If Prosecution Concedes that Prosecution of Misdemeanor DUI is Barred by the Single Criminal Episode Statute, the Felony Based on the Same Facts is Also Barred.

State of Utah  v. Troy Munk Sommerville, 2010 UT App 336 (Utah Court of Appeals November 26, 2010).

When an offense is charged and prosecuted, statute prohibits further prosecution of any criminal act that is closely related in time and, is incident to an attempt or an accomplishment of the same criminal objective.

Sommerville was arrested for DUI and was cited for following too closely and other minor traffic offenses.  The arresting officer issued the citation by mail for only the following too closely offense.  Sommerville paid the fine and was later formally charged with the DUI and other traffic offenses.

Murray City, upon learning that Sommerville had paid the fine, dismissed the remaining charges because they believed them to be barred by statute.  Salt Lake County then charged then Sommerville with felony DUI and the other traffic offenses.  The district court dismissed the misdemeanor charges, but allowed the prosecution of the DUI.  Sommerville appealed.

The Court of Appeals determined that the because of the Murray City’s concession that the offenses were part of the same criminal episode.  The Court of Appeals found that based on the City’s agreement, the offenses were part of the same criminal episode.  And that, because all offenses were within the jurisdiction of the district court, and because the Prosecution failed to overcome the presumption that the prosecution was aware of the offenses the trial court was reversed and the matter is dismissed.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/sommerville112610.pdf

Wrongfully Admitted Testimony May Have Influenced the Jury

State of Utah Leber, 2010 UT 316, (Utah Court of Appeals, November 12, 2010). This Opinion was amended and the correct site is now State of Utah Leber, 2010 UT 387 (Utah Court of Appeals December 30, 2010)

Defendant was convicted of felony child abuse. At trial, the Court admitted testimony of Defendant’s prior bad acts, including: a 10 year old conviction for child abuse, a 5 year old misdemeanor assault conviction, an incident of domestic violence, and testimony of ex-wife that Defendant had engaged in domestic violence “too many times to count,” and ex-wife’s opinion that Defendant was violent with children. Defendant appealed, and argued that the evidence should have been excluded as improper character evidence. The Court of appeals affirmed the conviction on the grounds that Defendant “opened the door” to character evidence by alleging that the alleged victim had a violent character. The Supreme Court granted cert and reversed the Court of Appeals finding that Defendant did not “open the door.” The case was remanded to decide whether the wrongfully admitted evidence affected the jury verdict.

The Court of appeals found that it could not conclude that the wrongfully admitted evidence did not affect the jury. In other words, it is likely that the testimony may have influenced the jury. Reversed and Remanded for new trial.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leber123010.pdf

Determining the Credibility of Credible but Conflicting Testimony is Properly Reserved for the Jury

State of Utah Droesbeke, 2010 UT 275, (Utah Court of Appeals, October 7, 2010).

Defendant was charged with sodomy of a child, aggravates sexual abuse of a child, and dealing harmful material to a minor.  At the bindover hearing, the eight-year-old victim gave completely conflicting testimony as to the underlying events of the charges.  The magistrate judge found probable cause to bindover the charges.  Because the testimony was so conflicting, Defendant moved to quash the bindover.  The district court affirmed the bindover and Defendant appealed.

The Court of Appeals affirmed finding that when credible testimony conflicts, the determination of which testimony is more credible is left with the jury; even when the credible testimony is from the same witness.

Full Decision available at http://www.utcourts.gov/opinions/appopin/Droesbeke100710.pdf

Exact Wording of an Admission is Not Needed to Enable a Person to Testify About the Admission

State of Utah Lamoreaux, 2010 UT 276, (Utah Court of Appeals, Memorandum Decision, October 7, 2010).

Defendant was convicted of distributing a controlled substance in a drug free zone.  Defendant argues that the Court should have stricken the testimony of the Officer regarding his alleged admission because the officer lacked personal knowledge of any admission.  At trial, the officer could not recall the exact words of the Defendant’s admission.  The officer testified that during a conversation with Defendant, he told Defendant “you know I’ve got all this information.  You know, just come clean, and tell me.”  He further testified that at some point Defendant told him “you’re right.”  The officer indicated that when Defendant said, “you’re right,” he was admitting to having assisted with the drug transaction.

