July 23, 2013, Utah Supreme Court Case Summaries

Utah Supreme Court

July  23, 2013

State v. Canton, 2013 UT 44, No. 20110835 (July 23, 2013)

ISSUES: Tolling of Statute of Limitations on Criminal Matters, Uniform Operations Clause

Justice Lee,

Reinaldo Canton was arrested in Utah in April 2007 and indicted on federal charges of coercion and enticement of a fifteen–year-old girl. Canton, a New Mexico resident, was released and returned to New Mexico to await trial. He remained there pending trial for over two years, though he returned to Utah on a few occasions to attend proceedings in federal court. After the federal charges were dismissed in May 2009, Canton was charged by the State of Utah with enticement of a minor under Utah Code section 76-4-401.

Canton moved to dismiss the charge based on the applicable two-year statute of limitations. In so doing, he disputed the applicability of our criminal tolling statute, which tolls the limitations period while a criminal defendant is “out of the state.” See UTAH CODE § 76-1-304(1). In Canton‘s view, this provision was inapplicable because he was “legally present” in Utah during the course of the federal court proceedings, in that he cooperated with federal authorities and appeared in various proceedings in the federal district court. Canton argued in the alternative that application of the tolling provision violated the Uniform Operation of Laws provision of the Utah Constitution. The district court denied Canton‘s motion. Canton filed this appeal.

We affirm. The criminal tolling statute applies to Canton because its text leaves no room for his notion of “legal presence.” And applying the statute to Canton does not run afoul of the Uniform Operation Clause, as Canton fails to show how any classification under the statute discriminates against him in an impermissible manner.

At ¶¶ 1-3.

Under our criminal tolling statute, “[t]he period of limitation does not run against any defendant during any period of time in which the defendant is out of the state following the commission of an offense.” UTAH CODE § 76-1-304(1). The question before us concerns the meaning of the phrase “out of the state.” Both sides agree that Canton was physically “out of the state” (in New Mexico) for most of the two years in which the limitations period is claimed to have run. Yet they disagree about the significance of that fact.

At ¶ 10.

We interpret “out of the state” to focus on the question of a person‘s physical presence within the state‘s territorial boundaries. Thus, we reject Canton‘s abstract construct of legal presence, both as a matter of (a) the “ordinary meaning” of statutory language consisting of “common, daily, nontechnical speech,” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465 (internal quotation marks omitted), and (b) under the possibility that the statute may employ a “legal term of art . . . with a settled meaning in the law,” Hansen v. Hansen, 2012 UT 9, ¶ 19, 270 P.3d 531.

At ¶ 12.

The Court discusses the “ordinary meaning” of the statute’s tolling provision.

At ¶¶ 13-27.

The Court discusses Canton’s “legal term of art” argument and rejects it.

At ¶¶ 28-32.

Uniform Operations Clause

[Article I, section 24 of the Utah Constitution,] requires that “[a]ll laws of a general nature shall have uniform operation.” UTAH CONST. art I, § 24. Historically, uniform operation provisions were understood to be aimed not at legislative classification but at practical operation.  Thus, at the time of the ratification of the Utah Constitution, parallel provisions in other state constitutions were not viewed as a limit on the sorts of classifications that a legislative body could draw in the first instance, but as a rule of uniformity in the actual application of such classifications—a requirement of consistency in application of the law to those falling within the classifications adopted by the legislature, or in other words a prohibition on special privileges or exemptions therefrom.

The modern formulation of uniform operation is different. It treats the requirement of uniform operation as a state-law counterpart to the federal Equal Protection Clause. Our cases articulate a three-step test for enforcing this guarantee. First we assess “what classifications the statute creates.” See State v. Angilau, 2011 UT 3, ¶ 21, 245 P.3d 745. We then assess “whether different classes . . . are treated disparately.” Id. (alteration in original) (internal quotation marks omitted). And finally, “if there is disparate treatment between classes,” we assess “whether the legislature had any reasonable objective that warrants the disparity.” Id. (internal quotation marks omitted).

This last step incorporates varying standards of scrutiny. See State v. Robinson, 2011 UT 30, ¶ 22, 254 P.3d 183. Those standards recognize that most classifications are presumptively permissible, and thus subject only to “rational basis review.” Id. Our standards of scrutiny also recognize, however, that other classifications are so generally problematic (and so unlikely to be reasonable) that they trigger heightened scrutiny. Id. (noting that discrimination on the basis of a “suspect class” (e.g., race or gender) triggers heightened scrutiny, as do classifications implicating “fundamental right[s]”).

Canton presents no viable constitutional challenge to the application of the tolling provision to this case. The historical requirement of consistent application or enforcement (or its concomitant bar on special privileges or exemptions) is not at all implicated here, as Canton‘s gripe is that the statute sweeps too broadly—in encompassing defendants who are “out of the state” physically but still subject to its authority (and thus purportedly outside the rational reach of the tolling statute). That concern, in fact, runs precisely counter to that of the historical domain of uniform operation, which was to prescribe broad, uniform application across the entirety of a legislative class, or in other words to foreclose special privileges or exemptions from enforcement. And Canton‘s claim is similarly deficient under the modern formulation of uniform operation set forth in our caselaw, as he fails to attack the only classification drawn by the tolling statute (between those who leave the state after committing a crime and those who remain within it), and takes issue instead with the statute‘s failure to draw additional or different classifications.

Canton‘s gripe is with the legislature‘s failure to sub-classify—to draw further distinctions between compliant and non-compliant out-of-state defendants. He asserts that these two sub-classes are fundamentally different, and thus that it is unconstitutional to treat them similarly.

That is not a viable, standalone basis for a uniform operation challenge. Our uniform operation standards are focused on examining the rationality of the classifications that were made by the legislature. See Angilau, 2011 UT 3, ¶ 21 (explaining that we begin by asking “what classifications the statute creates”). And concerns of over-inclusiveness, like the one raised by Canton, are relevant only insofar as they bear on the question whether the classification that was made clears the applicable standard of scrutiny. Thus, even those litigants whose gripe is that the legislature has impermissibly grouped them into a category with other dissimilar individuals must demonstrate that the classification that put them there fails constitutional muster. Canton fails to do so, opting to question only what further sub-classifications the legislature might have made.

At ¶¶ 34-39.

Fed. Nat. Mortg. Ass’n. v. Sundquist, 2013 UT 45, No. 20110575 (July 23, 2013)

ISSUES: Federal Preemption of Utah Foreclosure Law

Justice Parrish,

Appellant Loraine Sundquist appeals from an interlocutory order requiring her to vacate her home during the pendency of an unlawful detainer action. Appellee Federal National Mortgage Association (FNMA) initiated the unlawful detainer action, claiming ownership of Sundquist’s home. FNMA claimed ownership pursuant to a trustee’s deed that it obtained from ReconTrust. ReconTrust is a national bank that conducted a nonjudicial foreclosure sale in its capacity as trustee of the trust deed that Sundquist had executed to secure her mortgage.

The interlocutory order at issue was entered at the conclusion of an immediate occupancy hearing held just two weeks after FNMA initiated the unlawful detainer action. At that hearing, Sundquist argued that ReconTrust lacked authority to conduct the foreclosure sale and convey her home to FNMA. Specifically, she argued that sections 57-1-21 and 57-1-23 of the Utah Code limit the power of sale to trustees who are either members of the Utah State Bar or title insurance companies with an office in Utah. In response, FNMA argued that ReconTrust, as a national bank, was authorized to conduct the sale under federal law and that federal law preempted the Utah statute. The district court agreed with FNMA and entered an order of restitution, requiring that Sundquist vacate her home.

We reverse. Utah Code sections 57-1-21 and 57-1-23 are not preempted by federal law. A national bank seeking to foreclose real property in Utah must comply with Utah law. We therefore vacate the district court’s order of restitution and remand for additional proceedings.

At ¶¶ 1-3.

The Court determines that Section 92a of the National Banking Act does not preempt Sections 57-1-21 and 57-1-23 of the Utah Code and a national bank seeking to foreclose real property in Utah must comply with Utah law.

At  ¶¶ 11-49.

Section 57-1-21(1)(a) defines qualified trustee as:

(i) any active member of the Utah State Bar who maintains a place within the state where the trustor or other interested parties may meet with the trustee [or]

. . .

(iv) any title insurance company or agency that:

(A) holds a certificate of authority or license . . . to conduct insurance business in the state; 

(B) is actually doing business in the state; and

(C) maintains a bona fide office in the state.

At ¶ 12.

ReconTrust is neither a member of the Utah State Bar nor a title insurance company or agency with an office in the State of Utah. ReconTrust was therefore not a qualified trustee with the power of sale under Utah Code sections 57-1-21 and 57-1-23. However, FNMA argues that Utah law does not apply to ReconTrust because [under the National Banking Act (“NBA”)], as a national bank, ReconTrust is subject to the laws of Texas, not Utah. Under Texas law, ReconTrust is arguably authorized to conduct a nonjudicial foreclosure sale. See Tex. Fin. Code §§ 32.001, 182.001. 

At ¶ 13.

Whether ReconTrust is subject to the laws of Utah or Texas depends on where it is “located.” As a national bank, ReconTrust operates under the National Banking Act, 12 U.S.C. § 1 et seq., and is regulated by the Office of the Comptroller of Currency (Comptroller). The NBA gives the Comptroller authority “to grant . . . to national banks . . . the right to act as trustee . . . under the laws of the State in which the national bank is located.” 12 U.S.C. § 92a(a) (emphasis added). And section 92a(b) of the NBA provides that “exercise of such powers by national banks shall not be deemed to be in contravention of State or local law.”

