State v. Keitz, 920558-CA
| Decision Date | 30 June 1993 |
| Docket Number | No. 920558-CA,920558-CA |
| Citation | 856 P.2d 685 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Donald Hyland KEITZ, Defendant and Appellant. |
| Court | Utah Court of Appeals |
G. Fred Metos (argued), Salt Lake City, for defendant and appellant.
Jan Graham, State Atty. Gen. and J. Kevin Murphy, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff and appellee.
Before BILLINGS and JACKSON, JJ., and RUSSON, Associate P.J.
Donald Hyland Keitz appeals his conviction of unlawful possession of a controlled substance with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8(1) (Supp.1992). We affirm.
In late 1990, Keitz met Annie Beckstead at the Brian Head Lodge, where she worked as a cocktail waitress. Unbeknownst to Keitz, Annie Beckstead was actually Annie Burchett, an undercover police officer whose assignment included befriending drug users and dealers in the Brian Head, Utah, area.
As part of her cover, Officer Burchett made herself known as a drug user, negotiating drug purchases and occasionally feigning drug use. In so doing, Burchett became "friendly" with Keitz and other customers that frequented the Brian Head Lodge. Burchett would occasionally massage Keitz's shoulders at the lodge, and accompanied Keitz on his motorcycle on at least two occasions. Keitz also testified that on one such ride, Burchett lifted her blouse and exposed her bare breasts to oncoming motorists.
In the course of their relationship, Officer Burchett inquired whether Keitz had access to drugs. Keitz responded by asking Burchett to share a marijuana "joint" with him. She accepted his invitation and feigned use of the drug. Burchett also told Keitz that she was interested in obtaining cocaine, to which he replied that he "would look for some."
Keitz later approached Officer Burchett and asked if she could help him procure a pound of marijuana, and she replied that she could. Following that exchange, Keitz left on vacation for two weeks. Upon his return, Keitz called Burchett, at which time she informed him that she could get the pound of marijuana that he requested for $850. Keitz agreed to call her two days later to arrange a meeting place to complete the transaction. Keitz called Burchett on the prescribed day, and the two agreed to meet at her residence that afternoon to complete the transaction.
When Keitz arrived at Officer Burchett's residence, she gave Keitz the marijuana, and he weighed it with scales that he had brought with him. Keitz then informed Burchett that he had only $300 for the purchase of the marijuana. Burchett declined to allow Keitz to take the marijuana without full payment. Keitz gave Burchett the $300, and the two agreed to meet at Keitz's house later that afternoon at which time he would have the remaining money.
Upon arriving at Keitz's residence, Officer Burchett and Keitz proceeded to the kitchen area to complete the transaction. Keitz gave Burchett the $550 balance and she handed him the pound of marijuana. Burchett then watched Keitz place the marijuana on a shelf in the adjacent utility room, and the two of them went outside for a few minutes. After Burchett and Keitz had returned to the kitchen area, back-up police officers entered the residence and arrested Keitz. He was handcuffed and ordered to lay on the kitchen floor. One of the officers asked Burchett to show him where the marijuana was. She did so, and the marijuana was photographed and seized. The officers then asked Keitz if he had any drug paraphernalia, to which he replied, "Follow me." He led the officers outside to a shed and pointed to his scales, which the officers seized.
Keitz was charged by information with possession of a controlled substance with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8(1) (Supp.1992), and possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1990). The information was later amended to include an enhancement charge because both offenses occurred within one thousand feet of a little league baseball park.
Keitz made two pre-trial motions to dismiss the charge of possession of a controlled substance with intent to distribute. The first motion was based on Keitz's claim that he was entrapped into committing the offense, and the second was based on his contention that Officer Burchett's actions were so outrageous as to violate his due process rights. Keitz also filed a motion to suppress all evidence seized as a result of the warrantless search of his residence. Following a hearing, all of Keitz's motions were denied.
Keitz pleaded guilty to possession of a controlled substance with intent to distribute, conditional on preserving his right to appeal the trial court's denial of his pre-trial motions, pursuant to State v. Sery, 758 P.2d 935, 938-40 (Utah App.1988). As a result, the paraphernalia and enhancement charges were dismissed.
