James v. Hon. Hruby-Mills

2019 UT App 30
THE UTAH COURT OF APPEALS
LEE R ALPH J AMES,
Petitioner,
v.
THE HONORABLE E LIZABETH HRUBY -M ILLS
AND WEST V ALLEY C ITY ,
Respondents.
Opinion
No. 20180507-CA
Filed February 22, 2019
Original Proceeding in this Court
Kendall Peterson and Bradley G. Nykamp,
Attorneys for Petitioner
Brent M. Johnson and Michael C. Drechsel,
Attorneys for Respondent the
Honorable Elizabeth Hruby-Mills
Ryan D. Robinson and Cory D. Sherwin,
Attorneys for Respondent West Valley City
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 	In this case, we are asked to determine whether the time-
computation methodology set out in rule 2 of the Utah Rules of
Criminal Procedure should be applied to compute the days
during which a probationer is on probation. We conclude that it
should, and therefore determine that the prosecutor’s probation
violation report was timely filed on the last day of Lee Ralph
James’s 	probation 	period. 	Accordingly, 	the 	district 	court
correctly ruled that the justice court had authority to revoke

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James’s probation, and we therefore deny James’s petition for
extraordinary relief.
¶2 	On November 12, 2014, in West Valley City Justice Court,
James pled guilty to misdemeanor assault. The court imposed a
jail sentence of 180 days, but suspended that sentence and placed
James 	on 	probation 	“for 	twelve 	months.” 	Among 	other
conditions of probation, the court ordered James not to commit
“violations of the law[,] save perhaps a minor traffic offense.”
Exactly one year later, on November 12, 2015, West Valley City
(the City) prosecutors filed an affidavit in support of a motion
for order to show cause, alleging that James had violated his
probation by, among other things, committing another assault
on November 5, 2015, before the expiration of the twelve-month
probationary period. After holding an evidentiary hearing, the
justice court found James to be in violation of his probation and
sentenced him to additional jail time.
¶3 	James appealed the justice court’s decision to the district
court, as is his right under rule 38 of the Utah Rules of Criminal
Procedure, and argued that the order to show cause affidavit
had been filed at least one day too late. He asserted that the
“twelve-month” probationary period to which he had 	been
sentenced 	had 	expired 	at 	midnight 	(i.e., 	11:59 	p.m.) 	on
November 11, 2015, and that expiration of that time period
deprived both the justice court and the district court of authority
to revoke his probation. James further argued that, even though
the alleged probation violation had occurred on November 5,
during the probationary period, the City’s failure to alert the
court of that violation before the end of the probationary period
deprived the court of authority to take action related to the
alleged violation.
¶4 	The 	district 	court 	initially 	agreed 	with 	James 	and
dismissed 	his 	case, 	but 	later 	reconsidered 	its 	ruling 	and
determined that, as calculated under the method set forth in rule

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20180507-CA 	3 	2019 UT App 30
2 of the Utah Rules of Criminal Procedure, James’s probationary
period 	did 	not 	expire 	until 	midnight 	(i.e., 	11:59 	p.m.) 	on
November 	12, 	and 	the 	City 	had 	therefore 	timely 	filed 	its
affidavit. The district court eventually found James in violation
of probation and remanded the matter to the justice court, which
sentenced James to sixty additional days in jail. Before serving
his sixty-day sentence, James filed a petition for extraordinary
writ with this court.1
¶5 	James argues that the twelve-month probationary period
imposed by the justice court in 2014 expired before the filing of
the City’s probation violation report, thus divesting the court of
1. The City argues that this court lacks jurisdiction to grant
extraordinary relief because parties are authorized to take an
appeal from a district court’s decision in a justice court appeal
only if “the district court rules on the constitutionality of a
statute or ordinance,” which did not occur in this case. See Utah
Code Ann. § 78A-7-118(8) (LexisNexis 2018). This language
would be dispositive of our jurisdiction if James had pursued a
direct appeal. But James filed a petition for extraordinary writ
under rule 19 of the Utah Rules of Appellate Procedure. It is
precisely because James could not appeal directly that he is able
to seek extraordinary relief. See Utah R. Civ. P. 65B(a) (stating a
party may seek extraordinary relief only when “no other plain,
speedy and adequate remedy is available”). And James had
already exhausted his available avenues for appeal, exactly as
required of parties seeking extraordinary relief. See Friends of
Great Salt Lake v. Utah Dep’t of Nat. Res., 2010 UT 20, ¶ 23, 230
P.3d 1014 (“Before we can address a petition for extraordinary
relief, the petitioning party must have exhausted all available
avenues 	of 	appeal.” 	(quotation 	simplified)). 	Under 	the
circumstances presented here, we have jurisdiction to grant
extraordinary relief.

