2019 UT App 78

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

RODGER LYNN GARDNER,

Appellant.

Opinion

No. 20180158-CA

Filed May 9, 2019

Third District Court, Salt Lake Department

The Honorable Royal I. Hansen

No. 171900660

Nathalie S. Skibine and Neal G. Hamilton, Attorneys

for Appellant

Sean D. Reyes and William M. Hains, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 After Rodger Lynn Gardner pleaded guilty to theft and 

burglary in the instant case—but before the district court 

sentenced him—Gardner appeared in the South Salt Lake Justice 

Court to respond to charges of theft and criminal mischief, 

which arose out of the same criminal episode. Gardner pleaded 

guilty as charged in the justice court, and that court sentenced 

him. Gardner then returned to the district court and, citing the 

proceedings in the justice court, moved to withdraw his guilty 

plea, arguing the constitutional prohibition against double 

jeopardy. The district court denied Gardner’s motion and 

sentenced him for his theft and burglary convictions. Gardner 
State v. Gardner

20180158-CA 2 2019 UT App 78

appeals, and asks us to determine whether the district court 

erred when it denied his motion to withdraw his guilty plea to 

theft, the one charge duplicated in both the district court and 

justice court cases. We affirm.

BACKGROUND

¶2 Witnesses observed Gardner enter a hole in a fence and 

later exit that hole carrying a wooden floor lamp and a 

cardboard box of auto parts. He carried the goods to a van and, 

shortly thereafter, a police officer initiated a traffic stop. A 

subsequent search of the vehicle uncovered, among other things, 

“a box of auto parts and a lamp.”

¶3 The State charged Gardner in district court with burglary

and theft, each third degree felonies, and criminal mischief, a 

class B misdemeanor.

1 Gardner agreed to enter a guilty plea to 

the burglary and theft charges in exchange for the State’s 

agreement to dismiss the criminal mischief charge and other 

charges against Gardner in a separate criminal case. The district 

court accepted Gardner’s guilty plea and ordered the 

preparation of a presentence report.

¶4 Almost two weeks after he pleaded guilty in district 

court, Gardner appeared in the South Salt Lake Justice Court on 

charges of theft and criminal mischief, each charged as a class B 

misdemeanor and both alleged crimes “arising out of the same 

criminal episode that served as the basis for the district-court 

 

1. Theft is punishable as a third degree felony if, among other 

things, “the value of the property or services is or exceeds $500 

and the actor has been twice before convicted of” certain 

enumerated offenses. Utah Code Ann. § 76-6-412(1)(b)(ii)

(LexisNexis Supp. 2018).
State v. Gardner

20180158-CA 3 2019 UT App 78

conviction.”2 Without representation by counsel, Gardner 

pleaded guilty to both charges and was sentenced to serve 

forty-five days in jail and pay $100 in restitution. The justice 

court suspended the jail sentence, and Gardner paid the ordered 

restitution. After disposition of his justice court case, Gardner’s

district court defense counsel realized both cases were based 

upon the same criminal conduct.

¶5 Gardner filed a motion in the district court seeking 

permission to withdraw his guilty plea asserting that he 

“would not have knowingly [pleaded] guilty to the same 

offense twice, and defense counsel would not have advised him 

to do so in violation of his constitutional protection against 

double jeopardy.” The State opposed Gardner’s motion to 

withdraw his guilty plea by arguing, among other things, that 

jeopardy attached when Gardner pleaded guilty in the district 

court.

¶6 After hearing argument, the district court denied 

Gardner’s motion. It determined that Utah Code section 77-13-6 

precluded Gardner from withdrawing his guilty plea because he

knowingly and voluntarily pleaded guilty. The district court 

further determined that jeopardy “first attached at the time 

Defendant entered his guilty plea in this matter” and that it

could therefore “proceed to sentencing in this matter without 

violating the Double Jeopardy Clause.” The district court 

sentenced Gardner to two concurrent prison sentences of 

zero-to-five years.

 

2. The State expresses some uncertainty about whether the two 

theft prosecutions actually arise out of the same conduct. But the 

State nevertheless assumes this fact for purposes of appeal. In its 

decision, the district court determined that “[t]he charges in each 

court were based on the same criminal episode.”
State v. Gardner

20180158-CA 4 2019 UT App 78

ISSUE AND STANDARDS OF REVIEW

¶7 Gardner appeals, and asserts that the district court erred 

when it denied his motion to withdraw his guilty plea, 

particularly when it concluded that his justice court conviction 

and sentence did not bar prosecution and sentencing in district 

court. We review the “denial of a motion to withdraw a guilty 

plea under an abuse of discretion standard,” and we review the 

court’s associated findings of fact for clear error. State v. Smit, 

2004 UT App 222, ¶ 7, 95 P.3d 1203 (quotation simplified). 

Constitutional issues, such as whether double jeopardy bars 

reprosecution of a defendant, are questions of law that we 

review for correctness, affording no deference to the district 

court’s legal conclusions. State v. Sommerville, 2013 UT App 40, 

¶ 6, 297 P.3d 665.

