2014 UT App 260

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THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

MICHAEL MELANCON,

Defendant and Appellant.

Opinion

No. 20120508-CA

Filed November 14, 2014

Fifth District Court, Cedar City Department

The Honorable Pamela G. Heffernan

No. 081500742

Matthew D. Carling, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys

for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES

GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.

PEARCE, Judge:

¶ 1 Paul Melancon set fire to his brother’s house. After his

arrest, he met with a prosecutor and accepted a plea deal. As 

part of that deal, Paul Melancon agreed to testify that he had 

enkindled the house as part of a plan his brother, Michael 

Melancon (Defendant), had devised to collect the proceeds of an 

insurance policy. Before Defendant’s trial, Defendant sought to 

disqualify the prosecutor, claiming he needed to call the 

prosecutor as a witness to testify concerning the plea 

negotiations. The trial court denied the disqualification motion. 

Defendant was convicted of both aggravated arson as an 
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20120508-CA 2 2014 UT App 260

accomplice and criminal solicitation. After trial, the court 

merged the criminal-solicitation conviction into the aggravatedarson conviction. The trial court also denied Defendant’s Shondel

motion, by which he sought to be sentenced only for criminal 

solicitation.

¶ 2 Defendant challenges his conviction, contending that the 

trial court abused its discretion in denying his motion to 

disqualify the prosecutor and also erred by sentencing him for 

aggravated arson rather than criminal solicitation. Because the 

prosecutor was not a necessary witness and because Defendant 

was not entitled to confront the prosecutor, we find no abuse of 

discretion in the trial court’s denial of the disqualification

motion. Because the elements of the two offenses differ, we 

conclude that the Shondel doctrine did not apply and that the 

trial court correctly sentenced Defendant for aggravated arson. 

We affirm. 

BACKGROUND

¶ 3 We recite the facts from the record in the light most 

favorable to the jury’s verdict, supplementing them as necessary 

to understand the issues raised on appeal. State v. Marchet, 2014 

UT App 147, ¶ 2 n.3, 330 P.3d 138.

¶ 4 After his arrest, Paul Melancon (Brother) met with a 

police investigator and a prosecutor. Brother agreed to plead 

guilty to second-degree felony arson and to testify against 

Defendant. At trial, Brother testified that Defendant had asked 

for his help in setting fire to Defendant’s house so that 

Defendant could collect the insurance proceeds. Brother testified 

that they prepared the house for the fire by removing tools from 

the garage, placing firearms in a fireproof room, backing up 

computers, and stashing important documents in a fireproof 

safe. Defendant instructed Brother on how to ignite the fire. 
State v. Melancon

20120508-CA 3 2014 UT App 260

Defendant then took his family to Las Vegas while Brother 

stayed behind to carry out the plan.

¶ 5 Brother further testified that he followed Defendant’s 

instructions by removing property from the house, 

disconnecting the house’s circuit breakers, disabling smoke 

detectors, and perforating the sheetrock in the basement. Brother 

also spread accelerants throughout the house. Brother set fire to 

a pillow and threw it into a downstairs media room to ignite the 

blaze. The fire spread more quickly than he had anticipated, and 

Brother suffered extensive and severe burns while escaping from 

the house.

¶ 6 Defendant denied much of Brother’s story. Defendant 

testified that they had not planned to burn down his house, that 

he had not asked Brother to set his house on fire, and that he had 

never instructed Brother on how to do so. Defendant sought to 

discredit Brother’s testimony as the result of a plea deal that

permitted Brother to plead guilty to a lesser offense. Defendant 

believed that the prosecutor, Scott Garrett, was a necessary 

witness to testify concerning the plea negotiations leading to 

Brother’s testimony. Defendant therefore moved to disqualify 

Garrett from serving as prosecutor in the apparent hope of 

calling him as a witness. The State noted that the plea 

negotiations had been recorded and agreed to the admission of 

the recording to settle any dispute about the content of the 

negotiations. The State also noted that the police investigator 

who had been present during the negotiations would testify at 

the trial and could be cross-examined by Defendant. The trial 

court denied Defendant’s disqualification motion after ruling 

that an alternative source existed for the impeachment evidence 

Defendant sought and that Defendant’s Confrontation Clause 

rights would not be violated.

