State v. Robison

1 Utah’s bad check statute is found in Utah Code section 76-
6-505 (2003).
2006 UT 65
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20050257
Plaintiff and Petitioner,
v.
F I L E D
James L. Robison,
Defendant and Respondent. 	October 31, 2006
---
Fourth District, Nephi Dep’t
The Honorable Donald J. Eyre Jr.
No. 011600120
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Matthew D. Bates,
Asst. Att’y Gen, Salt Lake City, for petitioner
Milton T. Harmon, Nephi, for respondent
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	We agreed to review the court of appeals’ decision to
vacate James Robison’s guilty plea for writing a bad check. 1 	We
hold that the court of appeals erred when it used an unpublished
memorandum opinion to release Mr. Robison from his guilty plea
for a reason never raised by the parties. 	The court of appeals
interpreted the bad check statute to require that the check be
given as part of a “substantially contemporaneous exchange.” 	We
hold that a bad check may be written where no “substantially
contemporaneous exchange” occurs and that Mr. Robison’s admitted
conduct satisfies the statutory elements of the offense. 	Thus,
we remand to the court of appeals for consideration of
Mr. Robison’s remaining rule 11 claims.

No. 20050257 	2
FACTUAL AND PROCEDURAL HISTORY
¶2 	James Robison is a licensed motor vehicle dealer. 	In
the fall of 2001, a customer was looking for a GMC pickup truck.
Mr. Robison contacted another dealer, Randy Painter, who found
and purchased a truck that met the customer’s specifications.
Mr. Robison picked up the truck from Mr. Painter on September 1,
2001, and showed it to his customer later that day. 	The customer
approved of the truck and agreed to buy it.
¶3 	Mr. Robison then called Mr. Painter, told him that his
customer was purchasing the truck, and committed to send
Mr. Painter a check for the purchase price. 	Mr. Painter received
a check from Mr. Robison several weeks later. 	It bounced.
¶4 	Shortly thereafter, Mr. Robison faxed Mr. Painter a
copy of a receipt showing that he had deposited a second check
into Mr. Painter’s bank account. 	Believing that the check would
be honored, Mr. Painter mailed the truck’s title to Mr. Robison,
but the second check bounced as well. 	Mr. Robison never paid for
the truck, although his customer paid him.
¶5 	The State charged Mr. Robison with two counts of
issuing a bad check and one count of theft by deception. 	Under
the terms of a negotiated plea agreement, Mr. Robison pled guilty
to one count of issuing a bad check.
¶6 	One month later, Mr. Robison moved pro se to withdraw
his guilty plea. 	The court denied this motion. 	In its order
dismissing Mr. Robison’s motion, the court found that the plea
colloquy between the court and Mr. Robison satisfied the
requirements under rule 11 of the Utah Rules of Criminal
Procedure.
¶7 	Mr. Robison appealed. 	He claimed that the district
court failed to comply with rule 11 when it took his plea because
elements of the offense to which he was pleading guilty were
never clearly communicated, because he did not admit to the
elements of the offense, and because the written plea agreement
was not clear and consistent.
¶8 	The court of appeals did not directly address
Mr. Robison’s claims, but a divided panel ruled in a memorandum
decision that the plea violated rule 11 because it lacked an
adequate factual basis to justify finding Mr. Robison guilty.
The court of appeals majority determined that the checks written
by Mr. Robison were not part of a “substantially contemporaneous

