STATE of Utah, Plaintiff and Appellee, v. Russell ANDERSON, Defendant and Appellant.
No. 880257
Supreme Court of Utah.
March 6, 1990.
We next consider Dixie‘s counsel‘s contention that the trial court erred by discharging his lien on Dixie‘s assets. We question the way in which this issue comes to us. Gubler filed his lien a few days after the court ruled that Dixie was Hafen‘s alter ego. The court initially granted the lien but stayed that order and revoked it in its order granting summary judgment to Transamerica on the alter ego issue. Now Gubler attempts to bring this appeal on behalf of Dixie, challenging the alter ego determination and, at the same time, attempts to appeal the order invalidating his lien against Dixie‘s funds. The conflict in his position is obvious. In an attempt to forestall just this situation, we held in Midvale Motors, Inc. v. Saunders, 21 Utah 2d 181, 442 P.2d 938 (1968), that “the better rule, in the absence of special circumstances requiring a contrary holding to prevent injustice, is to require counsel to bring a separate action against his client to determine the amount of his fee.” Id. 442 P.2d at 941. Because the trial court nevertheless ruled on the lien claim, we will review the court‘s order.
Gubler relies on
For the foregoing reasons, we reverse the summary judgment and remand for further proceedings in accordance with this opinion. We affirm the denial of the attorney‘s lien.
HALL, C.J., HOWE, Associate C.J., and STEWART and DURHAM, JJ., concur.
R. Paul Van Dam, Christine F. Soltis, Salt Lake City, for plaintiff and appellee.
HALL, Chief Justice:
Defendant appeals his sentences for two convictions of second degree murder in violation of
In April 1988, defendant pleaded guilty and mentally ill to two counts of murder in the second degree. Pursuant to
(4) The court shall in its sentence order hospitalization at the Utah State Hospital or other suitable facility if, upon completion of the hearing and consideration of the record, the court finds by clear and convincing evidence that:
(a) the defendant has a mental illness as defined by
Subsection 76-2-305(4) ;(b) because of his mental illness the defendant poses an immediate physical
danger to others or self, which may include jeopardizing his own or others’ safety, health, or welfare if placed in a correctional or probation setting, or lacks the ability to provide the basic necessities of life, such as food, clothing, and shelter, if placed on probation; . . . ;
(e) the Utah State Hospital or other suitable facility can provide the defendant with treatment, care, and custody that is adequate and appropriate to the defendant‘s conditions and needs.1
Defendant‘s initial contention on appeal is that the application of
Defendant supports his claim of plain error upon this Court‘s decision in State v. Copeland,7 which ruled that application of subsections (c) and (d) of
Defendant next claims that the court erred in sentencing him to the state prison instead of the state hospital. Specifically, he asserts that the court erred in (1) “excluding all personality disorders from the definition of mental illness” under subsection (a); (2) concluding under subsection (b) that there was insufficient evidence to find that defendant poses any immediate physical danger to others or himself if placed in a correctional setting; and (3) misinterpreting subsection (e) in sentencing defendant to the state prison.
a mental disease or defect. A mental defect may be a congenital condition or one the result of injury or a residual effect of a physical or mental disease. Mental illness does not mean a personality or character disorder or abnormality manifested only by repeated criminal conduct.
A person who is under the influence of voluntarily consumed or injected alcohol, controlled substances, or volatile substances at the time of the alleged offense is not excused from criminal responsibility on the basis of mental illness.
In its findings of fact and conclusions of law, the trial court stated:
With regard to subsection (a) of Section 77-35-21.5(4) , the Court finds that the defendant is mildly to moderately mentally retarded. Further, that mental retardation is a mental defect as defined inSection 76-2-305(4) and that therefore the defendant has a statutory mental illness.- The Court finds that the defendant has several personality disorders and tends to abuse drugs and alcohol, conditions which do not constitute mental illness as defined by
Section 76-2-305(4) . - The Court further finds that the defendant has no mental illnesses as defined in [Section] 76-2-305(4) other than the mental retardation described in paragraph 2 above.
Defendant contends that the court erred in failing to consider his personality disorders as mental illnesses under subsection (a). Specifically, he surmises that the court concluded that the phrase in
Even assuming, however, that defendant‘s claim is accurate8 and that the court could have properly found in reference to subsection (a) that defendant was mentally ill based upon additional grounds, any error that occurred was harmless. The doctors from the state hospital agreed with the court‘s finding that the state hospital was not the appropriate place to confine defendant, and given the fact that defendant has not otherwise shown that the trial court erred in concluding that he was not an appropriate candidate for hospitalization under subsections 77-35-21.5(4)(b) and (e) in that he did not pose an immediate physical danger to others or to himself and that the hospital could provide “custody that is adequate and appropriate to the defendant‘s conditions and needs,” we cannot conclude that any error is substantial and prejudicial such that there is a reasonable likelihood that in its absence there would have been a more favorable result for defendant.9 Thus, defendant‘s claim is without merit.
