State v. Loveless

1 The State’s brief includes an argument that the district
court abused its discretion when it denied the prosecution’s
motion to amend the information to dismiss the reckless
endangerment charge. This issue is beyond the scope of the
question on which we granted certiorari, and we decline to review
the district court’s holding on this issue. See S.B.D. v. State,
2006 UT 54, ¶ 45, 147 P.3d 401. Additionally, this question is
not within the scope of our review on certiorari because it was
not addressed by the court of appeals. See Wagner v. Utah Dep’t
of Human Servs., 2005 UT 54, ¶ 67, 122 P.3d 599 (Durham, C.J.,
concurring).
2010 UT 24
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20080963
Plaintiff and Petitioner,
v.
F I L E D
Jacob B. Loveless,
Defendant and Respondent. April 30, 2010
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Fourth District, Provo
The Honorable Claudia Laycock
No. 041403254
Attorneys: Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Asst. Att’y Gen., for plaintiff
Michael D. Esplin, Provo, for defendant
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 This case comes to us on a writ of certiorari to decide
whether a district court may accept a guilty plea over the
prosecution’s objection to one of two alternative charges pled in
a single count.1 In the district court the prosecution charged
the defendant Jacob Loveless, in a single count of either
aggravated assault or reckless endangerment. Mr. Loveless opted

2 The most recent version of the Utah Code is cited
throughout this opinion. In the time since Mr. Loveless was
charged with the offenses described, there have been no changes
to the code sections cited that substantively impact the issue
under consideration on appeal.
No. 20080963 2
to plead guilty to reckless endangerment. The State challenged
the district court’s decision to accept that plea over the
prosecution’s objection. The court of appeals concluded that,
while the applicable statute does not prohibit the prosecution
from charging alternative offenses in a single count, charges
must be pled in separate counts if the prosecution desires to
preserve an alternative charge in the face of a defendant’s plea
of guilty to the other charge. The court of appeals thus held
that the district court properly exercised its discretion in
accepting the defendant’s guilty plea to reckless endangerment,
effectively precluding further prosecution on the greater charge
of aggravated assault.
¶2 We affirm the decision of the court of appeals.
Alternative charges filed in a single count allow a defendant to
plead guilty as charged to either of the alternative charges.
This holding does not prevent prosecutors from charging in the
alternative, as the state argues, because prosecutors may avoid
this result simply by charging alternative offenses in separate
counts as provided for by statute.
BACKGROUND
¶3 In the late evening hours of July 31, 2004, Mr.
Loveless arrived at a gathering of his friends at a camp area
located in Payson Canyon. After arriving, Mr. Loveless and some
others took turns shooting Mr. Loveless’ handgun into a wooded
area away from the campsite. At some time later in the night,
unbeknownst to Mr. Loveless, a member of the group took his
sleeping bag into an area with several tree stumps and lay on the
ground to go to sleep. Unaware that this person had left the
camping area, Mr. Loveless decided to empty his weapon before
putting it back in his vehicle, and fired the remaining bullets
at what appeared to be a stand of tree stumps. One of the
bullets struck the man in the sleeping bag.
¶4 Prosecutors initially charged Mr. Loveless with one
count of reckless endangerment, a class A misdemeanor, in
violation of Utah Code section 76-5-112 (2008),2 and one count of
carrying a dangerous weapon while under the influence of alcohol
or drugs, a class B misdemeanor, in violation of Utah Code
section 76-10-528 (2008). Mr. Loveless pled not guilty to both
charges. The State subsequently filed an amended information,

