State v. Anderson
| Decision Date | 01 March 2007 |
| Docket Number | No. 20041095-CA.,20041095-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. David Scott ANDERSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Debra M. Nelson and C. Bevan Corry, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
Mark L. Shurtleff, atty. gen., and Matthew D. Bates, asst. atty. gen., Salt Lake City, for Appellee.
Before Judges DAVIS, McHUGH, and THORNE.
¶ 1 Defendant David Scott Anderson appeals the district court's order imposing Defendant's suspended theft sentence to run consecutive to his aggravated robbery sentences. We affirm.
¶ 2 On December 4, 2003, Defendant pleaded guilty to theft, in violation of Utah Code section 76-6-404, see Utah Code Ann. § 76-6-404 (2003), and Judge Frank G. Noel sentenced Defendant to an indeterminate prison term not to exceed five years. Judge Noel suspended the sentence and placed Defendant on probation for eighteen months under the supervision of Adult Probation and Parole. On August 16, 2004, Defendant pleaded guilty to two counts of aggravated robbery in violation of Utah Code section 76-6-302, see Utah Code Ann. § 76-6-302 (2003), and Judge Judith S. Atherton sentenced Defendant to two concurrent indeterminate terms of at least six years imprisonment.
¶ 3 Adult Probation and Parole filed an affidavit with Judge Robin W. Reese, who had replaced Judge Noel as the judge overseeing Defendant's probation on the 2003 theft charge. The affidavit stated that Defendant violated the conditions of his probation by having been charged with the offense of aggravated robbery. On December 6, 2004, Judge Reese held a hearing to show cause, revoked Defendant's probation, and imposed the original sentence of zero to five years. Judge Reese ordered the theft sentence to run consecutively to Defendant's aggravated robbery sentences. Defendant appeals from Judge Reese's order.
¶ 4 In his appeal, Defendant claims that Judge Reese lacked authority under Utah Code section 76-3-401 to order his theft sentence to run consecutively to his aggravated robbery sentences.1 See Utah Code Ann. § 76-3-401 (2003). This question is one of statutory interpretation, which we review for correctness. See State v. Barrett, 2005 UT 88, ¶ 14, 127 P.3d 682.
¶ 5 Defendant claims that Judge Atherton—not Judge Reese—had the authority under Utah Code section 76-3-401(1)(b) to determine whether Defendant's aggravated robbery sentences would run concurrently or consecutively with his suspended theft sentence. Defendant asserts that Judge Atherton had the authority to determine the concurrent/consecutive issue because at the time she sentenced Defendant on his aggravated robbery convictions, he was deemed to be "already serving" his theft sentence due to his probationary status. Utah Code Ann. § 76-3-401(1)(b). Judge Atherton imposed Defendant's aggravated robbery sentences concurrent to one another, and Defendant argues that because Judge Atherton imposed concurrent sentences that all other sentences should run concurrently to the aggravated robbery sentences.
¶ 6 Utah Code section 76-3-401(1) establishes the circumstances in which a court is required to make a determination pertaining to the imposition of concurrent or consecutive felony sentences. See id. § 76-3-401(1). A court must determine, when a defendant has been adjudged guilty of multiple felony offenses, "(a) if the sentences imposed are to run concurrently or consecutively to each other; and (b) if the sentences before the court are to run concurrently or consecutively with any other sentence the defendant is already serving." Id. (emphasis added). Pursuant to section (1)(b), a court must run the sentences before it concurrently or consecutively to another sentence if the defendant is actually serving another sentence. See id. § 76-3-401(1)(b). Therefore, we must determine when a defendant is deemed to be "already serving" a sentence for purposes of applying section 76-3-401(1)(b). Defendant asserts that at the time of his aggravated robbery sentencing he was already serving a sentence on his theft conviction because Judge Noel had already sentenced him and he was fulfilling his probationary term accordingly. In contrast, the State asserts that at the time of Defendant's aggravated robbery sentencing Defendant was not already serving his theft sentence because the sentence had been suspended and Defendant was not serving any of the prison term ¶ 7 Interpreting the language "any other sentences the defendant is already serving" to exclude, as the State asserts, time spent while on probation is consistent with the legislature's use of the verb "served" throughout the statute. Id. In the balance of the statute served means incarcerated. See id. § 76-3-401. "In reading the language of an act, . . . we seek to render all parts [of the statute] relevant and meaningful, and we therefore `presume the legislature use[d] each term advisedly and . . . according to its ordinary meaning.'" State v. Tooele County, 2002 UT 8, ¶ 10, 44 P.3d 680 () (alterations and second omission in original) (quoting Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)).
