State v. Jepson

2017 UT App 63

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MISTY DAWN JEPSON,
Appellant.

Opinion
No. 20140329-CA
Filed April 6, 2017

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 131401123

Nathalie S. Skibine and Daniel M. Torrence,
Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.

CHRISTIANSEN, Judge:

¶1 Misty Dawn Jepson (Defendant) entered a conditional
guilty plea in district court to one count of unlawful possession
of a financial transaction card, a third degree felony. On appeal,
Defendant argues that the district court should have granted her
motion to dismiss the charge because it arose from the same
criminal episode as another charge to which she had previously
pled guilty in justice court. We affirm.

¶2 In July 2013, a police officer (Officer) cited Defendant for
retail theft after she concealed approximately $28 worth of
merchandise in grocery bags as she exited a grocery store. At
State v. Jepson

that time, Officer learned that Defendant had an outstanding
warrant and arrested her. While arresting Defendant, Officer
discovered that she had several credit cards belonging to
multiple individuals. Officer then transported Defendant to jail
where she was booked on charges of retail theft and unlawful
possession of financial transaction cards. Officer also contacted
the owner of one of the credit cards. That person confirmed that
he did not know Defendant and never gave anyone permission
to use his credit card.

¶3 Five days later, Officer filed the retail theft citation in the
Herriman Justice Court. The citation stated, as required by law,
‚This citation is not an information and will not be used as an
information without your consent.‛ See Utah Code Ann. § 77-7-
20(2)(j) (LexisNexis Supp. 2013). Thereafter, in September 2013,
the State filed an information in the Third District Court
charging Defendant with retail theft, a class B misdemeanor, and
unlawful possession of a financial transaction card, a third
degree felony. See id. §§ 76-6-506.3, -602 (2012). Two days later,
Defendant was transported from the jail to the Third District
Court, where she was advised of the charges, received a copy of
the information, waived its reading, and was appointed counsel.

¶4 Several weeks later, Defendant was transported to the
Herriman Justice Court to appear on the retail theft citation. A
city prosecutor was present at the hearing. The court advised
Defendant of her rights, and she pled guilty to retail theft. At
that hearing, Defendant signed a document entitled ‚Rights,
Instructions, and Waiver Form‛ (the Waiver Form). The Waiver
Form described Defendant’s various plea options and
constitutional rights and contained sections describing
Defendant’s right to withdraw her plea, the right to appeal,
sentencing, and possible penalties. The justice court sentenced
Defendant to sixty days in jail with credit for time served.

¶5 Thereafter, Defendant moved to dismiss the pending
retail theft and unlawful possession of a financial transaction
card charges in district court, arguing that those charges were

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barred under ‚the federal and state Double Jeopardy clauses‛
and Utah’s single criminal episode statute. See Utah Code Ann.
§ 76-1-403(1) (LexisNexis Supp. 2013). According to Defendant,
she had already ‚been convicted in Herriman City Justice Court
of ‘Retail Theft,’‛ and because ‚*t+he charges in the *district
court] case [were] supported by the same police report, and were
part of the same offense and criminal episode as the Herriman
City Justice Court ‘Retail Theft,’‛ ‚these charges should all have
been brought together.‛

¶6 After a hearing, the district court dismissed the retail theft
charge but denied Defendant’s motion to dismiss the unlawful
possession of a financial transaction card charge. In its written
order, the district court found, among other things, that the
‚Waiver Form *Defendant signed+ did not contain any language
addressing waiver of the statutory right of the filing of an
Information‛ and that Defendant did ‚not waive in writing the
filing of an Information.‛ The court then concluded:

Although a citation may be used in lieu of an
information, so that the person cited may plead
guilty or no contest and be sentenced or on which
bail may be forfeited, the citation is not an
information unless the person cited waives, by
written agreement, the filing of the information.

. . . [N]o facts were presented evidencing that
Defendant waived, in writing, the filing of an
information in the Herriman Justice Court case.

(Citations omitted.)