The Court of Appeals found that this was sufficient knowledge and independent recollection to allow the testimony.  Further, they found that the Officer did not testify to anything that of which he did not have personal knowledge.

Full Decision available at http://www.utcourts.gov/opinions/mds/lamoreaux100710.pdf

Evidence from Illegal (but lawful) Arrest is Admissible

State of Utah v. Harker, 2010 UT 56, (Utah Supreme Court, September 28, 2010).

Police responded to an accident and requested Defendant’s proof of insurance.  Defendant provided the officer his proof insurance.  The officer, having had prior dealings with Defendant, contacted the insurance company and learned that defendant’s coverage had lapsed.  As a result, the officer arrested Defendant and searched Defendant subsequent to arrest.  The search turned up methamphetamine, Lortab, and a pipe.  Defendant moved to suppress the evidence because the arrest was not lawful under U.C.A. 77-7-2(1).

The Court found that the statue requires an officer to have experienced, firsthand through one of the officer’s physical senses, all of the elements of the offense; even an admission by a party is not enough to meet the requirement of in the presence.  Because the officer was not present to view Defendant driving, he could not have made the arrest under U.C.A. 77-7-2(1).  However, the arrest was lawful under the 4^th Amendment to the Constitution of the United States.  Because the arrest was lawful, the search did not violate Defendant’s right against unreasonable search and seizure and the evidence therefore is admissible; affirmed.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Harker092810.pdf  

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Promissory Notes On Short Term Loans Are Securities for the Purpose of Securities Fraud

State of Utah v. Burkinshaw, 2010 UT App. 245, (Utah Court of Appeals September 10, 2010).

Burkinshaw, convicted of securities fraud, appeals her conviction and argues that there was insufficient evidence to show that the transactions were securities under the statute.  Promissory notes are presumed to be securities.  This presumption can be rebutted by showing that the transaction has a family resemblance to non-securities transactions.  In determining if the transaction is a secure transaction the court considers (1) the motivation of the parties, (2) the plan for the distribution of the promissory note, (3) the reasonable expectation of investing public, and (4) whether some factor reduces the instrument’s risk.

In this case, the Court of Appeals affirmed the trial court’s findings that: (1) the investor was motivated by a return on his investment and as such, this factor weighs in favor of the presumption.  (2) There was no evidence that promissory notes are a commonly traded commodity, so that this factor weighs against the presumption.  (3)  The investment appeared to be a secure investment to a reasonable person, and as such, this factor weighs in favor of the presumption.  And, (4) there is no factor that would reduce the risk to the lender beyond the regular remedies at law.  Based on these findings, the instrument falls under the securities act and as such, the finding of the trial court is affirmed.

Full Decision available at    http://www.utcourts.gov/opinions/appopin/hamblin082610.pdf

Withholding Non-prejudicial Evidence Does not Violate The Brady Requirement

State of Utah v. Hamblin, 2010 UT App. 239, (Utah Court of Appeals August 26, 2010).

Hamblin, convicted of rape, sodomy, and sexual abuse of a child, moved for a new trial because of the prosecutor’s failure to inform him that the victim had recanted a portion of her story.  This recantation cleared Hamblin of several of the charges including a particularly gruesome object rape.  However, prosecution amended the charges and removed certain charges from the trial.  While the Court of Appeals encouraged prosecutors to error on the side of disclosure.  The non-disclosure in this did not violate the Brady requirement.  Brady requires that the prosecution disclose any evidence in their possession that is exculpatory and material. 

While this evidence may have had somewhat exculpatory value, the evidence withheld would not have sufficiently changed the outcome of the case.  The evidence withheld merely put the victim’s credibility at issue and during the trial, she was subject to cross examination, and a great portion of the cross spent on her credibility eliciting several statements that favored Hamblin.  Because the further evidence would not sufficiently have changed the cross examination or the outcome of the case, Hamblin was not prejudiced by the non-disclosure, therefore the Court of Appeals affirmed the denial of the request for a new trial.

Full Decision available at    http://www.utcourts.gov/opinions/appopin/hamblin082610.pdf

Deficient Appellate Counsel Can be Discharged

State of Utah v. Smith, 2010 UT App. 231, (Utah Court of Appeals August 19, 2010).