Defendant‘s claim that the court erred in concluding that he was not in immediate physical danger to others or to himself if placed in a correctional or probation setting is similarly without merit. The trial court heard testimony on the issue of whether, based upon his mental illnesses, defendant would be in any immediate physical danger if placed at the state prison. Two doctors testifying for the defense expressed concern regarding defendant‘s prison incarceration and the fact that they considered defendant to have a “dependent personality” which may make him easily led and abused by others. In contrast, several doctors from the state hospital testified that defendant was not an appropriate candidate for confinement at that institution. And two correctional officers testified that defendant was a model inmate during incarceration in the county jail. In sum, the trial court had before it significant evidence to demonstrate that because of his mental illness defendant posed no “immediate physical danger” to himself or others if confined in prison. Instead, the court specifically found that defendant would not pose an immediate danger and that he would be able to function at the state prison based upon evidence adduced with regard to his past incarceration and present confinement in the Salt Lake County Jail. There is no indication that these findings are clearly erroneous.
Finally, the trial court concluded under subsection (e) of
[T]he Utah State Hospital is not a suitable facility for providing the defendant
Defendant contends that this finding was erroneous because (1) the trial court interpreted subsection (e) as requiring that the mental illness must be completely curable in order to qualify the patient for sentencing to the hospital; (2) the hospital is able to treat defendant‘s personality disorders; (3) subsection (e) does not require the court to choose between sentencing defendant to the hospital or the prison; and (4) there is no statutory basis for the court‘s consideration of the danger posed by defendant in the state hospital. We need not address defendant‘s contentions since there is no evidence that the trial court erred in concluding that the state hospital could not adequately provide for defendant‘s custody as expressly required by statute. As we noted in Copeland, “[I]f neither the hospital nor any other facility can provide ‘treatment, care, and custody that is adequate and appropriate to the defendant‘s conditions and needs,’ placement in such a facility may not be justified because of the additional security burdens it would impose.”10 The evidence supports the trial court‘s finding that the hospital was not the appropriate place, given defendant‘s custody concerns. Therefore, the trial court did not err in so concluding.
We have reviewed defendant‘s other claims and find them to be without merit. The judgment and sentences are affirmed.
HOWE, Associate C.J., and ZIMMERMAN, J., concur.
DURHAM, Justice (concurring in the result):
I concur in the result but write separately to underscore the failure of the Utah Legislature, Department of Corrections, and Department of Social Services to adequately address the “long-festering problem” of mentally retarded and mentally ill criminal offenders. State v. Murphy, 760 P.2d 280, 287 (Utah 1988). In State v. Murphy, this Court sketched the history of the state‘s inaction and noted that as early as 1965, the Governor‘s Advisory Committee on Mental Retardation urged the state to establish “a separate facility to handle retarded delinquents and criminals whose problems require special attention and treatment.” Id. at 287 (quoting Mental Retardation, a Comprehensive Plan for Utah 9-23 (1965)). I repeat what I wrote in that case: “This state has failed dramatically in its moral obligation to provide adequate support systems for adults disabled by mental retardation, as well as by mental illness, who enter the criminal justice system.... Our laws in this area are useless and archaic, and our policies do not prevent injustice.” Id. at 289 (concurring opinion) (emphasis in original); see also id. at 290 (Zimmerman, J., concurring).
The apparent misapprehension by the trial judge in this case of the term “treatment” compounds the more general problem of inadequate facilities for mentally retarded offenders. Even where a complete cure is unavailable, treatment of mental retardation or mental illness serves to improve the quality of an offender‘s life and can include behavior modification, social skills education, and self-maintenance training, as well as drugs or psychotherapy. Our society routinely treats patients who have chronic physical and psychological diseases, often acknowledging that the best outcome of treatment or therapy will not be total cure, but only some alleviation of discomfort or increase in function. The policy underlying our criminal commitment statutes is that people who are suffering from chronic conditions should receive appropriate treatment to enhance their capac-
The trial judge in this case was apparently influenced by testimony that there are psychiatrists at the prison who could counsel defendant. In the first place, there is no reason to believe that a prison psychiatrist is likely to be particularly skilled in dealing with mental retardation. In the second place, the mere possibility of counseling in prison should not be confused with the guarantee of counseling in the state hospital or other treatment facility. Whereas placing defendant in a treatment facility would ensure the provision of psychological and/or rehabilitative attention, the judge‘s recommendation of special treatment for defendant in prison is not likely to have any effect at all; it is merely a recommendation which prison officials will either follow or ignore at their complete discretion. The trial court loses all jurisdiction over persons sentenced to prison.
I wrote in State v. Murphy that our current legislative policies do not prevent injustice. In light of the current case, in which a man with an IQ of sixty-nine at most is sentenced to prison in the face of testimony that he is highly vulnerable to exploitation and on the ground that defendant‘s retardation cannot be treated or cured, I contemplate a deeper problem. Where the state fails to provide appropriate custodial facilities and services for offenders who are mentally retarded and then refuses to hospitalize them for treatment although similarly situated mentally ill offenders would be hospitalized, questions of fundamental fairness under the state and federal constitutions may arise.1 Such questions have not been raised and briefed here.
STEWART, J., concurs.
Notes
Section 78-51-41 reads:
The compensation of an attorney and counselor for his [or her] services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his [or her] client‘s cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his [or her] client‘s favor and to the proceeds thereof in whosesoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment.