MEMORANDUM DECISION
11 Defendant Michael Dan Kerr appeals from convictions of aggravated assault, see Utah Code Aun. § 76-5-103(1)(b) (2008), and possession of a dangerous weapon by a restricted person, see id. § 76-10-508(1)(a), (2)(b), as well as dangerous weapon penalty enhancements, see id. § 76-3-208.8(2), (4). Kerr raises three issues on appeal, which we address in turn.
12 First, Kerr argues that the trial court erred when it failed to "merge" the dangerous weapon sentence enhancements into his sentences for aggravated assault and possession of a dangerous weapon by a restricted person. 1 Specifically, Kerr contends that "merger" is appropriate because the only element required for the dangerous weapon enhancements was the possession of a dangerous weapon and the possession of a dangerous weapon is also an essential element of the underlying offenses of aggravated assault and possession of a dangerous weapon by a restricted person. We disagree.
§$3 The concepts of merger, double jeopardy, and lesser-included offenses are inapplicable "in cases where the legislature intended a statute to be an enhancement statute." State v. Smith,
T4 Alternatively, Kerr contends that subsection (4), see Utah Code Ann. § 76-3-
15 Under Utah Code section 76-10-508, a "Category I restricted person" is guilty of a third degree felony if he "intentionally or knowingly purchases, transfers, possesses, [or] uses ... any dangerous weapon other than a firearm." Id. § 76-10-503(2) {emphasis added). See generally id. § 76-1-601(5)(a) (defining a dangerous weapon as "any item capable of causing death or serious bodily injury"). The evidence in this case showed that in addition to possessing the knife, Kerr also used the knife to stab the victim's cheek. Accordingly, his conviction for possession of a dangerous weapon by a restricted person was a conviction for the use of the weapon, not merely possession thereof. Kerr's use of the knife-together with his 1998 conviction for a felony in which he also used a dangerous weapon-therefore supported an enhancement under subsection (4), see id. § 76-3-208.8(4) (requiring a trial court to impose an additional sentence if it finds that "a person has been sentenced to a term of imprisonment for a felony in which a dangerous weapon was used in the commission of ... the felony and that person is subsequently convicted of another felony in which a dangerous weapon was used in the commission of ... the felony" (emphasis added)).
16 Second, Kerr contends that the trial court erred in failing to sua sponte rule that the enhancement of a consecutive five-to ten-year prison sentence constituted cruel and unusual punishment under Article I, Section 9 of the Utah Constitution, see Utah Const. art. I, § 9. As Kerr concedes in his brief, this issue was not preserved for appeal. Accordingly, Kerr argues that plain error analysis applies.
When a party fails to preserve an issue for appeal, we will address the issue only if ... the appellant establishes that the district court committed plain error[ ]....
... "To prevail under plain error review, a defendant must demonstrate that [1] an error exists; [2] the error should have been obvious to the trial court; and [8] the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome."
State v. Low,
17 Kerr's plain error claim fails because he cannot demonstrate that any error in sentencing should have been obvious to the trial court. "To show obviousness of the error, [Kerr] 'must show that the law governing the error was clear at the time the alleged error was made."" State v. Beck,
T8 Finally, Kerr contends that his trial counsel was ineffective because she failed to argue that the enhanced sentence imposed by the trial court violated the double jeopardy and cruel and unusual punishment clauses of the Utah and United States Constitutions. Again, Kerr's claim is without merit. "When an ineffective assistance of counsel claim is raised for the first time on appeal ... it presents a question of law." State v. Alfatlawi,
19 In establishing that his trial counsel's performance fell below an objective standard of reasonable judgment, Kerr must show that "on the basis of the law in effect at the time of trial," his counsel performed deficiently. State v. Dunn,
« 10 Affirmed.
111 WE CONCUR: CAROLYN B. McHUGH, Associate Presiding Judge and GREGORY K. ORME, Judge.
Notes
. Kerr frames his argument as a merger question. However, Kerr's brief often conflates the merger doctrine with other legal concepts, Le., lesser-included offense and double jeopardy analysis. We note that while these doctrines may indeed overlap in certain circumstances, they are analytically distinct. For example, the merger doctrine, which "is most commonly applied to situations involving a defendant who has been charged with committing both a violent crime, in which a detention is inherent, and the crime of kidnaping based solely on the detention necessary to the commission of the companion crime," State v. Diaz,
. Kerr cites numerous cases in support of his claim that the enhanced sentence violated Article I, Section 9 of the Utah Constitution. These cases are unhelpful, however, either because they are factually distinguishable or because they are federal cases interpreting the Eighth Amendment of the United States Constitution.