At ¶ 14.

The issue of whether the NBA preempts Utah law governing the qualification of trustees has been addressed by the Utah federal district courts, with differing results. In three cases, the federal district courts have found that federal law preempts Utah law and have therefore concluded that the laws of Texas apply. Garrett v. ReconTrust Co., N.A., 2011 WL 7657381, at *2 (D. Utah 2011) (holding that because ReconTrust is located in Texas, it acts as a trustee in Texas, and therefore “the state laws that apply to ReconTrust by virtue of section 92a are those of Texas, rather than Utah.”); Dutcher v. Matheson, 2012 WL 423379, at *7 (D. Utah 2012) (holding that Texas law governs ReconTrust, and even if it did not, that section 92a of the NBA preempts Utah law because Utah title insurance companies compete with ReconTrust); Baker v. BAC Home Loans Servicing LP, 2012 WL 464024, at *4 (D. Utah 2012) (following Dutcher).

In four cases, however, the federal district courts have reached the contrary result and held that Utah law is not preempted. Cox v. ReconTrust Co., N.A., 2011 WL 835893, at *6 (D. Utah 2011) (stating that “[u]nder a straight forward reading of [section] 92a(b), this court must look to Utah law in its analysis of whether ReconTrust’s activities in Utah exceed ReconTrust’s trustee powers”); Coleman v. ReconTrust Co., N.A., U.S. Dist. LEXIS 138519 (D. Utah 2011) (agreeing with the reasoning applied in Cox); Loomis v. Meridias Capital, Inc., 2011 WL 5844304 (D. Utah 2011) (same); Bell v. Countrywide Bank, N.A., 860 F. Supp. 2d 1290 (D. Utah 2012) (same). We find Judge Jenkins’ analysis in Bell to be particularly persuasive, and follow much of this same analysis here. Like Judge Jenkins, we conclude that ReconTrust is subject to the laws of Utah when exercising the power to sell property located in Utah.

At ¶¶ 17-18.

We must first examine the language of section 92a of the NBA to see if it unambiguously addresses the question of where a national bank is located. If so, that is the end of the matter. On the other hand, if the statute is ambiguous, we then look to the federal regulations to determine whether the interpretation they adopt is based on a permissible construction of the NBA. [Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted)].

At ¶ 20.

The Court determines that “Under the Plain Language of Section 92a, a National Bank

Performing Trustee’s Duties Must Comply with the Law of the State in Which the Duties Are Performed.”

At ¶¶ 21-29.

Although consideration of the regulation interpreting section 92a is unnecessary because the statutory language is not ambiguous and because Congress did not intend to delegate to the Comptroller the power to preempt the historic power of the states to regulate the foreclosure of real property, we think it worth noting that we find the Comptroller’s current interpretation of the statute, which is found in the Code of Federal Regulations, to be unreasonable. Again, we quote from Judge Jenkins. “[E]ven if the statute is not clear and demands interpretation,” the “interpretation in 12 C.F.R. [section] 9.7(d) modifies the statute and is unreasonable—if not irrational—and therefore does not deserve deference.” Bell, 860 F. Supp. 2d at 1298.

At ¶ 39.

July 19, 2013, Utah Supreme Court Case Summaries

July 19, 2013

Utah Supreme Court

Francis v. State, 2013 UT 43, No. 20111027 (July 19, 2013)

ISSUE: Public Duty Doctrine

Justice Durrant,

This case is making its second appearance before this court. Plaintiffs are the parents of a young boy, Sam Ives,1 who was killed by a bear while camping with his family, the Mulveys, in American Fork Canyon. They sued the State of Utah, alleging that the State negligently failed to warn the Mulveys of the dangerous condition created by the bear. The district court initially dismissed the plaintiffs’ claims under the permit exception to the Utah Governmental Immunity Act (Immunity Act) and the plaintiffs appealed. We reversed and held that the permit exception was inapplicable to the facts of this case.

At ¶ 1.

On remand, the State raised two alternative arguments. First, the State argued that it owed no duty to the Mulveys. Second, the State argued that even if it did owe a duty, the natural condition exception to the Immunity Act precluded liability. After the district court dismissed the case a second time, the plaintiffs appealed and now raise three arguments. First, they assert that, under the law of the case doctrine, our refusal to entertain the State’s alternative arguments in Francis I prevented the State from arguing those theories on remand. Second, they argue that the State did owe the Mulveys a duty of care. Finally, they contend that the natural condition exception to the Immunity Act does not apply.

At ¶ 2.

We reverse the district court’s grant of summary judgment in favor of the State. First, we hold that the State was entitled to present its alternative arguments on remand. Therefore, the issues of whether the State owed the Mulveys a duty and whether the natural condition exception applies are properly before this court. We further hold that (1) the State owed the Mulveys a duty because it undertook specific action to protect them as the next group to use the campsite, and (2) the natural condition exception does not immunize the State from liability because a bear is not a “natural condition on publicly owned or controlled lands.”

At ¶ 4.

The Court reviews the facts of the case. Specifically, the State’s knowledge of a bear that had attacked a camper; the State’s attempt to track the bear, the State’s failure to warn Plaintiffs about the bear, and the death of Plaintiffs’ son during a bear attack.

At ¶¶ 5-18.

The Court holds that its refusal to address the State’s alternative theories in Francis I did not bar them from raising those theories on remand.

At ¶¶ 20-22.

Public Duty Doctrine

The Court holds that the States protective actions, directed at the campsite, gave rise to an affirmative duty of care to Plaintiffs as the next campers at the site.

At ¶¶ 23-38.

Under the public duty doctrine, the general duty that the government owes to the public does not give rise to a specific duty of care to individuals “unless there is some [special relationship] between the government agency and the individuals that makes it reasonable to impose a duty.”

At ¶ 25.

We have always “taken a policy-based approach in determining whether a special relation should be said to exist and consequently whether a duty is owed.” We carefully consider “the consequences of imposing that duty for the parties and for society.” And “[w]e are loath to recognize a duty that is realistically incapable of performance or fundamentally at odds with the nature of the parties’ relationship.” Our determination that a special relationship exists, therefore, “is an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff [was] entitled to protection.”

At ¶ 26.

Our cases provide at least four circumstances that can give rise to a special relationship:

(1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; (2) when a government agent

undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public;

and (4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff.

The second circumstance is relevant to the facts of this case. It presents a two-part question: first, whether the State undertook specific action and, second, whether those actions were intended to protect a person or property.

At ¶ 27.

The parties in this case do not dispute that the government took specific actions after the bear attacked Mr. Francom at the Campsite. Indeed, after giving up the search for the bear at approximately 5:00 p.m. on the day of the attack, DWR agents swept the Campsite to make sure it was unoccupied and free of anything that might induce the bear to return.

At ¶ 29.

But acts alone are insufficient to create a special relationship. “[T]he professional lives of governmental actors are comprised of an unending sequence of actions and failures to act that in many instances can directly affect the health, safety, and general well-being of citizens.” We do not hold governmental actors liable “for all mishaps that may befall the public.” We must therefore turn to the second question—whether the State’s actions were intended to protect a person or property.

At ¶ 30.

We disagree that a lack of knowledge as to the specific identity of an individual necessarily precludes a special relationship under the public duty doctrine in all cases.

At ¶ 31.

Higgins [Higgins v. Salt Lake Cnty., 855 P.2d 231, 236 (Utah 1993)] demonstrates that “we will find a special relationship and consequent duty when a defendant knew of the likely danger to an individual or distinct group of individuals.” Under Higgins, then, it is not necessary that an individual be specifically identifiable if he or she belongs to a distinct group.

At ¶ 32.

Higgins, of course, is not directly on point. The State did not have custody of the bear in the same way it might have custody of a psychiatric patient. But this distinction carries little weight given that, as discussed above, the State undertook specific protective actions after the bear attacked Mr. Francom. It thus had knowledge of a specific threat and took action. If it directed its actions at a distinct group, rather than the public at large, our reasoning in Higgins appears directly applicable. And we conclude that the State did, in fact, direct its actions at an identifiable group.

At ¶ 33.

While the bear was certainly a threat to the public at large, the State’s actions demonstrate that the bear posed a particular danger to a more distinct group—those who would occupy the Campsite before the bear was destroyed. After giving up their search for the bear, the DWR agents took specific steps to protect those who might occupy the Campsite. They did so because they knew the bear would likely return to the Campsite if attracted and that humans could act as an attractant. Accordingly, just before leaving the area, the DWR agents swept the Campsite to make sure it was unoccupied and clean of attractants. Thus, the State had knowledge of a specific threat to a distinct group and took specific action to protect that group. The State therefore had a special relationship with those who might occupy the Campsite—here, the Mulveys—even if they were not individually identifiable when the State cleared the Campsite.

At ¶ 34.

Additionally, the Mulveys themselves were “reasonably identifiable” as the next group to use the Campsite. The DWR agents who swept the Campsite waved to them as they drove down Timpooneke Road in the direction of the Campsite. The Campsite was only one of a few on the dead-end Timpooneke Road. So although DWR could not specifically identify the Mulveys when its agents swept the Campsite, it nevertheless had reason to believe that the Mulveys could use the Campsite and could therefore be at risk.

At ¶ 35.

We conclude only that the State owed a duty to the Mulveys as the next group to use the Campsite—the group that DWR took specific action to protect. The class of people with which the State had a special relationship is, therefore, very narrow.

