State v. Smith

• Decision Date: 02 September 2005
• Docket Number: No. 20030342.,No. 20030341.,20030341.,20030342.
• Parties: STATE of Utah, Plaintiff, Respondent, and Cross-Petitioner, v. Norm SMITH, Defendant, Petitioner, and Cross-Respondent.
• Court: Utah Supreme Court

122 P.3d 615

2005 UT 57

STATE of Utah, Plaintiff, Respondent, and Cross-Petitioner, v. Norm SMITH, Defendant, Petitioner, and Cross-Respondent.

No. 20030341.

No. 20030342.

Supreme Court of Utah.

September 2, 2005.

COPYRIGHT MATERIAL OMITTED

Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray, Brock R. Belnap, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

Margaret P. Lindsay, Aaron P. Dodd, Provo, for defendant.

On Certiorari to the Utah Court of Appeals.

DURHAM, Chief Justice:

¶ 1 This case is before us on cross-petitions for certiorari. We are first asked to determine whether the offense of aggravated assault under Utah Code section 76-5-103 is a lesser included offense that, under Utah Code section 76-1-402(3), should have merged with the offense of second-degree use of a concealed weapon under Utah Code section 76-10-504(3), as it existed in 1996. We conclude that Utah Code section 76-10-504 is an enhancement statute and that therefore the two offenses do not merge. We are further asked to determine whether the court of appeals properly determined that the defendant's counsel was ineffective for failing to force the State to prove that the defendant did not have a concealed weapons permit and, if so, whether the appropriate remedy was to remand the case for a new trial. We conclude that the lack of a concealed weapons permit is not an element of the offense under Utah Code section 76-10-504(3) and that the court of appeals therefore erred in concluding that defense counsel was ineffective.

BACKGROUND

¶ 2 The defendant, Norm Smith, was convicted in a jury trial of carrying a concealed dangerous weapon under Utah Code section 76-10-504(3), a second degree felony; two counts of aggravated assault under Utah Code section 76-5-103(1)(b), third degree felonies; and interfering with a lawful arrest.¹ Among other issues, Smith argued on appeal that the trial court should have merged the aggravated assault charges with the concealed weapon charge, and that his trial counsel was ineffective for failing to request dismissal of the concealed weapon charge after the State rested without introducing evidence that Smith did not have a concealed firearm permit. State v. Smith, 2003 UT App 52, ¶¶ 7, 9, 12, 19, 31, 65 P.3d 648.

¶ 3 The court of appeals rejected Smith's merger claim on the basis that, in accord with this court's opinion in State v. McCovey, 803 P.2d 1234 (Utah 1990), the legislature intended Utah Code section 76-10-504 to be an enhancement statute, rendering the merger doctrine inapplicable to an offense charged under the provision. Smith, 2003 UT App 52 at ¶ 22, 65 P.3d 648. In reaching this conclusion, the court of appeals looked primarily to the structure of section 76-10-504, observing that "[t]he penalties imposed by section 76-10-504 increase proportionally to the increased risk to the public, and this graduated punishment scale is indicative of an enhancement statute." Id. The court also appeared to rely on principles of common sense, reasoning that the legislature has "`the authority to increase the degree of crime, where instruments of violence, such as explosives or firearms are used.'" Id. (quoting State v. Angus, 581 P.2d 992, 994-95 (Utah 1978)).

¶ 4 The court of appeals was, however, persuaded by Smith's ineffective assistance claim, concluding that because "the State was required to prove that Smith did not have a valid permit to carry a concealed weapon" under Utah Code section 76-10-504, the trial court would have been forced to dismiss the concealed weapon charge had Smith's counsel requested it to do so. Id. at ¶¶ 32-34. The court therefore reversed Smith's conviction on this charge and remanded for a new trial. Id. at ¶ 35. In doing so, the court of appeals noted that the remand would not violate double jeopardy principles because its reversal was for "`trial error' and not for insufficiency of the evidence." Id. at ¶ 35 n. 8.

¶ 5 Smith petitioned this court for certiorari review of the court of appeals's decisions that the merger doctrine did not apply to Utah Code section 76-10-504 and that remand was the appropriate remedy for the ineffectiveness of his trial counsel. The State cross-petitioned, arguing that Smith's counsel was not ineffective because the lack of a concealed weapon permit was not an element of the charged offense under Utah Code section 76-10-504(3). This court has jurisdiction pursuant to Utah Code section 78-2-2(3)(a) (2002).