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20180507-CA 	4 	2019 UT App 30
power to find him in violation of his probation. “A court’s power
to grant, modify, or revoke probation is purely statutory.” State
v. Orr, 2005 UT 92, ¶ 18, 127 P.3d 1213 (quotation simplified).
Questions of statutory interpretation are questions of law which
we review for correctness. State v. Wallace, 2006 UT 86, ¶ 5, 150
P.3d 540.
¶6 	James’s 	argument 	is 	premised 	upon 	two 	critical
assumptions: first, that James’s probationary period really did
expire at midnight on the eleventh; and second, that the City’s
failure 	to 	file 	a 	probation 	violation 	report 	within 	that
probationary period deprived the justice court of the power to
revoke his probation even for violations that occurred within the
probationary period.2 Because we conclude that James’s first
assumption is infirm, we deny James’s petition without reaching
the merits of the second.3
¶7 	The 	Utah 	Rules 	of 	Criminal 	Procedure 	“govern 	the
procedure in all criminal cases in the courts of this state except
juvenile court cases.” Utah R. Crim. P. 1(b). Those rules have a
provision—rule 2—that governs the computation of periods of
time, and the version of rule 2 in effect at the time James was
sentenced stated as follows:
2. In addition, both parties appear to assume that, if the City’s
probation violation report was filed within the probationary
period, 	the 	justice 	court 	had 	authority 	to 	adjudicate 	the
allegations 	related 	to 	the 	probation 	violation, 	even 	if 	that
adjudication was not completed prior to the expiration of the
probationary period. Because we are not asked to do so, we do
not address the validity of this assumption.
3. We asked for supplemental briefing on the second issue, and
we appreciate the parties’ helpful submissions, even though we
do not reach the merits of the issue.

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In computing any period of time, the day of the act or
event from which the designated period of time
begins to run shall not be included. The last day of
the period so computed shall be included, unless it
is a Saturday, a Sunday, or a legal holiday.
Utah R. Crim. P. 2(a) (2014) (emphasis added).4 If the method of
time 	computation 	prescribed 	by 	rule 	2 	is 	applicable 	to
computation of James’s probationary period, then that period
ended at the end of the day on November 12, 2015, rather than
the day before, and the City’s probation violation report was
filed a few hours before that period ended.5
4. Rule 2 was significantly changed in 2015. See Utah R. Crim. P.
2, 	amendment 	notes 	(stating 	that 	“[t]he 	2015 	amendment
rewrote the rule”). Neither party has fully briefed the question of
whether the current version of rule 2 should apply, or whether
the version in effect at the time of James’s sentencing should
apply. Ultimately, the question is academic, because—assuming
rule 2 applies at all—the computation of James’s probationary
period is the same regardless of which version of the rule
applies. See id. (stating that the current rule’s time-computation
formula applies “in computing any time period specified in . . .
any . . . court order, or in any statute that does not specify a
method of computing time,” and setting forth a method for
computing time that, as applied to this case, results in the
identical computation as obtained under the 2014 version of the
rule). Out of an abundance of caution, however, we cite here to
the version of rule 2 that was in force at the time of James’s
sentencing, and we cite to both versions of the rule at various
points in this opinion.
5. 	Under 	rule 	2’s 	system 	of 	time 	computation, 	James’s
probationary 	period 	would 	still 	have 	extended 	through
(continued…)

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¶8 	James resists the application of rule 2’s time-computation
methods in 	this case, 	and 	argues, 	for several reasons, 	that
application 	of 	rule 	2 	would 	impermissibly 	lengthen 	his
probationary period from “twelve months” to “twelve months
plus one day.”
¶9 	First, 	James 	argues 	that 	application 	of 	rule 	2 	would
violate Utah Code section 77-18-1(10)(a)(i) (LexisNexis 2014),
which limits probation for class B misdemeanors to twelve
months. This argument is misguided. As an initial matter, the
statute does not define the term “twelve months,” or give any
indication as to how that period of time is to be computed. Thus,
there is no indication, from the statutory language, that defining
“twelve months” by reference to rule 2 would be contrary to
legislative intent.6 Indeed, the 2014 version of rule 2 applies to
“any period of time” applicable in a criminal case, see Utah R.
Crim. P. 2(a) (2014), and the current version of rule 2 specifically
applies to “any time period . . . in any statute that does not
specify a method of computing time,” see id. R. 2(a) (2018).
(…continued)
November 12, 2015, even if the day-counting had begun on
November 11, 2014 (instead of on November 12, 2014). This is
because November 11, 2015 was Veterans’ Day, a legal holiday
that, under rule 2, cannot serve as the last day of the period.
6. James cites, and we have found, no statute governing how
probationary periods—whether dictated by statute or by court
order—are to be computed. Presumably, the legislature knew
how the courts compute time when it enacted the probation
statutes; the courts’ method is found in both rule 2 of the Utah
Rules of Criminal Procedure and rule 6 of the Utah Rules of Civil
Procedure. If the legislature had intended for a method of
counting time different than the one set forth in rule 2, it could
have so stated.

