This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 10

IN THE

SUPREME COURT OF THE STATE OF UTAH

CARLOS VORHER,

Petitioner,

v.

HONORABLE STEPHEN L. HENRIOD,

Respondent.

No. 20110737

Filed February 22, 2013

On Certiorari to the Utah Court of Appeals

Third District, Tooele Dep’t

The Honorable Stephen L. Henriod

No. 091300624

Attorneys:

Richard G. Uday, Charles R. Stewart, Salt Lake City, for petitioner

Brent M. Johnson, Salt Lake City, M. Douglas Bayly, Tooele, 

for respondent

JUSTICE PARRISH authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING, and

JUSTICE LEE joined.

JUSTICE DURHAM filed a concurring opinion.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 At issue in this case is whether Utah Code section 76-3-

405(2)(b) applies to appeals from justice court convictions. Under

section 405(1), “[w]here a conviction or sentence has been set aside

on direct review . . . , the court shall not impose a new sentence for

the same offense . . . which is more severe than the prior sentence.”

UTAH CODE § 76-3-405(1). Section 76-3-405(2)(b) provides an

exception to this general rule when a defendant’s sentence is based

on a plea agreement. The court of appeals applied this exception to

uphold the district court’s imposition of a more severe sentence on

Petitioner following his appeal from justice court. We granted

certiorari on the issue of “[w]hether the court of appeals erred in
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Opinion of the Court

2

denying Petitioner’s request for extraordinary relief challenging the

imposition of a more severe penalty following a de novo trial on

appeal of his justice court guilty plea.”

BACKGROUND

¶2 Carlos Vorher was charged with voyeurism, a class B

misdemeanor, in Tooele County justice court. He pled guilty to

disorderly conduct, a class C misdemeanor, and was sentenced to

ninety days in jail and ordered to pay a fine. Mr. Vorher appealed

his conviction to the district court, which conducted a trial de novo.

Mr. Vorher argued to the district court that he could not be sentenced more severely than he had been in the justice court. However, the district court convicted him of the original charge, sentenced him to 180 days in jail, and imposed a higher fine.

¶3 Mr. Vorher petitioned the court of appeals for extraordinary relief. He argued that the district court violated section 76-3-

405 of the Utah Code when it imposed a more severe punishment

than the one originally imposed by the justice court.

¶4 The court of appeals denied the relief requested. It

reasoned that although section 76-3-405(1) “generally prohibits the

imposition of a greater sentence after a defendant successfully

appeals[,]” Mr. Vorher’s “case falls outside of the general rule

because [his] original conviction and sentence resulted from a plea

agreement.” Vorher v. Henriod, 2011 UT App 199, ¶ 9, 262 P.3d 42.

It noted that this court had applied subsection (1) of 76-3-405 to

appeals from justice court “even though the statutory language is in

some ways inconsistent with the justice court appeal process.” Id.

¶ 12 n.4 (citing Wisden v. District Court, 694 P.2d 605 (Utah 1984) (per

curiam)). And it was “not convinced that the [L]egislature intended

to exclude justice court plea agreements” from the exception found

in subsection (2)(b). Id. ¶ 12 (emphasis added). It therefore determined that the exception contained in subsection (2)(b) applied to

justice court convictions, and that the district court did not make a

mistake of law or abuse its discretion when it sentenced Mr. Vorher

to a more severe sentence on appeal than the one originally imposed

by the justice court. Id. ¶ 14.

¶5 Mr. Vorher filed a petition for certiorari review and Tooele

City filed a response. We granted the petition for review and have

jurisdiction pursuant to sections 78A–3–102(3)(a) and 78A–3–102(5)

of the Utah Code.
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3

STANDARD OF REVIEW

¶6 “Whether section 76-3-405 applies . . . is a matter of

statutory interpretation, which presents a question of law. We

review a trial court’s rulings on questions of law for correctness.”

State v. Powell, 957 P.2d 595, 596 (Utah 1998). 

ANALYSIS

¶7 Mr. Vorher argues that the court of appeals erred when it

upheld the district court’s imposition of a more severe sentence than

the one originally imposed by the justice court. Specifically, he

argues that allowing the district court’s punishment to stand would

“chill the right of appeal.” He further suggests that imposition of a

harsher punishment after appeal is a violation of his right to due

process.

¶8 Tooele City responds that subsection (2)(b) of section 76-3-

405 applies to appeals from justice courts because it is consistent

with this court’s precedent holding that subsection (1) applies to

justice courts. It further argues that the due process concerns

prohibiting imposition of harsher sentences following appeal do not

apply to cases involving negotiated pleas or to a two-tiered justice

court appeal system. We agree with Tooele City and hold that

section 76-3-405(2)(b) applies to appeals from justice courts.

I. UTAH CODE SECTION 76-3-405(2)(b) APPLIES

TO APPEALS FROM JUSTICE COURTS FOLLOWING

A PLEA AGREEMENT

¶9 Justice courts are authorized under article VIII, section 1 of

the Utah Constitution and are governed by the Utah Code. See

UTAH CODE §§ 78A-7-101 to -300. Justice courts have jurisdiction

over class B and C misdemeanors, among other things. Id. § 78A-7-

106(1). If a defendant timely appeals “a plea of guilty . . . in the

justice court,” then he is “entitled to a trial de novo in the district

court.” Id. § 78A-7-118(1)(b). But a justice court defendant has no

further right to appeal the results of the trial de novo unless “the

district court rule[d] on the constitutionality of a statute or ordinance.” Id. § 78A-7-118(9). 

¶10 We upheld the constitutionality of Utah’s justice court

system in Bernat v. Allphin, 2005 UT 1, 106 P.3d 707. Specifically, we

held that a defendant’s right to appeal a justice court judgment

through a de novo trial in the district court does not violate the

constitutional prohibition against double jeopardy, id. ¶ 33, does not
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4

deny a defendant’s right to due process, id. ¶ 39, and does not deny

a defendant’s right to equal protection of the law, id. ¶ 41.

¶11 Having described the justice court appeal framework, we

now consider the applicability of section 76-3-405(2)(b) to justice

court appeals. Subsection (1) of section 76-3-405 “provides that the

sentence imposed after retrial shall not be more severe than the

original sentence.” Wisden v. District Court, 694 P.2d 605, 606

(Utah 1984) (per curiam). In Wisden, we explicitly held that subsection (1) of section 76-3-405 applies to appeals from justice court

convictions. Id. Subsequent to our ruling in Wisden, the Legislature

added subsection (2) to section 76-3-405. Subsection (2) recognizes

two exceptions to the applicability of subsection (1). Subsection

(2)(b) states that the general prohibition against a district court

imposing a punishment in excess of that originally imposed for an

offense based on the same conduct “does not apply when . . . a

defendant enters into a plea agreement with the prosecution.” UTAH

CODE § 76-3-405(2)(b). We have yet to address whether subsection

(2)(b) applies to appeals from justice courts. We now do so.

¶12 By its terms, section 76-3-405 applies in cases “[w]here a

conviction or sentence has been set aside on direct review or on

collateral attack.” We acknowledge that our justice court appeal

framework does not involve setting aside justice court judgments on

direct review. See Bernat, 2005 UT 1, ¶ 20. Indeed, upon the filing of

a timely appeal, all justice court defendants are automatically

entitled to a trial de novo in the district court. UTAH CODE § 78A-7-

118(1). In short, it is semantically difficult to conceptualize a trial de

novo as an appeal. But our holding in Wisden was clear—subsection

(1) applies to justice courts. 694 P.2d 605, 606. Because subsection

(1) applies to justice courts and subsection (2) creates an exception

to subsection (1), then subsection (2) necessarily applies to appeals

from justice court convictions. To conclude otherwise would require

us to overrule Wisden.

¶13 “Under the doctrine of stare decisis, a party asking us to

overturn prior precedent has a substantial burden of persuasion.”

Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 16, 275

P.3d 208 (internal quotation marks omitted). “[L]ong standing

precedent should not be overruled except for the most compelling

reasons.” ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65,

¶ 23, 245 P.3d 184 (internal quotation marks omitted). Specifically,

“we may overturn our precedent if we are clearly convinced that the

rule was originally erroneous or is no longer sound because of

changing conditions and that more good than harm will come by
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Opinion of the Court

5

departing from precedent.” Admiral Beverage Corp., 2011 UT 62, ¶ 16

(internal quotation marks omitted). But Mr. Vorher has not even

articulated an argument suggesting that we overrule our precedent

in Wisden. Therefore, stare decisis dictates that section 76-3-405,

including subsection (2)(b), applies to justice courts.

¶14 Our conclusion is buttressed by the legislative history.

Section 76-3-405 was first enacted in 1973. We issued our opinion in

Wisden in 1984. And the Legislature added subsection (2) in 1997.

