State v. Robison

• Citation: 147 P.3d 448,2006 UT 65
• Decision Date: 31 October 2006
• Docket Number: No. 20050257.,20050257.
• Parties: STATE of Utah, Plaintiff and Petitioner, v. James L. ROBISON, Defendant and Respondent.
• Court: Supreme Court of Utah

147 P.3d 448

2006 UT 65

STATE of Utah, Plaintiff and Petitioner, v. James L. ROBISON, Defendant and Respondent.

No. 20050257.

Supreme Court of Utah.

October 31, 2006.

Mark L. Shurtleff, Att'y Gen., Matthew D. Bates, Asst. Att'y Gen, Salt Lake City, for petitioner.

Milton T. Harmon, Nephi, for respondent.

On Certiorari to the Utah Court of Appeals

NEHRING, Justice:

¶ 1 We agreed to review the court of appeals' decision to vacate James Robison's guilty plea for writing a bad check.¹ We hold that the court of appeals erred when it used an unpublished memorandum opinion to release Mr. Robison from his guilty plea for a reason never raised by the parties. The court of appeals interpreted the bad check statute to require that the check be given as part of a "substantially contemporaneous exchange." We hold that a bad check may be written where no "substantially contemporaneous exchange" occurs and that Mr. Robison's admitted conduct satisfies the statutory elements of the offense. Thus, we remand to the court of appeals for consideration of Mr. Robison's remaining rule 11 claims.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 James Robison is a licensed motor vehicle dealer. In the fall of 2001, a customer was looking for a GMC pickup truck. Mr. Robison contacted another dealer, Randy Painter, who found and purchased a truck that met the customer's specifications. Mr. Robison picked up the truck from Mr. Painter on September 1, 2001, and showed it to his customer later that day. The customer approved of the truck and agreed to buy it.

¶ 3 Mr. Robison then called Mr. Painter, told him that his customer was purchasing the truck, and committed to send Mr. Painter a check for the purchase price. Mr. Painter received a check from Mr. Robison several weeks later. It bounced.

¶ 4 Shortly thereafter, Mr. Robison faxed Mr. Painter a copy of a receipt showing that he had deposited a second check into Mr. Painter's bank account. Believing that the check would be honored, Mr. Painter mailed the truck's title to Mr. Robison, but the second check bounced as well. Mr. Robison never paid for the truck, although his customer paid him.

¶ 5 The State charged Mr. Robison with two counts of issuing a bad check and one count of theft by deception. Under the terms of a negotiated plea agreement, Mr. Robison pled guilty to one count of issuing a bad check.

¶ 6 One month later, Mr. Robison moved pro se to withdraw his guilty plea. The court denied this motion. In its order dismissing Mr. Robison's motion, the court found that the plea colloquy between the court and Mr. Robison satisfied the requirements under rule 11 of the Utah Rules of Criminal Procedure.

¶ 7 Mr. Robison appealed. He claimed that the district court failed to comply with rule 11 when it took his plea because elements of the offense to which he was pleading guilty were never clearly communicated, because he did not admit to the elements of the offense, and because the written plea agreement was not clear and consistent.

¶ 8 The court of appeals did not directly address Mr. Robison's claims, but a divided panel ruled in a memorandum decision that the plea violated rule 11 because it lacked an adequate factual basis to justify finding Mr. Robison guilty. The court of appeals majority determined that the checks written by Mr. Robison were not part of a "substantially contemporaneous exchange" and that his issuance of the checks to Mr. Painter was not a crime.

¶ 9 The court of appeals acknowledged that Mr. Robison "did not adequately present this issue to either the district court or to [the court of appeals]," State v. Robison, 2005 UT App 9U, *1-2, 2005 WL 91251 *1, but nevertheless based its holding on the "substantially contemporaneous exchange" rationale "to avoid `a great and manifest injustice.'" (quoting State v. Pierce, 655 P.2d 676, 677 (Utah 1982)).

ANALYSIS

I. THE COURT OF APPEALS DID NOT HAVE THE DISCRETION TO REVERSE THE DISTRICT COURT BASED ON REASONING OF ITS OWN MAKING

¶ 10 Before the phrase appeared in the court of appeals' memorandum decision neither the State nor Mr. Robison had mentioned the notion of a "substantially contemporaneous exchange." The court of appeals justified its unbidden decision to read a "substantially contemporaneous exchange" requirement into section 76-5-505 by explaining that, had it not done so, Mr. Robison would have been the victim of a "great and manifest injustice."