¶7 Subsequently, Defendant entered a conditional guilty plea
to the charge of unlawful possession of a financial transaction
card, reserving the right to appeal the district court’s denial of
her motion to dismiss based on the single criminal episode
statute. The district court sentenced Defendant to a suspended

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prison term of zero to five years and placed her on probation for
thirty-six months. Defendant appeals.

¶8 Defendant contends that ‚*t+he [district] court erred when
it determined that the single criminal episode statute did not bar
subsequent prosecution‛ and denied her motion to dismiss. ‚A
trial court’s decision to grant or deny a motion to dismiss
presents a question of law, which we review for correctness.‛
State v. Selzer, 2013 UT App 3, ¶ 14, 294 P.3d 617 (citation and
internal quotation marks omitted). ‚‘[C]orrectness’ means the
appellate court decides the matter for itself and does not defer in
any degree to the trial judge’s determination of law.‛ State v.
Anderson, 929 P.2d 1107, 1108 (Utah 1996) (citation and
additional internal quotation marks omitted).

¶9 Pursuant to Utah Code section 76-1-403 (the Single
Criminal Episode Statute), ‚*i+f a defendant has been prosecuted
for one or more offenses arising out of a single criminal
episode,[1] a subsequent prosecution for the same or a different

1. ‚‘*S+ingle criminal episode’ means all conduct which is closely
related in time and is incident to an attempt or an
accomplishment of a single criminal objective.‛ Utah Code Ann.
§ 76-1-401 (LexisNexis 2012). In its briefing, the State asserts, as
an alternative argument, that Defendant’s ‚offenses did not arise
out of a single criminal episode‛ because they were not
‚‘incident to an attempt or an accomplishment of a single
criminal objective.’‛ (Quoting Utah Code Ann. § 76-1-401.) But
the State acknowledges that ‚the prosecutor in this case ‘did not
dispute’ that the two offenses arose out of a single criminal
episode‛ and that ‚the trial court *therefore] did not reach the
issue.‛ Certainly, the prosecutor’s stance on this issue before the
district court is perplexing given that the connection between
Defendant’s two offenses is indeed lacking. Nevertheless, during
oral argument before this court, the State conceded that we
should not decide this case on the alternate ground presented in
its briefing. We therefore decline to affirm the decision of the
(continued<)

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State v. Jepson

offense arising out of the same criminal episode is barred if:
(a) the subsequent prosecution is for an offense that was or
should have been tried under Subsection 76-1-402(2) in the
former prosecution; and (b) the former prosecution: . . . (ii)
resulted in conviction.‛2 Utah Code Ann. § 76-1-403(1)
(LexisNexis Supp. 2013). Subsection 76-1-402(2), in turn,
provides that ‚a defendant shall not be subject to separate trials
for multiple offenses when: (a) The offenses are within the
jurisdiction of a single court; and (b) The offenses are known to
the prosecuting attorney at the time the defendant is arraigned
on the first information or indictment.‛ Id. § 76-1-402(2) (2012).

¶10 The Utah Supreme Court has observed that ‚*t+ogether,
these provisions impose a one-bite-at-the-apple rule for multiple
offenses arising out of a single criminal episode.‛ State v. Ririe,
2015 UT 37, ¶ 8, 345 P.3d 1261. The court further observed that
‚the limiting terms of these statutes are significant‛:

Our code does not prescribe a universal bar on
multiple prosecutions arising out of a single
criminal episode. It limits this bar to cases falling
within its terms—to multiple cases ‚within the
jurisdiction of a single court‛ in circumstances
where the offense(s) in question were ‚known to
the prosecuting attorney at the time the defendant
is arraigned on the first information or
indictment.‛

Id. (quoting Utah Code § 76-1-402(2)).

(<continued)
district court on the alternate ground that Defendant’s offenses
did not arise out of the same criminal episode.

2. Relying on State v. Ririe, 2015 UT 37, 345 P.3d 1261, the State
concedes that ‚Defendant was prosecuted . . . on a citation for
retail theft in justice court.‛ Id. ¶ 9.