The fact that the Legislature added subsection (2) after we had

explicitly held that section 76-3-405 applied to appeals from justice

courts suggests that the Legislature intended subsection (2) to apply

to justice courts as well.

¶15 In addition, the policy reasons that support subsection

(2)(b) apply equally to appeals from justice courts and traditional

appeals. We have previously recognized that 

it would be unwise to hold that a sentence imposed

pursuant to a plea agreement should limit a sentence

subsequently imposed at trial after [the] defendant has

withdrawn his plea. Plea bargains are entered into so

that both sides may avoid the expense and uncertainty

of a trial. In exchange for conserving State resources,

[the] defendant usually receives a lower charge or

lesser sentence. Thus, it would be anomalous to allow

a defendant to keep the benefit of an agreement he

repudiated while requiring the State to proceed to trial

and prove its case.

State v. Powell, 957 P.2d 595, 597 (Utah 1998).

¶16 We also agree with the concern noted by the court of

appeals in this case. Specifically, “prosecutors might be less willing

to entertain justice court plea agreements at all if defendants could

lock in their maximum sentence with a plea agreement and then

demand a trial de novo in the district court.” Vorher v. Henriod, 2011

UT App 199, ¶ 13 n.5, 262 P.3d 42. In short, application of 76-3-

405(2)(b) to justice court convictions is consistent with both Utah

precedent and the public policies that support it.

II. SECTION 76-3-405(2)(b) IS CONSISTENT WITH

UNITED STATES SUPREME COURT PRECEDENT

¶17 In arguing that section 76-3-405(2)(b) should not be applied

to appeals from justice court convictions, Mr. Vorher argues that the

United States Supreme Court opinion in North Carolina v. Pearce, 395
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1

 Mr. Vorher also has not argued that there should be a different

outcome under the Utah Constitution.

6

U.S. 711 (1969), “expressly forbids actions which chill the right to

appeal by disallowing a more severe sentence at trial.” But Mr.

Vorher has not articulated an argument that the statute is unconstitutional under the United States Constitution.1

 Nor would he be

successful in doing so under controlling Supreme Court precedent.

¶18 In Pearce, the defendant was convicted of assault with

intent to commit rape. Id. at 713. The North Carolina Supreme

Court reversed his conviction and granted Pearce a new trial. Id.

Upon retrial, Pearce was convicted and sentenced to what amounted

to a longer total sentence than that originally imposed. Id. The

United States Supreme Court granted habeas corpus review and

held that neither the Double Jeopardy Clause nor the Equal Protection Clause provided an absolute bar to a more severe sentence upon

reconviction. Id. at 717–23. The Court reasoned that “it would be a

flagrant violation of the Fourteenth Amendment for a state trial

court to follow an announced practice of imposing a heavier

sentence upon every reconvicted defendant for the explicit purpose

of punishing the defendant for his having succeeded in getting his

original conviction set aside.” Id. at 723–24. Thus, the Court held

that “[d]ue process of law . . . requires that vindictiveness against a

defendant for having successfully attacked his first conviction must

play no part in the sentence he receives after a new trial. “ Id. at 725.

¶19 The Court has subsequently made clear, however, that a

presumption of vindictiveness does “not apply in every case where

a convicted defendant receives a higher sentence on retrial.” Texas

v. McCullough, 475 U.S. 134, 138 (1986). And in Alabama v. Smith, it

specifically held that federal due process does not require a presumption of vindictiveness in circumstances where a defendant

initially pled guilty pursuant to a plea agreement and a sentencing

judge had more information after hearing evidence at trial. 490 U.S.

794, 801 (1989). As a result, “the majority of the circuits have

concluded that the Pearce presumption does not apply in the plea

bargaining context.” Kurtis A. Kemper, Annotation, Propriety of

Sentencing Judge’s Imposition of Harsher Sentence than Offered in

Connection with Plea Bargain Rejected or Withdrawn Plea by Defendant -

Federal Cases, 200 A.L.R. Fed. 591 (2005).

¶20 Without a presumption of vindictiveness, a defendant

seeking to establish the unconstitutionality of a harsher sentence
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7

following an appeal must demonstrate actual vindictiveness. But

“courts have uniformly held that no actual vindictiveness was

established by the mere fact that the defendant’s sentence exceeded

that offered in a plea bargain.” Id. (emphasis added). Because Mr.

Vorher has failed to articulate any evidence suggesting vindictiveness, any claim that section 76-3-405(2)(b) is unconstitutional would

necessarily have been unsuccessful. 

