criminal Procedure. Therefore, the first sentence was rendered moot when the resentencing court corrected the illegal sentence, and defendant cannot now challenge other errors allegedly made by the trial court in 1989. Additionally, defendant cannot now challenge other aspects of his conviction because "[a] request to correct an illegal sentence under rule 22(e) presupposes a valid conviction." State v. Brooks, 908 P.2d 856, 860 (Utah 1995). If defendant wishes to attack the validity of his plea or conviction, he may proceed under Rules 65B and 65C of the Utah Rules of Civil Procedure.

Affirmed.
 
 

______________________________
Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne, Jr., Judge