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State v. Jepson

¶11 In this case, the parties’ principal disagreement is whether
the justice court charge involved an arraignment on an
‚information or indictment.‛3 See Utah Code Ann. § 76-1-402(2).
Defendant observes that pursuant to Utah Code section 77-7-21,
‚*a+ copy of a misdemeanor citation filed in justice court ‘may be
used in lieu of an information to which the person cited may
plead guilty.’‛ (Quoting Utah Code § 77-7-21(1)(a).) Thus,
according to Defendant, because the retail theft citation
‚contained all the elements of an information and was used in
place of an information under Utah Code section 77-7-21(1)(a),‛
she ‚was arraigned on an information under Utah’s statutory
scheme.‛ The State asserts that ‚*t+he justice court prosecution
did not trigger the Single Criminal Episode Statute, because it
was not initiated by information.‛ We agree with the State.

¶12 Utah Code section 77-7-21 provides that ‚*a+ copy of the
citation . . . may be used in lieu of an information to which the
person cited may plead guilty or no contest and be sentenced.‛
Utah Code Ann. § 77-7-21(1)(a) (LexisNexis 2012) (emphasis
added). The term ‚in lieu of‛ is not defined by statute, but a
common meaning of the term is ‚*i]nstead of or in place of.‛ In
lieu of, Black’s Law Dictionary (10th ed. 2014); see also Lieu,
Merriam-Webster Online, http://www.merriam-webster.com/
dictionary/in%20lieu%20of (last visited Mar. 28, 2017)
[https://perma.cc/Y3UP-2ATX] (defining ‚in lieu of‛ as ‚in the
place of‛); cf. Bott v. Bott, 453 P.2d 402, 402 (Utah 1969)
(observing, in the context of a divorce decree, that ‚‘*i+n lieu of’
means instead of, in place of, in substitution of, etc.‛). Applying
this definition to section 77-7-21, the relevant portion of the
statute reads, ‚*a+ copy of the citation . . . may be used [instead of

3. The State concedes that ‚a city prosecutor was involved in the
justice court prosecution, satisfying the first limiting condition of
section 76-1-402(2).‛ See Utah Code Ann. § 76-1-402(2)(b)
(LexisNexis 2012). Additionally, the State does not dispute that
the justice court charge involved an arraignment, but only that
Defendant was not arraigned on an information. See id.

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or in place of] an information to which the person cited may
plead guilty or no contest and be sentenced.‛ See Utah Code
Ann. § 77-7-21(1)(a).

¶13 The use of a citation ‚instead of or in place of‛ an
information under section 77-7-21 does not convert the citation
into an information for purposes of subsection 76-1-402(2). In
other words, although the citation serves the same function as an
information in this context, the citation is not, in fact, an
information. See State v. Sommerville, 2013 UT App 40, ¶ 15 n.5,
297 P.3d 665 (‚Although a citation ‘may be used in lieu of an
information’ so that ‘the person cited may plead guilty or no
contest and be sentenced or on which bail may be forfeited,’ the
citation is not an information.‛ (emphasis added) (quoting Utah
Code Ann. § 77-7-21(1)(a))). Indeed, Utah Code section 77-7-20
requires that a citation include ‚a notice containing substantially
the following language‛: ‚This citation is not an information and
will not be used as an information without your consent.‛ Utah
Code Ann. § 77-7-20(2)(j) (LexisNexis Supp. 2013). ‚This is
consistent with [subsection 77-7-21(2)’s+ requirement that if a
‘person cited pleads not guilty to the offense charged’ in a
citation, ‘*a+n information shall be filed.’‛ Sommerville, 2013 UT
App 40, ¶ 15 n.5 (second alteration in original) (quoting Utah
Code Ann. § 77-7-21(2)). ‚That ‘information is an original
pleading,’ and ‘the prosecution may proceed on the citation’ only
if the ‘person cited waives by written agreement the filing of the
information.’‛ Id. (emphasis added) (quoting Utah Code Ann.
§ 77-7-21(3)).