This matter came before the Court of Appeals on the Motion to Strike Appellants Brief and Appoint New Counsel.  This motion is Granted because of current counsel’s failure to adequately comply with the rules of appellate procedure.  The brief failed to supply a summary of the proceeding, had only a very brief statement of facts, failed to cite the standard of review, and failed to make citations throughout.  It contained a summary of the argument, but no full argument section.  Because it was so lacking, the brief was stricken and counsel discharged.  The case is remanded to the district court to appoint new counsel.

Additional note:  This same attorney had a previous brief stricken on similar grounds in 2008.  Generally, the Court gives an attorney time to cure the defects in the brief, however, because of this attorney’s failure to take advantage of the opportunity to cure in a prior case, no opportunity to cure was allowed in this case.

Full Decision available at   http://www.utcourts.gov/opinions/appopin/smith081910.pdf

Flight Does Not Constitute a Reasonable Inference of Aiding or Encouraging

State of Utah v. Luis Cristobal, 2010 UT App. 228, (Utah Court of Appeals August 19, 2010).

Cristobal, convicted of criminal mischief (graffiti), appeals the denial of a directed verdict motion on the group enhancement portion of the conviction.

The group enhancement provision requires that a perpetrator commit a criminal act in concert with two or more individuals.  In this case, Police found Cristobal at the scene with his codefendant; both with paint on their hands and spray can lids in their vehicle.  A third individual fled the scene as police arrived.  The state argued that the jury could have reasonably inferred that this third individual was aiding or encouraging Cristobal in the criminal mischief.  The Court disagreed and found that flight from the scene without more does not support a reasonable inference that he was involved in the criminal act.  Because no such reasonable inference can be drawn, the group enhancement is Reversed.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/cristobal081910.pdf

Unconnected Criminal Charges Must Be Severed

State of Utah v. Hildreth, 2010 UT App. 209, (Utah Court of Appeals July 29, 2010).

Hildreth convicted of two counts of forcible sexual abuse appeals based on the denial of his motion for severance of the charges. 

Charges may be charged together if the charges are based on the same conduct or are otherwise connected together in their commission, are part of a common scheme or plan, or if the court found that neither the state nor the defendant are prejudiced by joinder of the charges.  Hildreth argues that the charges were sufficiently unrelated and warranted severance.  The Court agreed and further stated that Hildreth’s charges were unrelated to one another and that the alleged actions did not take place under sufficiently similar circumstances.  As such, the convictions were overturned and the case was Reversed and Remanded for separate trials on the charges.

Additionally, the Court found that testimony as to the other charges should be excluded as improper character evidence because the likelihood of prejudice outweighs the probative value.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/hildreth072910.pdf

Special Mitigation is Not an Affirmative Defense

Utah v. Eryk Drej 2010 UT 35, (Utah Supreme Court, May 14, 2010).

Special Mitigation is an additional method of mitigating criminal culpability based on a defendant’s mental illness.  Special mitigation allows a reduction of criminal liability by one degree if the defendant can show the factors of special mitigation.  Drej took an interlocutory appeal to challenge the constitutionality of the trial court’s finding that the statute places the burden of proving special mitigation on the defendant.  Further, Drej alleges that the passing of the statute violated the separation of powers doctrine.

The Supreme Court affirmed the trial court and found that special mitigation is not an affirmative defense because special mitigation does not negate an element of the crime.  Thus, the prosecution is not required to disprove it.  Further, the statute does not violate separation of powers doctrine because special mitigation is a substantive right, not an adjustment to procedural rules.  The Court finally finds that the statute does not violate equal protection because the classification created is narrow and that there is a distinction between special mitigation and imperfect self-defense defendants, so that the respective defendants are not similarly situated.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Drej051410.pdf

The Accomplice Must Encourage the Principal

State of Utah v. Warren Steed Jeffs, 2010 UT 49, (Utah Supreme Court July 27, 2010).

