STATE of Utah, Plaintiff and Respondent, v. Troy LABRUM, Defendant and Petitioner.
No. 940499.
Supreme Court of Utah.
June 25, 1996.
Rehearing Denied Nov. 8, 1996.
921 P.2d 1366 | 937
Joseph C. Fratto, Jr., Salt Lake City, for defendant.
STEWART, Associate Chief Justice:
This case is here on a writ of certiorari to review a Court of Appeals ruling affirming a gang sentence enhancement imposed on Troy Labrum after his conviction for attempted criminal homicide, a second degree felony. See State v. Labrum, 881 P.2d 900 (Ct.App. 1994), cert. granted, 892 P.2d 13 (Utah 1995). Labrum asserted in the Court of Appeals that the trial court erred in not entering written findings of fact in imposing a six-year “gang” sentence enhancement. Although the Court of Appeals found that the trial court had failed to make the findings required by the gang enhancement statute, it nevertheless held that Labrum‘s failure to object to the absence of written findings constituted a waiver of his right to raise that issue on appeal. We hold that the trial court‘s failure to enter the written findings of fact as required by the gang sentence enhancement statute was plain error and that the Court of Appeals erred in not addressing the issue notwithstanding defendant‘s failure to object in the trial court.
I. BACKGROUND
On September 20, 1992, Labrum and Joshua Behunin were passengers in a Mercury Topaz driven by David Mills. Labrum was in the front seat, and Behunin was riding in the back seat. At approximately Twenty-First South and West Temple in Salt Lake City, Mills approached another vehicle, a Mitsubishi whose occupants were Wilmer
The State charged Labrum, Mills, and Behunin with attempted murder, a second degree felony, and sought firearm and gang sentence enhancements in accordance with
A jury convicted Labrum and co-defendant Mills of the attempted murder charge. Behunin‘s case was referred to the juvenile court system. On March 22, 1993, Labrum was sentenced. Prior to imposing sentence, the court asked if the parties had any comments with respect to the sentence and the proposed enhancements. Labrum did not argue that the gang enhancement was inapplicable but simply requested that the trial court suspend its imposition.2 The court rejected this request and imposed a six-year gang enhancement, stating that Labrum was “subject to the enhancement penalty” because this was “a gang-related offense, there having been two other persons involved in this.” The court did not, however, enter any written findings showing that Behunin, who was a passenger in the back seat, acted in concert with Labrum and Mills, thereby justifying imposition of the gang enhancement.
Labrum appealed to the Utah Court of Appeals, alleging numerous trial and sentencing errors, including the claim that the trial court erred in failing to enter written findings of fact in imposing the six-year gang sentence enhancement, as required by
II. DISCUSSION
Issues not raised before the trial court are usually waived and cannot be raised on appeal. See State v. Emmett, 839 P.2d 781, 783-84 (Utah 1992); State v. Matsamas, 808 P.2d 1048, 1052-53 (Utah 1991); Utah R.Evid. 103(a). There are a number of purposes underlying this general rule. A timely objection provides the trial court with “an opportunity to address a claimed error and, if appropriate, correct it.” State v. Eldredge, 773 P.2d 29, 36 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). Requiring counsel to present objections in a timely manner also eliminates the option of foregoing those objections at trial as part of a “strategy that counsel thinks will enhance the defendant‘s chances of acquittal and then, if that strategy fails, ... claim[ing] on appeal that the Court should reverse.” State v. Bullock, 791 P.2d 155, 159 (Utah 1989), cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990).
An appellate court will, however, address issues raised for the first time on appeal where a party demonstrates “exceptional circumstances” or “plain error.” State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994). In State v. Eldredge, 773 P.2d 29, 36 & n. 11 (Utah 1989), we held that in the absence of extreme harmfulness or in an exercise of appellate discretion “in the interests of justice,” to be reviewable in the absence of an objection in the trial court, the error must have been obvious to the trial court. “The plain error rule permits the appellate court to assure that justice is done, even if counsel fails to act to bring a harmfully erroneous ruling to the attention of the trial court.” Bullock, 791 P.2d at 158. In conjunction with the requirement of a timely objection, the plain error rule thus “ultimately permit[s] the appellate court to balance the need for procedural regularity with the demands of fairness.” Id. (quoting State v. Verde, 770 P.2d 116, 122 n. 12 (Utah 1989)).
