State v. Palmer

• Decision Date: 30 May 2008
• Docket Number: No. 20060925-CA.,20060925-CA.
• Citation: 2008 UT App 206,189 P.3d 69
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert PALMER, Defendant and Appellant.
• Court: Utah Court of Appeals

189 P.3d 69

2008 UT App 206

STATE of Utah, Plaintiff and Appellee, v. Robert PALMER, Defendant and Appellant.

No. 20060925-CA.

Court of Appeals of Utah.

May 30, 2008.

Aaron P. Dodd, Provo, for Appellant.

Mark L. Shurtleff, atty. gen., and Ryan D. Tenney, asst. atty. gen., Salt Lake City, for Appellee.

Before THORNE, Associate P.J., McHUGH and ORME, JJ.

OPINION

McHUGH, Judge:

¶ 1 Robert Palmer challenges his conviction under subsection (2)(a) of Utah Code section 41-6-44, which makes it unlawful to operate a vehicle while under the influence of alcohol or any drug (DUI). See Utah Code Ann. § 41-6-44(2)(a) (Supp.2004).¹ Subsection (6)(a) of the same section declares that DUI is a third degree felony if the defendant has two or more prior convictions within the past ten years. See id. § 41-6-44(6)(a). Palmer argues that subsection (6)(a) defines a separate crime, rather than a sentence enhancement, and that the trial court committed structural error when it found Palmer had two prior convictions without submitting that question to the jury.

¶ 2 We conclude that subsection (6)(a) is an enhancement provision, which merely increases the sentence for a recidivist. Subsection (6)(a) does not define a separate crime and therefore does not require a jury trial to establish prior convictions. Accordingly, we affirm Palmer's felony DUI conviction.

BACKGROUND²

¶ 3 On September 23, 2004, Sergeant George Alexanderson of the Utah County Sheriff's Office pulled Palmer over for making an illegal turn and driving a vehicle with an expired registration. There was "a very strong [odor] of an alcoholic beverage" when Sergeant Alexanderson approached Palmer. Additionally, Palmer had "an extremely difficult time" producing his driver's license, and "his speech was slurred" in a "thick tongue sort of" way. Sergeant Alexanderson, assisted by backup officers, suspected Palmer was intoxicated and administered three field sobriety tests; Palmer failed all three. Accordingly, Palmer was arrested for DUI. A subsequent breathalyzer test measured Palmer's blood alcohol concentration at .318, nearly four times the legal limit of .08, see id. § 41-6-44(2)(a)(i), (iii).

¶ 4 Palmer was charged by information on January 4, 2005, with one count of DUI. Palmer pleaded not guilty, and a jury trial was scheduled for August 8, 2006. Despite receiving notice of the trial date, Palmer failed to appear and was convicted in absentia of DUI. By stipulation of the parties, the jury was excused, and the prosecution presented evidence of Palmer's prior convictions to the trial judge, resulting in an increase in Palmer's sentence.

¶ 5 At sentencing, Palmer argued his Sixth Amendment right to a jury trial was violated when the trial judge, as opposed to the jury, considered the sentence enhancement based on Palmer's prior convictions.³ The trial court found Palmer's Sixth Amendment rights were violated but denied Palmer's motion on the basis of harmless error. The trial court sentenced Palmer to zero to five years in the Utah State Prison, and Palmer filed this appeal.

ISSUE AND STANDARD OF REVIEW

¶ 6 Palmer presents one issue on appeal: "Whether the trial court violated Palmer's constitutional right to have a jury consider his prior DUI convictions...." "Constitutional issues are questions of law that we review for correctness." State v. Norcutt, 2006 UT App 269, ¶ 7, 139 P.3d 1066.

ANALYSIS

¶ 7 The right to a jury trial in criminal proceedings is secured by the Sixth Amendment to the United States Constitution.⁴ See U.S. Const. amend. VI. That amendment declares: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...."⁵ Id.

¶ 8 The Sixth Amendment's provisions have been interpreted by the United States Supreme Court as providing a criminal defendant with "the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (emphasis added). Accordingly, if Palmer is correct that subsection 6(a) of Utah Code section 41-6-44 is intended as an element of the crime of DUI, we assume without deciding that Palmer had a constitutional right to have the jury determine whether or not the State proved that element.

