2019 UT App 78



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appellee , v. R ODGER L YNN G ARDNER , Appellant

.

Opinion N o. 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 , Attorney s for Appellant Sean D. Reyes and William M. Hains , Attorney s for Appellee

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored th is Opinion , in which J UDGES J ILL M. P OHLMAN and D IANA H AGEN 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 J ustice C ourt to respond to charges of theft and crimina l m ischief , 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, c iting the proceeding s in the justice court , mov ed to withdraw his guilty plea , arguing the constitutional prohibition against double jeopardy . The district court denied Gardner’s motion and
sentence d him for his theft and burglary conviction s

. GardnerState v. Gardner

20180158

- CA 2 2019 UT App 78 appeals , and asks us to determine whether the district court

e rred 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

. W e affirm.

BACKGROUND

¶2 Witnesses observed Gardner enter a hole in a fenc e 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 un covered, 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 crimina l m ischief , a class B misdemeanor

. 1 Gardner agreed to enter a guilty plea to the burglary and theft charges in exc hange 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 order ed the preparation of a presentence report.

¶4 Almost two weeks a fter he pleaded guilty in district
court , Gardner appeared in the South Salt Lake Justice Court on charges of theft and crimina l m ischief, each charged as a class B misdemeanor and both alleged crimes “arising out of the same criminal episode that served a s the basis for the district

- court

1

. Theft is punishable as a thir d d egree 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 W ithout 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 j eopardy “ first attached at the time Defendant entered his guilty plea in this matter ” and th at it could therefore “proceed to sentencing in this matter without violating the Double Jeopardy Clause.” T he district court sentenced Gardner to two concurrent prison sentences of

zero

- to

- five years.

2

. T he 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 STANDARD S 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 j ustice c ourt c onviction and sentence did not bar prosecution and sentenc ing in district
court

. We review the “ denial o f 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). C onstitutional issues, such as whe ther 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 in valid and therefore prevents entry of his sentence for that conviction. I n 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 d istrict 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 t o a criminal prosecution , including the risk of punishment for taking someone else’s personal property. See State v. Horrocks , 2001 UTState 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) ( LexisN exis 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) ), overru led 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 i s 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 o f the court and a showing that it was not kn owingly 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 t he 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 p utting 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 of fense 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 pros ecution 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, 79 4 (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).State v. Gardner

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 dou ble jeopardy analysis, “jeopardy attaches when a plea is accepted” by the district court. Indeed, “i t 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 sentenc e, 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 op erates 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 cas e 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. I f Gardner is correct, “ he would not have been en titled 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 reject ed 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

se ntencing, the State seized and sought forfeiture of the defendant’s personal property i n a related administrativeState 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 pun ished in the forfeiture action , the Do uble Jeopardy Clause barred her convictions in the criminal proceeding

. Id. a t 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 jeop ardy is ‘ complete ’

— that is, the date when the punishment is imposed .” Id. Quoting the First Circuit’s decision in Pierce , t he 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 theState v. Gardner

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, puniti ve 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

. T herefore , the prohibition against double jeopardy does not prohibit Gar dner’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.