Furthermore, on a pragmatic level, the doctrines of waiver and plain error serve to allocate the burden of noticing and correcting errors occurring at the trial court level. Generally speaking, the party harmed by an error has the burden of making a timely objection because that party has the greatest incentive to correct the error. Opposing parties and courts are not required to constantly survey or second-guess the nonobjecting party‘s best interests or trial strategy. On the other hand, where errors are particularly obvious or egregious and would serve no conceivable strategic purpose, courts and opposing parties may not simply turn a blind eye to a manifest procedural or substantial injustice.4
In affirming Labrum‘s sentence and rejecting his plain error argument, the Court of Appeals relied on our decision in State v. Bywater, 748 P.2d 568 (Utah 1987). We find Bywater distinguishable. Bywater dealt with minimum mandatory sentencing guidelines employing three severity levels. Id. at 568. The trial court in Bywater imposed a term of middle severity. Id. The applicable statute specifically required findings of fact to be made on the record only when the minimum or maximum term of severity was imposed. See
Later cases nevertheless did require trial courts to set forth, on the record, aggravating and mitigating factors, regardless of which term of severity was imposed. See State v. Gibbons, 779 P.2d 1133, 1137 (Utah 1989); State v. Bell, 754 P.2d 55, 60 (Utah 1988). In this regard, Bywater is somewhat similar to State v. Eldredge, 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). In Eldredge, the defendant argued for the first time on appeal that the trial court had erred in admitting testimony without rendering the specific findings required by State v. Nelson, 725 P.2d 1353, 1355-56 n. 3 (Utah 1986). Because Nelson had not been decided at the time of Eldredge‘s trial, the Eldredge Court held that the error was not obvious to the trial court and, in the absence of a timely objection at trial, was waived on appeal. 773 P.2d at 36. In cases coming to trial subsequent to Nelson, however, failure to make the required findings was treated as plain error on appeal. Id. at 36 n. 12; e.g., State v. Matsamas, 808 P.2d 1048, 1051 (Utah 1991); State v. Cook, 881 P.2d 913, 915-16 (Utah.Ct.App.1994), cert. denied, 890 P.2d 1034 (Utah 1995).
The gang enhancement provision differs significantly from the general sentencing statute at issue in Bywater. Imposition of the gang enhancement penalty is explicitly “contingent upon” findings of particular enumerated facts that are to be rendered in writing. Specifically, the defendant must have acted “in concert” with at least two other persons, which, by reference to
This is not the first time we have held that failure to make required findings of fact may result in plain error. In State v. Nelson, 725 P.2d 1353, 1355-56 & n. 3 (Utah 1986), we construed
The policies underlying the plain error doctrine are clearly applicable in this case. Because this case involves a sentencing error rather than a trial error, the error is obvious on the face of the record and undeniably prejudicial. Indeed, the error was in manifest violation of the statute. Moreover, there is no conceivable strategic reason for defense counsel to consciously avoid bringing the requirements of the statute to the court‘s attention. In short, the error was plain and harmful, resulting in the imposition, without adequate findings, of a six-year mandatory term by which Labrum‘s minimum term of incarceration was expanded from two years to seven.
We therefore vacate the gang enhancement sentence and remand to the trial court for further proceedings in compliance with
HOWE, DURHAM and RUSSON, JJ., concur.
ZIMMERMAN, Chief Justice, concurring:
I agree with the majority‘s conclusion that the trial court‘s failure to enter written findings justifying its imposition of the gang enhancement was plain error under State v. Eldredge, 773 P.2d 29, 35-36 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). I write separately only to express my view that nothing in the opinion written for the court by Associate Chief Justice Stewart here should be interpreted as loosening the plain error test adopted by a majority of the court in Eldredge, see id. at 35-36 & n. 8, and consistently applied ever since. See, e.g., State v. Menzies, 889 P.2d 393, 403 (Utah 1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995); State v. Powell, 872 P.2d 1027, 1031 (Utah 1994); State v. Elm, 808 P.2d 1097, 1100 (Utah 1991). While some language in Justice Stewart‘s opinion here may appear to coincide with the somewhat less restrictive and more ad hoc approach he proposed in his dissent in Eldredge, 773 P.2d at 41-42 (Stewart, J., dissenting), the majority today does not in any way purport to abandon the analysis articulated for the majority in Eldredge.