ANALYSIS

¶8 Gardner argues that the constitutional prohibition against 

double jeopardy renders his guilty plea to theft in the 

district court invalid and therefore prevents entry of his sentence 

for that conviction. In other words, he contends, although 

“jeopardy attached in district court before the double 

jeopardy claim arose,” this attachment “did not mean that [the] 

district court could proceed [to sentencing] regardless of a 

subsequent conviction and sentence in justice court.” We 

disagree.

¶9 Gardner was first charged in district court—in the instant 

case—where, pursuant to a plea agreement, he pleaded guilty to 

burglary and theft. Consequently, when the district court 

accepted Gardner’s guilty plea, Gardner was placed in 

jeopardy—meaning he faced the many risks attendant to a 

criminal prosecution, including the risk of punishment for taking 

someone else’s personal property. See State v. Horrocks, 2001 UT
State v. Gardner

20180158-CA 5 2019 UT App 78

App 4, ¶ 14, 17 P.3d 1145. Gardner’s guilty pleas are 

convictions.3 See Utah Code Ann. §§ 76-3-201(1)(a), -101(1)

(LexisNexis Supp. 2018) (defining a conviction to include a 

guilty plea and authorizing sentencing of a person “adjudged 

guilty of an offense” under the Utah Criminal Code); see also

State v. Kay, 717 P.2d 1294, 1302 (Utah 1986) (recognizing the 

“almost universal recognition that jeopardy attaches when a 

court accepts a guilty plea . . . ,” and observing that “entry of the 

plea, rather than the actual imposition of the sentence, is the 

critical moment for determining jeopardy” (internal citations 

omitted)), overruled on other grounds by State v. Hoff, 814 P.2d 1119 

(Utah 1991).

¶10 On appeal, Gardner does not challenge the propriety of 

his guilty plea in the district court. See State v. Cuttler, 2018 UT 

App 171, ¶ 11, 436 P.3d 278 (“A guilty plea is valid only if it is 

made voluntarily, knowingly, and intelligently, with sufficient 

awareness of the relevant circumstances and likely 

consequences.” (quotation simplified)); see also Utah Code Ann. 

§ 77-13-6(2)(a) (“A plea of guilty . . . may be withdrawn only 

upon leave of the court and a showing that it was not knowingly 

and voluntarily made.”). He concedes that, at the time he 

pleaded guilty in the district court, he had no double jeopardy 

claim. Indeed, he accepts that his guilty plea in the district court 

were “proper when the parties agreed to [them].” Consequently, 

he could not establish any basis to withdraw his guilty plea and 

the district court correctly denied his motion under the plea 

withdrawal statute. We now turn to his double jeopardy 

argument.

 

3. We note that Gardner asserts, without explanation or reasoned 

analysis, that he “was first convicted in justice court of 

misdemeanor theft, then convicted and sentenced in district 

court of a felony.”
State v. Gardner

20180158-CA 6 2019 UT App 78

¶11 We conclude the constitutional prohibition against double 

jeopardy did not foreclose the district court’s sentencing of 

Gardner following a valid conviction by way of his guilty plea 

accepted by the court. The United States Constitution prohibits 

the State from twice putting a person in jeopardy for the same 

offense. U.S. Const. amend. V; see also Bernat v. Allphin, 2005 UT 

1, ¶ 10, 106 P.3d 707.4 “The Double Jeopardy Clause embodies 

three separate protections: (1) protection against a second 

prosecution for the same offense after acquittal, (2) protection 

against a second prosecution for the same offense after 

conviction, and (3) protection against multiple punishments for 

the same offense.” Bernat, 2005 UT 1, ¶ 11. “These protections 

turn on whether the subsequent prosecution or punishment is 

for the ‘same offense.’” State v. Robertson, 2017 UT 27, ¶ 15, 438 

P.3d 491; see also Justices of Boston Mun. Court v. Lydon, 466 U.S. 

294, 307 (1984) (“The primary purpose of foreclosing a second 

prosecution after conviction . . . is to prevent a defendant from 

being subjected to multiple punishments for the same offense.”); 

 

4. The double jeopardy prohibition of the Fifth Amendment to 

the United States Constitution applies to the States through the 

Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794

(1969). We note that Gardner also asserts that his district court 

conviction and sentence “is a violation of the federal 

constitutional [double jeopardy] provision, and therefore 

necessarily a violation of the more protective Utah provision.”

He provides no separate analysis, however, explaining either 

how the double jeopardy protections afforded in the Utah 

Constitution are more protective under the circumstances or 

indeed how the Utah provision should apply. We accordingly 

limit our analysis to federal law. See Bernat v. Allphin, 2005 UT 1, 

¶ 10, 106 P.3d 707 (declining to review application of the state 

constitution when petitioners provided no separate analysis of 

state constitutional provisions).
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20180158-CA 7 2019 UT App 78

People v. McCutcheon, 368 N.E.2d 886, 888 (Ill. 1977) (“One of the 

purposes of the protection against double jeopardy is to protect 

an ‘accused from the unfair harassment of successive trials.’” 

