State v. Marshall

• Decision Date: 14 November 2003
• Docket Number: No. 20020829-CA.,20020829-CA.
• Citation: 81 P.3d 775,2003 UT App 381
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jerry Lynn MARSHALL, Defendant and Appellant.
• Court: Utah Court of Appeals

81 P.3d 775

2003 UT App 381

STATE of Utah, Plaintiff and Appellee, v. Jerry Lynn MARSHALL, Defendant and Appellant.

No. 20020829-CA.

Court of Appeals of Utah.

November 14, 2003.

Margret Sidwell Taylor, Helper, and W. Andrew McCullough, McCullough & Assoc., Midvale, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Kris C. Leonard, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before JACKSON, P.J., BENCH and ORME, JJ.

OPINION

ORME, Judge:

¶ 1 Defendant was charged with felony DUI based on enhancement due to two prior DUI convictions. Defendant filed a motion to dismiss the felony DUI charge, arguing that the enhancement provision in the DUI statute was unconstitutional as applied to him because it violates the prohibition against ex post facto laws. The trial court denied his motion. Defendant appeals, and we affirm.

BACKGROUND

¶ 2 The parties stipulated to the facts governing this appeal. On April 26, 2002, Defendant purchased a twelve-pack of beer at BK's convenience store in Huntington, Utah. The transaction was witnessed by another customer, Sergeant Gayle Jensen of the Emery County Sheriff's Department, who noticed that Defendant appeared to be intoxicated. Sergeant Jensen told Defendant not to drive and suggested that he call a friend to pick him up. The Defendant placed a phone call, and Sergeant Jensen left. Soon after, however, Sergeant Jensen decided to return to BK's to ensure that Defendant did not drive. Upon his return to BK's, Sergeant Jensen observed Defendant drive away. Sergeant Jensen stopped Defendant, conducted field sobriety tests, and concluded that Defendant was intoxicated. Defendant was arrested and given an intoxilyzer test, which showed a blood alcohol concentration of .25, more than three times the legal limit in Utah. See Utah Code Ann. § 41-6-44(2)(a)(i) (Supp.2003). An open container of alcohol was also found in Defendant's vehicle.

¶ 3 Defendant was charged by information with driving under the influence of alcohol and having an open alcoholic beverage container in a motor vehicle. Because two or more of Defendant's nine prior DUI convictions fell within ten years of his April 2002 arrest, Defendant's DUI charge was enhanced from a class B misdemeanor to a third degree felony pursuant to the 2001 amendment to the DUI statute. See Utah Code Ann. § 41-6-44(3)(a)(i), (6)(a)(i) (Supp. 2002). Pursuant to that amendment, effective April 30, 2001, a DUI conviction is a third degree felony if it occurs "within ten years of two or more prior [DUI] convictions." Id. § 41-6-44(6)(a)(i). Prior to the 2001 amendment, the felony enhancement provision applied to a third conviction within six years. See id. § 41-6-44(6)(a) (Supp. 1999).

¶ 4 Defendant filed a motion to dismiss the felony DUI charge. First, Defendant argued that enhancement of the offense violated his due process rights because in 1995 and 1998, when his prior DUI convictions were entered, he was not given "notice of the consequences of any future violation" and "could not have ... foreseen that in the year 2001 the Utah State Legislature would pass a law by which his [prior] convictions would be used to enhance th[e current DUI] charge to a third degree felony." Second, Defendant argued that the 2001 amendment could not be applied retroactively; thus, any offense committed prior to its enactment could not be used against him for enhancement purposes as that would violate the constitutional prohibition against ex post facto laws.

¶ 5 The trial court rejected Defendant's ex post facto argument, concluding that "[t]he 2001 amendment does not affect the status of the previous offenses or convictions and does not increase their severity or penalty." Rather, the court held, the 2001 amendment merely "gives a more severe penalty [for the present offense] because of the prior convictions."

¶ 6 As for Defendant's due process argument, the trial court noted that Defendant had nearly one year's notice that the enhancement provision had been amended. Thus, Defendant was on notice as of April 30, 2001, the effective date of the 2001 amendment,¹ "that if he committed a DUI after that date, his charge could be enhanced by any DUI convictions within a[ten] year period prior to the latest offense." Thus, the trial court concluded that application of the 2001 amendment to his 2002 offense did not violate Defendant's rights on either ex post facto or due process grounds and denied Defendant's motion to dismiss.

