454 P3D 69 - State v. Johnson

2019 UT App 180




               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                            Appellee,
                               v.
                     JOSEPH SHAWN JOHNSON,
                            Appellant.

                       Per Curiam Opinion
                         No. 20180892-CA
                     Filed November 7, 2019

            Fourth District Court, Provo Department
                The Honorable Derek P. Pullan
                         No. 161402568

           Douglas J. Thompson, Attorney for Appellant
           Sean D. Reyes and Marian Decker, Attorneys
                          for Appellee

   Before JUDGES DAVID N. MORTENSEN, JILL M. POHLMAN, and
                       DIANA HAGEN.

PER CURIAM:

¶1      Joseph Shawn Johnson appeals his sentences after
pleading no contest to two counts of child sexual abuse. We
affirm.

¶2      Johnson argues that the district court abused its discretion
by not granting Johnson credit for the time he served while
wearing a GPS monitor during the pre-trial proceedings.
However, “it is . . . the Board of Pardons [and Parole], and not
the trial court, which has authority to grant defendant credit for
the time he served prior to conviction.” State v. Alvillar,

748 P.2d 207, 209

 (Utah Ct. App. 1988); see also Rawlings v. Holden,

869 P.2d 958

, 960–61 (Utah Ct. App. 1994) (“Under Utah’s sentencing
scheme, ‘the trial judge has no discretion in fixing the term of
                         State v. Johnson


imprisonment. He or she simply imposes the statutorily
prescribed range of years, and the Board of Pardons determines
exactly how long the prisoner is to be confined.”). “In other
words, the Board, not the district court, ‘determines the actual
number of years a defendant is to serve,’ . . . because the Board
‘functions as a sentencing entity and decides the term of
incarceration.’” State v. Cuttler,

2018 UT App 171, ¶ 17

436 P.3d 278

 (quotation simplified). For this reason, the Utah Supreme
Court has concluded that a trial court lacks jurisdiction to grant
credit for time served during the course of pretrial detention. See
State v. Schreuder,

712 P.2d 264, 277

 (Utah 1985). Therefore,
because jurisdiction over the length of an indeterminate sentence
lies exclusively with the Board of Pardons and Parole, the issue
raised by Johnson would be ripe for consideration only if the
Board of Pardons and Parole ultimately decides not to grant
Johnson credit for time served before sentencing.

¶3    Affirmed.




20180892-CA                     2

2019 UT App 180