¶ 7 A jury convicted Defendant of criminal solicitation and of 

aggravated arson under an accomplice-liability theory. Before 

sentencing, Defendant filed a Shondel motion, seeking to be 
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20120508-CA 4 2014 UT App 260

sentenced solely for the criminal-solicitation conviction. See State 

v. Shondel, 453 P.2d 146, 148 (Utah 1969); State v. Wolf, 2014 UT 

App 18, ¶ 37, 319 P.3d 757 (explaining that, under the Shondel

doctrine, when the elements of two crimes are wholly 

duplicative, the defendant may be sentenced only to the lesser 

punishment). In the alternative, Defendant asked the court to 

merge the charges and enter his conviction only for first-degreefelony aggravated arson. The State conceded that the convictions 

should be merged but argued that Defendant was not entitled to 

the lesser penalty under the Shondel doctrine, because the 

elements of accomplice liability and criminal solicitation did not 

overlap completely. The trial court ruled that Defendant was not 

entitled to the lesser penalty, because the elements of the two 

crimes differed. The trial court did, however, merge the seconddegree-felony criminal-solicitation conviction into the firstdegree-felony aggravated-arson conviction. The trial court then 

sentenced Defendant to a five-years-to-life prison term on the 

aggravated-arson conviction.

¶ 8 Defendant appeals the denial of his disqualification and 

Shondel motions.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Defendant first contends that the trial court abused its 

discretion in denying the disqualification motion, because the 

prosecutor was a necessary witness to the plea negotiations and 

his testimony could have been used to impeach Brother. We 

review a disqualification decision for an abuse of discretion. 

Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299 

P.3d 1058.

¶ 10 Defendant also contends that the trial court erred by 

failing to apply the Shondel doctrine and sentence him for 

criminal solicitation only. We review a trial court’s application of 
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20120508-CA 5 2014 UT App 260

the Shondel doctrine for correctness. State v. Jensen, 2004 UT App 

467, ¶ 8, 105 P.3d 951.

ANALYSIS

I. Defendant’s Motion to Disqualify Garrett

¶ 11 Defendant asserts that the trial court abused its discretion

by denying his motion to disqualify Garrett. The trial court ruled 

that it was too late in the proceedings to disqualify a prosecutor, 

that it was not ‚likely‛ that Garrett would be called as a 

necessary witness, and that there was no Confrontation Clause 

violation because Brother’s testimony could be impeached by the 

recorded plea negotiations.

A. Garrett was not a necessary witness.

¶ 12 Defendant sought to discredit Brother’s testimony by 

explaining to the jury that it ‚was given in hopes of gaining a 

favorable plea agreement, and it was given based upon promises 

made directly by Scott Garrett and his involvement in that 

interview.‛ To do so, Defendant argued that he might need to 

call Garrett as a witness ‚to talk about what his promises were, 

why he promised it, and why he proceeded to believe‛ Brother’s 

testimony. The Utah Rules of Professional Conduct provide, in 

pertinent part, ‚A lawyer shall not act as advocate at a trial in 

which the lawyer is likely to be a necessary witness 

unless . . . the testimony relates to an uncontested issue . . . .‛ 

Utah R. Prof’l Conduct 3.7(a)(1). On appeal, Defendant contends 

that the trial court should have ruled that Garrett was a 

necessary witness and thus disqualified Garrett from 

prosecuting this case. He argues that the investigating officer’s 

testimony was not a valid alternative to Garrett’s, because the 

officer should not have participated in the plea negotiations.
State v. Melancon

20120508-CA 6 2014 UT App 260

¶ 13 We first note limitations on the testimony Defendant 

sought to elicit from Garrett. Before the trial court, Defendant 

argued that Garrett could testify not only to the content of the 

plea negotiations but also to why Garrett believed Brother’s 

version of events and offered Brother a plea deal. On appeal, 

Defendant argues that he ‚should have been allowed to crossexamine Garrett regarding his statements and reasoning related 

to the plea negotiations. It was insufficient for [Brother] and the 

officer to testify as to Garrett’s statements, and they could not 

testify as to his reasoning or subjective position.‛

¶ 14 The attorney-work-product doctrine generally protects 

the work of prosecutors from the discovery process. See 23 Am. 