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¶10 	Moreover, our supreme court has held that section 77-18-
1(10)(a)(i) does not contain a firm statutory cap on the length of
probationary 	periods, 	because 	the 	statute 	provides 	that
“[p]robation may be terminated at any time at the discretion of
the court.” Wallace, 2006 UT 86, ¶ 13 (stating that the governing
statute 	“does 	not 	impose 	any 	limitation 	on 	the 	length 	of
probationary term that a court may impose,” and that therefore
the statutory cap on probation time “is nearly meaningless, since
the court may terminate probation ‘at any time’”); see also State v.
Candedo, 2010 UT 32, ¶ 15, 232 P.3d 1008 (“[A] sentencing court
has full discretion to determine the length of a defendant’s
probation under Utah’s probation statute.”).
¶11 	Second, James argues that, even without a firm statutory
cap, the district court chose to sentence him to “twelve months”
probation, rather than some longer period, and James correctly
points out that—absent some language to the contrary in the
sentencing order—a probationer’s probationary period begins
immediately upon sentencing (rather than beginning the next
day). See generally State v. Love, 2014 UT App 175, 332 P.3d 383;
State v. Moya, 815 P.2d 1312 (Utah Ct. App. 1991). But these facts
do not mean that James’s probationary period, if computed
according to rule 2, would be for a period longer than “twelve
months.” As noted, the 2014 version of rule 2 applies to “any
period of time” applicable in a criminal case, see Utah R. Crim. P.
2(a) (2014), and the current version of rule 2 specifically applies
to “any time period specified in . . . any . . . court order,” see id. R.
2(a) (2018).7 In the name of uniformity, rule 2 sets forth specific
7. Indeed, Utah courts seem to have taken it as a given that this
is how a probationary period is computed. See, e.g., State v. Orr,
2005 UT 92, ¶¶ 2–4, 127 P.3d 1213 (describing Orr’s probation as
running through May 12, 2003, when Orr was sentenced to
thirty-six months of probation on May 12, 2000); State v. Call,
(continued…)

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20180507-CA 	8 	2019 UT App 30
rules for the computation of time periods, including “twelve
months,” and we perceive nothing unlawful about the fact that,
in most cases (including James’s case), depending on factors
such as the time of day in which the sentencing occurs, this
method of computation will result in the term “twelve months”
being used to refer to probationary periods that end up being
several hours longer than 365 days/8,760 hours.8
(…continued)
1999 UT 42, ¶¶ 2, 12, 980 P.2d 201 (describing Call’s probation as
expiring on either April 3 	or April 8, 1995, depending on
whether Call’s three years of probation began on April 3 or April
8, 1992); State v. Dickey, 841 P.2d 1203, 1206 (Utah Ct. App. 1992)
(describing Dickey’s probation as running through November
19, 1986, when Dickey was sentenced to twelve months of
probation on November 19, 1985).
8. Nor does the use of a procedural rule to set the hour and the
day 	that 	concludes 	“twelve 	months” 	transform 	a 	definite
sentence into an indefinite one. James is correct that Utah case
law indicates that probationary periods cannot be indefinite. See
State v. Candedo, 2010 UT 32, ¶ 22, 232 P.3d 1008 (stating that
“defendants . . . are not held under probation indefinitely”). But
defining the time period through the lens of rule 2 does not
make the period indefinite; indeed, rule 2 provides a uniform,
predictable way to compute such periods. Moreover, James goes
too far when he implies that applying rule 2 to computation of
probationary periods would allow the prosecuting entity to
make motions, pursuant to rule 2(b), to extend the time period. It
does not necessarily follow, simply from application of rule 2(a)
to this situation, that rule 2(b) would also apply. The federal
courts, in interpreting the analogous rule 6 of the Federal Rules
of Civil Procedure, have held that, while the time-counting
provisions of rule 6(a) are used to define statutory limitation
(continued…)

