State v. Johnson

2013 UT App 276
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DE ROYALE JOHNSON,
Defendant and Appellant.
Memorandum Decision
No. 20110938-CA
Filed November 21, 2013
Third District Court, West Jordan Department
The Honorable Terry L. Christiansen
No. 101401540
Samuel P. Newton, Attorney for Appellant
John E. Swallow and Michelle I. Young, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and
MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Defendant De Royale Johnson appeals from convictions
for burglary, attempted theft, possession of a dangerous
weapon, criminal mischief, and providing false information to a
peace officer. He argues that the trial court committed reversible
error under rule 17(b) of the Utah Rules of Criminal Procedure
when it gave priority to an older criminal case, delaying
Johnson’s trial for two weeks. Because Johnson failed to preserve
this issue for appeal, we affirm.
¶2 On July 9, 2010, Johnson was charged with burglary,
attempted theft, possession of a dangerous weapon by a
restricted person, providing false information to a law

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enforcement officer,1 and criminal mischief. After making his
initial appearance through counsel, Johnson moved to continue
the proceedings several times. On other occasions, he refused to
be transported to court for scheduled hearings, resulting in
further delays. Finally, on June 13, 2011, Johnson appeared at a
pretrial conference to set a trial date. The court set Johnson’s trial
‚as a second-place, or third-place setting on the 6th and 7th of
July‛ and scheduled a pretrial conference for June 30.
¶3 At the June 30 pretrial conference, the judge reminded
both parties that ‚*t+here’s a pretty good chance that the case set
[in first position] for trial starting on the 6th of July is going to go
in any event, so *Johnson’s case+ probably would have been
bumped, but I’ll know for sure Tuesday afternoon[, July 5+.‛ He
told Johnson’s trial counsel to ‚check with the *court+‛ to ‚know
for sure whether that trial is going,‛ but indicated that ‚*i+t does
not appear that *Johnson’s trial+ will go.‛ The case with first
priority on July 6 was State v. Kuntz, an older felony case that
had been calendared two months earlier. Kuntz was two years
old and involved witnesses that needed to be flown in from out
of state.
¶4 After confirming that Kuntz was the case with priority
over Johnson’s, Johnson’s attorney asked the court to schedule
another pretrial conference in the event Johnson’s trial had to be
postponed:
*Johnson’s Counsel+: So, shall we set another pre-
trial conference on this?
THE COURT: Yeah. Let’s do that, that’s a good
idea. Let’s continue the matter for two weeks
1. This charge, a class B misdemeanor, was amended on July 20,
2010, to providing false information to a peace officer, a class A
misdemeanor.

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[un]til the 14th of July at 8:30 for scheduling
conference.
THE CLERK: Do you want me to have [the
prosecutor] call *Johnson’s case+ off, your Honor,
or do you want to just have him leave it on just in
case something happens?
THE COURT: You know what, let’s just leave it on,
and I’ve—I’ve had attorneys represent that there’s
just no way this case is going to settle and all of a
sudden, the day before, it settles. So we’ll leave this
on as a second-place setting, Kuntz is the first
place.
*Johnson’s Counsel+: Though we’ll still set a
scheduling on the 14th?
THE COURT: Yeah.
Johnson never voiced any objection to the court setting his case
for trial in second position behind Kuntz.
¶5 On July 6, the day set for trial in both this case and Kuntz,
the court notified the parties that because Kuntz was ready to
proceed, Johnson’s trial would need to be rescheduled. Johnson’s
attorney objected, arguing that rule 17(b) of the Utah Rules of
Criminal Procedure required that the court give Johnson, who
was incarcerated at the time, priority for trial over the defendant
in Kuntz, who was not. The prosecution responded that it had
‚called off‛ its witnesses the night before ‚when *it+ realized that
[Kuntz] was bumping [Johnson]‛ and that it was not ready to
proceed with Johnson’s case that day. The court reminded both
parties that it had given Kuntz priority at the last scheduling
conference, and it then rescheduled Johnson’s trial for July 21.
Johnson subsequently filed a motion to dismiss, arguing that the
court’s failure to schedule his trial according to rule 17(b)