Jur. 2d Depositions and Discovery § 278 (2014) (titled ‚Work 

product of prosecution‛ and noting that ‚the accused is not 

entitled to learn about the prosecutor’s decision whether to 

prosecute‛ including the ‚opinion work product prepared by the 

prosecution in anticipation of any criminal prosecution, not 

merely the particular prosecution in which the request for 

disclosure is made‛). Cf. Southern Utah Wilderness Alliance v. 

Automated Geographic Ref. Ctr., 2008 UT 88, ¶ 24, 200 P.3d 643 

(‚‘*C+ore or opinion work product receives greater protection 

than ordinary work product and is discoverable only upon a 

showing of rare and exceptional circumstances.’‛ (quoting In re 

Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003))). 

Defendant provides no contrary authority to support his 

assertion that he was entitled to present evidence of the 

prosecutor’s internal thought processes that resulted in his offer 

of a plea deal to Brother. 

¶ 15 We next consider Defendant’s argument that the trial 

court should have disqualified Garrett so that he could be called 

to testify concerning the plea negotiations. Under Rule 3.7 of the 

Utah Rules of Professional Conduct, Defendant needed to 

demonstrate that Garrett was ‚likely to be a necessary witness.‛ 

Utah R. Prof’l Conduct 3.7(a). If the testimony sought to be 

elicited from a lawyer is ‚‘duplicative and obtainable from other 
State v. Melancon

20120508-CA 7 2014 UT App 260

sources, *the lawyer’s+ testimony may not be necessary, and the 

lawyer should not withdraw or should not be subject to 

disqualification.’‛ Rupp v. Transcontinental Ins. Co., 2:07-CV-333-

TC-PMW, 2008 WL 2627516, at *3 (D. Utah July 2, 2008)

(alteration in original) (quoting Utah State Bar Ethics Advisory 

Opinion No. 04-02, ¶ 5 (April 19, 2004)). Thus, a party seeking to 

disqualify an opposing attorney because the party wishes to call 

the attorney as a witness must persuade the court that the 

testimony sought from the attorney is unobtainable from other 

sources. Id.

¶ 16 Here, a police investigator attended the plea negotiations 

and was available to testify. Defendant relies on statements this 

court made in State v. Thurston, 781 P.2d 1296 (Utah Ct. App. 

1989), to explain why he believes the testimony of the 

investigating officer was not a valid alternative to the testimony 

Defendant sought to elicit from Garrett. In Thurston, this court 

discussed an Arizona Supreme Court case in which a defendant 

and a prosecutor reached a plea agreement under which the 

prosecutor promised not to make any sentencing 

recommendation. See id. at 1299 (examining State v. Rogel, 568 

P.2d 421, 423 (Ariz. 1977)). In the Arizona case, the investigating 

police officer prepared a presentence report that recommended a 

lengthy sentence. Id. The Arizona Supreme Court concluded that 

because the police do not participate in plea negotiations and 

have no input on the bargain reached, the plea deal between the

prosecutor and the defendant was not breached by the officer’s 

recommendation. Id. The Thurston court agreed and held that an 

‚investigating police department is not bound in making 

sentencing recommendations by a plea bargain agreement 

entered into by the prosecutor.‛ Id. at 1300. Defendant construes 

this holding to mean that ‚plea negotiations should not occur 

with police input or participation.‛ Consequently, in 

Defendant’s view, even though the police investigator in this 

case was present at the plea negotiations, ‚the officer could not 

testify to such negotiations since they are not allowed to have 
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20120508-CA 8 2014 UT App 260

input and plea agreements are the prerogative of the 

prosecutorial branch.‛

¶ 17 Defendant’s characterization stretches Thurston too far. 

Our rules of evidence generally allow an individual with 

personal knowledge of a matter to testify as a percipient witness.

See Utah R. Evid. 602. Nothing in Thurston changes that, and

Defendant’s argument thus fails to demonstrate that the police 

investigator was barred from testifying about the plea 

negotiations.

¶ 18 Furthermore, there appear to be at least two other 

alternative sources for the non-work-product testimony 

Defendant sought to elicit from Garrett: Brother himself and the

recording of the negotiations. Defendant does not explain why

the testimony he sought was not obtainable from Brother or why 

the recording of the negotiations was insufficient to impeach 

Brother’s testimony.

¶ 19 Because alternatives to Garrett’s testimony were available, 

we cannot agree with Defendant’s assertion that Garrett was a 

necessary witness to a contested issue.