3 	No. 20050257
exchange” and that his issuance of the checks to Mr. Painter was
not a crime.
¶9 	The court of appeals acknowledged that Mr. Robison “did
not adequately present this issue to either the district court or
to [the court of appeals],” State v. Robison, 2005 UT App 9U,
*1-2, but nevertheless based its holding on the “substantially
contemporaneous exchange” rationale “to avoid ‘a great and
manifest injustice.’” 	Id. (quoting State v. Pierce, 655 P.2d
676, 677 (Utah 1982)).
ANALYSIS
I. 	THE COURT OF APPEALS DID NOT HAVE THE DISCRETION TO REVERSE
THE DISTRICT COURT BASED ON REASONING OF ITS OWN MAKING
¶10 	Before the phrase appeared in the court of appeals’
memorandum decision, neither the State nor Mr. Robison had
mentioned the notion of a “substantially contemporaneous
exchange.” 	The court of appeals justified its unbidden decision
to read a “substantially contemporaneous exchange” requirement
into section 76-5-505 by explaining that, had it not done so,
Mr. Robison would have been the victim of a “great and manifest
injustice.”
¶11 	The phrase “great and manifest injustice” was first
introduced into Utah case law in State v. Pierce, 655 P.2d 676,
677 (Utah 1982). 	Ms. Pierce claimed that she had been
“‘compelled to give evidence against [her]self’” in violation of
article I, section 12 of the Utah Constitution. 	Id. (quoting
Utah Const. art. I, § 12). 	She had, however, failed to raise
this issue in the trial court when the allegedly self-
incriminating evidence was introduced. 	We therefore refused to
consider her claim because it was not properly preserved. 	Id.
We nevertheless mentioned that “the facts [in Ms. Pierce’s case]
are not such that great and manifest injustice would be done if
this Court does not entertain the issue sua sponte as an
exception” to the preservation rule. 	Id.
¶12 	Before being invoked by the court of appeals in aid of
Mr. Robison, Pierce’s “great and manifest injustice” language had
appeared in only two other Utah cases. 	In both instances, the
defendants tried to introduce legal claims that they had not
preserved; and in both instances, the appellate court refused to
grant relief from the failure to preserve an issue based on the
presence of a “great and manifest injustice.” 	State v. Lesley,
672 P.2d 79 (Utah 1983); State v. Archambeau, 820 P.2d 920 (Utah
Ct. App. 1991).

2 We also note that we have previously stated “that in most
circumstances, the term ‘manifest injustice’ is synonymous with
the ‘plain error’ standard.” 	State v. Verde, 770 P.2d 116, 121-
22 (Utah 1989). 	We do not address whether the language in Pierce
creates an exception distinct from plain error. 	For a more
comprehensive analysis of the preservation rule in Utah
jurisprudence, see State v. Holgate, 2000 UT 74, ¶¶ 11-17, 10
P.3d 346.
No. 20050257 	4
¶13 	Pierce, Lesley, and Archambeau shared features common
to most efforts to avoid the consequences of the claim
preservation rule which mandates that “claims not raised before
the [district] court may not be raised on appeal.” 	State v.
Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 (internal quotation marks
omitted). 	The defendants in these cases discovered a ground for
error they believed to justify their position and attempted to
persuade the appellate court that circumstances warranted
application of an exception to the preservation rule.
¶14 	The most common exception to the preservation rule is
plain error. 2 	“To establish plain error, [a defendant is]
required to demonstrate that (i) an error exists; (ii) the error
should have been obvious to the [district] court; and (iii) the
error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant.” 	State
v. Cruz, 2005 UT 45, ¶ 16, 122 P.3d 543 (internal quotation marks
omitted). 	In the Pierce trio of cases, like many others in the
failure to preserve canon, the defendants articulated the
unpreserved issue and explained why the district court committed
“plain error” by not recognizing the magnitude of the error and
by not stepping in on its own to avoid or remedy it. 	In this
case, the court of appeals, however, went considerably further in
rescuing Mr. Robison when it took the initiative to identify the
issue that rendered Mr. Robison’s conviction a “great and
manifest injustice.”
¶15 	Whether the bad check statute included a “substantially
contemporaneous exchange” element had never been briefed or
argued by the parties. 	Until the time that the court of appeals
grounded its holding in this concept, it had remained well enough
concealed that neither party had noticed its potential for any
claim of error, much less plain error.
¶16 	The “substantially contemporaneous exchange”
requirement was never subjected to the rigors of the adversarial
process. 	Any skeptical scrutiny that the interpretation was
forced to endure came from within the court itself. 	This is not