3 When Mr. Loveless attempted to enter his plea in the
district court, the prosecutor acknowledged that the aggravated
assault charge had been filed “[b]ecause the defendant wouldn’t
plead guilty” to the original charge of reckless endangerment.
4 Mr. Loveless subsequently filed a motion to quash the
bindover, which was granted with respect to the second charge of
the amended information, possession of a dangerous weapon while
under the influence. This charge is not at issue on appeal.
3 No. 20080963
which charged Mr. Loveless with a new set of offenses. The
amended information charged Mr. Loveless with aggravated assault
or, in the alternative, reckless endangerment.3 Critical to this
appeal, these two offenses were charged in a single count. In a
separate count, the State continued to charge Mr. Loveless with
possession of a dangerous weapon while under the influence.4
¶5 The matter was set for a jury trial. Four days before
trial, Mr. Loveless notified the district court that he intended
to plead guilty to the lesser of the two alternative offenses,
reckless endangerment. The State objected to the plea, arguing
that Mr. Loveless could not unilaterally decide to enter a plea
of guilty to the lesser alternative charge. The State also moved
to dismiss the reckless endangerment charge. In rejecting the
State’s objection and motion to dismiss, the district court
concluded that the State gave Mr. Loveless the option of pleading
guilty to one charge or the other when it pled the charges in a
single count, and that this outcome was a risk the State took
when it made its charging decision. The court therefore denied
the motion to dismiss, rejected the State’s subsequent motion to
reconsider, and entered an order staying further proceedings
pending the State’s filing a petition for interlocutory appeal.
¶6 On interlocutory appeal, the court of appeals affirmed
the district court’s decision to accept Mr. Loveless’ guilty
plea, reasoning that:
[T]he State has failed to provide any legal
support for its specific contention that a
trial court lacks the authority to accept a
guilty plea to one of two alternatively
charged offenses over the prosecutor’s
objection. Although the prosecutor has the
discretion to charge a defendant in the
alternative, that does not mean that there
are no consequences subsequent to the
exercise of that discretion.
. . . The prosecutor explicitly charged
that Defendant committed either aggravated

No. 20080963 4
assault or reckless endangerment. In so
charging, the prosecutor must accept the
possibility that Defendant would admit to the
crime that carried the lesser penalty.
The nature of the instant information
reasonably led the trial court to believe
that the prosecutor was not trying to convict
Defendant of both the offenses listed--just
one or the other.
State v. Loveless, 2008 UT App 336, ¶¶ 11-13, 194 P.3d 202
(footnote omitted).
STANDARD OF REVIEW
¶7 “‘On certiorari, we review the decision of the court of
appeals and not that of the district court.’” State v. Anderson,
2009 UT 13, ¶ 6, 203 P.3d 990 (quoting State v. Brake, 2004 UT
95, ¶ 11, 103 P.3d 699). We review the court of appeals’
decision for correctness, and we cede that court no deference.
Peterson v. Kennard, 2008 UT 90, ¶ 8, 201 P.3d 956 (citing State
v. Ferguson, 2007 UT 1, ¶ 11, 169 P.3d 423). “The correctness of
the court of appeals’ decision turns on whether that court
accurately reviewed the trial court’s decision under the
appropriate standard of review.” State v. Visser, 2000 UT 88,
¶ 9, 22 P.3d 1242 (citing Newspaper Agency Corp. v. Audit Div.,
938 P.2d 266, 267 (Utah 1997).
¶8 The court of appeals “review[s] a trial court’s
acceptance or rejection of a guilty plea under an abuse of
discretion standard.” State v. Turner, 980 P.2d 1188, 1189-90
(Utah Ct. App. 1998). “A failure to exercise discretion is
generally encompassed within the meaning of abuse of discretion.”
State v. Montiel, 2005 UT 48, ¶ 9, 122 P.3d 571 (citing United
States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983)).
ANALYSIS
¶9 The effect of the State’s decision to charge
alternative charges in a single count is an issue of first
impression for this court. Mr. Loveless argues that the joinder
provisions of the Utah Code control the outcome when a prosecutor
opts to charge a defendant in this manner. That section provides
that “[t]wo or more felonies, misdemeanors, or both, may be
charged in the same indictment or information if each offense is
a separate count” so long as the charged offenses are “based on
the same conduct” or “alleged to have been part of a common
scheme or plan.” Utah Code Ann. § 77-8a-1(1) (2008) (emphasis
added). This section plainly allows prosecutors to charge

