State v. Wilder

• Decision Date: 15 May 2018
• Docket Number: No. 20160952,20160952
• Citation: 420 P.3d 1064
• Parties: STATE of Utah, Respondent, v. Percy L. WILDER, Petitioner.
• Court: Utah Supreme Court

420 P.3d 1064

STATE of Utah, Respondent,

v.Percy L. WILDER, Petitioner.

No. 20160952

Supreme Court of Utah.

Filed May 15, 2018

Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for respondent

Samuel P. Newton, Kalispell, MT, for petitioner

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Justice Pearce, and Justice Petersen joined.

Associate Chief Justice Lee filed a concurring opinion.

On Writ of Certiorari to the Utah Court of Appeals

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 While on parole from the state prison for the attempted rape of a child, defendant, Percy Wilder, detained and sexually attacked the victim, leading a jury to convict him of one count of aggravated sexual assault and one count of aggravated kidnapping. Before the court of appeals, Mr. Wilder argued that these two convictions should have merged pursuant to State v. Finlayson , 2000 UT 10, 994 P.2d 1243. He also argued that his trial counsel was ineffective for not asking for an order to that effect.

¶2 The court of appeals disagreed. It reasoned that Mr. Wilder’s trial counsel didn’t render ineffective assistance because the convictions didn’t, in fact, merge. We granted a writ of certiorari to determine whether the court of appeals erred in its determination. It didn’t.

¶3 The State and Mr. Wilder share no common ground with respect to the decision of the court of appeals other than in one significant particular: both ask us to repudiate the common-law merger test we first announced in Finlayson and recapped in State v. Lee , 2006 UT 5, 128 P.3d 1179, ( Finlayson - Lee test). We accept the invitation, overrule the relevant portions of Finlayson and Lee, and announce that the controlling test is set forth in Utah Code section 76-1-402(1). In view of this decision, we uphold the determination of the court of appeals that Mr. Wilder’s trial counsel wasn’t ineffective.

BACKGROUND

¶4 After going to a concert at an Ogden nightclub, and not yet ready to call it a night, the victim and her friend decided to go to a house party.¹ The two women got to the party at around 1:30 a.m. Mr. Wilder showed up a few minutes later. In short order, he started hassling the victim to go outside with him to talk. The victim told him no. Undeterred, Mr. Wilder repeated his invitation nearly a dozen times. The answer was always no.

¶5 While the victim didn’t go outside with Mr. Wilder, she did decide to step outside to retrieve her phone from her car. Mr. Wilder followed her out the door and immediately relaunched his verbal offensive—now asking her over and over again to "go with him" to talk. Again, the answer was no. Mr. Wilder didn’t stop. He opened the driver’s side door of his car and tried to get the victim to sit down. At first, she kept telling him that she didn’t want to. Ultimately, however, she gave in hoping that it would "get him to shut up."

¶6 But Mr. Wilder kept going. Once he got the victim in the car, he tried to get her to scoot over to the passenger seat. When she refused, he sat on the edge of the driver’s seat. She then crossed over to the passenger’s side, opened the door, and put one of her legs out. To prevent the victim from getting out, Mr. Wilder started the car, quickly backed up, and said he wanted her "to ride with him to go pick up a friend and take him home or something." The victim’s door was still open as the car began moving forward.

¶7 Afraid Mr. Wilder would run over her if she jumped out, the victim closed the car door, but asked Mr. Wilder to stop at her car on the partial pretext of wanting to grab her phone. Really, she just wanted out. Mr. Wilder refused. Instead, he kept driving, now going on about wanting to have oral sex. The victim kept saying no.

¶8 Mr. Wilder, it appears, couldn’t have cared less about obtaining the victim’s consent. So, he drove for a couple of minutes and then pulled up by a dumpster toward the back of a parking lot adjacent to an apartment complex. There, he turned the car off and asked the victim to undress. He then tried to put his hand up her shirt, shoved his head into her chest, and bit her. When she still refused to submit, he started screaming at her "[t]o get naked." The victim reacted by asking why he was doing this and telling him if he’d let her out she’d walk home. Mr. Wilder then shouted that he’d cut her if she got out of the car.

¶9 Despite Mr. Wilder’s threat to cut her, the victim continued to say no and to ask him why he was doing this. She also told him that she had children at home. Mr. Wilder answered that "he didn’t give an ‘F’ about [her] or [her] kids, and that [she] was going to do what he said."

