State v. Gordon

• Decision Date: 11 March 1996
• Docket Number: No. 940558,940558
• Citation: 913 P.2d 350
• Parties: STATE of Utah, Plaintiff and Appellee, v. James Fred GORDON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 350

913 P.2d 350

STATE of Utah, Plaintiff and Appellee, v. James Fred GORDON, Defendant and Appellant.

No. 940558.

Supreme Court of Utah.

March 11, 1996.

Jan Graham, Atty. Gen. and Todd A. Utzinger, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Kent E. Snider and Michael D. Bowhuis, Ogden, for defendant.

HOWE, Justice:

Defendant appeals from a conviction for possession of a controlled substance with intent to distribute, a second degree felony. Pursuant to rule 43 of the Utah Rules of Appellate Procedure, the court of appeals certified the case to this court.

I. FACTS

On appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly. Cornia v. Wilcox, 898 P.2d 1379, 1382 (Utah 1995); State v. Dunn, 850 P.2d 1201, 1205-06 (Utah 1993). On December 17, 1982, defendant James Fred Gordon was staying at the Brigham City apartment of his ex-wife, Ann Marie Frigon, as he occasionally did after their divorce six years earlier. That day, Frigon was "shocked" to learn that she was pregnant with Gordon's child. At about six or seven o'clock that evening, Gordon left the apartment, telling Frigon that he would be back in five minutes. Instead, he went to a bar and then to a friend's house, returning to the apartment about six o'clock the next morning. Frigon was angry with Gordon, especially after smelling his shirt, which "reeked of cologne," as she imagined that he had been with another woman. The two argued briefly before Gordon went to sleep.

A few hours later, Frigon found a plastic bag containing the drug lysergic acid diethylamide (LSD). She called the Brigham City Police Department and reported that Gordon was at her apartment and that he had some drugs. She met two officers outside her apartment and told them that there was LSD inside. Frigon explained that she knew it was LSD because Gordon had told her so and because she had seen him with LSD before. She stated that the LSD had fallen out of his coat pocket onto the floor and that she was afraid her young child might find and possibly eat it. Frigon gave the officers permission to enter her apartment to get the drugs.

Once inside the apartment, Frigon opened a closet and showed them the plastic bag protruding from a coat pocket. The bag contained a piece of graph paper with a unicorn design on it. Each square on the graph paper contained one dose or "hit" of LSD, and there were approximately sixty-five to seventy "hits" remaining on the paper.

The officers awoke Gordon and asked him to accompany them to the police station. He agreed and, while dressing, was advised of his Miranda rights. He asked the officers why they wanted to talk to him. They told him about the LSD in his coat pocket. Gordon responded, "Well, I know you've got me. What's the punishment for that?" One of the officers told Gordon he did not know what charges he would face. Gordon asked Frigon if she had told the police about the drugs. When she remained silent, he asked her why. She responded, "Well, because I wanted to protect my family."

At the police station, an officer read Gordon a written consent form explaining his Miranda rights which Gordon signed. Gordon admitted that the LSD was his. He explained that he had obtained it from someone in Salt Lake City, but he refused to identify the person. He said he did not intend to sell it.

An officer then called the county attorney to ask what charges should be filed. Due to the large number of doses of LSD, the county attorney told the officer to charge Gordon with possession with intent to distribute, a second degree felony. The officer told Gordon about the charges and possible penalties were he to be convicted. The officers then asked him if he would give them a written or taped statement. He refused and said he would no longer talk with them until he had spoken to an attorney.

II. PROCEDURAL HISTORY

The procedural history of this case is rather complex, but it is relevant in analyzing the merits of Gordon's appeal. At Gordon's first appearance at the circuit court in Brigham City, Box Elder County, the judge found him to be indigent and appointed attorney Clinton S. Judkins to represent him. Unbeknownst to Gordon, at that time Judkins was a part-time prosecutor for the city of Tremonton, also located in Box Elder County. Following a jury trial on April 26, 1983, Gordon was convicted of the charged offense and later sentenced to a term of one to fifteen years in the Utah State Prison.

Judkins, on Gordon's behalf, filed a timely notice of appeal. Later, Judkins filed a motion for a new trial based on newly discovered evidence, but the trial court denied the motion as untimely. In October 1983, the appeal was dismissed for failure to prosecute.