At ¶ 37.

Immunity for “Natural Conditions”

The Court holds that the bear was not a natural condition on the land and, as a result, the State is not immune from liability under the Immunity Act.

At ¶¶ 39-48.

[W]e construe the term “natural condition” in light of its ordinary meaning, as laymen would use it in daily usage. In our view, one would not ordinarily refer to a bear, or wildlife generally, as a “condition” on the land. The more ordinary meaning of a “condition on the land” seems to connote features that have a much closer tie to the land itself, such as rivers, lakes, or trees. These conditions are more directly a part of and persist “on the land,” whereas a bear is much more transitory in nature. We accordingly limit application of the natural condition exception to those conditions that are closely tied to the land or that persist “on the land”—conditions that are topographical in nature.

At ¶ 42.

Most recently, in Grappendorf v. Pleasant Grove City, [2007 UT 84] we undertook a “careful analysis” of the natural condition exception.  . . . we concluded that “[f]rom these definitions, it follows that a natural condition ‘on’ the land must be topographical in nature.”  Based on this plain-language analysis, we concluded that a “gust of wind . . . does not fall under the natural condition exception.”

At ¶ 43.

There are, of course, differences between a gust of wind and wildlife. And we readily acknowledge that wildlife could plausibly fall within the scope of the natural condition exception. But we must exercise caution when interpreting an inexact term like “condition,” since its meaning could be stretched to include almost anything. As we stated in Grappendorf, “natural conditions include laws of physics, such as gravity, that necessarily contribute to any accident or occurrence.” Our duty when interpreting a statute, however, is “to give effect to the legislature’s intent and purpose.” And, in our view, the legislature did not intend to waive immunity for a gust of wind but retain it for indigenous wildlife when both seem to fall outside the ordinary meaning of a “condition on land.”

At ¶ 45.

Finally, we note that our interpretation is also supported by the structure of the Immunity Act. A fundamental rule of statutory construction provides that “[w]here a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions.” The Immunity Act begins with a number of broad waivers of immunity, including waiver “as to any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.” It then reinstates immunity through specific, enumerated exceptions to the broad waivers of immunity. Thus, we resolve any doubt as to whether the legislature intended one of the exceptions—the natural condition exception—to cover wildlife in favor of the Immunity Act’s general waiver of immunity.

At ¶ 47.

Justice Parrish, dissenting,

Under the plain language of the statute, I conclude that the presence of indigenous wildlife is a “natural condition on publicly owned or controlled lands” and that the State therefore entitled to immunity. UTAH CODE § 63G-7-301(5)(k). Because I would hold that the State is immune from liability under the natural condition exception, I would not reach the issue of whether the State owed any duty to the Mulveys.

At ¶ 50.

Justice Parrish explains.

At ¶¶ 51-62.

July 18, 2013, Utah Court of Appeals Case Summaries

July 18, 2013

Utah Court of Appeals

Snow v. Chartway Federal Credit Union, 2013 UT App 175, No. 20120215-CA (July 18, 2013)

ISSUES: Covenant of Good Faith and Fair Dealing; Statute of Frauds; Negligent Infliction of Emotional Distress

Judge McHugh,

Scott Snow appeals the district court’s dismissal of his claims for breach of the implied covenant of good faith and fair dealing and negligent infliction of emotional distress. We affirm.

At ¶ 1.

The Court reviews the background of the case. Specifically: (1) Snow’s loan from Chartway, (2) Snow’s inability to pay the loan, (3) Chartway’s promises regarding a short sale, and (4) Chartway’s refusal to accept the read able and willing buyer.

At ¶¶ 2-6.

Snow first argues that the district court erred in dismissing his claim for breach of the implied covenant of good faith and fair dealing. Specifically, Snow claims that Chartway promised him that if he found a buyer who was willing to meet certain requirements, Chartway would allow that buyer to assume the loan. Snow argues that he relied on Chartway’s promise, that he found a prospective buyer who was prepared to close on Chartway’s terms, and that Chartway ultimately failed to accept that offer. “As a general rule, every contract is subject to an implied covenant of good faith.” Brown v. Moore, 973 P.2d 950, 954 (Utah 1998) (citation and internal quotation marks omitted). “‘Under [the covenant], both parties to a contract impliedly promise not to intentionally do anything to injure the other party’s right to receive the benefits of the contract.’” Markham v. Bradley, 2007 UT App 379, ¶ 18, 173 P.3d 865 (alteration in original) (quoting Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 14, 94 P.3d 193). “No such covenant may be invoked, however, if it would create obligations inconsistent with express contractual terms.” Young Living Essential Oils, LC v. Marin, 2011 UT 64, ¶ 10, 266 P.3d 814.

At ¶ 7.

The Court reviews the Note and determines that it does not require Chartway to accept an offered short sale, Snow’s assertions constitute new rights and duties between the parties that are inconsistent with the existing terms of the Note.

At ¶ 8.

The Court rejects Snow’s argument that Chartway’s promise to allow a prospective buyer to assume the loan constituted a new agreement to which the implied covenant of good faith and fair dealing applied independent of the Note because there is no writing to evidence the new agreement that satisfies the statute of frauds. 

At ¶ 9-10. 

Likewise, Snow does not assert any exception to the statute of frauds. See, e.g., Fericks v. Lucy Ann Soffe Trust, 2004 UT 85, ¶ 14, 100 P.3d 1200 (discussing promissory estoppel exception to the statute of frauds); Wilberg v. Hyatt, 2012 UT App 233, ¶ 7, 285 P.3d 1249 (mem.) (discussing the part performance exception to the statute of frauds). . . . .

At ¶ 11. 

Negligent Infliction of Emotional Distress

Snow next contends that the district court erred in dismissing his claim for negligent infliction of emotional distress. In order for Snow to establish a claim for negligent infliction of emotional distress, the Second Amended Complaint must allege that Chartway caused emotional distress under circumstances where Chartway should have realized that the “conduct involved an unreasonable risk of causing the distress” and, “from facts known to [it], should have realized that the distress, if it were caused, might result in illness or bodily harm.” See Harnicher v. University of Utah Med. Ctr., 962 P.2d 67, 69 (Utah 1998) (citation and internal quotation marks omitted); see also Restatement (Second) of Torts § 313 (1965). “[T]he emotional distress suffered must be severe; it must be such that a reasonable [person,] normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” Harnicher, 962 P.2d at 70 (second alteration in original) (citation and internal quotation marks omitted). However, a claim for negligent infliction of emotional distress “‘does not give protection to mental and emotional tranquillity in itself.’” Id. (quoting Restatement (Second) of Torts § 313 cmt. a (1965)). “Consequently, much of the emotional distress which we endure . . . is not compensable.” Id. at 72 (omission in original) (citation and internal quotation marks omitted).

At ¶ 12.

Here, Snow argues that his Second Amended Complaint establishes a claim for negligent infliction of emotional distress because Chartway did not allow another buyer to assume the loan, delayed in approving the short sale, and then foreclosed on Snow’s home. As a result, the Second Amended Complaint indicates that Snow “has gone through extreme weight loss and has undergone the care of a doctor as a result of his distress and suffering.”

At ¶ 13.

We have concluded, however, that nothing in the Note required Chartway to approve an assumption of the loan or a short sale of the Property. Accordingly, Snow’s allegations cannot support a claim for negligent infliction of emotional distress because Chartway’s actions were consistent with the parties’ contractual agreements.

[C]onduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.

[citations]

At ¶ 14.

Furthermore, Snow has not alleged facts that would cause a reasonable person to suffer severe injury rendering him unable to cope in his daily life. See Harnicher, 692 P.2d at 70; see also Osmond v. Litton Loan Servicing, LLC, No. 1:10‐CV‐11, 2011 WL 1988403, at *4 (D. Utah May 20, 2011) (determining that although foreclosure is “an upsetting experience, it is not the sort of experience that leaves the average person unable to cope or live his or her life” sufficient to establish a claim for negligent infliction of emotional distress). To hold otherwise would subject lenders to tort liability for the natural and understandable distress suffered by a borrower who defaults on a mortgage loan and therefore faces a foreclosure action. While we are not unsympathetic to the real emotional impact of losing one’s home, the lender is merely pursuing the collateral the borrower agreed to pledge as security for repayment of the loan proceeds.

At ¶ 15.

Macris v. Sevea Int’l, et al., 2013 UT App 176, No. 20110439-CA (July 18, 2013)

ISSUES: Rule 37 sanctions striking pleadings; Pleading a derivative action (Futility Exception); Damages for derivative claims; Slander Per Se; Excessive punitive damages

Judge McHugh,

Jerry Saxton, Katie Saxton, Michael Connor, Sevea International Productions, LLC, American Equities Management, LLC, and Angels of America, LLC (collectively, Appellants) appeal the trial court’s entry of judgment in favor of Michael N. Macris. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

At ¶ 1.

The court reviews the complex history of the derivative action before the court.  Specifically, Respondents’ conversion of company assets, violations of non-compete agreements, multiple violations of a preliminary injuction resulting in the spoliation of evidence, the trail court’s striking of Respondents’ pleadings and findings on damages.  

At ¶¶ 2-20.

[T]he Final Contempt Order includes over fifty findings involving multiple instances of contempt, spoliation of evidence, discovery violations, and acts of perjury by Appellants from the date of issuance of the preliminary injunction in May 2007 through August 2009. Based on Appellants’ repeated contemptuous conduct, the trial court struck their pleadings and entered default judgment against them.

At ¶ 19.