5 	No. 20050257
to say that the court of appeals cannot be counted on to perform
penetrating critical thinking. 	It clearly can and does. 	What
troubles us about the approach of the court of appeals is the
exercise of critical thinking without the engaged participation
of the parties whose affairs will be directly affected by the
product of that thinking.
¶17 	Although we have used the vocabulary of preservation to
describe the court of appeals’ methodology, the analogy is not
especially apt. 	Because the preservation rule and its exceptions
do not contemplate arguments that are never presented by the
parties, preservation nomenclature is inadequate to explain or
assess what went awry here.
¶18 	Because an exception to the preservation rule is
insufficient to justify the court of appeals’ decision, we next
explore whether any other appellate principle would justify
reversing the district court by invoking new law based on a
theory that has not been raised by the parties.
¶19 	Like almost every appellate court, we approve of the
practice of affirming a lower court on alternative, unbriefed
grounds. 	5 C.J.S. Appeal & Error § 714 & nn.40-43 (1993). 	We
have said that
an appellate court may affirm the judgment
appealed from if it is sustainable on any
legal ground or theory apparent on the
record, even though such ground or theory
differs from that stated by the [district]
court to be the basis of its ruling [and]
even though such ground or theory is not
urged or argued on appeal by appellee, was
not raised in the lower court, and was not
considered or passed on by the lower court.
Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (internal
quotation marks omitted).
¶20 	While most jurisdictions have opined on the question of
affirming on alternative grounds, the propriety of reversing a
lower court on alternative grounds has received almost no
attention, including none from this court. 	Perhaps the reasons
why appellate courts should resist reversals for reasons of their
own invention are too obvious to have merited serious inquiry.
The most prominent, and perhaps only, reason to apply the same
standards for alternative ground reversals as affirmances is
symmetry. 	Arguments based on symmetry have a superficial appeal

3 We note that “great and manifest injustice” sufficient to
spur an appellate court to raise unpresented arguments is only
possible in the criminal context when the deprivation of personal
freedoms is at stake. 	In the civil context, the interest in
(continued...)
No. 20050257 	6
because they appear to be linked to equal treatment and thus to
fundamental fairness. 	But more often than not, symmetry is
quickly exposed as a false prophet of fairness. 	This is one such
case.
¶21 	To permit concerns over symmetry to overcome all other
considerations in the formulation of an alternative grounds
doctrine would be to abandon the presumption, critical to the
functional relationship between district courts and appellate
courts, that a lower court has conducted its affairs properly and
that the outcome of its process is sufficiently supported in law
and fact. 	This “presumption of regularity” is a firmly embedded
appellate doctrine. 	Under the presumption of regularity, “Utah
courts place the initial burden on the appellant, not on the
state, to produce some evidence that the prior conviction was
improper, attaching a presumption of regularity, including a
presumption of constitutionality, to the prior conviction.”
State v. Cravens, 1999 UT App 156U, *2. 	The presumption is a
natural complement to the adversarial system. 	Losing in court
comes with consequences. 	One of those consequences is the
reordering of burdens between the parties when the scene shifts
from the trial to the appellate arena. 	It falls squarely upon an
appellant to surmount the filing, briefing, and persuasion
burdens associated with an appeal. 	Much of this has to do with
the presumption of regularity. 	An appellant must do the heavy
lifting because the law otherwise presumes that all was well
below. 	An appellate court that does the lifting for an appellant
distorts this fundamental allocation of benefits and burdens.
¶22 	We agree, then, with the pronouncement of the Illinois
Supreme Court that “[o]ther than for jurisdictional reasons [the
court of appeals] should not normally search the record for
unargued and unbriefed reasons to reverse a [district] court
judgment.” 	Saldana v. Wirtz Cartage Co., 385 N.E.2d 664, 667
(Ill. 1978).
¶23 	Of course, not every case is “normal.” 	What should an
appellate court do when it holds in its hand an argument that is
tantamount to the legal royal flush? 	By refusing, out of
principle, to reverse an astonishingly erroneous but undetected
ruling, a court could subject the losing party, especially a
defendant in a criminal case, 3 to “great and manifest injustice.”

