State v. Wilder
420 P.3d 1064
Utah2018Background
- Defendant Percy Wilder, on parole for attempted child rape, forcibly detained and sexually assaulted a woman after she briefly got into his car; she escaped after about ten minutes and he later attacked her in an apartment hallway; Wilder was arrested and charged.
- Jury convicted Wilder of aggravated sexual assault and aggravated kidnapping (both first-degree felonies); trial counsel did not move to have the convictions merged.
- On appeal Wilder argued the convictions should merge under the court’s common-law Finlayson–Lee merger test and that trial counsel was ineffective for not seeking merger; the court of appeals rejected those claims.
- The Utah Supreme Court granted certiorari to decide whether the court of appeals erred and whether counsel provided ineffective assistance by failing to seek merger.
- The Court concluded the Finlayson–Lee common-law merger test is invalid and that the controlling standard is the statutory merger provision (Utah Code § 76‑1‑402(1)); because Wilder did not raise statutory-merger arguments below, that claim was waived and counsel was not ineffective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Finlayson–Lee common‑law merger test governs merger of aggravated sexual assault and aggravated kidnapping | State: Finlayson–Lee should be rejected in favor of the statutory test | Wilder: Finlayson–Lee should be replaced with a modified common‑law test (or applied) | Court overruled relevant portions of Finlayson and Lee; controlling test is statutory § 76‑1‑402(1) |
| Whether trial counsel was ineffective for failing to move to merge under Finlayson–Lee | State: Counsel’s failure to raise bad law cannot be ineffective assistance | Wilder: Counsel was ineffective for not seeking merger under Finlayson–Lee | Counsel not ineffective because Finlayson–Lee is bad law; failure to raise it caused no prejudice |
| Whether counsel was ineffective for failing to move to merge under the statutory test (§ 76‑1‑402(1)) | Wilder (briefly on certiorari): statutory merger applies because sexual assault and attendant detention were the "same act" | State: Wilder waived statutory‑merger claim by not raising it below | Court held Wilder waived the statutory‑merger argument; it was not preserved for certiorari review |
| Whether double‑jeopardy or other constitutional provisions require a common‑law merger rule | Wilder suggested constitutional grounds could justify common‑law merger | State argued no constitutional basis and pointed to statutory scheme | Court held no constitutional double‑jeopardy problem where offenses have distinct elements; statutory framework governs merger |
Key Cases Cited
- State v. Finlayson, 994 P.2d 1243 (Utah 2000) (articulated Utah’s prior common‑law merger test)
- State v. Lee, 128 P.3d 1179 (Utah 2006) (reaffirmed and applied Finlayson common‑law merger approach)
- Met v. State, 388 P.3d 447 (Utah 2016) (criticized application of the Finlayson–Lee test and noted statutory merger provision)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance of counsel standard)
- Lockhart v. Fretwell, 506 U.S. 364 (1993) (counsel not ineffective for failing to raise meritless claims)