State v. Gardner

2019 UT App 78
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ODGER LYNN GARDNER ,
Appellant.
Opinion
No. 20180158-CA
Filed May 9, 2019
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 171900660
Nathalie S. Skibine and Neal G. Hamilton, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	After Rodger Lynn Gardner pleaded guilty to theft and
burglary 	in 	the 	instant 	case—but 	before 	the 	district 	court
sentenced him—Gardner appeared in the South Salt Lake Justice
Court to respond to charges of theft and criminal mischief,
which arose out of the same criminal episode. Gardner pleaded
guilty as charged in the justice court, and that court sentenced
him. Gardner then returned to the district court and, citing the
proceedings in the justice court, moved to withdraw his guilty
plea, 	arguing 	the 	constitutional 	prohibition 	against 	double
jeopardy. 	The 	district 	court 	denied 	Gardner’s 	motion 	and
sentenced him for his theft and burglary convictions. Gardner

State v. Gardner
20180158-CA 	2 	2019 UT App 78
appeals, and asks us to determine whether the district court
erred when it denied his motion to withdraw his guilty plea to
theft, the one charge duplicated in both the district court and
justice court cases. We affirm.
BACKGROUND
¶2 	Witnesses observed Gardner enter a hole in a fence and
later 	exit 	that 	hole 	carrying 	a 	wooden 	floor 	lamp 	and 	a
cardboard box of auto parts. He carried the goods to a van and,
shortly thereafter, a police officer initiated a traffic stop. A
subsequent search of the vehicle uncovered, among other things,
“a box of auto parts and a lamp.”
¶3 	The State charged Gardner in district court with burglary
and theft, each third degree felonies, and criminal mischief, a
class B misdemeanor.1 Gardner agreed to enter a guilty plea to
the 	burglary 	and 	theft 	charges 	in 	exchange 	for 	the 	State’s
agreement to dismiss the criminal mischief charge and other
charges against Gardner in a separate criminal case. The district
court 	accepted 	Gardner’s 	guilty 	plea 	and 	ordered 	the
preparation of a presentence report.
¶4 	Almost two weeks after he pleaded guilty in district
court, Gardner appeared in the South Salt Lake Justice Court on
charges of theft and criminal mischief, each charged as a class B
misdemeanor and both alleged crimes “arising out of the same
criminal episode that served as the basis for the district-court
1. Theft is punishable as a third degree felony if, among other
things, “the value of the property or services is or exceeds $500
and 	the 	actor 	has 	been 	twice 	before 	convicted 	of” 	certain
enumerated 	offenses. 	Utah 	Code 	Ann. 	§ 	76-6-412(1)(b)(ii)
(LexisNexis Supp. 2018).

State v. Gardner
20180158-CA 	3 	2019 UT App 78
conviction.”2 	Without 	representation 	by 	counsel, 	Gardner
pleaded guilty to both charges and was sentenced to serve
forty-five days in jail and pay $100 in restitution. The justice
court suspended the jail sentence, and Gardner paid the ordered
restitution. After disposition of his justice court case, Gardner’s
district court defense counsel realized both cases were based
upon the same criminal conduct.
¶5 	Gardner 	filed 	a 	motion 	in 	the 	district 	court 	seeking
permission 	to 	withdraw 	his 	guilty 	plea 	asserting 	that 	he
“would 	not 	have 	knowingly 	[pleaded] 	guilty 	to 	the 	same
offense twice, and defense counsel would not have advised him
to do so in violation of his constitutional protection against
double 	jeopardy.” 	The 	State 	opposed 	Gardner’s 	motion 	to
withdraw his guilty plea by arguing, among other things, that
jeopardy attached when Gardner pleaded guilty in the district
court.
¶6 	After 	hearing 	argument, 	the 	district 	court 	denied
Gardner’s motion. It determined that Utah Code section 77-13-6
precluded Gardner from withdrawing his guilty plea because he
knowingly and voluntarily pleaded guilty. The district court
further determined that jeopardy “first attached at the time
Defendant entered his guilty plea in this matter” and that it
could therefore “proceed to sentencing in this matter without
violating 	the 	Double 	Jeopardy 	Clause.” 	The 	district 	court
sentenced 	Gardner 	to 	two 	concurrent 	prison 	sentences 	of
zero-to-five years.
2. The State expresses some uncertainty about whether the two
theft prosecutions actually arise out of the same conduct. But the
State nevertheless assumes this fact for purposes of appeal. In its
decision, the district court determined that “[t]he charges in each
court were based on the same criminal episode.”