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20110938-CA 4 2013 UT App 276
prejudiced his defense. The court denied the motion, and at trial,
a jury found Johnson guilty on all counts. Johnson appeals.
¶6 Johnson argues that the ‚trial court erred when it
continued [his] jury trial in violation of Rule 17(b) of the Rules of
Criminal Procedure.‛ Rule 17(b) provides that
[c]ases shall be set on the trial calendar to be tried
in the following order:
(b)(1) misdemeanor cases when defendant is
in custody;
(b)(2) felony cases when defendant is in
custody;
(b)(3) felony cases when defendant is on bail
or recognizance; and
(b)(4) misdemeanor cases when defendant is
on bail or recognizance.
Utah R. Crim. P. 17(b). According to Johnson, the rule imposes a
‚non-discretionary prioritization of cases in which persons who
are in custody take priority over those who are not.‛ By failing to
prioritize his case according to the rule, Johnson argues, the
court ‚denied him two key results.‛ First, because the State was
not prepared to try Johnson’s case, he ‚could have asked the
court to dismiss the matter‛ pursuant to rule 25. See id. R.
25(b)(1) (providing that courts ‚shall dismiss‛ a case when
‚*t+here is unreasonable or unconstitutional delay in bringing
defendant to trial‛). Second, Johnson asserts that the ‚pressure
of having [his+ case dismissed for *the prosecution’s+ lack of
preparation . . . motivated the potential for a misdemeanor plea
bargain‛ substantially more favorable to Johnson than what was
otherwise on the table. Failing to comply with rule 17(b),
however, ‚effectively released any pressure the State felt about
being prepared for trial and prevented Mr. Johnson from
receiving the favorable plea bargain he sought in the case.‛ As a
result, Johnson argues, his conviction should be reversed.

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¶7 Whether rule 17(b) requires trial courts to automatically
displace a case already calendared for trial when a higher-
priority case subsequently competes for the same trial date is a
matter of first impression. Because Johnson has not properly
preserved this issue for appeal, however, we do not reach it.2 ‚To
preserve an issue for appeal, ‘the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.’‛ In re A.T.I.G., 2012 UT 88, ¶ 21, 293 P.3d 276
(quoting Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366).
‚[M]erely mentioning‛ an issue at trial will not preserve it for
appeal. Id. (citation and internal quotation marks omitted).
Rather, ‚(1) the issue must be raised in a timely fashion; (2) the
issue must be specifically raised; and (3) a party must introduce
supporting evidence or relevant legal authority.‛ Id. (citation
and internal quotation marks omitted).
¶8 Johnson’s claim is not preserved because he did not raise
it ‚in a timely fashion.‛ See id. (citation and internal quotation
marks omitted). The timeliness requirement is ‚a pre-condition
to appellate review because entertaining belatedly raised issues
sanction[s] the practice of withholding positions that should
properly be presented to the trial court but which may be
withheld for the purpose of seeking a reversal on appeal and a
new trial or dismissal.‛ State v. Brown, 856 P.2d 358, 361–62 (Utah
Ct. App. 1993) (alteration in original) (citation and internal
quotation marks omitted). In other words, the rule prevents
‚defendants from ‘sandbagging’ the prosecution‛ by waiting
until the only available remedy for the alleged error is outright
2. For purposes of argument, we assume without deciding that
Johnson would be entitled to a remedy under the facts of this
case had he properly preserved the issue for appeal. But we
express some doubt whether the priorities set in rule 17(b) are so
rigid as to require trial judges to displace calendared cases every
time a higher-priority case subsequently competes for the same
trial date. That is a question for another day, however.

