*1 Utah, Plaintiff and STATE
Respondent,
v. EGBERT, Defendant
Michael David Appellant.
No. 19699.
Supreme Court Utah. 28,
Sept. 1987.
Rehearing Jan. Denied 1988. Nesset,
Curtis C. City, Salt Lake appellant. defendant and Wilkinson, David L. Sjogren, Sandra L. City, for plaintiff respon- Salt Lake dent.
HALL, Chief Justice:
pleaded guilty
Defendant
to six criminal
charges:
degree rape,
first
degree
second
rape, aggravated burglary,
forcible sod-
omy,
aggravated
and two counts of
sexual
required
assault. The trial court was
mandatory prison
minimum
terms
sexual assault convic-
tions under Utah Code Ann. (amended
1986). Prior to sen-
tencing,
challenged
defendant
constitu-
tionality
of the minimum
tencing provisions. The trial
denied
court
imposed
defendant’s motions and
a fifteen-
year
sentence for
*2
559
76-5-403.1(2) (Supp.1987) (minimum
aggravated sexual assault
man
of
each count
§
of
sentencing
sentences for each
datory
required upon
and indeterminate
conviction
concur-
charges,
child).
all terms to run
six
sodomy
of
on a
therefore do
We
not
appeals
the man-
from
rently. Defendant
arguments
treat
those
further.2 We have
datory sentences.
however,
yet,
analyzed the
not
mandatory
in terms of
sentencing scheme
a
charged
originally
with
was
Defendant
challenge
vagueness.3
exchange
In
criminal offenses.
twenty-two
charges, he
all
of
other
for the dismissal
is
tenet of
“It
a fundamental
due
to the offenses described
pleaded guilty
may
required
process that
one
be
at
‘[n]o
beyond
preceding paragraph. No facts
life, liberty
property
speculate
peril of
or
victims,
of the
the dates
the names of the
”4
meaning
statutes.’
penal
as to the
offenses,
alleged
statutory
defini-
and
applicable
sentencing
principle
This
is
alleged
discernible
tions
offenses are
provisions
well as substantive
of criminal
from
record. Defendant submitted
United States v. Batcheld
statutes.5
apology and
a statement of
trial court
er,6
Supreme
the United States
Court
indicating
two
his need for
letters
“vague sentencing provi
that
pointed out
amenability to treatment.
This was
may pose
questions
constitutional
if
sions
re-
only
submitted to that court
evidence
clarity
they do not state with sufficient
mitigation.
or
The
garding aggravation
consequences
violating
given
a
criminal
explain
length
not
trial court did
at
statute.”7
entering
into its
deci-
factors
Any vagueness to
found in
subsection
sion,
follow-
although the
made the
76-5-405(2),
provides
which
for sentences
sentencing hearing:
ing
at the
comments
five, ten,
or fifteen
and which
gone
“I
that
have
over
letter
[defend-
life,
dispelled
implementing
is
by
be for
as to these offenses ...
submitted
ant]
76-3-201(5)
language
Ann.
of Utah Code
cases,
rapes.
rape
§
there
forcible
are five
(amended 1984,
1987),
1986 &
(Supp.1983)
Under
standard
think the maximum
case,
plainly
imposition of the
taking which
mandates
I am
apply
should
this
consideration_”
severity
of middle
unless there
sentence
that
into
mitiga-
or
are circumstances
argues
mini
Defendant
plain
It
of the crime.
is also
tion
mandatory sentencing
mum
scheme under
imposition of the sentence of
statute that
pro
equal
sentenced
which he was
violates
severity
dependent upon
is
a deter-
highest
cruel and un
principles,
tection
constitutes
aggravating
of the existence of
mination
of Utah’s
punishment,
usual
runs afoul
circumstances,
imposition
while
of the sen-
separation
powers
doc
constitutional
upon
severity
dependent
is
tence of lowest
statutory
trine. He also contends that the
mitigat-
a determination
the existence
vague. The
unconstitutionally
scheme is
ing circumstances.
ar
by
first three
issues raised
defendant's
pro-
nothing
equivocal
about
There
guments
in favor of
have been resolved
section 76-5-405.
commis-
v. Bisho visions
State
plaintiff by
decision in
our
prohibited sexual act
ac-
p,1 upheld
Ann.
of a
we
Utah Code
sion
which
114,
Batchelder,
123,
1986).