CONCLUSION

¶21 We hold that the section 76-3-405(2)(b) exception against

imposing a harsher sentence on appeal when a defendant has

entered into a plea agreement applies to justice court proceedings.

Therefore, the court of appeals did not err in denying Mr. Vorher’s

request for extraordinary relief.

JUSTICE DURHAM, concurring in the result:

¶22 I concur in the result reached by the majority but write

separately to express my disagreement with the majority’s conclusion that Utah Code section 76-3-405(2) applies to appeals from

justice court. The majority recognizes that “it is semantically

difficult” to reconcile the statute with the justice court appeal

process, yet feels bound to do so by Wisden v. District Court, 694 P.2d

605 (Utah 1984) (per curiam). Supra ¶ 12. In my view, Wisden is of

little precedential value because it is a thirty-year-old per curiam

opinion with no statutory analysis. We should not feel bound by

such an opinion to adhere to a conceptually, semantically, and

constitutionally problematic interpretation of a statute.

¶23 Utah Code section 76-3-405 provides as follows:

(1) Where a conviction or sentence has been set aside

on direct review or on collateral attack, the court shall

not impose a new sentence for the same offense or for

a different offense based on the same conduct which

is more severe than the prior sentence less the portion

of the prior sentence previously satisfied.

(2) This section does not apply when:

 . . .

     (b) a defendant enters into a plea agreement with

the prosecution and later successfully moves to

invalidate his conviction, in which case the defendant

and the prosecution stand in the same position as
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JUSTICE DURHAM, concurring in the result

8

though the plea bargain, conviction, and sentence had

never occurred.

¶24 By its plain language, section 76-3-405 applies “[w]here a

conviction or sentence has been set aside on direct review or on

collateral attack.” The exception in subsection (2)(b) applies where

“a defendant . . . successfully moves to invalidate his conviction.”

When a justice court defendant exercises the right to appeal to the

district court, the conviction and sentence from the justice court are

not “set aside on review or on collateral attack” or “invalidate[d].”

Although the sentence may be stayed, the conviction and sentence

remain in force during the appeal. See Bernat v. Allphin, 2005 UT 1,

¶¶ 22–23, 106 P.3d 707. Furthermore, subsection (2)(b) states that

when a conviction resulting from a guilty plea is invalidated, “the

defendant and the prosecution stand in the same position as though

the plea bargain, conviction, and sentence had never occurred.” As

the court of appeals recognized, it is impossible for defendants who

appeal their justice court convictions to stand “as though the plea

bargain, conviction, and sentence had never occurred because they

have lost the right to appellate review.” Vorher v. Henriod,

2011 UT App 199, ¶ 12, 262 P.3d 42 (citation omitted) (internal

quotation marks omitted).

¶25 Thus, by its plain language, section 76-3-405 does not apply

to appeals from justice court. The majority recognizes this fact in

paragraph 12, and we recognized this fact in Wisden. We noted in

Wisden that “[t]he district court judge, sitting as a trial judge, may

have reasoned that section 76–3–405 did not apply, since the first

conviction was not ‘set aside on direct review or on collateral

attack.’” 694 P.2d at 606 (quoting UTAH CODE § 76-3-405). We did not

proceed to explain how the statutory language could be reconciled

with the justice court appeal system. Rather, we said, “Our rule is

not confined to the statutory limitation,” and proceeded to identify

a constitutional foundation for our holding. Id.

¶26 The majority finds support for its position in the Legislature’s post-Wisden addition of subsection (2). See supra ¶ 14. However, if the Legislature had been mindful of Wisden when it enacted

subsection (2), it should have either clarified that section 76-3-405

does not apply to justice court appeals or amended the language to

make it compatible with the justice court appeal process. Instead, the

Legislature simply added subsection (2), which, like the current

subsection (1), includes language that is incompatible with justice

court appeals. Thus, the Legislature appears not to have been
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Opinion of the Court

9

considering either Wisden or the justice court appeal process when

it added subsection (2).

¶27 Notwithstanding my disagreement with the majority’s

statutory interpretation, I concur in the result because, as the

majority explains in paragraphs 17 through 20, the harsher sentence

imposed on Mr. Vorher by the district court does not violate his

federal due process rights. The sentence may arguably violate his

right to appeal or his due process rights under the Utah Constitution, see City of Monticello v. Christensen, 788 P.2d 513, 519–20

(Utah 1990) (Durham, J., dissenting), but Mr. Vorher has not asked

us to consider his state constitutional rights.