State of Utah v. Turnbow

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jesse G. Turnbow,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990175-CA

F I L E D
August 19, 1999
  1999 UT App 240 -----

Second District, Ogden Department
The Honorable Roger S. Dutson

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and Christine F. Soltis, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Jackson.

PER CURIAM:

Appellant Jesse G. Turnbow appeals the denial of a motion to correct illegal sentence. This case is before the court on Turnbow's motion to remit the case to the district court for resentencing. The State of Utah concurs in the motion. We grant the motion, which is dispositive of this appeal.

Turnbow pled guilty to theft, a second degree felony, with a weapons enhancement pursuant to Utah Code Ann. § 76-3-203 (Supp. 1998). The trial judge sentenced Turnbow to an indeterminate term of one-to-fifteen years and, based upon the use of a dangerous weapon in commission of the felony, imposed an additional one year term to run consecutive to the one-to-fifteen year term and imposed an additional sentence of an indeterminate term not to exceed five years to run consecutively to any other sentence.

Section 76-3-203 was amended in 1976 to give trial courts discretion to increase a defendant's sentence for any felony offense by up to five years if the defendant used a dangerous weapon in the commission of the offense. In the following year, the legislature amended the statute again inserting in the middle of the 1976 additions a requirement for a mandatory one-year sentence applicable to a convictions for a first or second degree felony involving a dangerous weapon. Accordingly, section 76-3-203(2) provides that the trial court, upon a finding that a dangerous weapon was used in the commission of the felony, "shall additionally sentence the person convicted for a term of one year to run consecutively and not concurrently; and the court may additionally sentence the person convicted for an indeterminate term not to exceed five years to run consecutively and not concurrently."

The Utah Supreme Court has held a sentence to two consecutive enhancements to be contrary to the legislative history behind amendments to the statute. See State v. Willett, 694 P.2d 601, 602 (Utah 1984). Rationalizing the two amendments, the supreme court concluded "a mandatory one-year minimum enhancement sentence must be imposed for use of a firearm in cases involving first and second degree felonies," and "[i]n such cases, the judge's only discretion lies in sentencing for more than one year but not more than five years." Id. The mandatory language was not added to the sub-paragraph treating third degree felonies, leaving the trial court discretion to impose a zero-to-five year enhancement. The supreme court held that "nothing in the legislative history indicated the legislature intended to increase the total available enhancement sentence under subsections (1) and (2) of section 76-3-203 [governing first and second degree felonies] to six years, when it plainly left the maximum under subsection (3) [governing third degree felonies] at five years." Id. at 603. Accordingly, the supreme court directed the district court to reduce the enhancement sentence from a total of six years to a total of five years.

The district court in this case concluded the prohibition announced in Willett and cases following it is limited to situations where the trial court attempted to impose two determinate enhancements rather than the mandatory one-year enhancement followed by an indeterminate zero-to-five year enhancement. See State v. Beltran-Felix, 922 P.2d 30, 38 (Utah Ct. App. 1996). We conclude the case law does not support such a distinction. The State's concurring memorandum correctly asserts that "in ordering the enhancement terms to run consecutive to each other . . . the court's sentence results in the same prohibited term of enhancement" because "the indeterminate five year enhancement terms may begin only upon completion of the mandatory one-year enhancement, resulting in a combined potential enhancement of six years."

Turnbow's request that this case be remanded for entry of either a determinate one-year sentence or an indeterminate sentence of zero to five years fails to take into account the mandatory one-year enhancement for a second degree felony involving a dangerous weapon. Given the trial court's clearly-stated intention to impose the maximum term of enhancement, the trial court is directed upon remand to reduce the total enhancement to five years, which may be accomplished by sentencing defendant to the statutory term of one-to-fifteen years for the second degree felony and imposing a consecutive enhancement of one-to-five years.

Our disposition of the motion to remand for resentencing is wholly dispositive of the present appeal from the denial of a motion to correct illegal sentence under Utah R. Crim. P. 22(e). Accordingly, we reverse the trial court's denial of the Rule 22(e) motion, grant the motion to remand for resentencing with the qualification noted above, and direct the trial court on remand to reduce the enhancement sentence for use of a dangerous weapon in the commission of second degree felony theft from a total of six years to a total of five years.
 
 
 

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Judith M. Billings, Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge