State v. Labrum, 940499

• Decision Date: 25 June 1996
• Docket Number: No. 940499,940499
• Citation: 925 P.2d 937
• Parties: STATE of Utah, Plaintiff and Respondent, v. Troy LABRUM, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 937

925 P.2d 937

STATE of Utah, Plaintiff and Respondent, v. Troy LABRUM, Defendant and Petitioner.

No. 940499.

Supreme Court of Utah.

June 25, 1996.

Rehearing Denied Nov. 8, 1996.

Jan Graham, Atty. Gen., Thomas Brunker, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Joseph C. Fratto, Jr., Salt Lake City, for defendant.

STEWART, Associate Chief Justice:

This case is here on a writ of certiorari to review a Court of Appeals ruling affirming a gang sentence enhancement imposed on Troy Labrum after his conviction for attempted criminal homicide, a second degree felony. See State v. Labrum, 881 P.2d 900 (Ct.App.1994), cert. granted, 892 P.2d 13 (Utah 1995). Labrum asserted in the Court of Appeals that the trial court erred in not entering written findings of fact in imposing a six-year "gang" sentence enhancement. Although the Court of Appeals found that the trial court had failed to make the findings required by the gang enhancement statute, it nevertheless held that Labrum's failure to object to the absence of written findings constituted a waiver of his right to raise that issue on appeal. We hold that the trial court's failure to enter the written findings of fact as required by the gang sentence enhancement statute was plain error and that the Court of Appeals erred in not addressing the issue notwithstanding defendant's failure to object in the trial court.

I. BACKGROUND

On September 20, 1992, Labrum and Joshua Behunin were passengers in a Mercury Topaz driven by David Mills. Labrum was in the front seat, and Behunin was riding in the back seat. At approximately Twenty-First South and West Temple in Salt Lake City, Mills approached another vehicle, a Mitsubishi whose occupants were Wilmer and Sergio Weffer, Daniel Suluai, and Daniel Owen. Labrum apparently flashed gang signals at the occupants of the Mitsubishi, and Mills followed the Mitsubishi until both vehicles arrived at the intersection of Twenty-First South and Seventh East. Labrum then leaned out of the front seat passenger window of the Topaz, extended his arms over the top of the car, and fired at least five shots toward the passenger side of the Mitsubishi. The barrage shattered both passenger side windows. One bullet struck Daniel Suluai in the back, another grazed Sergio Weffer (passing through his hair), and another hit the windshield of a vehicle in a parking lot across the street.

The State charged Labrum, Mills, and Behunin with attempted murder, a second degree felony, and sought firearm and gang sentence enhancements in accordance with Utah Code Ann. §§ 76-3-203 and 76-3-203.1. The gang sentence enhancement statute provides an enhanced minimum mandatory penalty if the judge finds that the defendant committed one of a detailed list of crimes while acting "[i]n concert with two or more persons." Utah Code Ann. § 76-3-203.1(1). Acting "in concert with two or more persons" means that "the defendant and two or more other persons would be criminally liable for the offense as parties under Section 76-2-202." ¹ Id. § 76-3-203.1(1)(b). The statute specifically states: "The imposition of the penalty is contingent upon a finding by the sentencing judge that this section is applicable. In conjunction with sentencing, the court shall enter written findings of fact concerning the applicability of this section." Id. § 76-3-203.1(5)(c) (emphasis added).

A jury convicted Labrum and co-defendant Mills of the attempted murder charge. Behunin's case was referred to the juvenile court system. On March 22, 1993, Labrum was sentenced. Prior to imposing sentence, the court asked if the parties had any comments with respect to the sentence and the proposed enhancements. Labrum did not argue that the gang enhancement was inapplicable but simply requested that the trial court suspend its imposition. ² The court rejected this request and imposed a six-year gang enhancement, stating that Labrum was "subject to the enhancement penalty" because this was "a gang-related offense, there having been two other persons involved in this." The court did not, however, enter any written findings showing that Behunin, who was a passenger in the back seat, acted in concert with Labrum and Mills, thereby justifying imposition of the gang enhancement.

Labrum appealed to the Utah Court of Appeals, alleging numerous trial and sentencing errors, including the claim that the trial court erred in failing to enter written findings of fact in imposing the six-year gang sentence enhancement, as required by Utah Code Ann. § 76-3-203.1. State v. Labrum, 881 P.2d 900 (Utah.Ct.App.1994). The Court of Appeals affirmed both the conviction and the sentence insofar as it was properly applied. ³ Id. at 903-07. Although the Court stated that the trial court failed to make the written findings required by the gang enhancement statute and that the trial court had an affirmative obligation to enter such findings, the Court, citing our decision in State v. Bywater, 748 P.2d 568, 569 (Utah 1987), held that Labrum's failure to object to the absence of written findings constituted a waiver of his right to raise the issue on appeal. Labrum, 881 P.2d at 906. The sole question before this Court is whether the Court of Appeals erred in not ruling on the legality of the gang enhancement sentence notwithstanding Labrum's failure to lodge a proper objection in the trial court. "A court of appeals interpretation of the effect of a prior judicial decision ... constitutes a conclusion of law to which we accord no particular deference. Review is for correctness." State v. Montoya, 887 P.2d 857, 858 (Utah 1994).

II. DISCUSSION

Issues not raised before the trial court are usually waived and cannot be raised on appeal. See State v. Emmett, 839 P.2d 781, 783-84 (Utah 1992); State v. Matsamas, 808 P.2d 1048, 1052-53 (Utah 1991); Utah R.Evid. 103(a). There are a number of purposes underlying this general rule. A timely objection provides the trial court with "an opportunity to address a claimed error and, if appropriate, correct it." State v. Eldredge, 773 P.2d 29, 36 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). Requiring counsel to present objections in a timely manner also eliminates the option of foregoing those objections at trial as part of a "strategy that counsel thinks will enhance the defendant's chances of acquittal and then, if that strategy fails, ... claim[ing] on appeal that the Court should reverse." State v. Bullock, 791 P.2d 155, 159 (Utah 1989), cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990).

An appellate court will, however, address issues raised for the first time on appeal where a party demonstrates "exceptional circumstances" or "plain error." State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994). In State v. Eldredge, 773 P.2d 29, 36 & n. 11 (Utah 1989), we held that in the absence of extreme harmfulness or in an exercise of appellate discretion "in the interests of justice," to be reviewable in the absence of an objection in the trial court, the error must have been obvious to the trial court. "The plain error rule permits the appellate court to assure that justice is done, even if counsel fails to act to bring a harmfully erroneous ruling to the attention of the trial court." Bullock, 791 P.2d at 158. In conjunction with the requirement of a timely objection, the plain error rule thus " 'ultimately permit[s] the appellate court to balance the need for procedural regularity with the demands of fairness.' " Id. (quoting State v. Verde, 770 P.2d 116, 122 n. 12 (Utah 1989)).

Furthermore, on a pragmatic level, the doctrines of waiver and plain error serve to allocate the burden of noticing and correcting errors occurring at the trial court level. Generally speaking, the party harmed by an error has the burden of making a timely objection because that party has the greatest incentive to correct the error. Opposing parties and courts are not required to constantly survey or second-guess the nonobjecting party's best interests or trial strategy. On the other hand, where errors are particularly obvious or egregious and would serve no conceivable strategic purpose, courts and opposing parties may not simply turn a blind eye to a manifest procedural or substantial injustice. ⁴

In affirming Labrum's sentence and rejecting his plain error argument, the Court of Appeals relied on our decision in State v. Bywater, 748 P.2d 568 (Utah 1987). We find Bywater distinguishable. Bywater dealt with minimum mandatory sentencing guidelines employing three severity levels. Id. at 568. The trial court in Bywater imposed a term of middle severity. Id. The applicable statute specifically required findings of fact to be made on the record only when the minimum or maximum term of severity was imposed. See Utah Code Ann. § 76-3-201(5)(d) (Supp.1987) . ⁵ At the time Bywater was decided, no statute or judicial decision required an on-the-record recitation of facts supporting the choice of the middle term of severity. The court was required only to state its "reasons" for choosing any particular term. See id. § 76-3-201(6)(b). ⁶ Because the trial court in Bywater apparently complied (although somewhat cursorily) with this requirement, failure to make specific findings of fact could not have been plain error.

Later cases nevertheless did require trial courts to set forth, on the record, aggravating and mitigating factors, regardless of which term of severity was imposed. See State v. Gibbons, 779 P.2d 1133, 1137 (Utah 1989); State v. Bell, 754 P.2d 55, 60 (Utah 1988). In this regard, Bywater is somewhat similar to State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). In Eldredge, the defendant argued for the first time on appeal that the trial court had erred in admitting testimony without rendering the specific findings required by State v. Nelson, 725 P.2d 1353, 1355-56 n. 3 (Utah 1986). Because Nelson had...