5 No. 20080963
multiple connected offenses in a single information if each
offense is pled in separate counts, but there is no limiting
language in the statute that prohibits a prosecutor from charging
in the alternative in a single count. Section 77-8a-1(1) only
instructs prosecutors to charge multiple offenses in “separate
count[s].” Id. Multiple offenses are not the same as
alternative charges. In terms of charging in the alternative,
all that may be plainly read from section 77-8a-1(1) is a
legislative preference for charging in separate counts. This
preference cannot be viewed as dispositive of the issue here
because section 77-8a-1(1) does not specifically deal with a
prosecutor’s decision to charge alternative offenses in a single
count. The parties have alerted us to no other statute that
would constitute an express authorization of or prohibition on
the State’s decision to prosecute a defendant in the manner
undertaken by the prosecution in this case.
¶10 The State recognizes that Utah’s statutory scheme does
not reach the issue presented here and argues that this court’s
prior case law fills the gap. Our case law does allow the
prosecution to charge in the alternative. See State v. Butler,
560 P.2d 1136, 1138 (Utah 1977). But the cases cited by the
State are not applicable here because the defendants in those
cases were all charged in separate counts rather than in the
alternative in a single count, or were charged under multiple
theories of the same offense. State v. Turner, 980 P.2d 1188,
1189 (Utah Ct. App. 1998) (defendant charged in two separate
counts with negligent homicide and driving left of center); State
v. Montoya, 910 P.2d 441, 442-43 (Utah Ct. App. 1996) (defendant
charged in two separate counts with aggravated sexual assault and
incest); Butler, 560 P.2d at 1138 (information alleged as
alternatives all three subsections of the manslaughter statute).
¶11 The State argues that upholding the court of appeals’
decision would effectively take away any prosecutorial incentive
to charge in the alternative because defendants could always
eliminate greater offenses charged in the alternative by pleading
guilty to lesser charges. This argument ignores the effect of
the distinction between alternative charges filed in separate
counts and alternative charges filed in the same count, a
distinction supported by the joinder statute and our holding
today. Under the court of appeals’ reasoning, which we endorse,
prosecutors who opt to charge alternative offenses in a single
count are at risk that the defendant will plead guilty as charged
to one of the offenses and thereby eliminate the alternative
offense contained in the same count. But a prosecutor may avoid
this result simply by filing alternative charges in separate
counts. In the separate-count scenario, defendants who opt to
plead guilty to one count have pled guilty as charged to that
count only, and alternative charges contained in a separate count

No. 20080963 6
are unaffected. Under section 76-1-402(1) of the Utah Code, the
prosecution need not worry about merger issues unless a plea has
led to “conviction and sentence.” Procedurally, therefore, when
a defendant pleads guilty to one of the alternative offenses
charged in separate counts, the district court may accept the
guilty plea and hold it in abeyance while the alternative offense
is adjudicated. This allows the state to continue with the
prosecution of a greater offense in compliance with section 76-1-
402. If a conviction is obtained on the greater offense, the
statute will operate to prevent the defendant from being twice
punished for the same conduct.
CONCLUSION
¶12 While prosecutors are authorized to charge in the
alternative, charging in the alternative in a single count
creates the risk that a defendant may plead guilty as charged to
the lesser of the offenses. If the state desires a judicial
determination as to every charge in an information, including
charges pled in the alternative, the prosecutor must charge each
offense in separate counts. This is consistent with statutory
language as well as Utah case law. Thus, the court of appeals
correctly decided that the district court did not abuse its
discretion when it elected to accept Mr. Loveless’ guilty plea to
the lesser charge of reckless endangerment over the objection of
the prosecutor. Accordingly, the judgment of the court of
appeals is affirmed.
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¶13 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.