¶10 Around this time, the victim took her heels off with an eye toward making a run for it. Mr. Wilder told her to keep getting undressed. When she wouldn’t, he "reached down the side of his car and said, ‘I’m going to count to three, and if you are not naked, I’m going to gut you from head to toe.’ "

¶11 At two, the victim opened the door, jumped out, pulled away from Mr. Wilder, and started running for the apartment complex. The victim was in the car with Mr. Wilder for some ten minutes before she was able to make her escape.

¶12 The victim made it inside of the apartment complex and, hearing Mr. Wilder running behind her, started pounding on doors and screaming. Mr. Wilder caught up with the victim, wrapped his hand in her hair, and began trying to drag her back to the car. She fought back by dropping close to the ground and locking her arms and legs in a way that, given the narrow hallway, kept Mr. Wilder from being able to drag her back. Mr. Wilder then released the victim, punched her in the face, and ran off. The victim continued pounding on apartment doors and screaming until she was able to attract help and call 911. Police were able to quickly find and arrest Mr. Wilder.

¶13 The State charged Mr. Wilder with one count of aggravated sexual assault, a first-degree felony, and one count of aggravated kidnapping, also a first-degree felony. The jury found Mr. Wilder guilty as charged. The trial judge sentenced Mr. Wilder to two terms of fifteen years to life, to run concurrently with each other but consecutive to Mr. Wilder’s prison sentence for his prior conviction for attempted rape of a child. At no point during the trial proceedings did Mr. Wilder’s trial counsel move to have the two convictions merged.

¶14 We granted a writ of certiorari on the question of "[w]hether the court of appeals erred in concluding [Mr. Wilder’s] trial counsel could not have established that his aggravated kidnapping and aggravated sexual assault charges merged." We assert jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶15 "On a writ of certiorari, we review the decision of the court of appeals, not that of the district court, and apply the same standard[s] of review used by the court of appeals. We conduct that review for correctness, ceding no deference to the court of appeals." Judge v. Saltz Plastic Surgery, P.C. , 2016 UT 7, ¶ 11, 367 P.3d 1006 (alteration in original) (citation omitted). In addition, the underlying merger issue asks a question of law, which we also review for correctness. See State v. Diaz , 2002 UT App 288, ¶ 10, 55 P.3d 1131.

ANALYSIS

¶16 Mr. Wilder’s overarching contention is that his trial "counsel ineffectively failed to move to merge [his] aggravated kidnapping conviction with his aggravated sexual assault conviction." Specifically, Mr. Wilder argues that his trial counsel was ineffective because counsel failed to seek merger of the two convictions under (a) the Finlayson - Lee test² or (b) the statutory test set forth at Utah Code section 76-1-402(1).³ In the back-and-forth of these arguments, both Mr. Wilder and the State assert that the Finlayson - Lee test is a legal mess that must be overturned. Mr. Wilder would have us replace the Finlayson - Lee test with another common-law test, which he refers to as a "modified- Kimbel test."⁴ The State would have us eschew any common-law test in favor of the statutory test and hold that because the Finlayson - Lee test is invalid, Mr. Wilder’s counsel’s failure to invoke it cannot serve as the basis for an ineffective assistance claim. And the statutory merger test likewise cannot serve as the basis, according to the State, because Mr. Wilder failed to advance this argument before the court of appeals. We agree with both of the State’s contentions.

I

¶17 "The Sixth Amendment to the United States Constitution guarantees a criminal defendant the [a]ssistance of counsel for his defense, meaning that he has the right to effective assistance of counsel." State v. Bond , 2015 UT 88, ¶ 59, 361 P.3d 104 (alteration in original) (citation omitted) (internal quotation marks omitted). "Under the Supreme Court’s decision in Strickland v. Washington , [a defendant] must satisfy a two-part test to demonstrate" that he’s been deprived of counsel’s effective assistance. Id. (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). First, he must demonstrate "his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment." Archuleta v. Galetka , 2011 UT 73, ¶ 38, 267 P.3d 232 (citation omitted). Second, he must establish "counsel’s performance prejudiced" him, id. (citation omitted), meaning there’s "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different," id. ¶ 40 (citation omitted).

¶18 We needn’t look beyond the second aspect of the Strickland test—the prejudice prong—to conclude that Mr. Wilder’s trial counsel didn’t render ineffective assistance by not arguing for merger under the Finlayson - Lee test. As a matter of law, counsel cannot be ineffective for failing to raise and rely on bad law. See Lockhart v. Fretwell , 506 U.S. 364,...