Jeffs was convicted of two counts of rape as an accomplice for compelling a fourteen-year-old to marry her nineteen-year-old cousin.  Jeffs appealed based on the instruction regarding consent.  The trial court refused to give an instruction which required the jury to return a verdict of not guilty unless they found that Jeffs had intended that the victim’s husband to engage in sexual intercourse with her.  The Court noted that to convict Jeffs of accomplice to rape, the state must establish that Jeffs solicited, requested, commanded, encouraged, or intentionally aided husband to have nonconsensual intercourse with victim.  The State never presented any evidence as to Husband’s interactions with Jeffs or any statements from Jeffs to Husband.  The State argued that certain communications with the victim were sufficient for accomplice to rape, however, the Supreme Court interpreted the statute to mean that the actions of the soliciting, requesting, etc… must be done in relation to the principal actor of the crime and not to the victim.  Finding that the instruction requested by Jeffs was reasonable and that the underlying communication from Jeffs was insufficient to support the accomplice charge, the Court Reversed the conviction and Remanded the case for a new trial.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Jeffs072710.pdf

Trial Court Must Strictly Comply With Utah Rule of Criminal Procedure 11(e)

State of Utah v. Douglass Anderson Lovell, 2010 UT 48, (Utah Supreme Court July 27, 2010).

Lovell pleaded guilty to the aggravated murder of Joyce Yost.  Lovell moved to withdraw his plea.  The trial court denied the withdrawal.  Lovell appealed.  At the time of entry of plea, the trial court failed to inform Lovell of his constitutional rights as required by Utah Rules of Criminal Procedure 11(e).  Because the trial court failed to strictly comply with Rule 11(e), the Supreme Court reversed the conviction and remanded the case with instructions to allow a withdrawal of Lovell’s guilty plea.  The Court further noted that it was not enough that Lovell knew of his rights from experience in previous criminal cases.  The record in each case must reflect the defendant’s knowledge of his rights and his subsequent knowing waiver of those rights.  It is not enough to assume that defense counsel sufficiently explained the rights.  Yes, it may take a little more time, but constitutional rights may not be sacrificed in the name of judicial economy.

Finally, harmless error review does not apply to Rule 11(e).  Failure to comply with Rule 11(e) results in a presumption of harm to the defendant.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Lovell4072710.pdf

Intent to Commit a Felony Can be Formed While Unlawfully Remaining

State of Utah v. Marcus Alexander Garcia, 2010 UT App. 196, (Utah Court of Appeals July 15, 2010).

Garcia entered the room of a former neighbor; he held her down, covered her mouth, and forced his fingers down her throat cutting her lip.  He then put the victim’s head into a pillow and pulled up her shirt.  The victim’s mother ran into the room and the Defendant escaped through the window.  Garcia was charged with burglary and attempted rape.  He was convicted of burglary, but acquitted of the attempted rape charge.  He appealed.  He argued that since he was acquitted of the rape which was the underlying felony to the burglary, he did not have the requisite intent for the burglary (i.e. breaking and entering or remaining with intent to felony theft or assault).  The Court of Appeals disagreed and affirmed the trial court, and said that the assault, whether or not it was an attempted rape, could serve as the underlying crime.  Even though he may not have entered with intent to commit a felony or assault, the formation of that intent while unlawfully remaining is sufficient to meet the statute.

Full Decision available at http://www.utcourts.gov/opinions/appopin/garcia071510.pdf

Illegally Obtained Hunting Permit is Void

State of Utah v. Roger Howard Steele, 2010 UT App. 185, (Utah Court of Appeals July 9, 2010).

Steele obtained a special permit to hunt on a game reserve, which was reserved for Utah residents.  Steele participated in the Hunt even though he was not a Utah resident.  He shot a trophy male mule deer.  He was charged with wanton destruction of protected wildlife and found guilty.  Steele Appealed.  He argued the trial court’s jury instruction as to mistake of law was incorrect.  If the correct instruction had been given he would have been acquitted because he showed evidence that he believed himself to be a Utah resident because his wife made frequent visits to Utah and her family resides in Utah, he did not have the required intent for conviction.  He additionally argued that even if the permit was obtained in violation of the residency requirement, the permit was not void by voidable, thus valid until revoked.

The Court affirmed finding that Steele knew he was not a resident and knew it because he did not put his own address, but that of his in-laws.  The Court further found that even if the instruction was incorrect, the likelihood that the jury would have changed its verdict with an instruction proposed by Defendant is ultimately very low.  Further, the Court found that the permit was void, not merely voidable.  As an illegal contract is void ab initio so is an illegally obtained permit.

Defendant’s speedy trial claim was inadequately briefed to prevail on those grounds.