Keitz appeals, claiming that the trial court erred in: (1) denying his motion to dismiss on the grounds of entrapment; and (2) denying his motion to suppress on the basis of its ruling that the seizure of the evidence did not violate his rights under the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 14 of the Utah Constitution. 1
As a preliminary matter, we address the State's claim that the trial court improperly permitted Keitz to enter a conditional guilty plea, thereby allowing him to preserve his entrapment claim for appeal. The State argues that conditional guilty pleas are limited to the preservation of alleged fourth amendment violations raised by pre-trial motions to suppress evidence. Keitz responds that the trial court properly accepted his conditional guilty plea, and thus, his entrapment claim was properly preserved for appeal.
In State v. Sery, 758 P.2d 935 (Utah App.1988), this court stated that conditional guilty pleas are permissible only when "the plea entered by the defendant with the consent of the prosecution and accepted by the trial judge specifically preserves the suppression issue for appeal and allows withdrawal of the plea if defendant's arguments in favor of suppression are accepted by the appellate court." Id. at 938 (citations omitted). The reason for such rule
is that the legal guilt of the defendant exists only if the prosecution's case rests on admissible evidence. The crux of the dispute is resolution of the alleged error on appeal, not factual guilt or innocence. The conditional plea is tailored to further the resolution of these specific issues at the reasonable expense of any state interest in obtaining finality in the proceedings. The plea continues to serve a partial state interest in finality, however, by establishing admission of the defendant's factual guilt. The defendant stands guilty and the proceedings come to an end if the reserved issue is ultimately decided in the government's favor.
We see no logical inconsistency between a plea that admits factual guilt--or refuses to contest it--and the preserved claim on appeal that the government is constitutionally barred from being able to prove its case because of the illegal seizure of evidence.
Id. at 939 (quoting Comment, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Nonjurisdictional Issues, 26 UCLA L.Rev. 360, 378 (1978)) (emphasis added). Thus, under Sery, conditional guilty pleas are only proper where the defendant's plea is consented to by the prosecutor and accepted by the trial court, and where defendant admits factual guilt, but preserves for appellate review a legal issue upon which the case ultimately hinges. Id. at 938-39.
Although the holding in Sery only addressed the appeal of suppression motions, the logic of that holding applies with equal force to the motion to dismiss in the case at bar. Here, Keitz's plea was consented to by the prosecutor and accepted by the trial court. Further, Keitz, by entering the conditional guilty plea below, admitted his factual guilt to the subject charge. Keitz only disputes his legal guilt, claiming that he was entrapped and his case should be dismissed pursuant to Utah Code Ann. § 76-2-303(5) (1990), which provides, in pertinent part: "Should the court determine that the defendant was entrapped, it shall dismiss the case with prejudice...." Accordingly, where the issue on appeal is whether Keitz was entrapped into committing the offense so as to bar the State from establishing its case under section 76-2-303(5), not Keitz's factual guilt or innocence, we conclude that the trial court properly accepted the conditional guilty plea, thereby allowing Keitz to preserve his entrapment claim for appeal. See Sery, 758 P.2d at 938-40.
Keitz claims that the trial court erred in denying his motion to dismiss on the basis of its ruling that Officer Burchett did not entrap him into committing the subject offense. Specifically, he argues that Burchett exploited their personal relationship and ultimately induced him into purchasing the pound of marijuana. The State responds that the trial court properly ruled that Keitz was not entrapped.
A trial court's findings of fact relating to a claim of entrapment will be reversed on appeal only if clearly erroneous. State v. Richardson, 843 P.2d 517, 518 (Utah App.1992) (citing State v. Casias, 567 P.2d 1097, 1099 (Utah 1977)). On the other hand, the trial court's statutory construction and application of the entrapment statute present questions of law, which we review for correctness. Id.
Utah Code Ann. § 76-2-303(1) (1990) provides:
It is a defense that the actor was entrapped into committing the offense. Entrapment occurs when a law enforcement officer or person directed by or acting in cooperation with the officer induces the commission of an offense in order to obtain evidence of the commission for prosecution by methods creating a substantial...
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