3 (...continued)
procedural regularity will always outweigh any injustice a party
might face from losing a case despite valid yet unargued
authority to the contrary.
4 If an appellate court discovers the unbriefed legal
argument prior to oral arguments, it could ask for supplemental
briefing and consider changing the argument schedule, if
necessary. 	If the novel theory occurs to a judge during the
course of arguments, it would be wise to pose the question to the
(continued...)
7 	No. 20050257
It is not at all unusual for an appellate court judge to
experience an epiphany (or at least what she believes to be an
epiphany) during her journey into a brief or appellate record.
Such a phenomenon often captures an insight that the parties
bypassed. 	That these epiphanies seldom lead to reversals
suggests that however profound the insight might appear, there is
one insight that trumps it: 	that any episode of unexpected and
extraordinary judicial wisdom should be treated with suspicion
and subjected to close scrutiny.
¶24 	There are several ways appellate courts can test a
notion of their own invention before using it to justify a
reversal, most notably by inviting supplemental briefing. 	We
approved this approach in State v. Breckenridge, 688 P.2d 440
(Utah 1983). 	Mr. Breckenridge had pleaded guilty to arson
charges, which required “intentionally . . . damag[ing] [a]
habitable structure . . . by means of fire.” 	Id. at 441.
Despite his guilty plea, Mr. Breckenridge repeatedly insisted
that he had intentionally started the fire to dispose of trash
and that the fire burned the building only after it got out of
control. 	However, it did not occur to Mr. Breckenridge or his
counsel that his state of mind constituted a defense to the
crime. 	Id. at 441-42. 	After repeatedly failing to raise this
serious flaw in the guilty plea, “[o]n the suggestion of this
Court, during oral arguments on the appeal, [Mr. Breckenridge]
addressed for the first time the argument that . . . his guilty
plea was accepted by the court . . . without showing that there
was any factual basis upon which to base a conviction of a
crime.” 	Id. at 443 (emphasis added). 	We recognized that the
briefing overlooked a compelling argument that, if presented,
would likely merit reversal of Mr. Breckenridge’s conviction.
Rather than succumbing to the temptation to trust without
examination the quality of our insight and reverse, we honored
the adversarial process and invited the parties to address the
question of whether Mr. Breckenridge’s actions satisfied the
elements of arson. 4

4 (...continued)
parties and subsequently request additional briefing. 	Even if
the theory is uncovered after arguments, in the final stages of
opinion drafting, the court should allow the parties the chance
to weigh in on its validity through supplemental briefing.
5 As a court of last resort, we have the authority to decide
on whatever grounds we deem appropriate, regardless of
preservation or presentation. 	Naturally, we have an obligation
to exercise this prerogative cautiously and rarely, as the
interests of justice suggest that we should follow our own advice
and permit the parties the opportunity to present arguments.
No. 20050257 	8
¶25 	We therefore hold that the court of appeals erred when
it based its decision on an unargued legal theory. 5 	If this
court agreed with the court of appeals that a “great and manifest
injustice” would befall Mr. Robison were he not allowed to
present the argument that the bad check statute requires a
“substantially contemporaneous exchange,” it would then be
appropriate for this court to remand the case for arguments on
the merits of the substantive meaning of section 76-6-505.
Remand for this purpose, however, is unnecessary.
II. 	THE COURT OF APPEALS INAPPROPRIATELY ISSUED ITS DECISION IN
MEMORANDUM FORM
¶26 	Our review in this case has been made more difficult
because it comes to us in the form of an unpublished memorandum
decision. 	Unpublished memorandum decisions have an important,
but limited, role in the work of the court of appeals. 	See,
e.g., Grand County v. Rogers, 2002 UT 25, ¶¶ 7-19, 44 P.3d 734.
¶27 	“Memorandum decisions are intended to address cases
which do not present novel issues of law on appeal, with
reference to well-established precedent arising either from case
law or from unambiguous statutory language.” 	Id. ¶ 7.
Frequently, such opinions are not published because they apply
the law but do not develop it and therefore are of interest only
to those with a stake in the outcome. 	Id.
¶28 	Although the task of taking on appeals that result in
correction of error falls primarily to the court of appeals, that
court frequently confronts cases featuring novel questions of
law. 	Id. ¶¶ 10-11. 	In those cases, the court’s work should
appear in a published opinion.