State v. Gardner
20180158-CA 	4 	2019 UT App 78
ISSUE AND STANDARDS OF REVIEW
¶7 	Gardner appeals, and asserts that the district court erred
when 	it 	denied 	his 	motion 	to 	withdraw 	his 	guilty 	plea,
particularly when it concluded that his justice court conviction
and sentence did not bar prosecution and sentencing in district
court. We review the “denial of a motion to withdraw a guilty
plea under an abuse of discretion standard,” and we review the
court’s associated findings of fact for clear error. State v. Smit,
2004 UT App 222, ¶ 7, 95 P.3d 1203 (quotation simplified).
Constitutional issues, such as whether double jeopardy bars
reprosecution of a defendant, are questions of law that we
review for correctness, affording no deference to the district
court’s legal conclusions. State v. Sommerville, 2013 UT App 40,
¶ 6, 297 P.3d 665.
ANALYSIS
¶8 	Gardner argues that the constitutional prohibition against
double 	jeopardy 	renders 	his 	guilty 	plea 	to 	theft 	in 	the
district court invalid and therefore prevents entry of his sentence
for 	that 	conviction. 	In 	other 	words, 	he 	contends, 	although
“jeopardy 	attached 	in 	district 	court 	before 	the 	double
jeopardy claim arose,” this attachment “did not mean that [the]
district 	court 	could 	proceed 	[to 	sentencing] 	regardless of 	a
subsequent 	conviction 	and 	sentence 	in 	justice 	court.” 	We
disagree.
¶9 	Gardner was first charged in district court—in the instant
case—where, pursuant to a plea agreement, he pleaded guilty to
burglary 	and 	theft. 	Consequently, 	when 	the 	district 	court
accepted 	Gardner’s 	guilty 	plea, 	Gardner 	was 	placed 	in
jeopardy—meaning he faced the many risks attendant to a
criminal prosecution, including the risk of punishment for taking
someone else’s personal property. See State v. Horrocks, 2001 UT

State v. Gardner
20180158-CA 	5 	2019 UT App 78
App 	4, 	¶ 	14, 	17 	P.3d 	1145. 	Gardner’s 	guilty 	pleas 	are
convictions.3 	See 	Utah 	Code 	Ann. 	§§ 	76-3-201(1)(a), 	-101(1)
(LexisNexis Supp. 2018) (defining a conviction to include a
guilty plea and authorizing sentencing of a person “adjudged
guilty of an offense” under the Utah Criminal Code); see also
State v. Kay, 717 P.2d 1294, 1302 (Utah 1986) (recognizing the
“almost universal recognition that jeopardy attaches when a
court accepts a guilty plea . . . ,” and observing that “entry of the
plea, rather than the actual imposition of the sentence, is the
critical moment for determining jeopardy” (internal citations
omitted)), overruled on other grounds by State v. Hoff, 814 P.2d 1119
(Utah 1991).
¶10 	On appeal, Gardner does not challenge the propriety of
his guilty plea in the district court. See State v. Cuttler, 2018 UT
App 171, ¶ 11, 436 P.3d 278 (“A guilty plea is valid only if it is
made voluntarily, knowingly, and intelligently, with sufficient
awareness 	of 	the 	relevant 	circumstances 	and 	likely
consequences.” (quotation simplified)); see also Utah Code Ann.
§ 77-13-6(2)(a) (“A plea of guilty . . . may be withdrawn only
upon leave of the court and a showing that it was not knowingly
and 	voluntarily 	made.”). 	He 	concedes that, 	at 	the 	time 	he
pleaded guilty in the district court, he had no double jeopardy
claim. Indeed, he accepts that his guilty plea in the district court
were “proper when the parties agreed to [them].” Consequently,
he could not establish any basis to withdraw his guilty plea and
the district court correctly denied his motion under the plea
withdrawal 	statute. 	We 	now 	turn 	to 	his 	double 	jeopardy
argument.
3. We note that Gardner asserts, without explanation or reasoned
analysis, 	that 	he 	“was 	first 	convicted 	in 	justice 	court 	of
misdemeanor theft, then convicted and sentenced in district
court of a felony.”

State v. Gardner
20180158-CA 	6 	2019 UT App 78
¶11 	We conclude the constitutional prohibition against double
jeopardy did not foreclose the district court’s sentencing of
Gardner following a valid conviction by way of his guilty plea
accepted by the court. The United States Constitution prohibits
the State from twice putting a person in jeopardy for the same
offense. U.S. Const. amend. V; see also Bernat v. Allphin, 2005 UT
1, ¶ 10, 106 P.3d 707.4 “The Double Jeopardy Clause embodies
three 	separate 	protections: 	(1) 	protection 	against 	a 	second
prosecution for the same offense after acquittal, (2) protection
against 	a 	second 	prosecution 	for 	the 	same 	offense 	after
conviction, and (3) protection against multiple punishments for
the same offense.” Bernat, 2005 UT 1, ¶ 11. “These protections
turn on whether the subsequent prosecution or punishment is
for the ‘same offense.’” State v. Robertson, 2017 UT 27, ¶ 15, 438
P.3d 491; see also Justices of Boston Mun. Court v. Lydon, 466 U.S.
294, 307 (1984) (“The primary purpose of foreclosing a second
prosecution after conviction . . . is to prevent a defendant from
being subjected to multiple punishments for the same offense.”);
4. The double jeopardy prohibition of the Fifth Amendment to
the United States Constitution applies to the States through the
Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794
(1969). We note that Gardner also asserts that his district court
conviction 	and 	sentence 	“is 	a 	violation 	of 	the 	federal
constitutional 	[double 	jeopardy] 	provision, 	and 	therefore
necessarily a violation of the more protective Utah provision.”
He provides no separate analysis, however, explaining either
how 	the 	double 	jeopardy 	protections 	afforded 	in 	the 	Utah
Constitution are more protective under the circumstances or
indeed how the Utah provision should apply. We accordingly
limit our analysis to federal law. See Bernat v. Allphin, 2005 UT 1,
¶ 10, 106 P.3d 707 (declining to review application of the state
constitution when petitioners provided no separate analysis of
state constitutional provisions).

State v. Gardner
20180158-CA 	7 	2019 UT App 78
People v. McCutcheon, 368 N.E.2d 886, 888 (Ill. 1977) (“One of the
purposes of the protection against double jeopardy is to protect
an ‘accused from the unfair harassment of successive trials.’”
(quoting United States v. Goldman, 352 F.2d 263, 266 (3d Cir.
1965)).
¶12 	Gardner 	concedes 	that, 	for 	purposes 	of 	the 	double
jeopardy analysis, “jeopardy attaches when a plea is accepted”
by the district court. Indeed, “it is well settled that jeopardy
attaches when a court accepts a guilty plea and that the entry of
the plea, rather than the actual imposition of the sentence, is the
critical moment for determining jeopardy.” Horrocks, 2001 UT
App 	4, 	¶ 	14 	(quotation 	simplified). 	Accordingly, 	jeopardy
attached when the district court accepted Gardner’s guilty plea
and he was convicted. Thereafter, the Double Jeopardy Clause
operates to protect Gardner from “subsequent prosecution” for
the same offense. See Robertson, 2017 UT 27, ¶ 15.
¶13 	But Gardner argues a subsequent prosecution is barred
not when jeopardy attaches but when jeopardy is “completed.”
Because 	his 	“justice 	court 	case 	ended 	in 	conviction 	and
sentence,” ending his jeopardy for that offense, he argues that
the Double Jeopardy Clause bars his earlier conviction and
yet-to-be-had sentencing for theft in the district court. If Gardner
is correct, “he would not have been entitled to assert the double
jeopardy bar” in his successive prosecution in justice court
“because jeopardy had not yet been ‘completed’” in the district
court proceeding. See United States v. Pierce, 60 F.3d 886, 890 (1st
Cir. 1995).
¶14 	The Second Circuit Court of Appeals has addressed and
rejected a similar argument. See United States v. Idowu, 74 F.3d
387 (2d Cir. 1996). In Idowu, the defendant was indicted, tried by
a jury, and convicted on drug-related charges. Id. at 389. Prior to
sentencing, 	the 	State 	seized 	and 	sought 	forfeiture 	of 	the
defendant’s 	personal 	property 	in 	a 	related 	administrative

State v. Gardner
20180158-CA 	8 	2019 UT App 78
forfeiture action. Id. at 390. The defendant moved for dismissal
of her criminal convictions, arguing that, due to her having been
already punished in the forfeiture action, the Double Jeopardy
Clause barred her convictions in the criminal proceeding. Id. at
391–92.
¶15 	The 	court 	determined 	that 	jeopardy 	attached 	in 	the
forfeiture action, if at all, approximately one month following
the defendant’s jury trial. Id. at 396. It also observed that the
defendant 	was 	sentenced 	in 	the 	criminal 	proceeding
approximately six months after jeopardy arguably attached in
the forfeiture action. Id. The court framed the issue as “whether,
in successive punishment cases, jeopardy should attach when
the criminal trial begins and the defendant is placed at risk of
being punished (as it is in successive prosecution cases) or
whether it should attach when jeopardy is ‘complete’—that is,
the date when the punishment is imposed.” Id. Quoting the First
Circuit’s 	decision 	in 	Pierce, 	the 	Idowu 	court 	rejected 	the
defendant’s 	theory 	that 	jeopardy 	should 	attach 	when
punishment is completed:
This argument implies that a defendant ought to
have 	the 	option 	to 	endure 	an 	unconstitutional
second trial in the hope that it will both conclude
first and lead to a more lenient punishment than
that eventually imposed in the first trial, and then
to object to the punishment imposed in the first
trial on double jeopardy grounds. We cannot locate
any authority to support this proposition, and we
reject it out of hand.
Id. at 396–97 (quotation simplified).
¶16 	Similarly 	here, 	Gardner 	has 	presented 	no 	persuasive
authority establishing that, despite substantial precedent to the
contrary, 	the 	completion 	of 	jeopardy—rather 	than 	the

State v. Gardner
20180158-CA 	9 	2019 UT App 78
attachment of jeopardy—bars further prosecution for the same
offense. “The Double Jeopardy Clause is a shield against the
oppression inherent in a duplicative, punitive proceeding; it is
not a tool by which a defendant can avoid the consequences of
the proceeding in which jeopardy first attached.” Id. at 397
(quotation simplified).5
CONCLUSION
¶17 	Gardner 	has 	not 	established 	a 	basis 	supporting
withdrawal of his guilty plea to theft in the district court.
Jeopardy first attached in the district court proceeding, not the
subsequent justice court proceeding. Therefore, the prohibition
against double jeopardy does not prohibit Gardner’s convictions
stemming from his guilty plea in district court, nor does double
jeopardy 	bar 	Gardner’s 	subsequent 	sentencing 	on 	those
convictions. Accordingly, the district court did not exceed its
discretion when it denied Gardner’s motion to withdraw his
guilty plea. Affirmed.
5. Gardner also urges us to employ rule 22(e) of the Utah Rules
of Criminal Procedure to correct his sentences, which “violate[]
Double Jeopardy.” Utah R. Crim. P. 22(e)(1)(C). Because we
conclude 	that 	the 	Double 	Jeopardy 	Clause 	does 	not 	bar
Gardner’s conviction and sentencing in this case, we decline to
further address this argument.