After a hearing on damages

The trial court calculated Macris’s lost distributorship income and ownership interest in Sevea by determining the value of the company immediately before Appellants misappropriated its assets and then awarded Macris half that amount. The trial court also awarded Macris actual damages for slander per se, malicious prosecution,5 and punitive damages for “misconduct [that was] ongoing, egregious and reprehensible.”

At ¶ 20.

On April 1, 2011, the overall award was reduced to a written judgment in favor of Macris against Appellants for $113,856, jointly and severally, “as a result of default being entered against them [for] . . . breaches of fiduciary duties, conspiracy to breach fiduciary duties, conversion, and interference with contractual relations”; judgment in favor of Macris in the amount of $10,000 against the Saxtons, jointly and severally, for malicious prosecution; judgment in favor of Macris in the amount of $100,000 against Jerry Saxton for slander per se; and judgment in favor of Macris for $1,119,280 in punitive damages against Appellants, jointly and severally, “for their willful and malicious conduct.” The trial court also awarded Macris $300,000 in attorney fees. Appellants filed a timely appeal from the judgment against them.

At ¶ 21.

The court sets for the standard of review for each issue on appeal.

At ¶¶ 22-26.

Default Judgment

Appellants argue that the trial court exceeded its discretion by striking their pleadings and entering default judgment against them. Rather than challenging the trial court’s finding that Appellants were in contempt for numerous violations of the trial court’s prior orders, or even mentioning the many discovery violations that the trial court relied on in striking their pleadings, Appellants argue that their conduct was a result of the trial court’s error in permitting Macris to bring the derivative action and its abuse of discretion in issuing the preliminary injunction.

At ¶ 27.

Appellants’ attempt to shift responsibility for their blatant violations of binding orders to the trial court is entirely inappropriate. As the Utah Supreme Court has made clear, “[t]he proper method for contesting an adverse ruling is to appeal it, not to violate it.” State v. Clark, 2005 UT 75, ¶ 36, 124 P.3d 235. . . . Appellants’ dissatisfaction with the trial court’s orders does not relieve them from the consequences of their numerous willful violations of those orders. See State v. Cherryhomes, 840 P.2d 1261, 1264 (N.M. Ct. App. 1992) . . . .

At ¶ 28.

In reviewing Appellants’ challenge to the sanction imposed for the violations of the trial court’s orders, we first “consider whether the district court was justified in ordering sanctions.” See PC Crane Serv., LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 32, 273 P.3d 396; . . . “Sanctions are warranted [under rule 37] when (1) the party’s behavior was willful; (2) the party has acted in bad faith; (3) the court can attribute some fault to the party; or (4) the party has engaged in persistent dilatory tactics tending to frustrate the judicial process.” Kilpatrick, 2008 UT 82, ¶ 25 (citation and internal quotation marks omitted). If we deem the sanctions justified, “[w]e then review the type and amount of sanctions for abuse of discretion.” PC Crane, 2012 UT App 61, ¶ 32. Although dismissing an action is a severe sanction, “it is clear from the language of rule 37 that it is within a trial court’s discretion to impose such a sanction.” Allen v. Ciokewicz, 2012 UT App 162, ¶ 32, 280 P.3d 425 . . . . In order to meet their burden in showing that the trial court exceeded its discretion in striking their pleadings and entering judgment against them, Appellants “must show either that the sanction is based on an erroneous conclusion of law or that the sanction lacks an evidentiary basis.” See SFR, Inc. v. Comtrol, Inc., 2008 UT App 31, ¶ 14, 177 P.3d 629 (citation and internal quotation marks omitted). Appellants have not met this burden.

At ¶ 29.

The Court reviews the Court’s findings and order striking the pleadings and determines that they were strongly supported.  Accordingly, the trial court did not abuse its discretion in striking Appellants’ pleadings.

At ¶¶ 30-31.

Derivative Claims

Appellants additionally argue that the trial court erred by entering default judgment on the derivative claims because Macris’s amended verified complaint fails to allege that he made a demand on Sevea as required by rule 23A of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 23A(a)(4)–(5) (requiring the shareholder to set forth in the complaint the efforts to obtain the desired action from the company or the reasons for failing to make that effort). “A shareholder may not commence a derivative proceeding until . . . a written demand has been made upon the corporation to take suitable action . . . .” Utah Code Ann. § 16‐10a‐740(3)(a)(i) (LexisNexis Supp. 2012). A complaint asserting a derivative claim must “either expressly allege that demand was made on the [company] or plead with particularity why such demand would be futile.” GLFP, Ltd. v. CL Mgmt., Ltd., 2007 UT App 131, ¶ 29, 163 P.3d 636. In order for “that exception to be satisfied, the circumstances [must be] such that such a demand would be futile and unavailing.” Dansie v. City of Herriman, 2006 UT 23, ¶ 24, 134 P.3d 1139 (alteration in original) (citation and internal quotation marks omitted) (referring to the exception under rule 23A and under the analogous provision of the Utah Revised Nonprofit Corporation Act). “Therefore, we must examine first whether [Macris] did allege with particularity why demand would be futile and whether that allegation establishes that demand would have been futile and unavailing.” See id.

At ¶ 32.

The amended verified complaint establishes that Macris needed Jerry Saxton’s approval before Sevea could pursue the derivative claims directly. However, the claims were based on allegations of wrongdoing against Jerry Saxton. Under these circumstances, we agree with the trial court that “Macris has alleged facts which . . . would qualify him for the ‘futility exception’ to the requirement that demand be made before a shareholder can initiate a derivative action.”

At ¶ 34.

Damages on Derivative Claims

Appellants next assert that none of the actual damages awarded to Macris are supported by the evidence. They also contend that the damages on the derivative claims must be awarded to Sevea, not to Macris. Additionally, Appellants argue that the punitive damages award is excessive. “It is well settled that, although the plaintiff has the burden of proving the fact, causation, and amount of damages, he need only do so with reasonable certainty rather than with absolute precision.” Alta Health Strategies, Inc. v. CCI Mech. Serv., 930 P.2d 280, 286 (Utah Ct. App. 1996) (citation and internal quotation marks omitted). “[A]lthough damages may not be determined by speculation or guesswork, evidence allowing a just and reasonable estimate of the damages based on relevant data is sufficient.” Id. (alteration in original) (citation and internal quotation marks omitted).

At ¶ 35.

Macris’s expert, Christopher Howard, and Appellants’ expert, Richard Hoffman, offered different theories concerning the proper measure of damages for the derivative claims. Howard used various models and assumptions to calculate the value of Sevea, assuming hypothetically that its assets and employees had not been wrongfully converted and that the business enjoyed significant increases in sales. Based on these projections, he concluded that the losses to Sevea caused by Appellants’ breaches of fiduciary duty, conversion, and interference with contractual relations was $5,926,000. Hoffman disagreed with those projections and opined that, even if Appellants had not removed Sevea’s equipment, employees, and customers, the company could not have continued in business because its liabilities greatly exceeded its assets. Therefore, Hoffman concluded that the damages to Sevea could be measured by its liquidation value, which he calculated as $227,712.

At ¶ 36.

The trial court was not persuaded by Macris’s expert because his opinions fundamentally lack basis, are not based on conventional methods of assessing damages and are inconsistent with the standards applicable to the valuation of such an interest.” The trial court further determined, “Howard’s projections concerning the level of growth and profitability are simply inaccurate and inconsistent with Sevea’s actual economic reality.” Instead, the trial court agreed with Hoffman and found that “the value of Sevea as of December 31, 2006, was $227,712.” While the trial court does not expressly discuss the components of that valuation in its decision, Hoffman explained that his damage calculation was based on his conclusion that Sevea was essentially bankrupt before Appellants looted its assets and that it would have been forced to liquidate even in the absence of Appellants’ wrongful conduct. By adopting Hoffman’s valuation figure, the trial court also implicitly adopted his assumption that the proper measure of the damages caused to Sevea by Appellants’ breaches of fiduciary duty, conversion, and interference with contractual relationships is the amount Sevea could have received for its assets upon liquidation in December 2006. We are not convinced that the trial court exceeded its discretion by adopting the damage theory advanced by Appellants.

At ¶ 37.

After adopting Appellants’ damage figure, the trial court awarded half of that amount, $113,856, to Macris. Appellants argue that, even if damage to Sevea had been proved, the trial court erred in awarding those damages to Macris individually based on the derivative claims. We agree.

At ¶ 38.

In Richardson v. Arizona Fuels Corp., 614 P.2d 636 (Utah 1980), the Utah Supreme Court explained that “any compensatory damages which may be recovered on account of any breach by defendants of their fiduciary duty as directors and officers or arising as a result of mismanagement of the corporation by defendants belong to the corporation and not to the stockholders individually.” Id. at 640 (emphasis added); . . . .

At ¶ 39.

Accordingly, if an action is brought as a derivative claim, any recovery belongs to the corporation. See, e.g., Ross v. Bernhard, 396 U.S. 531, 538 (1970) (“The proceeds of the [derivative] action belong to the corporation . . . .”); . . . This is because the shareholder is entitled to his pro rata benefit based on stock ownership only after the recovery is subject “to the claims of the corporation’s creditors and to the corporate tax consequences.” John W. Welch, Shareholder Individual and Derivative Actions: Underlying Rationales and the Closely Held Corporation, 9 J. Corp. L. 147, 150 (1984) (citation omitted); . . . .

At ¶ 40.

These claims are classically derivative. See generally Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273, 1280–81 (Utah 1998). Accordingly, the trial court erred by awarding damages directly to Macris rather than to Sevea on behalf of all of its shareholders and creditors.