STANDARD OF REVIEW

¶ 6 On certiorari, we review the court of appeals on questions of law for correctness. State v. Leatherbury, 2003 UT 2, ¶ 7, 65 P.3d 1180; State v. Weeks, 2002 UT 98, ¶ 10, 61 P.3d 1000. Specifically, whether one crime is a lesser included offense, which merges with a greater included offense, is a legal question of statutory interpretation reviewed for correctness. State v. Bluff, 2002 UT 66, ¶ 37, 52 P.3d 1210. An ineffective assistance of counsel claim presents a question of law that is also reviewed for correctness. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I. APPLICATION OF MERGER DOCTRINE TO UTAH CODE SECTION 76-10-504

¶ 7 We first consider whether the court of appeals erred in concluding that the legislature intended Utah Code section 76-10-504 as an enhancement statute to which the merger doctrine, set forth in Utah Code section 76-1-402, would not apply. As the court of appeals observed, in its origin, "`[m]erger is a judicially-crafted doctrine available to protect criminal defendants from being twice punished for committing a single act that may violate more than one criminal statute.'" State v. Smith, 2003 UT App 52, ¶ 19, 65 P.3d 648 (quoting State v. Diaz, 2002 UT App 288, ¶ 17, 55 P.3d 1131). The motivating principle behind the merger doctrine is to prevent violations of constitutional double jeopardy protection. State v. Lopez, 2004 UT App 410, ¶ 8, 103 P.3d 153 ("Courts apply the merger doctrine as one means of alleviating the concern of double jeopardy that a defendant should not be punished twice for the same crime."); see also Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ("[T]he [Double Jeopardy Clause] forbids successive prosecution and cumulative punishment for a greater and lesser included offense.").

¶ 8 This principle has been codified at Utah Code section 76-1-402(3). See State v. Wood, 868 P.2d 70, 90 (Utah 1993) (recognizing that the test for determining whether a conviction for two separate offenses violates the Double Jeopardy Clause "is essentially the same as that in Utah Code Ann. § 76-1-402(3)"); State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (recognizing that convictions for both a greater and a lesser included offense would violate both the Double Jeopardy Clause and section 76-1-402(3)); State v. Ross, 951 P.2d 236, 241 (Utah Ct.App.1997) ("The [statutory] prohibition on conviction for lesser-included offenses flows from the double jeopardy clauses of the Utah and the United States Constitutions."). Section 76-1-402(3) provides that "[a] defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense." Utah Code Ann. § 76-1-402(3) (2003). The subsection further states that lesser included offenses are "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Id. § 76-1-402(3)(a). Thus, "where the two crimes are `such that the greater cannot be committed without necessarily having committed the lesser,' then as a matter of law they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both." State v. Hill, 674 P.2d 96, 97 (Utah 1983) (quoting State v. Baker, 671 P.2d 152, 156 (Utah 1983)).

¶ 9 In Hill, we set forth a two-part test for determining whether a conviction for a second offense arising out of the same set of facts violates section 76-1-402(3), requiring a comparison of "the statutory elements of the two crimes [first] as a theoretical matter and [second], where necessary, by reference to the facts proved at trial." Id. It is uncontested here that aggravated assault would constitute a lesser included offense of felony use of a concealed weapon under the two-part Hill analysis because the latter offense is defined as using a concealed weapon during the commission of a "crime of violence," which includes aggravated assault. Utah Code Ann. §§ 76-10-501(2)(b), -504(3) (1995).² In McCovey, however, this court in effect added a third step to the analysis, holding that in cases where the legislature intended a statute to be an enhancement statute, the merger doctrine set forth in section 76-1-402(3) does not apply. 803 P.2d at 1237. Here, the court of appeals agreed with the State that section 76-10-504 is an enhancement statute, but Smith argues it is not. We therefore focus our analysis on that question.

¶ 10 In McCovey, this court reasoned that "enhancement statutes are different in nature than other criminal statutes" because they single out particular characteristics of criminal conduct as warranting harsher punishment. Id. The court proceeded to rest its determination that the felony murder statute was an enhancement statute on an examination of "the nature and purpose" of the statute. Id. at 1238. The court concluded that "[i]n essence, [felony murder] is a strict liability offense that enhances an otherwise unintentional killing to second degree murder." Id.

¶ 11 Here, revisiting the issue of enhancement statutes and their relationship to section 76-1-402(3), we depart from McCovey's somewhat nebulous focus on a statute's "nature and purpose" and return to the core principle of statutory construction: "`Where statutory language is plain and unambiguous, this Court will not look beyond to divine legislative intent. Instead, we are guided by the rule that a statute should be construed according to its plain...