1

It follows that the trial 

court did not abuse its discretion by determining that Garrett 

was not a necessary witness.

 

1. In addition to being necessary, the testimony sought from an 

attorney facing disqualification must relate to a contested issue. 

See Morganroth & Morganroth v. DeLorean, 213 F.3d 1301, 1309 

(10th Cir. 2000), overruled on other grounds by TW Telecom Holdings 

Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011). A 

lawyer should not be disqualified if there is no such contested 

issue. Id. Here, Defendant has not identified a contested factual 

issue.
State v. Melancon

20120508-CA 9 2014 UT App 260

B. Defendant has not shown that he was entitled to confront 

Garrett. 

¶ 20 Defendant next contends that the ‚Sixth Amendment 

requires that [Defendant] be afforded the right to confront 

Garrett since his plea negotiations were ‘testimonial evidence.’‛

The Sixth Amendment’s Confrontation Clause provides that ‚the 

accused shall enjoy the right . . . to be confronted with the 

witnesses against him.‛ U.S. Const. amend. VI. ‚The focus of the 

Confrontation Clause is on witnesses who bear testimony 

against the accused.‛ Salt Lake City v. Williams, 2005 UT App 493, 

¶ 15, 128 P.3d 47.

¶ 21 Defendant had the opportunity to cross-examine each of 

the witnesses who testified at trial. Nevertheless, Defendant

argues that statements Garrett made during the plea 

negotiations were testimonial in nature and therefore raised the 

type of Confrontation Clause concerns the United States 

Supreme Court described in Crawford v. Washington, 541 U.S. 36, 

59, 68 (2004) (holding that out-of-court testimonial statements 

may only be admitted if the declarant is unavailable and there 

has been a prior opportunity for cross-examination). Even 

assuming without deciding that Defendant is correct in 

characterizing a prosecutor’s statements during plea 

negotiations as testimonial, Defendant does not identify any 

statement Garrett made during plea negotiations that was 

introduced at trial. Because Garrett did not testify and none of 

his out-of-court statements were used at trial, Defendant’s 

constitutional right to confront the witnesses against him was 

neither implicated nor violated.

¶ 22 Defendant has not shown that the testimony he sought to 

elicit from Garrett was unavailable from any alternative source. 

Nor has Defendant shown that he was entitled to confront 

Garrett. As a result, Defendant fails to demonstrate that Garrett 

should have been disqualified from serving as the prosecutor.
State v. Melancon

20120508-CA 10 2014 UT App 260

Consequently, the trial court properly denied Defendant’s 

motion to disqualify, and we affirm.2

II. The Shondel Doctrine

¶ 23 Defendant contends that the trial court erred by 

sentencing him for accomplice-liability aggravated arson. He 

asserts that the court should have applied the Shondel doctrine 

and sentenced him only to the lesser punishment attendant to a 

conviction for criminal solicitation. The trial court merged 

Defendant’s criminal-solicitation conviction into his aggravatedarson conviction. But the court ruled that Defendant was not 

entitled to the lesser penalty under the Shondel doctrine, because 

it determined that the elements of the two offenses were not 

wholly duplicative.

¶ 24 The Shondel doctrine limits the application of overlapping 

criminal statutes. State v. Williams, 2007 UT 98, ¶ 12, 175 P.3d 

1029. While there is ‚nothing inherently wrong with criminal 

laws that overlap,‛ ‚the enforcement of criminal laws with 

overlapping elements or with disparate penalties for identical 

conduct is limited by fundamental constitutional guarantees, 

 

2. Defendant also contends that because the State contributed to 

a delay in the filing of the disqualification motion, it was 

improper for the trial court to hold the delay against him. 

However, the trial court stated that the untimeliness of the 

disqualification motion was ‚not the primary reason that I’m 

going to deny it.‛ Rather, the trial court based the denial 

principally on the determination that Garrett was not a likely or 

necessary witness. Because Defendant has not demonstrated an 

abuse of discretion in that determination, which was a sufficient 

independent ground for denying his motion to disqualify, we 

need not further address the timeliness of his motion.
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20120508-CA 11 2014 UT App 260

most notably the guarantees against double jeopardy and of 

equal protection of the laws.‛ Id.