(quoting United States v. Goldman, 352 F.2d 263, 266 (3d Cir. 

1965)).

¶12 Gardner concedes that, for purposes of the double 

jeopardy analysis, “jeopardy attaches when a plea is accepted” 

by the district court. Indeed, “it is well settled that jeopardy 

attaches when a court accepts a guilty plea and that the entry of 

the plea, rather than the actual imposition of the sentence, is the 

critical moment for determining jeopardy.” Horrocks, 2001 UT 

App 4, ¶ 14 (quotation simplified). Accordingly, jeopardy 

attached when the district court accepted Gardner’s guilty plea 

and he was convicted. Thereafter, the Double Jeopardy Clause 

operates to protect Gardner from “subsequent prosecution” for 

the same offense. See Robertson, 2017 UT 27, ¶ 15.

¶13 But Gardner argues a subsequent prosecution is barred 

not when jeopardy attaches but when jeopardy is “completed.” 

Because his “justice court case ended in conviction and 

sentence,” ending his jeopardy for that offense, he argues that

the Double Jeopardy Clause bars his earlier conviction and 

yet-to-be-had sentencing for theft in the district court. If Gardner

is correct, “he would not have been entitled to assert the double 

jeopardy bar” in his successive prosecution in justice court 

“because jeopardy had not yet been ‘completed’” in the district 

court proceeding. See United States v. Pierce, 60 F.3d 886, 890 (1st 

Cir. 1995).

¶14 The Second Circuit Court of Appeals has addressed and 

rejected a similar argument. See United States v. Idowu, 74 F.3d 

387 (2d Cir. 1996). In Idowu, the defendant was indicted, tried by 

a jury, and convicted on drug-related charges. Id. at 389. Prior to 

sentencing, the State seized and sought forfeiture of the 

defendant’s personal property in a related administrative 
State v. Gardner

20180158-CA 8 2019 UT App 78

forfeiture action. Id. at 390. The defendant moved for dismissal 

of her criminal convictions, arguing that, due to her having been 

already punished in the forfeiture action, the Double Jeopardy 

Clause barred her convictions in the criminal proceeding. Id. at 

391–92.

¶15 The court determined that jeopardy attached in the 

forfeiture action, if at all, approximately one month following 

the defendant’s jury trial. Id. at 396. It also observed that the 

defendant was sentenced in the criminal proceeding 

approximately six months after jeopardy arguably attached in 

the forfeiture action. Id. The court framed the issue as “whether, 

in successive punishment cases, jeopardy should attach when 

the criminal trial begins and the defendant is placed at risk of 

being punished (as it is in successive prosecution cases) or 

whether it should attach when jeopardy is ‘complete’—that is, 

the date when the punishment is imposed.” Id. Quoting the First 

Circuit’s decision in Pierce, the Idowu court rejected the 

defendant’s theory that jeopardy should attach when 

punishment is completed:

This argument implies that a defendant ought to 

have the option to endure an unconstitutional 

second trial in the hope that it will both conclude 

first and lead to a more lenient punishment than 

that eventually imposed in the first trial, and then 

to object to the punishment imposed in the first 

trial on double jeopardy grounds. We cannot locate 

any authority to support this proposition, and we 

reject it out of hand.

Id. at 396–97 (quotation simplified).

¶16 Similarly here, Gardner has presented no persuasive 

authority establishing that, despite substantial precedent to the 

contrary, the completion of jeopardy—rather than the 
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20180158-CA 9 2019 UT App 78

attachment of jeopardy—bars further prosecution for the same 

offense. “The Double Jeopardy Clause is a shield against the 

oppression inherent in a duplicative, punitive proceeding; it is 

not a tool by which a defendant can avoid the consequences of 

the proceeding in which jeopardy first attached.” Id. at 397

(quotation simplified).5

CONCLUSION

¶17 Gardner has not established a basis supporting 

withdrawal of his guilty plea to theft in the district court. 

Jeopardy first attached in the district court proceeding, not the 

subsequent justice court proceeding. Therefore, the prohibition 

against double jeopardy does not prohibit Gardner’s convictions 

stemming from his guilty plea in district court, nor does double 

jeopardy bar Gardner’s subsequent sentencing on those 

convictions. Accordingly, the district court did not exceed its 

discretion when it denied Gardner’s motion to withdraw his 

guilty plea. Affirmed.

 

5. Gardner also urges us to employ rule 22(e) of the Utah Rules 

of Criminal Procedure to correct his sentences, which “violate[]

Double Jeopardy.” Utah R. Crim. P. 22(e)(1)(C). Because we 

conclude that the Double Jeopardy Clause does not bar 

Gardner’s conviction and sentencing in this case, we decline to 

further address this argument.