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dismissal or a new trial. See Salt Lake Cnty. v. Carlston, 776 P.2d
653, 656 (Utah Ct. App. 1989) (citation and internal quotation
marks omitted). Accordingly, in Carlston, we held that a criminal
defendant’s challenge to the prosecutor’s use of peremptory
strikes was untimely and unpreserved because it was brought
two weeks after her conviction. Id. at 654–56. We noted that
requiring such challenges before the jury is empaneled allows
courts to remedy any errors ‚simply by seating‛ any wrongfully
struck juror instead of setting aside a conviction. Id. at 656; accord
State v. Valdez, 2006 UT 39, ¶ 44, 140 P.3d 1219 (noting that
challenges to jury composition ‚must be raised in such a manner
that the trial court is able to fashion a remedy‛). Similarly, Utah
law requires that parties raise any objections to jury instructions
‚before the jury deliberations, not after.‛ State v. Parkin, 742 P.2d
715, 716 (Utah Ct. App. 1987) (emphasis added); see also Utah R.
Crim. P. 19(e) (providing that ‚*o+bjections to written
instructions shall be made before the instructions are given to
the jury‛ and that ‚*o+bjections to oral instructions may be made
after they are given to the jury, but before the jury retires to
consider its verdict‛). This requirement ‚‘gives an opportunity
for the [trial] court to correct . . . any inadequacy in the
instructions, so that the jury may consider the case on a proper
basis.’‛ Parkin, 742 P.2d at 716 (quoting State v. Kazda, 545 P.2d
190, 192 (Utah 1976)).
¶9 Just as courts can easily correct a prosecutor’s improper
use of peremptory challenges or errors in jury instructions when
objections are timely, trial judges can remedy scheduling errors
without difficulty if counsel objects when cases are initially
calendared or even at subsequent conferences held in advance of
trial. The only remedy for a violation of rule 17(b) raised the day
of trial or post-trial, however, is likely to be dismissal.
¶10 Here, like objections to peremptory strikes after the jury is
empaneled or objections to jury instructions after the jury retires
for deliberations, Johnson did not raise his objection ‚in such a
manner that the trial court *was+ able to fashion a remedy‛ for

State v. Johnson
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any potential rule 17(b) violation. See Valdez, 2006 UT 39, ¶ 44.
Rather, he waited until July 6, the morning of trial, before raising
his rule 17(b) objection and filed a motion to dismiss five days
later on July 11. Johnson’s objection confronted the court with a
Hobson’s choice between bumping an older case with out-of-
town witnesses ready to proceed or dismissing Johnson’s case.
The court had set Johnson’s trial in second position weeks
before, advising him on June 30 that there was ‚a pretty good
chance‛ that the first-position Kuntz case would ‚bump*+‛
Johnson’s July 6 trial date. The court even discussed the
possibility of ‚call*ing+ *Johnson’s case+ off‛ altogether.
Ultimately, the court elected to leave Johnson’s July 6 trial date
undisturbed in the event that the Kuntz case settled. But the
court clearly indicated that Johnson’s case was ‚a second-place
setting, Kuntz is the first place,‛ and it was unlikely Johnson’s
trial would go forward on July 6. Not only did Johnson fail to
raise his rule 17(b) objection at the pretrial conference, but he
also asked the court to schedule another pretrial conference for
July 14—more than one week after the original trial date. Even if
unintentional, it is difficult to view the effect of Johnson’s
objection on the morning of trial as anything other than
‚sandbagging the prosecution,‛ see Carlston, 776 P.2d at 656
(citation and internal quotation marks omitted), forcing a
possible dismissal based on an alleged error the court might
have remedied had Johnson raised the issue when the trial was
originally calendared or even a week earlier at the final pretrial
conference.
¶11 We therefore conclude that Johnson’s rule 17(b) objection
was untimely and unpreserved. As a result, we do not reach the
issue of whether the court violated rule 17(b) and prejudiced
Johnson’s defense. The trial court’s judgment is affirmed.