¶ 25 In Shondel, the Utah Supreme Court held that ‚where 

there is doubt or uncertainty as to which of two punishments is 

applicable to an offense[,] an accused is entitled to the benefit of 

the lesser.‛ State v. Shondel, 453 P.2d 146, 148 (Utah 1969).

Accordingly, ‚where two statutes define exactly the same penal 

offense, a defendant can be sentenced only under the statute 

requiring the lesser penalty.‛ State v. Jeffries, 2009 UT 57, ¶ 15, 

217 P.3d 265 (emphasis added) (citation and internal quotation 

marks omitted). Put another way, the Shondel doctrine applies 

only when two statutes are ‚wholly duplicative as to the 

elements of the crime.‛ See State v. Bryan, 709 P.2d 257, 263 (Utah 

1985); see also State v. Kent, 945 P.2d 145, 147 (Utah Ct. App. 

1997). The Shondel doctrine does not apply when one or both of 

the crimes at issue require proof of some fact or element not 

required to establish the other, because the statutes do not

criminalize identical conduct. State v. Coble, 2010 UT App 98, ¶ 8, 

232 P.3d 538.

¶ 26 The elements of the two statutes at issue here are not 

wholly duplicative. Under Utah’s accomplice-liability statute, a 

defendant is liable for criminal conduct if he, ‚acting with the 

mental state required for the commission of an 

offense[,] . . . solicits, requests, commands, encourages, or 

intentionally aids another person to engage in conduct which 

constitutes an offense.‛ Utah Code Ann. § 76-2-202 (LexisNexis 

2003). A defendant ‚commits criminal solicitation if with intent 

that a felony be committed, he solicits, requests, commands, 

offers to hire, or importunes another person to engage in specific 

conduct that under the circumstances as [the defendant] believes 

them to be would be a felony or would cause the other person to 

be a party to the commission of a felony.‛ Id. § 76-4-203(1).
State v. Melancon

20120508-CA 12 2014 UT App 260

¶ 27 Accomplice liability, unlike criminal solicitation, is not an 

independent crime. Because accomplice liability is not ‚a 

separate offense from principal liability,‛ State v. Gonzales, 2002 

UT App 256, ¶ 12, 56 P.3d 969, it is ‚impossible for the State to 

charge an individual with accomplice liability standing alone,‛ 

State v. Briggs, 2008 UT 75, ¶ 16, 197 P.3d 628. Rather, the State 

must prove that an underlying crime was actually attempted or 

completed in order to secure a defendant’s conviction as an 

accomplice to that crime. See Briggs, 2008 UT 75, ¶ 16.

Conversely, a criminal solicitation charge requires the State to 

prove that the defendant solicited conduct that would be a crime 

if performed but does not require that the solicited person

actually attempt or complete the underlying crime. Compare 

Utah Code Ann. § 76-2-202, with Utah Code Ann. § 76-4-203(1). 

¶ 28 A defendant cannot be an accomplice to a crime that is 

neither attempted nor completed. But a defendant may be guilty 

of criminally soliciting an unattempted crime. Consequently, the 

Shondel doctrine is not implicated, because the elements of these 

two statutes are not ‚wholly duplicative,‛ Bryan, 709 P.2d at 263, 

and do not ‚criminalize identical conduct,‛ Coble, 2010 UT App 

98, ¶ 8 (citation and internal quotation marks omitted).3

¶ 29 We hold that the accomplice-liability and criminalsolicitation statutes do not require proof of the same elements 

and that the Shondel doctrine is therefore inapplicable. As a 

result, Defendant is not entitled to the lesser penalty associated 

with criminal solicitation. We conclude that the trial court did 

 

3. Stated differently, the elements of criminal solicitation would 

have to be wholly duplicative of the elements of accompliceliability aggravated arson for Shondel to apply in this case.
State v. Melancon

20120508-CA 13 2014 UT App 260

not err by sentencing Defendant for aggravated arson under an 

accomplice-liability theory.4

CONCLUSION

¶ 30 Defendant has failed to show that the trial court abused 

its discretion by denying his disqualification motion. We 

conclude that the Shondel doctrine does not apply, because the 

elements of criminal solicitation and accomplice liability are not 

wholly duplicative.

¶ 31 Affirmed.

____________

 

4. We express no opinion on whether the trial court correctly 

determined that the criminal-solicitation conviction merged into 

the aggravated-arson conviction.