¶ 7 With the trial court's approval, Defendant thereafter entered a conditional plea of no contest, reserving his right to appeal the trial court's denial of his motion to dismiss the third degree felony DUI charge. See generally State v. Sery, 758 P.2d 935, 938-39 (Utah Ct.App.1988). In exchange for his no contest plea, the State dropped the open container charge.

ISSUES AND STANDARDS OF REVIEW

¶ 8 We must determine whether the trial court properly denied Defendant's motion to dismiss on the basis that the 2001 amendment to the DUI statute violates neither the due process nor ex post facto provisions of the United States Constitution.² "[T]he propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness." Tiede v. State, 915 P.2d 500, 502 (Utah 1996). "[W]hether legislation violates the ex post facto clause[ ] of the ... United States Constitution[] is also a question of law, which we review for correctness, giving the trial court no deference." State v. Daniels, 2002 UT 2,¶ 37, 40 P.3d 611. Likewise, "constitutional arguments regarding ... due process present questions of law" that we review for correctness. State v. One 1980 Cadillac, 2001 UT 26,¶ 8, 21 P.3d 212. Accord State v. Frausto, 2002 UT App 259,¶ 14, 53 P.3d 486,cert. denied, 63 P.3d 104 (Utah 2002).

ANALYSIS

¶ 9 Defendant renews his ex post facto and due process arguments on appeal, i.e., Defendant argues that enhancement of his current DUI offense based on his prior DUI convictions violated his rights under the ex post facto and due process clauses of the United States Constitution. We now consider each of Defendant's arguments.

I. Ex Post Facto

¶ 10 "Article I, § 10, of the Constitution prohibits the States from passing any `ex post facto Law.'" California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995). The United States Supreme Court has consistently identified four types of criminal laws that fall within the ex post facto prohibition:

"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2d. Every law that aggravates a crime, or makes it greater than it was, when committed.

3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 1627, 146 L.Ed.2d 577 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)) (emphasis in original). Accord State v. Daniels, 2002 UT 2, ¶ 44, 40 P.3d 611. The first and fourth categories are inapplicable here. Therefore, with a view to the second and third categories, we must decide whether the 2001 amendment to the DUI law retroactively "`aggravates'" Defendant's prior DUI crimes or "`inflicts a greater punishment'" than that attached to the crimes when they were committed. Id. (citation and emphasis omitted). We therefore turn our attention to our statutory DUI scheme and the 2001 amendment in particular.

¶ 11 As stated above, two of Defendant's nine prior DUIs were used to enhance his tenth and current DUI offense to a third degree felony. The two prior DUI convictions relevant to this appeal occurred in December 1995 and September 1998. Our DUI statute has been amended numerous times over the years, reflecting society's increased intolerance for repeat DUI offenders. For example, at the time of Defendant's 1995 offense, a fourth DUI conviction was a third degree felony if committed within six years of the prior violations and if those violations occurred after April 23, 1990. See Utah Code Ann. § 41-6-44(7)(a) (1993). At the time of Defendant's 1998 offense, however, a third DUI conviction was a third degree felony if committed within six years of the prior violations and if those violations occurred after July 1, 1996. See Utah Code Ann. § 41-6-44(6)(a) (1998).

¶ 12 In 1999, the Legislature deleted the date restriction contained in previous versions of the statute; therefore, a third DUI conviction was a third degree felony if committed within six years of the prior violations, regardless of when those violations occurred. See Utah Code Ann. § 41-6-44(6)(a) (Supp. 1999). Finally, in 2001, the Legislature amended the statute again, lengthening the time frame in which prior DUIs could be used for enhancement purposes from six to ten years. See Utah Code Ann. § 41-6-44(6)(a) (Supp.2001). Thus, under the 2001 version of the statute—the version under which Defendant was most recently convicted—a third DUI conviction is a third degree felony if committed within ten years of two prior DUI convictions, regardless of when those prior convictions occurred. See id.

¶ 13 Defendant argues that the 2001 amendment, as applied to him, constitutes a violation of the constitutional prohibition against ex post facto laws because it takes into account offenses committed before its enactment for purposes of enhancement. As a way of avoiding the felony enhancement provision of the 2001 statute, Defendant urges us to graft the cut-off date of the 1998 version of the statute onto the current version. Thus, under Defendant's view, the 2001 DUI statute should be read to allow felony...