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20180507-CA 	9 	2019 UT App 30
¶12 	Third, James argues that rule 2—like all of the rules of
criminal procedure—is intended to apply only to “procedural”
matters, 	see 	Utah 	R. 	Crim. 	P. 	1(b) 	(stating 	that 	the 	rules
“shall govern the procedure in all criminal cases”), and posits
that the computation of his probationary period is a substantive
(rather than a procedural) matter. The computation of time
strikes us as an intuitively procedural matter, see Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010)
(plurality opinion) (stating that a rule “regulate[s] procedure” if
“it governs only the manner and the means by which the
litigants’ rights are enforced,” but not if it “alters the rules of
decision 	by 	which 	the 	court 	will 	adjudicate 	those 	rights”
(quotation simplified)), but even if we were to consider the
computation of time associated with a probationary period to be
“substantive,”9 we are still convinced that rule 2 would apply.
(…continued)
periods, courts may not use the other provisions of rule 6 to
extend periods of time beyond those set by Congress. See, e.g.,
Argentine Republic v. National Grid Plc, 637 F.3d 365, 368 (D.C. Cir.
2011) 	(per 	curiam) 	(“Every 	court 	to 	have 	considered 	this
question has held that Rule 6(b) may be used only to extend time
limits imposed by the court itself or by other Federal Rules, but
not by statute.”).
9. In his briefing, James does not do much to address the
complexities of the substance-procedure distinction, which can
be a “slippery” one. See State v. Rettig, 2017 UT 83, ¶ 56 n.11, 416
P.3d 520 (discussing the “slippery, varying nature” of the terms
“substance” and “procedure” and how a law may be substantive
in one context but procedural in another); see also Orr, 2005 UT
92, ¶ 18 (describing the provisions of Utah Code section 77-18-1
as setting forth “procedures”). Partly for this reason, we assume
without deciding that application of rule 2 in this context could
(continued…)

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20180507-CA 	10 	2019 UT App 30
As an initial matter, James reads too much into rule 1(b): that
rule’s mention of the uncontroversial fact that the rules of
criminal procedure govern procedural issues should not be
read 	to 	exclude 	the 	possibility 	that 	the 	rules 	might 	also
include discussion of some substantive issues. Examination of
the rules as a whole reveals that they include discussion of a
number of issues that arguably could be considered substantive,
or that at least have significant constitutional implications. See,
e.g., id. R. 7B(b) (discussing the probable cause standard that
applies 	at 	preliminary 	hearings); 	id. 	R. 	8(a) 	(stating 	that 	a
defendant “has the right to self representation, and if indigent,
has the right to court-appointed counsel” in most cases); id. R.
40(b) 	(stating 	that 	“[p]roperty 	or 	evidence 	may 	be 	seized
pursuant to a search warrant if there is probable cause to
believe” 	that 	the 	property 	was 	unlawfully 	acquired 	or 	is
connected to illegal conduct).
¶13 	Moreover, although to our knowledge no Utah appellate
court 	has 	spoken 	on 	this 	matter, 	federal 	courts 	have
applied their analogous rule-based time-counting methodology
to 	the 	computation 	of 	probationary 	time 	periods. 	See 	e.g.,
United States v. Strada, 374 F. Supp. 680, 683 (W.D. Mo. 1974)
(applying the time-counting methods from rule 45 of the Federal
Rules 	of 	Criminal 	Procedure 	to 	compute 	the 	length 	of 	a
defendant’s probationary period), aff’d, 503 F.2d 1081 (8th Cir.
1974); 8A Fed. Proc., L. Ed. § 22:34 (2019) (“Where a defendant is
given a five-year probation commencing on March 28 of a
particular 	year, 	the 	period 	of 	the 	probation 	runs 	to 	and
includes all of the day of March 28 in the fifth following year.”).
(…continued)
be considered substantive, and stop short of making any broad
judgment about the matter.

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20180507-CA 	11 	2019 UT App 30
¶14 	Finally, our legislature has delegated to the courts the
authority to impose probationary terms essentially without limit.
See Wallace, 2006 UT 86, ¶ 13. Utah courts derive their power to
impose and revoke probation from statute. Orr, 2005 UT 92, ¶ 18;
see also State v. Green, 757 P.2d 462, 464 (Utah 1988) (stating that
“the 	power 	to 	revoke 	probation 	must 	be 	exercised 	within
legislatively established limits”). And without a statutory limit
on the length of probation, the application of rule 2 to this case
does not, as James contends, “alter, expand or modify the
substantive law.” Indeed, as the probation statute has been
interpreted by our supreme court, the legislature gave the courts
the power to sentence defendants to probation for any amount of
time the courts see fit, and the courts’ decision to define how that
time 	period 	should 	generally 	be 	computed—absent 	a 	more
specific provision in the applicable court order—strikes us as
entirely in keeping with the mandates of the substantive law.
¶15 	James was sentenced to “twelve months” probation on
November 12, 2014. Rule 2 of the Utah Rules of Criminal
Procedure applies here to provide the definition of the term
“twelve months” and, under that computation method, James’s
probationary period ended at midnight (i.e., 11:59 p.m.) on
November 12, 2015. Accordingly, because the City’s order to
show cause affidavit was filed a few hours before the conclusion
of that probationary period, the justice court had power to
consider the City’s affidavit and revoke James’s probation.
¶16 	Petition denied.