¶ 11 The phrase "great and manifest injustice" was first introduced into Utah case law in State v. Pierce, 655 P.2d 676, 677 (Utah 1982). Ms. Pierce claimed that she had been "`compelled to give evidence against [her]self'" in violation of article I, section 12 of the Utah Constitution. Id. (quoting Utah Const. art. I, § 12). She had, however, failed to raise this issue in the trial court when the allegedly self-incriminating evidence was introduced. We therefore refused to consider her claim because it was not properly preserved. Id. We nevertheless mentioned that "the facts [in Ms. Pierce's case] are not such that great and manifest injustice would be done if this Court does not entertain the issue sua sponte as an exception" to the preservation rule. Id.

¶ 12 Before being invoked by the court of appeals in aid of Mr. Robison, Pierce's "great and manifest injustice" language had appeared in only two other Utah cases. In both instances, the defendants tried to introduce legal claims that they had not preserved; and in both instances, the appellate court refused to grant relief from the failure to preserve an issue based on the presence of a "great and manifest injustice." State v. Lesley, 672 P.2d 79 (Utah 1983); State v. Archambeau, 820 P.2d 920 (Utah Ct.App. 1991).

¶ 13 Pierce, Lesley, and Archambeau shared features common to most efforts to avoid the consequences of the claim preservation rule which mandates that "claims not raised before the [district] court may not be raised on appeal." State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 (internal quotation marks omitted). The defendants in these cases discovered a ground for error they believed to justify their position and attempted to persuade the appellate court that circumstances warranted application of an exception to the preservation rule.

¶ 14 The most common exception to the preservation rule is plain error.² "To establish plain error, [a defendant is] required to demonstrate that (i) an error exists; (ii) the error should have been obvious to the [district] court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Cruz, 2005 UT 45, ¶ 16, 122 P.3d 543 (internal quotation marks omitted). In the Pierce trio of cases, like many others in the failure to preserve canon, the defendants articulated the unpreserved issue and explained why the district court committed "plain error" by not recognizing the magnitude of the error and by not stepping in on its own to avoid or remedy it. In this case, the court of appeals, however, went considerably further in rescuing Mr. Robison when it took the initiative to identify the issue that rendered Mr. Robison's conviction a "great and manifest injustice."

¶ 15 Whether the bad check statute included a "substantially contemporaneous exchange" element had never been briefed or argued by the parties. Until the time that the court of appeals grounded its holding in this concept, it had remained well enough concealed that neither party had noticed its potential for any claim of error, much less plain error.

¶ 16 The "substantially contemporaneous exchange" requirement was never subjected to the rigors of the adversarial process. Any skeptical scrutiny that the interpretation was forced to endure came from within the court itself. This is not to say that the court of appeals cannot be counted on to perform penetrating critical thinking. It clearly can and does. What troubles us about the approach of the court of appeals is the exercise of critical thinking without the engaged participation of the parties whose affairs will be directly affected by the product of that thinking.

¶ 17 Although we have used the vocabulary of preservation to describe the court of appeals' methodology, the analogy is not especially apt. Because the preservation rule and its exceptions do not contemplate arguments that are never presented by the parties, preservation nomenclature is inadequate to explain or assess what went awry here.

¶ 18 Because an exception to the preservation rule is insufficient to justify the court of appeals' decision, we next explore whether any other appellate principle would justify reversing the district court by invoking new law based on a theory that has not been raised by the parties.

¶ 19 Like almost every appellate court, we approve of the practice of affirming a lower court on alternative, unbriefed grounds. 5 C.J.S. Appeal & Error § 714 & nn. 40-43 (1993). We have said that

an appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the [district] court to be the basis of its ruling [and] even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court.

Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (internal quotation marks omitted).

¶ 20 While most jurisdictions have opined on the question of affirming on alternative grounds, the propriety of reversing a lower court on alternative grounds has received almost no attention, including none from this court. Perhaps the reasons why appellate courts should resist reversals for reasons of their own invention are too obvious to have merited serious inquiry. The most prominent, and perhaps only, reason to apply the same standards for alternative ground reversals as affirmances...