¶ 9 On the other hand, the Supreme Court has expressly ruled that the Sixth Amendment does not require prior convictions to be submitted to the jury when used merely as a sentence enhancement.⁶ See Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be ... submitted to a jury, and proven beyond a reasonable doubt." (emphasis added)); Almendarez-Torres v. United States, 523 U.S. 224, 229-35, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (ruling recidivism was not an element of a particular offense and, therefore, need not be charged in an indictment or determined by a jury). Accordingly, if the State is correct that subsection 6(a) was intended as a sentence enhancement, relevant only after a DUI conviction had been secured, Palmer did not have a constitutional right to have the fact of his prior convictions decided by a jury.

¶ 10 Because Palmer's constitutional argument hinges on the classification of subsection 6(a) as either an element or a sentence enhancement, Palmer correctly recognizes that "[t]he real issue before this Court is whether Utah Code Annotated § 41-6-44(6)(a) ([Supp.2004]) provides separate elements ... or whether this [sub]section is only an enhancement provision." "[T]he question of which factors are" elements and which factors are sentence enhancements "is normally a matter for [the legislative branch]." Almendarez-Torres, 523 U.S. at 228, 118 S.Ct. 1219.

We therefore look to the statute before us and ask what [the legislature] intended. Did it intend the ... prior conviction[ ] to help define a separate crime? Or did it intend the presence of an earlier conviction as a sentencing factor, a factor that a sentencing court might use to increase punishment? In answering this question, we look to the statute's language, structure, subject matter, context, and history — factors that typically help courts determine a statute's objectives and thereby illuminate its text.

Id. (emphasis added).

¶ 11 Our review of Utah Code section 41-6-44 convinces us that the legislature did not intend subsection 6(a) to constitute a separate DUI offense but, rather, a sentence enhancement used to increase punishment for a recidivist.

¶ 12 To begin with, subsection 6(a)'s subject matter is indicative of its design as a sentence enhancement. The Supreme Court interpreted a similar statutory provision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and emphasized that "the relevant statutory subject matter is recidivism. That subject matter — prior commission of a ... crime — is as typical a sentencing factor as one might imagine." Id. at 229-30, 118 S.Ct. 1219. Likewise, the Court acknowledged that "the introduction of evidence of a defendant's prior crimes risks significant prejudice." Id. at 235 118 S.Ct. 1219. Accordingly, the Court assumed that "other things being equal, ... Congress would [not] have wanted to create this kind of unfairness[ — introduction of evidence of prior convictions during the guilt phase of the trial — ]in respect to facts that are almost never contested." Id. For these reasons, the Supreme Court determined the statutory provision at issue in Almendarez-Torres was a sentence enhancement and not an element of the crime charged. See id. at 234-35, 243-44, 118 S.Ct. 1219 ("[T]o hold that the Constitution requires that recidivism be deemed an `element' of petitioner's offense would mark an abrupt departure from a longstanding tradition of treating recidivism as going to the punishment only." (additional alteration and internal quotation marks omitted)).

¶ 13 Of course, the general indicators of legislative intent recognized by the Supreme Court must give way if evidence demonstrates that the Utah Legislature actually intended subsection (6)(a) to define a separate DUI crime. See id. at 244, 118 S.Ct. 1219. However, no such evidence exists. On the contrary, subsection (6)(a)'s plain language demonstrates it was not intended to define a separate crime but, rather, to operate as a sentence enhancement. See generally In re Z.C., 2007 UT 54, ¶ 6, 165 P.3d 1206 ("The first step of statutory interpretation is to evaluate the best evidence of legislative intent: the plain language of the statute itself. When examining the statutory language we must assume the legislature used each term advisedly and in accordance with its ordinary meaning." (citation and internal quotation marks omitted)).

¶ 14 Under subsection 6(a), "[a] conviction for a violation of Subsection (2) is a third degree felony if it is ... a third or subsequent conviction ... within ten years." Utah Code Ann. § 41-6-44(6)(a) (Supp.2004) (emphasis added). Notably, subsection (6)(a) does not prohibit or declare any activity illegal. Compare id. § 41-6-44(2) ("A person may not" .... (emphasis added)), with id. § 41-6-44(6) ("A conviction for a violation of Subsection (2) is a third degree felony ...." (emphasis added)). Instead, subsection (6)(a) indicates that a defendant has been charged and convicted "for a violation of Subsection (2)." Id. § 41-6-44(6)(a).

¶ 15 In this case, subsection (2) made it illegal for Palmer to (1) operate a vehicle and (2) have a blood alcohol level above .08. See id. § 41-6-44(2)(a)(i), (iii). Those were the only elements necessary for Palmer's conviction.⁷ See State v. Perez-Avila, 2006 UT App 71, ¶ 11, 131 P.3d 864 ("[T]hat the State show that a defendant operated a vehicle with a blood or breath alcohol concentration of .08 or greater .... [are] the only...