State v. Egbert

Decision Date28 September 1987
Docket NumberNo. 19699,19699
Citation748 P.2d 558
PartiesSTATE of Utah, Plaintiff and Respondent, v. Michael David EGBERT, Defendant and Appellant.
CourtUtah Supreme Court

Curtis C. Nesset, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant pleaded guilty to six criminal charges: first degree rape, second degree rape, aggravated burglary, forcible sodomy, and two counts of aggravated sexual assault. The trial court was required to impose minimum mandatory prison terms for the aggravated sexual assault convictions under Utah Code Ann. § 76-5-405(2) (Supp.1983) (amended 1986). Prior to sentencing, defendant challenged the constitutionality of the minimum mandatory sentencing provisions. The trial court denied defendant's motions and imposed a fifteen-year minimum mandatory sentence for Defendant was originally charged with twenty-two criminal offenses. In exchange for the dismissal of all other charges, he pleaded guilty to the offenses described in the preceding paragraph. No facts beyond the names of the victims, the dates of the alleged offenses, and the statutory definitions of the alleged offenses are discernible from the record. Defendant submitted to the trial court a statement of apology and two letters indicating his need for and amenability to treatment. This was the only evidence submitted to that court regarding aggravation or mitigation. The trial court did not explain at length the factors entering into its sentencing decision, although the judge made the following comments at the sentencing hearing: "I have gone over the letter that [defendant] submitted as to these offenses ... and there are five rape cases, forcible rapes. Under any standard I think the maximum should apply in this case, and I am taking that into consideration...."

each count of aggravated sexual assault and indeterminate sentences for each of the six charges, all terms to run concurrently. Defendant appeals from the mandatory sentences.

Defendant argues that the minimum mandatory sentencing scheme under which he was sentenced violates equal protection principles, constitutes cruel and unusual punishment, and runs afoul of Utah's constitutional separation of powers doctrine. He also contends that the statutory scheme is unconstitutionally vague. The issues raised by defendant's first three arguments have been resolved in favor of plaintiff by our decision in State v. Bishop, 1 in which we upheld Utah Code Ann. § 76-5-403.1(2) (Supp.1987) (minimum mandatory sentencing required upon conviction of sodomy on a child). We therefore do not treat those arguments further. 2 We have not yet, however, analyzed the minimum mandatory sentencing scheme in terms of a challenge for vagueness. 3

"It is a fundamental tenet of due process that '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.' " 4 This principle is applicable to sentencing as well as substantive provisions of criminal statutes. 5 In United States v. Batchelder, 6 the United States Supreme Court pointed out that "vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." 7

Any vagueness to be found in subsection 76-5-405(2), which provides for sentences of five, ten, or fifteen years and which may be for life, is dispelled by the implementing language of Utah Code Ann. § 76-3-201(5) (Supp.1983) (amended 1984, 1986 & 1987), which plainly mandates imposition of the sentence of middle severity unless there are circumstances in aggravation or mitigation of the crime. It is also plain from that statute that imposition of the sentence of highest severity is dependent upon a determination of the existence of aggravating circumstances, while imposition of the sentence of lowest severity is dependent upon a determination of the existence of mitigating circumstances.

There is nothing equivocal about the provisions of section 76-5-405. The commission of a prohibited sexual act that is accompanied In this case, the evidence offered in mitigation was meager. It consisted of a statement of apology for defendant's actions and two letters indicating his need for and amenability to treatment for his behavior. In contrast, the existence of additional aggravating circumstances was significant.

                by an aggravating circumstance of bodily injury, use of or threat with a deadly weapon, or threat of kidnapping, death, or serious bodily injury is punishable by imprisonment for a minimum mandatory term of five, ten, or fifteen years.  Upon conviction, subsection 76-3-201(5) comes into play, and it is likewise couched in unequivocal language.  It mandates "imposition of the term of middle severity unless there are circumstances in aggravation or mitigation of the crime."   Thus, it is clear that although a listed aggravating circumstance is an essential element of the crime of aggravated sexual assault, one convicted of that crime nevertheless cannot be sentenced to a mandatory term greater than that of middle severity in the absence of additional aggravating circumstances

The record reflects that the trial judge duly considered the aggravating and mitigating circumstances. At the time of sentencing, he stated his reasons for imposing concurrent sentences of highest severity as follows: "I have gone over the letter that [defendant] submitted as to these offenses ... and there are five rape cases, forcible rapes. Under any standard, I think the maximum should apply in this case, and I am taking that into consideration...." He thus did not abuse the discretion in sentencing afforded by the statutes.

The decision the statute required the trial court to make in imposing one of three alternative mandatory sentences did not differ from other decisions made daily on whether to impose indeterminate sentences, to suspend sentences, or to place offenders on probation.

The judgment and sentence of the trial court are affirmed.

STEWART, Associate C.J., and HOWE, J., concur.

DURHAM, Justice (dissenting).

The majority opinion accurately describes the federal due process standards applicable to a challenge for vagueness. 1 I disagree with the conclusion that the statute in question meets those standards.

Utah Code Ann. § 76-3-201 (Supp.1983) sets forth the only guidance the legislature has provided for determining which of three possible mandatory terms (five, ten, or fifteen years) should be imposed on a defendant convicted of aggravated sexual assault. It says:

(5) If a statute under which the defendant was convicted mandates that one of three stated minimum terms must be imposed, the court shall order imposition of the term of middle severity unless there are circumstances in aggravation or mitigation of the crime. Prior to or at the time of sentencing, either party may submit a statement identifying circumstances in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. If the statement is in writing, it shall be filed with the court and served on the opposing party at least four days prior to the time set for sentencing. In determining whether there are circumstances that justify imposition of the highest or lowest term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to section 76-3-404, and statements in aggravation or mitigation submitted by the prosecution or the defendant, and any further evidence introduced at the sentencing hearing.

(6) The court shall set forth on the record the facts supporting and reasons for imposing the upper or lower term.

(7) The court in determining a just sentence shall be guided by sentencing rules regarding aggravation and mitigation promulgated by the Utah Judicial Council.

.... 2

(9) The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant as part of the sentence that if the defendant is released from prison, he or she may nonetheless be on parole for a period of ten years.

(10) If during the commission of a crime described as child kidnapping, rape of a child, or sexual abuse of a child, the actor causes substantial bodily injury to the child, and if the charge is set forth in the information or indictment and admitted by the actor, or found true by a judge or jury at trial, the actor shall, notwithstanding any other provision of law, be sentenced to the aggravated mandatory term in state prison.

The issue is whether the statute adequately defines the penalties applicable to aggravated sexual assault.

The statute defining the crime of which this defendant was convicted says that "[a]ggravated sexual assault is a felony of the first degree punishable by imprisonment in the state prison for a term which is a minimum mandatory term of 5, 10, or 15 years and which may be for life." Utah Code Ann. § 76-5-405 (Supp.1983). The statute provides no further direction for determining which of the three minimum terms should be imposed, with the exception of Utah Code Ann. § 76-3-201(5), which requires the imposition of the term of middle severity "unless there are circumstances in aggravation or mitigation." Even that exception is singularly unhelpful to the sentencing judge, however, because the crime of aggravated sexual assault always requires proof of an aggravating circumstance. Therefore, although the definitional portion of the statute purports to make the term of middle severity available for the crime of aggravated sexual assault, subsection 76-3-201(5) appears to make it unavailable. It is likely that the legislature intended that the court rely, in determining the sentence, upon an aggravating factor different from the...

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