State of Utah v. Ortiz
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
Plaintiff and Appellee,
v.
Wally Frank Ortiz,
Defendant and Appellant.
No. 970427
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Third District, Salt Lake
County
The Honorable Glenn K. Iwasaki
Attorneys:
Jan Graham, Att'y Gen.,
Thomas B. Brunker, Asst. Att'y Gen., Robert Stott, Salt Lake City, for
plaintiff
Joan C. Watt, Lisa J. Remal,
Robin K. Ljungberg, Salt Lake City, for defendant
_________________________________________________________________
State of Utah,
Plaintiff and Appellee,
v.
Paul Christopher Allen,
Defendant and Appellant.
No. 981584
F I L E D
September 10, 1999
1999 UT 84
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Second District, Davis County
The Honorable Glen R. Dawson
Attorneys:
Jan Graham, Att'y Gen.,
Christine Soltis, J. Frederick Voros, Jr., Asst. Att'ys Gen., William K.
McGuire, Carvel R. Harward, Farmington, for plaintiff
Ronald J. Yengich, Bradley
P. Rich, Salt Lake City, for defendant
--- ZIMMERMAN, Justice:
¶1
These two cases come before
us on interlocutory appeal. They have been consolidated for decision. Defendants
Paul C. Allen and Wally F. Ortiz are both charged with capital murder under
section 76-3-207(4) of the Code. Both allegedly committed these crimes
at a time when one convicted of a capital felony and not sentenced to death
was to be sentenced to life in prison with the possibility of parole unless
the jury could agree unanimously that life without the possibility of parole
was the appropriate sentence. After the crimes with which Allen and Ortiz
are charged were committed, the legislature amended section 76-3-207(4)
(Supp. 1997) to provide that a jury could impose a sentence of life without
the possibility of parole by a vote of 10 to 2, 11 to 1, or 12 to 0. Previously,
only a vote of 12 to 0 was sufficient. Allen and Ortiz contend that by
making it easier to sentence them to life without parole, the legislature
impermissibly increased the punishment for the crimes with which they are
charged, in violation of the ex post facto clauses of both the federal
and state constitutions. See U.S. Const. art. I, § 10; Utah
Const. art. I, § 18. After oral argument, this court ordered more
briefing on the separate question of whether section 76-3-207(4) might
also violate article I, section 10 of the Utah Constitution, the provision
requiring that all criminal convictions be by a unanimous verdict. We now
conclude that none of these issues are ripe for determination. Therefore,
we dismiss the interlocutory appeals and remand the matters for trial.
¶2
Because of the disposition
we make, there is no need to elaborate further on the alleged crimes or
the procedural history of these cases. We proceed directly to the question
of ripeness. This court has not addressed ripeness very often. However,
the ripeness doctrine, which serves to prevent courts from issuing advisory
opinions, has a long history in American jurisprudence. See Texas
v. United States, 523 U.S. 296, 300-01 (1998) (refusing to address
an issue which is contingent on future events which may not occur based
on ripeness); United States v. Certain Parcels of Land, 345 U.S. 344, 350 (1953) (refusing to pass on issues deemed not ripe for adjudication);
Zittman v. McGrath, 341 U.S. 471, 474 (1951) (refusing to decide
issue based on ripeness where controversy may not arise); Brill v. Peckham
Motor Truck & Wheel Co., 189 U.S. 57, 63-64 (1903) (refusing to
decide certain issues based on ripeness).
¶3
In State v. Herrera,
895 P.2d 359 (Utah 1995), this court explained the general premise of the
ripeness doctrine. There, two defendants argued that section 76-2-305 of
the Code, which states that mental illness is a valid defense only where
that mental illness prevented the individual from having the mental state
required as an element of the offense charged, would violate constitutional
restrictions against cruel and unusual punishment. Neither defendant had
yet been convicted of a crime. In refusing to address these claims, we
pointed out that this issue would have become ripe only if the jury had
found either defendant guilty and mentally ill. See Herrera,
895 P.2d at 371. We pointed out that there were several other possible
outcomes which would make a decision on the issues raised unnecessary.
We then stated:
This court will
not issue advisory opinions or examine a controversy that has not yet "sharpened
into an actual or imminent clash of legal rights and obligations between
the parties thereto. Where there exists no more than a difference of opinion
regarding the hypothetical application of a piece of legislation to a situation
in which the parties might, at some future time, find themselves, the question
is unripe for adjudication."
Id. (quoting Redwood
Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1148 (Utah 1981)). Other
courts have similarly refused to pass judgment on the constitutionality
of sentencing procedures where the defendants have not yet been convicted.
See State v. Cinel, 646 So. 2d 309, 317-18 (La. 1994) (refusing
to strike a penalty provision as cruel and unusual punishment on ripeness
grounds because defendant had not yet been convicted or sentenced); Pennsylvania
v. Klobuchir, 405 A.2d 881, 884-85 n.5 (Pa. 1979) (refusing to address
constitutional arguments regarding possible enhanced sentencing on ripeness
grounds where defendant had not been convicted).
¶4
Herrera is directly
on point here. Neither defendant has been convicted of a capital crime,
much less sentenced to life without parole by a non-unanimous jury. This
means that there are several possible circumstances under which we would
not need to address the constitutionality of section 76-3-207(4) (Supp.
1997). Allen and Ortiz may both be found not guilty; Allen and Ortiz may
both be found guilty and unanimous juries could agree that life without
the possibility of parole is the proper sentence; Allen and Ortiz may both
be found guilty but there might not be ten votes to sentence either defendant
to life without the possibility of parole; and finally, Allen and Ortiz
may both be found guilty of a lesser offense.
¶5
Given these possibilities,
for us to address the suggested constitutional deficiencies of section
76-3-207(4) (Supp. 1997) now would be to render an opinion that likely
will be advisory only. This we decline to do.
¶6
We therefore dismiss the
interlocutory appeals and remand for trial.
---
¶7
Chief Justice Howe, Associate
Chief Justice Durham, Justice Stewart, and Justice Russon concur in Justice
Zimmerman's opinion.
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