6 The use of a memorandum decision where a full opinion
would be appropriate under the preceding analysis is not grounds
for a reversal of the court of appeals. 	It is a rule of
convenience and consideration for this court and for the parties,
but does not constitute a due process violation affording
reversal or remand. 	There may be occasion where remand to the
court of appeals for a complete opinion may be appropriate, but
such a determination is entirely up to this court’s discretion
and will be used only when necessary. 	Grand County v. Rogers,
2002 UT 25, ¶ 15, 44 P.3d 734.
9 	No. 20050257
¶29 	There are two primary reasons for this. 	First, the
parties to an appeal are “entitled to an understanding of the
reasons relied upon by the appellate court.” 	Id. ¶ 14. 	This is
more easily accomplished in cases that are suited to memorandum
decisions because “[w]hen the appellate court [cites] to clear
precedent that is . . . applicable to the situation presented for
review, the parties may know of the reasoning without the need of
the appellate court reiterating previously well defined law.”
Id.
¶30 	Second, “our review is made much more difficult” when
“the reasoning of the court of appeals is abbreviated, or
superficial, or incomplete.” 	Id. ¶ 15. 	Without a clear
explanation from the court of appeals, both the parties and this
court are left to guess at the precise reasoning employed by the
court of appeals. 	Such a situation hinders greatly the efficacy
of certiorari review because it eliminates the ability of counsel
and court to analyze and dissect a single, specific, well-defined
legal theory.
¶31 	Furthermore, because it is important that the basis for
a decision is clearly understood, reversal or affirmance of the
district court on other grounds should almost never be done
through a memorandum decision. 	“In matters where the lower court
is reversed, in whole or in part, or affirmed on other grounds,
more explanation is usually necessary.” 	Id. ¶ 18. 	The only
exception would be “in those rare instances where the reasons for
reversal [or affirmance on other grounds] are clearly set forth
in prior case law.” 	Id.
¶32 	We also note that in a case such as this that
stimulates a dissent, the use of a memorandum decision is likely
unwise. 	The existence of a dissent illustrates that there are
concerns with the logic applied that deserve more than a cursory
explanation. 6

No. 20050257 	10
¶33 	Applying the foregoing observations to this case, we
are convinced that the memorandum decision was not the proper
decisional format.
III. 	THE COURT OF APPEALS INCORRECTLY INTERPRETED UTAH’S BAD
CHECK STATUTE AS REQUIRING A CONTEMPORANEOUS EXCHANGE
¶34 	Finally, we turn away from procedural concerns to the
merits of the court of appeals’ statutory interpretation. 	As
part of the grant of certiorari, this court agreed to take up the
question of whether section 76-6-505 requires a “substantially
contemporaneous exchange.” 	Our statutory analysis of section 76-
6-505, leads us to conclude that one may commit the crime of
passing a bad check without engaging in a “substantially
contemporaneous exchange.”
¶35 	The statute at issue here is Utah’s bad check statute.
Utah Code Ann. § 76-6-505 (2003). 	The provision reads, in
relevant part, “Any person who issues . . . a check . . . for the
purpose of obtaining from any person . . . any money, property,
or other thing of value . . . knowing it will not be paid by the
drawee and payment is refused by the drawee, is guilty of issuing
a bad check . . . .” 	Id. § 76-6-505(1).
¶36 	During the plea colloquy, Mr. Robison emphasized that
the truck had been delivered several weeks before he sent
Mr. Painter the bad check. 	The court of appeals seized on this
point. 	It reasoned that because Mr. Robison received the truck
before issuing the bad check, he did not issue the check “for the
purpose of obtaining” anything--that is, he had already obtained
the thing of value. 	To be unlawful, the passing of the bad check
must bear the hallmarks of a quid pro quo for money, property, or
some other thing of value. 	The court of appeals viewed temporal
proximity between the passing of the check and the acquisition of
value as the essential measure of the check writer’s purpose. 	In
the court’s view, the elapsed time between the delivery of the
truck and the passing of the check was too long to establish the
necessary link between the check and the truck. 	Only a
“contemporaneous exchange” would do.
¶37 	The court of appeals’ determination that the statute
included a “contemporaneous exchange” requirement was significant
because rule 11(e)(4)(A) of the Utah Rules of Criminal Procedure
requires that a guilty plea be an admission to all of the
elements of the offense to which the plea is entered. 	By
interpreting the statute to require a contemporaneous exchange,
the court of appeals determined that Mr. Robison’s plea did not
include facts sufficient to establish the crime to which he had