Full Decision available at http://www.utcourts.gov/opinions/appopin/steele070910.pdf

Not Plain Error if Appellant Invited the Error

State of Utah v. Shaffer, 2010 UT App. 176, (Utah Court of Appeals July 1, 2010).  This opinion was amended and renumbered to 2010 UT App 176.  I could not determine the amendment, but the link below now links to the amended opinion.

Shaffer entered into an agreement with the State.  At the change of plea hearing, the defense misstated the agreement and agreed to further misstatements by The State.  Further, the State failed to make a recommendation to AP&P as agreed in the plea agreement.  The Judge rejected the State’s recommendation and adopted AP&P’s recommendation.

The Court of Appeals affirmed, finding that the trial court’s actions did not constitute plain error because even if the court believed that the state had breached the plea agreement, the affirmative actions by defense counsel invited the error and an invited error is not plain error, furthermore such an is irrelevant because the court rejected the agreement.

The failure of defense counsel to remedy the matter we not prejudicial for the same reasons, that the court rejected the agreement even in its misstated form.

Further, Defendant did not raise a dispute that the State had not recommended the sentence to AP&P before the trial court and so the trial court had no knowledge of any possible error, thus defendant again invited the error by failing to bring it to the court’s attention and affirmatively agreeing with the State’s statements at the hearing.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/shaffer082610.pdf

Failure to Provide Expert as to Mental Illness for Mitigation is Not Ineffective Assistance

State of Utah v. Walker, 2010 UT App. 157, (Utah Court of Appeals June 17, 2010).

Walker suffered from PSTD and shot his wife 13 or 14 times after an argument.  Police arrested Walker and questioned him without proper Miranda warnings.  Walker was convicted and appealed.  The Court of Appeals found that defense counsel’s failure to call an expert witness to testify as to Walker PSTD did not constitute ineffective assistance.  Defense counsel may have avoided the mental illness facts to avoid an adverse effect on other defenses (imperfect self-defense and voluntary intoxication).  Additionally, Defense counsel did not overly rely on the Walker’s mental illness in opening or during the trial, so it is likely that the jury did not have the unfulfilled expectation of hearing PTSD testimony.  Further, according to the Court, the absence of the defense expert was not prejudicial.

Failure to file a motion to suppress the unmirandized confession was a deficient omission by defense counsel.  However, because there was additional evidence to the content of the confession, it was not prejudicial. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/walker061710.pdf

A Reliability Hearing Serves No Purpose In a Bench Trial

State of Utah v. K.O., 2010 UT App. 155, (Utah Court of Appeals June 17, 2010).

K.O. appeals his conviction of burglary of a vehicle because of insufficient evidence; second, because the Juvenile Court failed to hold a reliability hearing before admitting eyewitness testimony; third, because the court failed to exclude hearsay evidence. 

The Court of Appeals concluded that the eyewitness testimony combined with the testimony of K.O.’s conduct of attempting to avoid police detection was sufficient to uphold his conviction.  Second, because reliability hearing is to protect the jury from hearing unreliable testimony it is only helpful in jury trials. A judge has an opportunity to evaluate the reliability of the eyewitness at the time of trial.  Finally, the Court concluded that the testimony of the arresting officer was not hearsay because the officer (declarant) was available for cross examination and under Utah Rules of Evidence 801(d), such evidence is not hearsay.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_ko061710.pdf

Police Must Have Belief that Invidual is Dangerous and Could be Armed Before they Can Perform a Terry Frisk

State of Utah v. Clay C. Lowe, 2010 UT App. 156, (Utah Court of Appeals June 17, 2010).

Officer went to Lowe’s apartment to talk to his roommate.  His roommate refused to comply with Officer’s orders to remove his hands from his pockets.  Officer helped Roommate to the ground and held Lowe at gunpoint while he searched Roommate.  While he searched Roommate, a second officer arrived on the scene and saw Lowe at gunpoint holding his hands high above his head.  The second officer immediately frisked Lowe and found a prescription bottle containing Methamphetamines.  The trial court denied Lowe’s Motion to Suppress, Lowe appealed. 