In July 1992, nearly nine years later, Gordon filed a motion in the trial court to be resentenced nunc pro tunc ¹ because of his attorney's failure to prosecute his appeal. He contended that his constitutional right to an appeal was denied because Judkins had failed to pursue the appeal due to his conflict of interest as a city prosecutor. The court denied the motion as untimely and not supported "with sufficient affidavits or memoranda as required by law."

In January 1993, Gordon petitioned for a writ of postconviction relief. After an evidentiary hearing, the court denied the petition. In doing so, the court examined the retroactivity of State v. Brown, 853 P.2d 851, 857-59 (Utah 1992), in which we announced a prohibition against the appointment of attorneys with concurrent prosecutorial duties to represent indigent criminal defendants and a per se rule of reversal in such cases. The court concluded that Brown was not intended to be applied retroactively. Gordon appealed from that decision to this court.

Without conducting plenary review of Gordon's claims, we issued a September 24, 1993 order stating in its entirety:

Having decided that Gordon was denied his constitutional right to appeal, this court remands the case to the trial court for resentencing, so that Gordon may raise the issues here presented in a first appeal as of right. State v. Hallett, [856 P.2d 1060, 1062 n. 2 (Utah 1993) ], noting proper resentencing procedure outlined in State v. Johnson, 635 P.2d 36, 38 (Utah 1981)[,] is under coram vobis through rule 65B(b), formerly rule 65B(i), of the Utah Rules of Civil Procedure.

The trial court is directed to have counsel on appeal appointed for defendant.

On remand, the trial court resentenced Gordon nunc pro tunc to the same term as it had originally, one to fifteen years.

With new counsel, Gordon filed a motion for a new trial based upon (1) ineffective assistance of trial counsel because of his appointed defense counsel's concurrent position as a city prosecutor, and (2) newly discovered evidence in the form of a new witness, Danny Burke, one of Gordon's fellow inmates, who allegedly stated in 1983 that he was the owner of the drugs, that he had left them at Frigon's apartment, and that Gordon had no knowledge of the drugs for which he was charged. ² After a hearing, the trial court denied the motion on the grounds that the case was remanded for the sole purpose of resentencing Gordon and that consideration of the motion was beyond the authority granted to the court. Furthermore, the court denied the motion on the merits, holding that (1) the prohibition against city attorneys representing criminal defendants was not retroactive, and (2) Gordon's "proffered affidavit of Danny Burke (a fellow inmate) appears to be of dubious value."

Gordon appealed to the court of appeals from his 1983 conviction and resentencing and from the denial of his motion for a new trial. Pursuant to rule 43 of the Utah Rules of Appellate Procedure, the court of appeals certified the case to this court to resolve the issue of whether the prohibition in Brown should be applied retroactively.

III. ANALYSIS

A. Retroactivity of State v. Brown

In Brown, the defendant was represented by appointed counsel who was also a part-time city prosecutor. Brown, 853 P.2d at 856. He was convicted of second degree murder and aggravated assault. Id. at 852. On appeal, he contended that he was denied due process and the effective assistance of counsel when the court appointed a city prosecutor as his trial counsel. We agreed and reversed, holding:

Although we do not decide whether it is constitutionally impermissible to appoint a city attorney with prosecutorial responsibilities to represent an indigent defendant, we conclude that vital interests of the criminal justice system are jeopardized when [it occurs]. Consequently, we hold that as a matter of public policy and pursuant to our inherent supervisory power over the courts, as well as our express power to govern the practice of law, counsel with concurrent prosecutorial obligations may not be appointed to defend indigent persons....

....

... [W]e announce a per se rule of reversal wherever such dual representation is undertaken so as to prevent its recurrence.

Id. at 856-57, 859 (emphasis in original).

Initially Gordon contends that by ordering his resentencing, this court "explicitly recognized that the prohibition against a part-time city prosecutor serving as an appointed defense attorney is applicable to Defendant's case." Gordon reads far too much into our order, which merely stated, "Having decided that Gordon was denied his constitutional right to appeal, this court remands the case to the trial court for resentencing, so that Gordon may raise the issues here presented in a first appeal as of right." The order clearly did not address the merits of Gordon's conflict-of-interest argument. It did not mention Brown or discuss its retroactivity. Rather, it merely required Gordon to be resentenced so that he could raise the argument on appeal.

Next, Gordon asserts that our decision in Brown entitles him to a new trial. Brown was expressly decided...