11 	No. 20050257
pleaded guilty. 	That determination mandated reversal under rule
11.
¶38 	In finding that the statute required a “substantially
contemporaneous exchange,” the court of appeals relied upon logic
from Howells, Inc. v. Nelson, 565 P.2d 1147, 1149 (Utah 1977).
Howells asked whether attorney fees should be awarded to the
recipient of a bad check. 	The defendant had written a dishonored
check to pay on a past due account. 	The plaintiff claimed that
attorney fees should be available because the act of passing the
check constituted fraud. 	We rejected this claim because “the
plaintiff was not induced to give anything of value, nor was it
in any way cheated or adversely affected by the giving of the
check.” 	Id. 	We reasoned that payment of an antecedent debt was
qualitatively different from a payment made for something of
value, like the goods or services that were later subsumed within
the indebtedness.
¶39 	Our Howells reasoning is inapt here. 	Instead, our
analysis relies on our traditional methods of statutory
interpretation. 	“When interpreting statutes, we determine the
statute’s meaning by first looking to the statute’s plain
language, and give effect to the plain language unless the
language is ambiguous.” 	Blackner v. State, 2002 UT 44, ¶ 12, 48
P.3d 949. 	The plain language of the statute informs us that the
key is the purpose for which the check is issued. 	If the check
is issued in exchange for a thing of value, then the statute
applies. 	The passage of time between the acquisition of the
thing of value and the passing of the bad check, while relevant,
is not the defining characteristic of purpose. 	To the contrary,
little can be gleaned about the purpose of a bad check from
merely knowing whether it was passed five seconds or five weeks
after the thing of value changed hands. 	In short, the purpose
for passing a bad check may be established without any evidence
regarding when the check was passed relative to when the thing of
value to which it is linked was acquired.
¶40 	There is no evidence that Mr. Robison passed the checks
to Mr. Painter for an antecedent debt. 	The only evidence is that
the checks were passed in payment for the truck. 	The truck was
turned over to Mr. Robison contingent on his customer’s approval
and the subsequent payment of the purchase price to Mr. Painter.
The truck was not exchanged for a debt on which Mr. Robison would
make subsequent payments or even a single subsequent
payment--everything in the record suggests that Mr. Painter
relinquished ownership of the truck in exchange for the issuance
of full payment from Mr. Robison. 	To interject the additional
step of debt creation when no such arrangement was contemplated

No. 20050257 	12
is nonsensical and defeats the purpose of the statute. 	The
actual transaction, therefore, did not occur when Mr. Robison
first drove off in the truck. 	Rather, it took place when
Mr. Robison told Mr. Painter that his customer was indeed going
to purchase the truck, at which point there was an understanding
that Mr. Robison would pay for the truck. 	In other words, the
transaction was premised on the understanding that a check would
issue in exchange for the truck. 	Whether Mr. Robison wrote out a
check and handed it to Mr. Painter at that instant or waited an
indefinite period of time and then mailed Mr. Painter a check is
irrelevant. 	Mr. Robison would not have obtained the truck if
Mr. Painter had not known or assumed that payment would be made.
Consequently, the check was indeed issued for the purpose of
obtaining the truck, and the district court’s decision was
correct.
CONCLUSION
¶41 	We hold that the court of appeals erred in reversing
the district court on a legal theory that had not been preserved,
briefed, or argued. 	Upon discovering a dispositive legal theory
that has not been presented and facing a case which would result
in a “great and manifest injustice” if that unargued legal theory
were not applied, an intermediate appellate court should give the
parties the opportunity to present arguments before issuing a
decision based on that theory. 	We also hold that Utah’s bad
check statute does not require a “substantially contemporaneous
exchange.”
¶42 	Therefore, we reverse the court of appeals and remand
for consideration of the merits, if any, of Mr. Robison’s
remaining rule 11 claims.
---
¶43 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.