¶14 Here, as Defendant acknowledges, her retail theft citation
was ‚used in lieu of an information to which
[Defendant] . . . plead[ed] guilty . . . and *was+ sentenced.‛ See
Utah Code Ann. § 77-7-21(1)(a). But the retail theft citation was
not an information, and no information was ever filed in
Defendant’s retail theft case. Thus, because the charge against
Defendant was initiated only by the filing of a citation, the
justice court charge did not involve an arraignment on an
‚information or indictment,‛ see id. § 76-1-402(2) (LexisNexis

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2012), and was therefore ‚not the type of prosecution implicating
the claim preclusion standards‛ of the Single Criminal Episode
Statute, see State v. Ririe, 2015 UT 37, ¶ 13, 345 P.3d 1261. See also
Ririe, 2015 UT 37, ¶ 13 (concluding that ‚the justice court charge
did not involve an arraign[ment] on an information or
indictment‛ where ‚the charge against Ririe was initiated only
by the filing of a citation and was resolved by a conviction upon
a forfeiture of bail‛ and observing in a parenthetical that
‚*v+oluntary forfeiture of bail shall be entered as a conviction
and treated the same as if the accused pleaded guilty‛ (first
alteration in original) (citation and internal quotation marks
omitted)). Consequently, the subsequent prosecution of the
unlawful possession of a financial transaction card offense in the
district court was not barred.

¶15 Alternatively, Defendant contends that her ‚waiver of
rights and guilty plea [in the Waiver Form] waived the filing of
an information‛ under subsection 77-7-21(3)(b). See Utah Code
Ann. § 77-7-21(3)(b) (LexisNexis 2012) (‚If a person cited waives
by written agreement the filing of an information, the
prosecution may proceed on the citation.‛). According to
Defendant, although ‚*t+he citation *she+ received informed her
that it would not be used as an information without her
consent,‛ see id. § 77-7-20(2)(j) (Supp. 2013), ‚*w+hen she pleaded
guilty and waived her rights, [she] formally and in writing
consented to the use of the citation as an information.‛ We are
not persuaded.

¶16 To begin with, as the district court correctly noted, the
Waiver Form that Defendant signed did not contain any
language addressing waiver of the filing of an information. Supra
¶ 6. But more importantly, the language of subsection 77-7-
21(3)(b), on which Defendant relies, does not apply to this case.
More specifically, as briefly discussed above, supra ¶ 13,
subsection 77-7-21(2) provides that when a ‚person cited pleads
not guilty to the offense charged,‛ ‚*a+n information shall be
filed.‛ Utah Code Ann. § 77-7-21(2). Subsection 77-7-21(3) then
provides that ‚*t+he information is an original pleading‛ and

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that ‚the prosecution may proceed on the citation‛ only if the
‚person cited waives by written agreement the filing of the
information.‛ Id. § 77-7-21(3)(a), (b); see also id. § 77-7-20(2)(j)
(‚The citation . . . shall contain . . . a notice containing
substantially the following language: . . . This citation is not an
information and will not be used as an information without your
consent.‛). Thus, we read subsection 77-7-21(3)(b) as applying
only to situations where a person cited contests a citation, in
which case the prosecution is required to file an information, see
id. § 77-7-21(2), unless the person cited waives by written
agreement the filing of the information, thereby authorizing the
prosecution to proceed on the citation, id. § 77-7-21(3)(b). See also
Ririe, 2015 UT 37, ¶ 13 (citing Utah Code subsections 77-7-21(2)
and 77-7-21(3)(b) and observing in a parenthetical that ‚where a
defendant contests a citation, . . . [a]n information shall be filed
unless waived by the defense‛ (alteration in original) (citation
and internal quotation marks omitted)). That situation is
distinguishable from Defendant’s case, in which the justice court
charge against Defendant was initiated only by the filing of a
citation to which Defendant pled guilty. See Utah Code Ann.
§ 77-7-21(1)(a). Consequently, we are not persuaded by
Defendant’s alternative argument that her Waiver Form ‚waived
the filing of an information‛ under subsection 77-7-21(3)(b).

¶17 We conclude that subsequent prosecution of the unlawful
possession of a financial transaction card charge in the district
court was not barred by the Single Criminal Episode Statute.

¶18 Affirmed.

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