The Court of Appeals found that an officer cannot frisk simply because one is being detained, or because the officer believes the individual to possess contraband, but instead an officer must reasonably believe the individual is dangerous and the individual may immediately obtain a weapon.  In this case, Lowe complied with Officer’s requests; he kept his hands above his head, and did nothing to interfere with Roommate’s arrest.  In short, Lowe did nothing to induce a reasonable belief that he was dangerous and might obtain control of a weapon; therefore, the evidence should be suppressed.  Reversed.

Dissent Judge Thorne: Under the totality of the circumstances, it is likely that the second officer could have reasonably believed that Lowe was dangerous because Officer found Roommate to possess a knife, it was reasonable for the second officer to conclude that Lowe may also be armed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/lowe061710.pdf

Must Show Injustice to Bring Claims Barred by PCRA

Gardner v. State of Utah, 2010 UT 46, (Utah Supreme Court June 14, 2010).

Gardner was found guilty of the 1985 slaying of an attorney in an attempt to escape from custody.  He was sentenced to death.  After his execution warrant was issued he appealed.  Gardner argues several grounds for stay or recession his sentence.  However, the Supreme Court found that his claims are barred, because they were not brought within the limits set by the Post-Conviction Remedies Act.  Further, the Court finds that at all levels in his original trial and subsequent appeals that the courts have strived to protect Garnder’s due process rights.  The Court found that it was not in the interest of justice to overturn the district court’s summary judgment denying Gardner’s request for post-conviction relief.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/GardnerIV061410.pdf

Must Show Prejudice for Conviction to Be Remanded

State of Utah v. Jackson, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Jackson was convicted of attempted murder during the trial the trial court admitted officer testimony of statements by witnesses at the scene and photos of the injuries caused by the Defendant.  Defendant also asserted that the State disposed the car used in the act without allowing Defendant to examine it.  The Defendant also challenged the jury verdict because alleging that one of the state peremptory challenges was motivated by race.  The Court of appeals affirmed the trial court finding that even if the evidence was improperly admitted, there was sufficient other evidence on which the jury could have come to the same conclusion and as such, he was not prejudiced and the error was harmless.  The Court found that in the disposal of the care the State was not acting in bad faith because they had no control over the Sheriff’s release of the car to its owner; and the likelihood of Defendant finding favorable evidence in the vehicle is too remote to have had a real effect on the outcome of the case.  Finally, the Court found that the State provided a sufficiently racially neutral grounds for eliminating the juror.

Full Decision available at http://www.utcourts.gov/opinions/appopin/AMD_jackson111810.pdf 

Modifications to Statute that Change the Effect of a Plea Bargain During Probation Are Not Ex Post Facto Laws

State of Utah v. Holt, 2010 UT App. 138, (Utah Court of Appeals May 27, 2010).

Holt pleaded guilty to two counts of sexual exploitation of a minor.  As part of the plea, the State agreed to recommend that a reduction in his offense at the satisfactory completion of his probation.  Such an amendment would allow Holt to avoid having to register as a sex offender. While Holt was on probation, the legislature changed statute limiting the court’s ability to amend Holt’s charges as he agreed in the plea agreement.  The Court refused to reduce the offense.  Holt appealed arguing that the change to the statute violated the ex post facto clause and the contract clause of the Constitution.  The Court of Appeals disagreed finding that the amendment to the law did not increase the magnitude of the punishment for the crime and that the underlying penalty was unchanged.  Additionally, while a plea is contract-like, it is not a contract for constitutional purposes.  Further, the plea states that it is not binding on the court.  As such, the Court of appeals affirmed the trial court’s denial of the reduction in charges. The Court did however rule that this change might open the door to a petition to withdraw plea based on the lack of a knowing waiver at the time of the plea.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/holt052710.pdf

Nine Years Probation is Not Illegal

Utah v. Francisco Candedo 2010 UT 32, (Utah Supreme Court, May 14, 2010).

Candedo plead guilty to three felony counts of participation in a fraudulent investment scheme.  He was sentenced to prison and jail.  Both incarceration sentences were suspended and he was sentenced to nine years of probation.  Candedo appealed the nine year probation sentence as illegal and requested relief under the exceptional circumstances doctrine.  The Court of Appeals did not reach the merits of his claim because they found that the punishment was not manifestly illegal.  Candedo appealed to the Supreme Court. 