(Utah
v.
442 U.S.
States
2198, 2203-04,
1.
4. United
1. The defendant in case on this relies feder- al constitutional
different from the one that made the as-
(9) The
one,
aggravated
sault itself an
but such an
the reasons
court shall state
.....2
impossible
discern from the
intent
on the record at
choice
for its sentence
language.
provisions
sentencing.
statutory
The court shall
These two
the time
part
being
incapable
logically
defendant
are
construed
also inform the
is released
if the defendant
together,
sentence that
and the
is therefore am-
statute
may nonetheless
prison, he or she
biguous
regarding the intended
on its face
years.
period
for a
of ten
parole
be on
penalty
sexual assault.
during the commission of a
If
inconsistency
In addition to the
referred
rape
kidnapping,
child
crime described as
above,
ambiguous
in other
child,
child,
or sexual abuse
of a
ways.
It does not tell the
injury
bodily
actor causes substantial
what the
intended
mandato-
child,
charge
if
is set forth
and the
ry sentence to be when there are both
and admit-
the information or indictment
*4
circumstances,
aggravating
mitigating
and
actor,
by
found true
a
by
ted
the
or
example of
rather than none. This is an
trial,
shall,
jury
or
at
the actor
case;
such a
the violence and number of
provision of
notwithstanding
other
certainly qualify
ag-
the crimes would
law,
aggravated
sentenced to the
be
circumstances,
gravating
only
the
but
evi-
prison.
mandatory term in state
sentencing hearing
dence offered at the
adequately
is
the statute
The issue whether
mitigation.
was of circumstances in
We
aggrava-
penalties applicable
the
to
defines
may not look to the statute to understand
ted sexual assault.
mandatory
which of the three
sentences
defining
The statute
the crime of which
circumstances,
in such
for no
was intended
says
this defendant was convicted
that
guidance
provided.
is
felony of
“[ajggravated sexual assault is a
argues
make
may
The State
that we
degree
imprison-
punishable by
the first
sentencing
by looking
sense of this
statute
is
prison
ment in the state
for a term which
“sentencing
its direction to the
rules
under
5, 10,
mandatory
or 15
a minimum
term of
aggravation
mitigation”
regarding
and
and which
be
life.” Utah
promulgated by the Judicial Council.
(Supp.1983). The
Code Ann.
76-5-405
§
“rules,” however, do not eliminate
Those
provides
no further direction for
ambiguity
penalty provisions
in the
of
the
determining
minimum
which
the three
At the time this defendant
this statute.
imposed,
excep-
terms should be
with the
sentenced,
only
the
“rules” available
was
76-3-201(5),
tion of Utah Code
Council were lists of the
from the Judicial
requires
imposition
the
of the term
which
mitigating cir-
aggravating
types
severity
are cir-
of middle
“unless there
properly
con-
cumstances that should
be
aggravation
mitigation.”
in
cumstances
or
in
by
judges
trial
indeterminate
sidered
singularly unhelpful
exception
Even that
is
pub-
Those lists were
decisions.
sentence
however,
sentencing judge,
the
because
to
judges
instruction to trial
lished with the
aggravated
assault al-
the crime of
sexual
mitiga-
in
the factors
requires proof
aggravating
cir-
ways
an
deciding
in
whether to
tion should be used
Therefore, although
cumstance.
the defini-
sentencing recom-
depart
or
from
follow
portion
purports to
tional
of the statute
promul-
developed and
mendations also
severity
make the term of middle
available
sentencing rec-
assault,
gated by the Council.
aggravated
sexual
crime
“disposi-
in
were contained
a
ommendations
appears to make it
subsection
compared a defendant’s
tion matrix” which
likely
legislature
It
the
unavailable.
is
score with
history assessment”
determining
“criminal
rely,
in
intended
the court
he had
sentence,
offense of which
degree of the
upon
an
factor
by
prescribed
law.
resentencing
other than as
provides
for a sentence
2. Subsection
for a
mandatory
be a minimum
days
upon
there still must
within 120
of commitment
motion of
Thus
aggravated sexual
such as
upon
for a crime
recommendation of the
sentence
assault.
the Court
Board
allow, however,
does not
Pardons. It
Appendix
power
promulgate
I. The
constitutional
to
been convicted. See
tencing
history
score
rules
assessment
was
which would in effect decide
criminal
ability
penalty
aggravated
to
func-
factors related
to
what
should be for
based on
community
problem
recidi-
risk of
sexual assault. While see no
in
tion in
offense,
vism,
degree
promulgating nonbinding
the Council’s
course,
guidelines
These
can
helpful
was taken from
statute.
which
to trial
obviously
judges
requiring
identify,
were intended
them
recommendations
to
con-
sentencing judges
deciding
carefully,
to assist
sider
and articulate the factors in
incarcerate;
they
or not
have
whether
an individual case which
them to
cause
depart
guidelines,
where incarceration is manda-
no relevance
follow
Furthermore,
legislature
attempted
tory.
because the
has
on the
provide statutory
very
distinction
a
has failed to
a
Council
different function
sentencing
(as
judgment) be-
opposed
to a
case
minimum
sentences.
five-year minimum and a fifteen- The
tween a
has
effect asked the Ju-
assault,
year
responsible
setting
dicial Council to be
general
penalties.
for in-
disposition matrix
criminal
Council’s
sentencing
determinate
unusable
The Utah Judicial Council is creation of
sys-
context
VIII,
12 of
article
section
the Utah Consti-
tem.
entirety
scope
tution.
its
authori-
disposition
the recommended
ma-
set
ty
following language:
Since
forth in the
established,
no
trix has
relevance
“A Judicial
Council
which
*5
terms,
mandatory
adopt
context minimum
shall
rules for the administration of
judges
nothing
tencing
are left with
but
courts
development
the
of the state.” The
mitigating
cir-
nonbinding guidelines
the lists
improving
the
standing
Appendix uniformity
sentencing prac-
cumstances
alone. See
and fairness of
out,
lists,
I
pointed
appears
II.
those
as have
And
tices
to be consistent with the con-
designed
justification
used
grant
were
to be
of authority. Deciding
stitutional
departing
dispositional
persons
recom-
when
convicted of
same
the
of-
developed by
also
the
mendations
Judicial
fense should receive one of three different
mandatory terms, however,
Council within the framework of indeter- minimum
does
provided
sentencing options
by any
minate
the
imagination
not
stretch
in-
legislature.
In
the case
the minimum volve the “administration of the courts.”
mandatory
legisla-
sentencing system, the
impossible
I conclude that it is
to deter-
(except
ture
not
case
has
identified
mine from the
statute which of
three
with no factors in
mitiga-
legisla-
available minimum sentences the
tion)
requires, respec-
the conduct which
courts
apply
ture intended the
to
to these
tively,
years,
minimum terms of five
ten
vague
crimes. The statute is
on
therefore
Thus,
years,
years.
fifteen
the Judicial
Furthermore,
its
face.
has
developed any dispositional
Council has not
attempted
require
to
the Judicial Council to
principles
judges generally
which tell trial
may
constitutionally
do that which
not
it
five, ten,
appropri-
when
or fifteen
do, namely,
provide
specificity
re-
Appendix
ate. See
III. Given the absence
garding penalties which the statute lacks.
legislative
of a
determination what acts
have, however,
Bishop,
v.
State
held in
We
penalties,
given
merit each of the
1986),
(Utah
legisla-
In I addition to the am not minimum term on con- described Therefore, convinced that the Judicial Council has victed of assault.3 therefore, ambiguities 3. of the It is well established in crimi- we not look to either two See, e,g,, lenity; options nal statutes must be in this statute. resolved favor of harsher
563
setting
1199,
(3d
portion
Cir.1983),
denied,
of the statute
forth the
F.2d
1211
cert.
1103,
possible mandatory
1602,
term is suffi- 465
lowest
U.S.
104 S.Ct.
80 L.Ed.2d
notify sentencing judges
(1984);
ciently
Davis,
definite to
133
United States v.
560
(3d
penalty applicable
Cir.1977),
denied,
to the crime. F.2d 144
of the
cert.
Likewise,
839,
provi-
the lowest
term
U.S.
98 S.Ct.
largement
powers
of the Judicial may
granted
broad discretion
sentenc-
portion
I believe that
of the stat-
Council.
However,
ing.
it then relies on that fact to
ute
therefore valid.
argue
ample exper-
that trial courts have
given
tise to exercise the discretion
them
ZIMMERMAN,
(dissenting):
Justice
under section 76-5-405 and to select from
concluding
join
I
Justice Durham
among
prescribed.
the three sentences
mandatory sentencing provi-
the three-tier
view,
my
argument
point.
this
misses the
sions of section 76-5-405 are unconstitu- Although
could constitution-
tionally vague.
separately,
write
how-
ally confer unfettered discretion on trial
ever,
join
sugges-
because I do not
in her
among
courts to choose
the various sen-
tion that the Judicial Council could not con-
specified
76-5-405,
tences
in section
there
stitutionally promulgate rules that
trial
absolutely
no evidence that it intended to
deciding
judges could use in
which sen-
fact,
do so. In
there is abundant evidence
impose.
tences to
This is an issue I would
legislature contemplated
and at-
day.
leave for another
tempted to assure some measure of uni-
formity
proportionality
im-
sentences
long
Utah has
adhered to an indeter
posed on those convicted of crimes involv-
sentencing philosophy.
minate
Under this
ing
Considering
sexual abuse of children.
scheme,
the trial
has no discretion in
that the sentences available under the stat-
fixing
imprisonment.
the term of
He or
very
depart
ute are
severe and
from the
imposes
statutorily
she simply
pre
sentencing philosophy that
indeterminate
range
years,
scribed sentence of a
throughout
system,
prevails
our criminal
pardons
exactly
board
determines
*6
However,
legislature’s
aim is laudable.
long
prisoner
how
is to be confined.
agree
I
Durham that the re-
with Justice
See Utah Code Ann.
76-3-203 to -204
§§
sulting
accomplish
is too unclear to
(1978
Supp.1987);
&
Utah Code
purpose.
its
(Supp.1987).
77-27-5
The fact that this
§
Utah,
prevailing philosophy
legislature
has been the
That
intended to limit
however,
judges’ sentencing
plain.
does not mean that indeterminate
seems
discretion
(7)
sentencing
provides
constitutionally
Subpart
mandated.
of section 76-3-201
nothing
suspect
determining just
There is
sen-
inherently
about a
court
“[t]he
judge exercising
guided by sentencing rules
broad discretion to deter
tence shall be
mitigation
years
regarding
mine the exact number of
a convict
spend
prison.
promulgated by
must
several states
the Utah Judicial Council.”
courts,
76-3-201(7) (Supp.1983)
judges
the federal
trial
are Utah Code Ann. §
cases,
added) (current
given
power,
types
(emphasis
at Utah
certain
version
76-3-201(5)(e) (Supp.1987)).
fix
the number of
a defendant is to Code Ann. §
See,
4205(b)(1982);
legislature
not ask the Council to
e.g.,
serve.
18 U.S.C.
did
§
(West
act,
apparently
Penal Code
1170.1to .95
1985
assumed that the Coun-
Cal.
but
§§
Supp.1987);
promulgate guidelines spe-
&
Colo.Rev.Stat.
16-11-101 cil had or would
(1986);
14-1.1, -2,
legisla-
addressing this issue. The
cifically
N.C. Gen.Stat.
-3
§§
(1986).
concerning
guide-
Vesting
expectations
such discretion in trial
ture’s
judges
gleaned
subpart
deny
has not been found to
defend
lines can be
permits re-
any
rights.
subpart
ants
76-3-201. That
constitutional
Ger
section
Cf.
circumstances,
Commission,
aghty v.
Parole
719
under certain
U.S.
909, 914,
States,
14-15,
(1978).
Simpson v. United
U.S.
S.Ct.
As Durham Justice the Judicial agree her, however, not with that under no existing guidelines Council’s have little circumstance could bearing the Judicial presented by on the issues Council section promulgate guidelines statutory judges 76-3-201. The trial scheme is there- incomplete. result, balancing fore could use in hopelessly mitigating ag- As a judges effectively precluded gravating are from exer- circumstances. We must await cising their guidelines discretion as the such passing before on such a majority intended. The would delicate constitutional issue.