At ¶ 41.

Malicious Prosecution

Macris testified that as a result of the Saxtons’ false statements to the police, he was charged with electronic communications harassment and that, as a direct result, he incurred legal fees and travel expenses for numerous criminal court appearances.7 Although Macris calculated his damages at $100,000, the trial court concluded that this request did “not represent a reasonable estimate of [Macris’s] loss.” Instead, after “taking into account the various expenses incurred by . . . Macris, as well as his lost time and effort,” the trial court determined that an award of $10,000 in damages was appropriate. Appellants have not demonstrated that the trial court exceeded its discretion in so concluding.

At ¶ 42.

Slander Per Se

Appellants also claim that the trial court exceeded its discretion in awarding $100,000 in damages against Jerry Saxton for slander, arguing that Macris failed to provide evidence of his damages. Although Macris was unable to quantify his specific damages, the trial court awarded him $100,000 in general damages based on its conclusion that the false statements constituted slander per se.

In order to constitute slander per se, without a showing of special harm, it is necessary that the defamatory words fall into one of four categories: (1) charge of criminal conduct, (2) charge of a loathsome disease, (3) charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office[,] and (4) charge of the unchastity of a woman.

Allred v. Cook, 590 P.2d 318, 320 (Utah 1979). Here, Macris provided unrefuted testimony that Jerry Saxton told numerous individuals that Macris had embezzled Sevea’s funds and that Jerry Saxton made statements to Sevea’s employees that Macris was a thief and had stolen from Jerry Saxton, that Macris has “connections” and can “bump people off” and “leave a body in the desert to die,” that Macris had a drug problem and a criminal history, and that Macris was a violent person. We agree with the trial court that these statements constitute slander per se because they allege that Macris was involved in criminal activity and conduct incompatible with the exercise of a lawful business, trade, profession, or office. See id.

At ¶ 43.

Unlike ordinary slander, “[s]lander per se does not require a showing of special damages because damages and malice are implied.” See id. at 321. Thus, the trial court was justified in awarding general damages for the loss of reputation, shame, or emotional impact suffered by Macris. “[G]eneral damages are those which, from the common sense and experience of mankind, would naturally be expected to result from that type of a wrong to any person so injured.” Prince v. Peterson, 538 P.2d 1325, 1328 (Utah 1975). As to the amount of the damages awarded, this court “will not overturn the trial court’s decision unless there was no reasonable basis for the decision.” Richards v. Brown, 2009 UT App 315, ¶ 12, 222 P.3d 69.

At ¶ 44.

Macris testified that as a result of Jerry Saxton’s slanderous statements, “[he] didn’t sleep, [he] didn’t eat,” his business was negatively impacted, and he lost “some personal and some business relationships.” The trial court found Macris’s testimony regarding Jerry Saxton’s false statements and their negative impact on Macris to be credible. Accordingly, there was a reasonable basis for the trial court’s award of $100,000 in general damages for slander per se, and we decline to overturn it.

At ¶ 45.

Punitive Damages 

Last, Appellants contend that the punitive damages award of $1,119,280 was excessive, not supported by the evidence, and at odds with the factors outlined in Crookston v. Fire Insurance Exchange, 817 P.2d 789 (Utah 1991), holding modified by Westgate Resorts, Ltd. v. Consumer Protection Group, LLC, 2012 UT 55, 285 P.3d 1219. In Crookston, the Utah Supreme Court articulated certain factors that a court should use to assess punitive damages, including

(i) the relative wealth of the defendant; (ii) the nature of the alleged misconduct; (iii) the facts and circumstances surrounding such conduct; (iv) the effect thereof on the lives of the plaintiff and others;[8] (v) the probability of future recurrence of the misconduct; (vi) the relationship of the parties; and (vii) the amount of actual damages awarded.

Id. at 808.

At ¶ 46.

In assessing whether those factors have been correctly applied, our supreme court has further explained that “where the punitives are well below $100,000, punitive damage awards beyond a 3 to 1 ratio to actual damages have seldom been upheld and that where the award is in excess of $100,000, we have indicated some inclination to overturn awards having ratios of less than 3 to 1.” Id. at 810. When a punitive damages award “exceeds the ratios set by our past pattern of decision,” the supreme court has instructed that “the trial judge must make a detailed and reasoned articulation of the grounds for concluding that the award is not excessive in light of the law and the facts.” Id. at 811. In doing so, the trial judge should consider the seven Crookston factors, “unless some other factor seems compelling to the trial court.” Id. The trial judge may

explain why the large ratio of punitives to actuals is necessary in the context of the particular case in order to further the purposes of punitive damages by punishing and deterring outrageous and malicious conduct [or conduct which manifests a knowing or reckless indifference toward, and disregard of, the rights of others] which is not likely to be deterred by other means. In sum, the trial judge’s articulation should explain why the award is not excessive despite the fact that it exceeds the general pattern of awards upheld in our prior cases.

Id. (alteration in original) (citations and internal quotation marks omitted).

At ¶ 47.

The Court reviews the trial court’s findings

At ¶ 48.

“[a]lthough relative wealth is a factor to be considered, . . . the introduction of evidence as to the relative wealth of the defendant is not a technical prerequisite to an award of punitive damages.” Lawrence v. Intermountain, Inc., 2010 UT App 313, ¶ 20, 243 P.3d 508 (citation and internal quotation marks omitted).  “Furthermore, [defendants] may not simply remain secretive regarding their incomes and assets in an attempt to thwart the assessment of a punitive damages award . . . .” Id. Jerry Saxton chose not to appear at the damages hearing. In his absence, Macris gave unchallenged testimony that Jerry Saxton’s net worth was in excess of $10 million, that Jerry Saxton claimed that he had the ability to earn $200,000 per month “in [his] sleep,” that the Saxtons had listed their Salt Lake City home for just under $2 million, and that the home contained $400,000 to $500,000 worth of furnishings. Furthermore, Macris testified that Jerry Saxton owned multiple homes, planes, and businesses. Accordingly, the trial court adequately considered the first Crookston factor.

At ¶ 49.

Appellants next contend that punitive damages can be awarded only to punish the party for the outrageousness of the conduct establishing liability for the claims asserted and not as a sanction for discovery abuses or contempt. However, that position was rejected by the Utah Supreme Court in Diversified Holdings, LC v. Turner, 2002 UT 129, 63 P.3d 686. . . . Thus, we affirm the trial court’s determination that an award of punitive damages is warranted.

At ¶ 50.

Appellants also contend that there is an insufficient basis to justify a punitive damage award with a ratio of 5 to 1. Because the trial court did not “explain why the large ratio of punitives to actuals is necessary in the context of [this] particular case,” we agree. See Crookston v. Fire Ins. Exch., 817 P.2d 789, 811 (Utah 1991), holding modified by Westgate Resorts, Ltd. v. Consumer Prot. Grp., LLC, 2012 UT 55, 285 P.3d 1219. The punitive damages award here is outside the range traditionally upheld in Utah because it greatly exceeds $100,000 and is significantly more than three times the amount of the actual damages awarded. While the trial court generally discussed the Crookston factors in determining that punitive damages should be awarded, it did not address the propriety of the 5 to 1 ratio of the $1,119,280 in the amount of punitive damages awarded to the $223,856 in actual damages. See id. at 808, 810–11. While a ratio exceeding 3 to 1 for awards greater than $100,000 may be upheld based on appropriate facts, see Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶¶ 47–48, 82 P.3d 1064 (upholding a punitive damage award with a ratio of 5.5 to 1 where “the evidence in the record and [the Utah Supreme Court’s] overall analysis support[ed] an award of this amount as a serious reprimand for [defendant’s] actions to deter future misconduct”), it comes with a presumption of excessiveness, see Diversified Holdings, 2002 UT 129, ¶ 24 (“[A]n award that falls outside certain parameters will . . . elicit more searching judicial scrutiny.”).

At ¶ 51.

Thus, while we affirm the trial court’s conclusion that Appellants’ conduct was outrageous and offensive, thereby justifying an award of punitive damages, we remand to the trial court for an explanation of the unusually high ratio of the amount of punitive damages to the amount of actual damages. See Crookston, 817 P.2d at 813 . . . .  In doing so, the trial court should first recalculate the amount of actual damages in accordance with this decision. It should then determine the appropriate amount of punitive damages. If the punitive damages remain greater than $100,000 and more than three times the actual damages, the trial court should provide an explanation of why exceeding the traditional limits on such awards is warranted under the facts of this case.

At ¶ 52.

State v. Hattrich, 2013 UT App 177, No. 20111091-CA (July 18, 2013)

ISSUES: Venue; Severing Charges; Rule of Multiplicity; Due Process

Judge Christiansen,

Defendant Paul John Hattrich appeals his convictions for three counts of first degree felony sodomy on a child. We affirm.

At ¶ 1.

The Court reviews the procedural background of the case, specifically: the multiple Amended Informations alleging nearly thirty counts of sexual crimes against five minors, the court’s refusal to bindover defendant on one count of sexual abuse, the court’s order severing the counts charging “dealing in material harmful to a minor,” the Fourth Amended Information, omitting the sexual abuse count dismissed at the preliminary hearing and the two counts of dealing in material harmful to a minor that the trial court had previously severed, the plea bargain reached wherein Defendant pled guilty to three counts of sodomy on a child in exchange for dismissal of the remaining counts, and the court’s sentence.

At ¶¶ 2- 6.

The court outlines the issues and standards of review presented on appeal

At ¶¶ 7-11.

Motion to Change Venue

Defendant first argues that the trial court abused its discretion by denying his motion to change venue. “The right to trial by an impartial jury is guaranteed by both the United States Constitution and the Utah Constitution.” State v. Stubbs, 2005 UT 65, ¶ 9, 123 P.3d 407; see also U.S. Const. amend. VI; Utah Const. art. 1, § 12. Furthermore, rule 29 of the Utah Rules of Criminal Procedure provides, “If the prosecution or a defendant in a criminal action believes that a fair and impartial trial cannot be had in the jurisdiction where the action is pending, either may, by motion, . . . ask to have the trial of the case transferred to another jurisdiction.” Utah R. Crim. P. 29(d)(1). Defendant asserts that he could not receive a fair and impartial trial in Sevier County—the location where Defendant committed the criminal acts charged in this case.

At ¶ 12.

Criminal defendants may properly challenge a trial court’s denial of a change of venue motion following conviction by a jury. When such is the case, we consider “whether [the] defendant was ultimately tried by a fair and impartial jury.” State v. Widdison, 2001 UT 60, ¶ 38, 28 P.3d 1278. However, when a defendant challenges a denial of a change of venue motion on interlocutory appeal, we employ a totality of the circumstances test. See State v. James, 767 P.2d 549, 552 (Utah 1989). The Utah Supreme Court has identified four factors courts should examine in making this determination. See id. “Factors to be considered include (1) the standing of the victim and the accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity.” Id. Under this framework, the burden is on the defendant to raise a “reasonable likelihood” that a fair and impartial trial could not have been afforded to him or her. See id. Because Defendant’s appeal follows the entry of his guilty plea, as opposed to a conviction by a jury, it is impossible “for us to assess the composition of the jury as it was actually impaneled to determine whether [Defendant] was ultimately tried by a fair and impartial jury.” See Stubbs, 2005 UT 65, ¶ 16. Therefore, we will review the trial court’s denial of Defendant’s motion to change venue for an abuse of discretion by applying the James factors in light of the totality of the circumstances of this case.

At ¶ 13.

A review of the James factors demonstrates that the trial court did not abuse its discretion by denying Defendant’s motion to change venue.

At ¶¶ 14-17

Considering the totality of the circumstances, Defendant has not raised a “reasonable likelihood” that a fair and impartial trial could not have been afforded to him. Accordingly, we conclude that the trial court did not abuse its discretion by denying Defendant’s motion to change venue.

At ¶ 18.

Motion to Sever

Prior to the preliminary hearing, Defendant filed a motion to sever the twenty-seven counts contained in the Second Amended Information. The trial court granted Defendant’s motion as to counts 26 and 27—dealing in material harmful to a minor—but denied the motion as to the remaining counts. On appeal, Defendant argues that the counts should have been severed in order to prevent prejudice. See Utah Code Ann. § 77-8a-1(4)(a) (LexisNexis 2012) (“If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.”). According to Defendant, the “risk of prejudice . . . was significant, if only by the sheer number of charges and which charges are, short of being a capital offense, . . . the most serious offenses in the State of Utah.”

At ¶ 19.

Defendant fails to persuade us, however, that he faced any actual prejudice. Rather, his argument consists of conclusory statements regarding the respective counts in the information without any discussion of how joinder of those counts prejudiced him under the law. . . . At no point does Defendant’s brief refer to any supporting affidavits, the trial court’s written ruling, or analysis of the “Milton Bradley” case. In short, Defendant’s argument is under developed and leaves us unconvinced that he was prejudiced by the joinder. See Utah. R. App. P. 24(a)(9).

At ¶ 20.

Moreover, Utah Code section 77-8a-1 allows for joinder of multiple felony counts in the same information so long as “each offense is a separate count and if the offenses charged are . . . based on the same conduct or are otherwise connected [together2] in their commission; or . . . alleged to have been part of a common scheme or plan.” See Utah Code Ann. § 77-8a-1(1). Based on the motion hearing minutes, the trial court determined that after examining the “affidavits filed and Utah law,” “there was a common scheme over a few years time.” There was only one affidavit submitted—that of the detective involved in the case. A review of this affidavit confirms that the crimes alleged in the information were connected in their commission and part of a common scheme or plan.3 Because the charges were properly joined and because Defendant has failed to  demonstrate any prejudice, the trial court did not abuse its discretion by denying Defendant’s motion to sever.

At ¶ 21.

Motion to Quash Bindover

[Defendant] contends that the magistrate (1) applied the wrong bindover standard at the preliminary hearing, (2) should have granted Defendant’s motion to continue the preliminary hearing, and (3) should not have allowed the State to introduce the written statement of a witness at the preliminary hearing in lieu of oral testimony.

At ¶ 22.

Defendant argues that the magistrate’s reference to “a reason to believe” is distinct from the applicable standard of a “reasonable belief.”

At ¶ 24.

Defendant’s argument lacks merit. Even though we acknowledge that a “reason to believe” is not the same as “a reasonable belief,” the magistrate applied the probable cause standard which is the correct standard for bindover at a preliminary hearing. Defendant would have us dissect a singular, passive, oral statement made by the magistrate in describing the probable cause standard as grounds for reversing his bindover. Such an inquiry focuses on a possible semantic misstatement rather than the law actually applied. The magistrate explicitly stated that after evaluating the facts as they were presented to him, he found “that there [was] probable cause to believe that Defendant Hattrich committed all of the counts that are alleged with the exception of Count No. 21.” (Emphasis added.) Defendant does not challenge the probable cause determination on any other ground, such as the sufficiency of the evidence. Accordingly, we conclude that the magistrate applied the correct bindover standard.

At ¶ 25.

Here, Defendant effectively waived his right to raise this claim on appeal because, despite having requested a continuance at the commencement of the preliminary hearing, he failed to renew the motion as instructed by the magistrate. See State v. Hansen, 2002 UT 114, ¶ 16, 61 P.3d 1062 (“[W]hen a court properly defers ruling on an issue that has been raised and plainly instructs the objecting party to re-raise the issue at a specific later time if its objection remains, . . . [and] if no such later objection is made, the party has not presented [the issue] to the trial court in a manner sufficient to obtain a ruling thereon, thereby preserving the issue for review.” (third alteration in original) (citations and internal quotation marks omitted)).

At ¶ 28.

Defendant also argues that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and under the Utah Constitution were violated when the magistrate admitted the witness’s written statement at the preliminary hearing, thereby denying Defendant an opportunity to cross-examine that witness. Defendant argues that a preliminary hearing, as opposed to a probable cause determination at an arraignment, is a critical stage of a prosecution and thus entitles criminal defendants the right to confront and cross-examine all adverse witnesses.

At ¶ 29.

The Utah Supreme Court has already addressed this precise issue in State v. Timmerman, 2009 UT 58, 218 P.3d 590. In that case, the state introduced at the preliminary hearing the written statement of a witness who was unavailable to testify because she invoked the spousal privilege. Id. ¶ 4. Over the defendant’s objection, the magistrate admitted the witness’s statement and ultimately bound the defendant over for trial. Id. The defendant subsequently moved to quash the bindover on the same constitutional grounds as does Defendant in this case. See id. ¶ 5. The trial court denied the motion to quash, ruling that the confrontation rights afforded by both the United States and Utah constitutions do not apply to preliminary hearings. Id.

At ¶ 30.

The Utah Supreme Court affirmed. Id. ¶¶ 13, 16 (holding “that the federal Confrontation Clause does not apply to preliminary hearings” and “that the plain language of the 1995 amendment to article I, section 12 of the Utah Constitution removed the constraints of Utah’s Confrontation Clause from preliminary hearings”). Notably, the supreme court rejected the same arguments Defendant now advances in an attempt to distinguish between the probable cause determinations at arraignments and those at preliminary hearings and the corresponding level of confrontation rights. See id. ¶ 12. Because the Timmerman holding squarely addresses the factual and legal issues present in the case before this court, we determine that the magistrate properly admitted the witness statement in lieu of the witness’s actual testimony.

At ¶ 31.

Rule of Multiplicity

Defendant argues that the trial court erred by denying his motion to dismiss the Third Amended Information because the counts charged violate the rule against multiplicity. The rule against multiplicity stems “from the 5th Amendment [Double Jeopardy Clause], which prohibits the Government from charging a single offense in several counts and is intended to prevent multiple punishments for the same act.” State v. Morrison, 2001 UT 73, ¶ 24, 31 P.3d 547 (citation and internal quotation marks omitted). “‘The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately . . . . If the latter, there can be but one penalty.’” Blockburger v. United States, 284 U.S. 299, 302 (1932) (omission in original) (quoting Wharton’s Criminal Law § 34 n.3 (11th ed.)). Thus, evaluation of a multiplicity claim requires analysis of the statutes under which a criminal defendant is charged. State v. Rasabout, 2013 UT App 71, ¶¶ 16–17, 299 P.3d 625.

At ¶ 33.

Here, Defendant was charged with multiple counts of rape of a child, sodomy on a child, and sexual abuse of a child. Examination of these statutes reveals that the legislature intended to criminalize each individual act and not “the course of action which they constitute.” See Blockburger, 284 U.S. at 302 (citation and internal quotation marks omitted). . . . Accordingly, the State was free to charge multiple counts of the same crime so long as each count represented a separate act of rape, sodomy, or sexual abuse committed by Defendant. By doing so, the State did not violate the rule against multiplicity.

At ¶ 35.

Due Process & Rule 4

Defendant also argues that the trial court erred in not dismissing the Third Amended Information on the grounds that the charging document violated his due process rights embodied in the Utah Constitution and rule 4 of the Utah Rules of Criminal Procedure. Specifically, Defendant contends that the original and the four amended informations failed to provide adequate notice of the dates and locations of his then‐alleged crimes, thereby “wreak[ing] havoc on Defendant’s ability to defend himself.”

At ¶ 36.

Under rule 4(d), “the trial court may allow an information to be amended if two conditions are met: (1) no additional or different offense is charged, and (2) the substantial rights of the defendant[] are not prejudiced.” State v. Bush, 2001 UT App 10, ¶ 11, 47 P.3d 69 (alternation in original) (citation and internal quotation marks omitted). Defendant argues that the State has the burden of showing that both prongs of rule 4(d) are met before a court may allow for an amendment. However, in Tillman v. Cook, 855 P.2d 211 (Utah 1993), the Utah Supreme Court held that even where new and additional offenses were charged with the amendment of a first degree murder charge to include aggravating circumstances, rule 4(d) was not violated because the defendant – not the State— “ha[d] shown no prejudice because of the amendment.” Id. at 214–15. Also, in State v. Holt, 2004 UT App 213U (mem.), this court determined that even though the trial court erred when it allowed the state to amend an information at the end of a defendant’s trial because the amendment created a new and additional offense, “it [was] clear that [the d]efendant did not suffer any harm or prejudice as a result.” Id. at para. 9. Consequently, we declined to reverse the defendant’s conviction in that case. See id.

At ¶ 38.

Thus, rule 4(d) case law suggests that even if an amended information does create a new and additional offense, reversal is only appropriate if the defendant can demonstrate that his or her substantial rights are prejudiced as a result of the amendment.

At ¶ 39.

The supreme court has explained that due process does not “expressly mandate identification of the exact date when an alleged offense occurred.” State v. Taylor, 2005 UT 40, ¶ 9, 116 P.3d 360. This is especially true of sexual abuse prosecutions where “identifying the specific date, time, or place of the offense is often difficult owing to the inability of young victims to provide this information.” Id. ¶ 12. Rather, “due process requires that an accused be given sufficiently precise notification of the date of the alleged crime so that he can prepare his defense.” State v. Nelson-Waggoner, 2004 UT 29, ¶ 20, 94 P.3d 186 (emphasis added) (citation and internal quotation marks omitted). The analysis requires “weighing of the completeness of the notice and its adequacy for the defendant’s purposes against the background of the information legitimately available to the prosecuting authority.” Taylor, 2005 UT 40, ¶ 9 (emphasis added) (citation and internal quotation marks omitted). The constitutional requirement is fulfilled “[a]s long as a defendant is sufficiently apprised of the State’s evidence upon which the charge is based so that the defendant can prepare to meet that case.” Id. (alteration in original) (citation and internal quotation marks omitted).

At ¶ 40

The Court reviews the information and the State Bill of Particulars and determines that it provided adequate notice of the crimes charged.

At ¶ 41-44.

Warrantless Arrest; Exigent Circumstances

Defendant concedes that he did not preserve this issue for appeal because it was not presented to the trial court. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (“As a general rule, claims not raised before the trial court may not be raised on appeal.”). Nevertheless, Defendant argues that we should address his warrantless arrest claim under the exceptional circumstances exception to the preservation rule. “The exceptional circumstances doctrine is used sparingly, properly reserved for truly exceptional situations, for cases . . . involving rare procedural anomalies, and [may be employed] where a change in law or the settled interpretation of law color[s] the failure to have raised an issue at trial.” Provo City v. Ivie, 2008 UT App 287, ¶ 6, 191 P.3d 841 (alterations and omission in original) (citations and internal quotation marks omitted).

At ¶ 45.

Defendant has not identified how this case constitutes a “rare procedural anomal[y].” See id. Nor has he demonstrated how an intervening “change in law or the settled interpretation of law” justifies his failure to raise the warrantless arrest claim below. See id. (citation and internal quotation marks omitted). Thus, the exceptional circumstances exception does not apply, and we decline to address Defendant’s unpreserved claim on appeal. Additionally, Defendant’s plea agreement limits the issues he may raise on appeal to those “which have arisen or been litigated in this case.” Defendant’s failure to raise or litigate this issue below also precludes him from arguing it on appeal.

At ¶ 46.

State v. Nielsen, 2013 UT App 178, No. 20110962-CA (July 18, 2013)

ISSUE: Good Faith Reliance on a Search Warrant

Judge Thorne,

Defendant Benjamin Craig Nielsen appeals from his convictions for production of marijuana, see Utah Code Ann. § 58-37-8(1)(a)(i) (LexisNexis 2012);1 possession of marijuana with intent to distribute, see id. § 58-37-8(1)(a)(iii); unlawful possession of a handgun, see id. § 76-10-503(3)(a); and possession of drug paraphernalia, see id. § 58-37a-5(1). Defendant asserts that the district court erred in denying his motion to suppress the evidence because the affidavit supporting the search warrant was insufficient to establish probable cause.

In particular, Defendant argues that the confidential source was an unreliable anonymous source and the affidavit contained misleading statements and unlawfully obtained information. Although the affidavit is problematic, we do not disturb the district court’s suppression order because we agree with the court’s alternate ruling that even if the affidavit did not properly establish probable cause, the evidence seized during the search is admissible under the “good faith reliance” exception set forth in United States v. Leon, 468 U.S. 897, 918–21 (1984). “A trial court’s finding that an officer relied on a defective search warrant in good faith is subject to a de novo review by this court.” State v. Horton, 848 P.2d 708, 711 (Utah Ct. App. 1993).

At ¶¶ 1-2.

The Court discusses the affidavit in support of the search warrant.

At ¶¶ 4.

The Court evaluates the alleged misleading comments in the affidavit and determines that in context, they were not misleading.

At ¶¶ 5-6.

Based on the entirety of the affidavit, Defendant has made allegations that Affiant intentionally or recklessly misled the magistrate into believing that Defendant did not put the trash out over a long period of time, but Defendant has not adequately supported those allegations.

At ¶ 7.

Neither of the statements Defendant asserts were averred to mislead the magistrate actually misinformed the magistrate about Affiant’s observations. Nor does Defendant allege any other support to demonstrate that Affiant misled the magistrate. Accordingly, we affirm the district court’s ruling that the evidence seized during the search is admissible under the “good faith reliance” exception set forth in United States v. Leon, 468 U.S. 897 (1984).

At  ¶ 8.

Johnston v. Labor Commission, 2013 UT App 179, No. 20120313-CA (July 18, 2013)

ISSUE: Denial of Request for Hearing on Objection to Medical Panel’s Report in Worker’s Compensation Cases

Judge Orme,

Monte Johnston was denied workers’ compensation benefits for his head, neck, and back injuries after being involved in an industrial accident while working for Viracon. The administrative law judge (ALJ) denied Johnston’s request for benefits primarily because of the opinions and conclusions contained in the independent medical panel’s report. Johnston had objected to the medical panel’s report and requested a hearing on his objection, but the ALJ denied his request. The Labor Commission Appeals Board affirmed. Johnston now seeks judicial review of the Board’s decision.

At ¶ 1.

The Court reviews the factual and procedural background of this case; specifically: Johnston’s pres-existing back pain; Johnston’s accident at work; the conflicting medical opinions concerning the cause of Johnston’s back pain; the ALJ’s appointment of an independent medical panel of one to conduct an evaluation; the ALJ’s determination, based on the independent physician’s opinion, that the work accident was not the cause of Johnston’s injury; the ALJ’s refusal to grant a hearing regarding allegations of bias; and the Board’s affirmation of the ruling.

At ¶¶ 2-11.

Johnston believes that because he raised concerns of bias and foundational inadequacy relating to the medical panel’s report, and because he requested a hearing as permitted by the statute, an objection hearing should have been held more or less as a matter of course. The ALJ’s decision, however, did not address Johnston’s request for a hearing but merely overruled his underlying objection.

At ¶ 14.

Although our cases have regularly encouraged trial courts to “give reasons on the record for discretionary rulings, . . . [a] failure to do so does not, alone, constitute an abuse of discretion and does not warrant reversal.” Id. ¶ 24. See State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931. Instead, a trial court’s failure to explain the basis for its decision will not be disturbed if a reasonable basis for its decision is apparent from the record. See Ruiz, 2012 UT 29, ¶ 24; Pecht, 2002 UT 41, ¶ 34. In cases where a reasonable basis is not clear from the record, the failure to explain will “‘only justify remand to the trial court.’” Ruiz, 2012 UT 29, ¶ 24 (emphasis in original) (quoting Neerings v. Utah State Bar, 817 P.2d 320, 323 (Utah 1991)).

At ¶ 15.

The Court independently reviews the medical panel’s report and determines that it did not materially misstate any facts, that allegation of bias were purely speculative, and the statute clearly allows the appointment of a single member panel.

At ¶¶ 17-22.

A claimant can generally recover benefits when an industrial injury aggravates or “light[s] up” a pre‐existing condition and has a causal connection with the subsequent onset of symptoms. See Virgin v. Board of Review, 803 P.2d 1284, 1288 (Utah Ct. App. 1990) (citing Allen v. Industrial Comm’n, 729 P.2d 15, 25 (Utah 1986)). Aggravation of a pre‐existing condition is a factual matter to be determined by the ultimate finder of fact. Id. at 1287, 1289; Chase v. Industrial Comm’n, 872 P.2d 475, 479 (Utah Ct. App. 1994). The Board, as the ultimate fact finder, “may choose to give certain evidence more weight than other evidence,” Virgin, 803 P.2d at 1289, and it is not bound by the opinions contained in the medical panel’s report, see id. (noting that it is the Board’s prerogative to believe only those statements from a doctor’s opinion that “‘impressed it as being true’” (quoting Mollerup Van Lines v. Adams, 398 P.2d 882, 885 (Utah 1965))). See also Redman Warehousing Corp. v. Industrial Comm’n, 454 P.2d 283, 285 (Utah 1969) (“We must pay great respect to the panel of medical experts, but they are not the ultimate fact finders.”).

At ¶ 23.

Johnston insists that an objection hearing was necessary because the medical panel was unaware of the aggravation rule and employed some other method for determining medical causation. The medical panel, however, is not the finder of fact and does not make a final and binding aggravation determination. See Chase, 872 P.2d at 479; Giesbrecht v. Board of Review, 828 P.2d 544, 548 (Utah Ct. App. 1992). While medical panel reports typically use the word “aggravate” and opine as to whether a pre‐existing condition was made worse by the relevant industrial injury, medical panels comprised of individuals without legal training are not obligated to restrict their usage of the word “aggravate” to its legal construction as developed in our cases. See Zimmerman v. Industrial Comm’n, 785 P.2d 1127, 1131 (Utah Ct. App. 1989) (“The record viewed in its entirety, demonstrates that the aggravation the medical panel referred to was that due solely to the temporary pain experienced by [claimant] following the accident and not aggravation of or by the pre‐existing conditions . . . .”). Indeed, that is the very reason why the Board, and not Dr. Goldman, makes the determination as to whether a pre-existing condition was legally “aggravated.” It is the province of the Board, as the finder of fact, to view all the evidence submitted as a whole and then make an appropriate determination. Dr. Goldman’s understanding of the aggravation rule is not binding on the Board or its own application of the rule, and accordingly, the ALJ did not err in declining to convene a hearing to explore Dr. Goldmanʹs understanding of the aggravation rule. 

At ¶ 24.

Admissibility of the medical panel report

Utah Code section 34A-2-601 contemplates three potential scenarios in which a medical panel report can be admitted into evidence, but only two of those scenarios are expressly treated by the statute. See Utah Code Ann. § 34A‐2‐601(2)(d)(iii), (2)(f)(i), (2)(g)(i)–(ii) (LexisNexis 2011). In the first scenario, where no objection to the medical panel report is made, “the report is considered admitted in evidence.” Id. § 34A-2-601(2)(d)(iii). The second scenario occurs when an objection to the medical panel report is timely filed and the administrative law judge, in her discretion, convenes a hearing on the objection. See id. § 34A-2-601(2)(f)(i). In that instance, the medical panel report “may not be considered as evidence in the case except as far as the report is sustained by the testimony admitted.” Id. § 34A-2-601(2)(g)(ii).

At ¶ 26.

A third scenario—the one presented here—occurs when an objection to the report is timely filed but the administrative law judge elects not to hold an objection hearing. See id. § 34A-2-601(2)(f)(i) (“[T]he administrative law judge may set the case for hearing to determine the facts and issues involved.”) (emphasis added). Section 34A-2-601 is silent as to whether, in this third scenario, a medical panel report is admitted as if no objection had been made, only after sufficient testimony, or only after some other unspecified laying of supporting foundation. See id. § 34A-2-601. The parties are predictably split on how this third scenario should play out. Johnston asserts that his objection sufficiently distinguishes this third scenario from the first scenario—subpart (2)(d)(iii)—because that provision only contemplates instances where no objection was made. See id. § 34A-2-601(2)(d)(iii). He maintains that a filed objection necessitates the laying of proper foundation before a medical report is admitted into evidence, regardless of whether a hearing is held. Viracon and its insurer, by contrast, believe that if an administrative law judge, in her discretion, properly denies an objection hearing, then the medical panel report should be admitted as if no objection had been made at all. The scenario before us is admittedly perplexing, and had the Legislature defined the scope and operation of this third scenario, then the focus of this appeal would be far more narrow and not have turned solely on our own interpretation of the statute.

At ¶ 27.

. . . in cases where the administrative law judge has properly denied a hearing, the appropriate ruling on the objection should be obvious enough that no additional testimony or evidence is warranted. In those cases, the objection will either be obviously well taken or obviously not well taken. If it is obvious that the objection is not well taken, then the medical panel report will have no readily apparent deficiencies and supporting foundational testimony will not be necessary to substantiate the report’s validity. Thus, the report will be treated as if no objection had been made and simply be admitted into evidence. See id. § 34A-2-601(2)(d)(iii). If, however, it is obvious that the objection is well taken such that no amount of supporting testimony could overcome the report’s glaring deficiencies, then the objection should simply be sustained and the medical panel report be excluded.

At ¶ 30.

Just as it was apparent from the record that the ALJ did not abuse her discretion in denying a hearing on Johnston’s objection, it is also apparent that Johnston’s objection is not well taken and that the ALJ did not err in overruling it. As previously  discussed, Johnston’s claims of factual misstatements and bias do not find any tangible support in the record. His challenges to the composition of the medical panel and the panel’s understanding of the “aggravation rule” are similarly not well taken. Because the grounds for his objection have no merit, the objection was not well taken, and the statute contemplates that the ALJ should have overruled the objection and admitted the report as if no objection had been made. See id. § 34A-2-601. We conclude that the ALJ complied with the requirements of section 34A-2-601 and that the Board properly endorsed her approach. We decline to disturb its decision.

At ¶ 31.

Salt Lake City v. Carrera, 2013 UT App 181, No. 20120323-CA (July 18, 2013)

ISSUE: Evidence of knowledge concerning the unlawful possession of another’s social security card

Per Curiam,

Ricardo Enrique Carrera appeals his conviction for unlawful possession of another’s identification document. Carrera argues that there was insufficient evidence to support the conviction. We affirm.

At ¶ 1.

[W]e conclude that there was sufficient evidence to support the jury’s verdict. Specifically, police found what appeared to be a valid social security card in Carrera’s wallet with a name on it other than his. Carrera told police that he did not know the person whose name appeared on the card. The fact that Carrera admitted that he did not know the person whose name appeared on the social security card contained within his wallet created a plausible inference that he knew that he was not entitled to possess that card, especially given that there are few plausible scenarios to explain his lawful possession of a social security card belonging to someone he did not even claim to know. Because it is a reasonable inference that Carrera knew that he was not entitled to possess the card, the jury had sufficient evidence to convict Carrera of unlawful possession of another’s identification document.

At ¶ 3.

Judge McHugh, dissenting,

The majority concludes that these facts “created a plausible inference that [Carrera] knew that he was not entitled to possess that card.” Id. In my view, the jury here was asked to speculate, not to infer, as to Carrera’s knowledge.

At ¶ 6.

The facts presented here proved that Carrera had the social security card of a person he did not know in his wallet. This evidence is sufficient to prove that he was in possession of the card. Because the Utah Legislature did not make possession alone unlawful, however, it can be sufficient to support Carrera’s conviction only if it is also a logical consequence of these facts that Carrera knew that he was not entitled to possess it. See Utah Code Ann. § 76‐6‐1105(2)(a)(i). I would hold that the evidence presented does not speak to Carrera’s knowledge at all and therefore the jury had to engage in speculation to convict him.

At ¶ 8.

Judge McHugh explains.

At ¶¶ 9-13.

Collins v. State, 2013 UT App 182, No. 20110967-CA (July 18, 2013)

ISSUE: Timeliness of Petition for Post Conviction Relief for Ineffective Assistance of Counsel; Retroactive Application of Padilla

 

Per Curaim,

Everado Collins appeals the trial court’s order dismissing his petition for postconviction relief as untimely. This is before the court on the State’s motion for summary disposition based on the lack of a substantial question for review.

At ¶ 1.

Although Collins filed his petition for relief roughly fifteen years after his conviction, he asserts that Padilla, [the case holding that failure to inform defendant about the possible implications a plea might have on his immigration status is ineffective assistance of counsel,] should apply retroactively to make relief available to him.

At ¶ 2

[T]he Supreme Court resolved that issue recently in Chaidez v. United States, 133 S.Ct. 1103 (2013). The Court in Chaidez held that Padilla does not apply retroactively because Padilla announced a new legal rule that brought what was predominantly considered to be a collateral consequence—deportation—within the scope of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The holding in Chaidez resolves the issue on appeal and conclusively establishes that Collins’s petition for relief is untimely.

At ¶ 3.

Collins argues that the standards for retroactive application of newly announced legal rules may be broader under the Utah Constitution than the federal decisions. This argument fails. First, the argument was not raised in the district court and is, therefore, not appropriately before this court on review. See Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d 259. Second, the Post‐Conviction Remedies Act specifically establishes when relief may be available after the announcement of a legal rule. Utah Code section 78B‐9‐104 lists possible grounds for postconviction relief, including when “petitioner can prove entitlement to relief under a rule announced by the United States Supreme Court . . . after conviction and sentence became final on direct appeal and that . . . the rule was dictated by precedent existing at the time the petitioner’s conviction or sentence became final.” Utah Code Ann. § 78B‐9‐104(1)(f)(i) (LexisNexis 2012). Based on the plain language of the statute, it was Collins’s burden to show that the rule announced in Padilla was dictated by precedent. However, the explicit holding in Chaidez forecloses Collins from meeting his burden

At ¶ 4.