¶ 8 Throughout section 76-3-401, the legislature consistently uses the word served to mean incarcerated. See Utah Code Ann. § 76-3-401. This is demonstrated in several subsections of the statute. See id. § 76-3-401(8) (); see id. § 76-3-401(9) ; see id. § 76-3-401(10) .
¶ 9 Interpreting the language "any other sentences the defendant is already serving" to include, as Defendant asserts, instances where a defendant has already been sentenced, albeit suspended, would render the statute internally inconsistent. If the legislature had intended subsection (1)(b) to apply to suspended sentences, it would have substituted "already serving," id. § 76-3-401(1)(b), with "has already been sentenced," id. § 76-3-401(7)(c), as expressly stated in subsection (7)(c). In interpreting a statute, "the expression of one [term] should be interpreted as the exclusion of another [and that] . . . omissions in statutory language should `be taken note of and given effect.'" Biddle v. Washington Terrace City, 1999 UT 110, ¶ 14, 993 P.2d 875 (citation omitted) (quoting Kennecott Copper Corp. v. Anderson, 30 Utah 2d 102, 514 P.2d 217, 219 (1973)).
¶ 10 In subsection (7)(c), the legislature expressed its intention to apply the aggregate maximum sentence limitation of subsection (6)(a) to defendants who have "already been sentenced." Utah Code Ann. § 76-3-401(7)(c). Likewise, if the legislature had intended to allow a court to apply section (1)(b) to suspended sentences it would have used the same language articulated in subsection (7)(c) "has already been sentenced."3 Id. The legislature's use of the language "has already been sentenced" in subsection (7)(c), should be taken note of and its omission in subsection (1)(b) should be interpreted as purposeful. Id.
¶ 11 Reading the statute as a whole, we conclude that section 76-3-401(1)(b) does not authorize a court to order a sentence concurrent or consecutive to another sentence that has not yet been both imposed and executed. See Thomas v. Color Country Mgmt., 2004 UT 12, ¶ 9, 84 P.3d 1201 (). When Judge Atherton sentenced Defendant on his aggravated robbery convictions, Defendant's theft sentence had been suspended. Since the theft sentence was suspended and the execution of Defendant's theft sentence was stayed, Defendant should not be deemed to be already serving the theft sentence. See id. Judge Atherton did not,4 and could not, order Defendant's aggravated robbery sentences to run concurrently or consecutively to his already suspended theft sentence. Rather, she correctly ordered that they be served concurrent as to each other, without referencing other sentences not yet being served.
¶ 12 Interpreting the statute as authorizing a court to impose a concurrent or consecutive sentence to a suspended sentence would create potential implementation problems. In the instant case, when Judge Atherton sought to impose the aggravated robbery sentences there was no sufficiently definite event for commencement of a consecutive order because it was not clear when or if the suspended theft sentence would be executed. However, any uncertainty or implementation problems are resolved when the concurrent/consecutive determination is reserved for the court seeking to execute the suspended sentence.
¶ 13 This approach is consistent with decisions from other jurisdictions faced with similar sentencing issues. The Oregon Court of Appeals in State v. DeChenne, 39 Or.App. 901, 594 P.2d 831 (1979), reversed a sentencing order that directed a sentence to run consecutively to a suspended sentence.5 See id. at 832. See also State v. White, 18 Ohio St.3d 340, 481 N.E.2d 596 (1985) (...
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State v. Anderson
...robbery sentences. Mr. Anderson challenged this ruling on appeal. ¶ 5 A divided panel of the court of appeals affirmed. State v. Anderson, 2007 UT App 68, ¶¶ 15-16, 157 P.3d 809. The court of appeals' majority held that the term "served," as used in Utah Code section 76-3-401, described the......
- State v. Anderson