State of Utah v. Cheeney

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State of Utah,
Plaintiff and Appellee,

v.

Christopher Cheeney,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971415-CA

F I L E D
April 1, 1999
  1999 UT App 107 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Linda M. Jones and Rebecca C. Hyde, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

This appeal was stayed pending issuance of the Utah Supreme Court's decision in State v. Lopes, which was issued on March 16, 1999. See State v. Lopes, No. 960551, slip op. (Utah March 16, 1999). In jointly requesting a stay, counsel for both the State of Utah and appellant Christopher Cheeney represented that the decision in State v. Lopes would be dispositive of the present appeal. We reverse and remand for further proceedings consistent with the Lopes decision.

Both Lopes and Cheeney pled guilty to the underlying offenses, conditional upon the opportunity to challenge the constitutionality of the gang enhancement statute, Utah Code Ann. § 76-3-203.1 (Supp. 1998). In accordance with the provisions of section 76-3-203.1, the trial court judge sentenced Cheeney to serve a concurrent sentence of 1 to 15 years for theft, a second degree felony, and 0 to 5 years for burglary, a third degree felony, then imposed sentences pursuant to the gang enhancements of 6 years for the second degree felony and 3 years for the third degree felony. The trial court ordered Cheeney to serve the enhancements concurrently to each other, and consecutively to the sentences for the underlying offenses. Consistent with the statute, the trial judge made the relevant factual determinations supporting the gang enhancement, rather than submitting the matter to a jury.

The majority holding in State v. Lopes states: We hold the gang enhancement statute creates a new and separate offense and, therefore, the Code requires each element of this crime be proved beyond a reasonable doubt. Since the elements of the crime were not established against Lopes, either by his plea or by a jury trial, he was deprived of his due process rights as guaranteed by the federal and Utah Constitutions. Furthermore, subsection (5)(c) of the Utah Code Ann. § 76-3-203.1 is found to violate a defendant's right to a jury trial as established in the Constitution of the State of Utah. We reverse and remand for a new trial on the section 76-3-203.1 charge. Slip op. at 10.

On appeal, Cheeney raised the same two issues found to be dispositive in Lopes. Cheeney also challenged the statute as unconstitutionally vague and as violative of the equal protection guarantees under the Utah Constitution. Because Lopes is dispositive, it is unnecessary to reach the additional arguments raised in this appeal. See slip op. at note 4 (declining to address additional arguments raised by Lopes).

Cheeney also requests this court to overrule its decision in State v. Ramirez, 948 P.2d 375 (Utah Ct. App. 1997). Ramirez considered only "the narrow question of whether requiring the sentencing judge to make the factual determination required by section 76-3-203.1 violates the Sixth Amendment [of the United States Constitution]." 948 P.2d at 378 n. 5. The court declined to consider an argument under article I, section 10 of the Constitution of Utah because the appellant failed to provide separate argument or analysis under that provision. Id. at n. 4. Accordingly, this court did not consider the argument that is the basis for the Lopes holding. Although we decline to overrule Ramirez, which was based solely on analysis under the Sixth Amendment, we reiterate that the decision in State v. Lopes, decided under provisions of our state constitution, is the controlling law in this jurisdiction governing application of the gang enhancement provision.

We reverse and remand the case to the district court for a new trial on the section 76-3-203.1 charge, consistent with the requirements set forth in State v. Lopes.
 
 

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Michael J. Wilkins,
Presiding Judge
 
 

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James Z. Davis, Judge
 
 

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Gregory K. Orme, Judge