The Supreme Court found that when a constitutional challenge to a sentence is raised, a court must first assess the constitutional claims before analyzing the punishment.  In this case, the challenge to the sentence fails because statute places no limits on probation and the purposes of probation are more than just for rehabilitation.  Finally, the probation was for nine years.  If sentenced to the full extent, Candedo’s prison sentence would have exceeded 15 years, for that reason the punishment is not wholly disproportionate to the crime. Affirmed after review.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Candedo051410.pdf

Bind Over Under SYOA is as Simple as an Inference, and Premeditation Requires Only Some Reflection

Utah v. I.R.C. 2010 UT 41, (Utah Supreme Court, May 14, 2010).

I.R.C. was bound over for trial as an adult for aggravated robbery.  In order to bind a case over to the criminal court, the charges must be of those enumerated in statute, and prosecution must present sufficient evidence to support a reasonable belief that Defendant committed the crime.  The trial court found that there was sufficient evidence to believe that I.R.C. was aware that the robbery would be committed with a weapon.  A juvenile court may retain the case if the minor shows that he has not been previously adjudicated as delinquent, that he has a lesser degree of culpability than any co-defendants, and the minor’s role in the crime was not violent, aggressive, or premeditated.  In this case, the juvenile did not prove that he had not premeditated the crime.  I.R.C. knew about the crime and drove his friend to the scene of the crime.  Because there was a reasonable inference that I.R.C. knew about the weapon and because he failed to prove the retention factors, the Supreme Court Affirmed the juvenile court.

Dissent: Durham concludes that the friend’s statements did not give I.R.C. notice that gun was going to be used and the testimony does not support the reasonable inference that he knew, as such, the crime would not be aggravated robbery and thus, could not be bound over.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/IRC051410.pdf

Statement by Personally Involved Informant Presumed Truthful

Utah v. Roybal, 2010 UT 34, (Utah Supreme Court, May 14, 2010).

Roybal was stopped for suspicion of DUI when his live-in girlfriend called police and reported a domestic violence incident in which they had both been drinking.  During the call, Roybal drove away from the scene and the dispatcher sent out the bulletin on the possible DUI.  Roybal was pulled over; he failed the field sobriety tests, and was arrested for DUI.  He moved to suppress the evidence from the stop for lack of reasonable suspicion.  The trial court denied the motion.  Roybal appealed.  The Court of Appeals found that a personally involved informant is less reliable, and therefore overturned the conviction.  The State appealed.

The Supreme Court found that reasonable suspicion may be based on a dispatchers bulletin.  The Court further found that a citizen informant is presumed reliable and that there is no reason to rebut that presumption because the informant is personally involved.  As a result, the Cour reversed the Court of Appeals and reinstated Roybal’s conviction.

Dissent:  Judge Nehring agrees with the legal findings of the case, but disagrees with the outcome.  Nehring particularly disagrees with the finding that a statement by an informant that another has been drinking and is now driving is sufficient for reasonable suspicion that the party is driving under the influence.

Full Decision available at   http://www.utcourts.gov/opinions/supopin/Roybal051410.pdf

Tags:  Utah v. Roybal, 2010 UT 34, (Utah Supreme Court, May 14, 2010).

Roybal was stopped for suspicion of DUI when his live-in girlfriend called police and reported a domestic violence incident in which they had both been drinking.  During the call, Roybal drove away from the scene and the dispatcher sent out the bulletin on the possible DUI.  Roybal was pulled over; he failed the field sobriety tests, and was arrested for DUI.  He moved to suppress the evidence from the stop for lack of reasonable suspicion.  The trial court denied the motion.  Roybal appealed.  The Court of Appeals found that a personally involved informant is less reliable, and therefore overturned the conviction.  The State appealed.

The Supreme Court found that reasonable suspicion may be based on a dispatchers bulletin.  The Court further found that a citizen informant is presumed reliable and that there is no reason to rebut that presumption because the informant is personally involved.  As a result, the Cour reversed the Court of Appeals and reinstated Roybal’s conviction.

Dissent:  Judge Nehring agrees with the legal findings of the case, but disagrees with the outcome.  Nehring particularly disagrees with the finding that a statement by an informant that another has been drinking and is now driving is sufficient for reasonable suspicion that the party is driving under the influence.

Full Decision available at   http://www.utcourts.gov/opinions/supopin/Roybal051410.pdf