State v. Palmer

1 Utah Code Ann. § 41-6-44(6)(a) (Supp. 2004).
2 Id. (“A [DUI] conviction . . . is a third degree felony if
it is: 	a third or subsequent conviction under this section
within ten years of two or more prior convictions.”); see also
(continued...)
2009 UT 55
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. 20080558
Plaintiff and Respondent,
v.
F I L E D
Robert Palmer,
Defendant and Petitioner. 	August 18, 2009
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Fourth District, Provo Dep’t
The Honorable Samuel D. McVey
No. 051400027
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Ryan D. Tenney, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Aaron P. Dodd, Provo, for defendant
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On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Robert Palmer contends that the court of appeals erred
in upholding his third-degree felony conviction under Utah’s
driving under the influence (DUI) recidivism enhancement
statute. 1 	In Utah, the sentence for a DUI conviction escalates
from a class B misdemeanor to a third-degree felony if the
conviction is the third or greater conviction within ten years. 2

2 (...continued)
id. § 41-6-44(2)(a) (stating factors for a DUI conviction); id.
§ 41-6-44(3)(a)(i) (stating that a first or second DUI conviction
is a class B misdemeanor).
Factors in addition to driving while intoxicated escalate
what would otherwise be a class B misdemeanor to a class A
misdemeanor. 	These factors include inflicting bodily injury on
another as a proximate cause of the intoxication, having a
passenger under the age of sixteen while driving under the
influence, or being twenty-one or older and driving with a person
under the age of eighteen. 	Id. § 41-6-44(3)(a)(ii).
No. 20080558 	2
Specifically, Palmer argues that the recidivism enhancement
statute creates a separate offense and that his past convictions
are an element of that offense. 	Accordingly, Palmer asserts that
the trial court violated his right to a jury trial under both the
state and federal constitutions when the judge, rather than a
jury, determined that Palmer had two prior convictions within ten
years of the third.
¶2 	Because we determine that Palmer raised only a question
of law, not a question of fact, regarding whether he had three
DUI convictions within ten years, we do not reach the issue of
whether a defendant in Utah has the right to have a jury
determine the fact of his prior convictions before he can be
sentenced pursuant to the DUI recidivism enhancement statute.
Rather, we conclude that Palmer’s right to a jury trial was never
implicated.
BACKGROUND
¶3 	On September 23, 2004, Robert Palmer was arrested for
driving under the influence. 	Palmer was then charged by
information filed in the Fourth Judicial District Court on or
about January 4, 2005, with driving under the influence of
alcohol in violation of Utah Code section 41-6-44 (Supp. 2004).
A jury trial was held on August 8, 2006. 	When Palmer did not
appear on his trial date, he was tried in absentia. 	The jury
found Palmer guilty of driving under the influence of alcohol.
¶4 	By stipulation of the prosecution and Palmer’s counsel,
the trial court then excused the jury, and the prosecution
subsequently presented evidence to the court of Palmer’s two
prior convictions within the previous ten years. 	Defense counsel
did not object to the evidence but challenged the legal
conclusion that the evidence demonstrated that Palmer had three

3 State v. Palmer, 2008 UT App 206, ¶¶ 9-11, 189 P.3d 69.
4 Id. ¶¶ 8-9.
5 Id. ¶¶ 22-23.
3 	No. 20080558
DUI convictions within ten years. Specifically, counsel argued
that Palmer pled guilty to the first of the three DUI charges
more than ten years before the conviction of the third DUI charge
and that the relevant date for determining a conviction should be
the plea date, not the sentencing date. 	But counsel admitted
that if the sentencing date were the relevant date then Palmer’s
first DUI conviction was within ten years of the current
conviction. 	The trial court determined that Palmer was convicted
of the first DUI charge when he was sentenced, not when he pled
guilty; accordingly, the court found that the two prior
convictions were within ten years of the third. 	For this reason,
the court found Palmer guilty of a third-degree felony.
¶5 	Prior to sentencing, new counsel for Palmer moved for a
new trial, arguing that Palmer was denied his constitutional
right to have a jury determine whether he had two prior DUI
convictions within the last ten years. 	After hearing oral
arguments, the trial court found that it had violated Palmer’s
right to a jury trial by failing to submit the question of
whether Palmer had three convictions in ten years to a jury. 	The
court denied Palmer’s motion, however, on the basis that the
error was harmless beyond a reasonable doubt. 	The trial court
then sentenced Palmer on September 18, 2006, to an indeterminate
term not to exceed five years.
¶6 	Palmer timely appealed. 	On direct appeal, a majority
of the court of appeals panel determined that Palmer did not have
a federal constitutional right to have a jury consider the
question of whether his two previous convictions were within ten
years of his third conviction. 3 	The majority reached this
conclusion after, first, determining that a defendant does not
have a federal constitutional right to have a jury determine a
sentence enhancement 4 and, second, determining that the
legislature intended Utah Code section 41-6-44(6)(a) to prescribe
a sentence enhancement, not a separate offense. 5
¶7 	Judge Thorne, dissenting from the majority opinion,
also analyzed the case under the premise that the right to a jury
trial does not apply to sentence enhancements, only separate
offenses. 	But after looking to the language of Utah Code section

6 264 P.2d 284 (Utah 1953).
7 Palmer, 2008 UT App 206, ¶¶ 26-27 (Thorne, J.,
dissenting).
8 Utah County v. Butler, 2008 UT 12, ¶ 9, 179 P.3d 775
(quoting D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006
UT 62, ¶ 10, 147 P.3d 414).
9 State v. Valdez, 2006 UT 39, ¶ 11, 140 P.3d 1219.
10 State v. Palmer, 2008 UT App 206, ¶¶ 2, 10, 189 P.3d 69.
11 The court of appeals did not reach the question of
whether Palmer’s state constitutional right to a jury trial was
violated because the court determined that Palmer failed to
adequately brief this issue. 	Palmer, 2008 UT App 206, ¶ 7 n.4.
(continued...)
No. 20080558 	4
41-6-44(6)(a) and our decision in State v. Harris,6 he concluded
that section 41-6-44(6)(a) “is a separate offense,” not merely a
sentence enhancement. 	Accordingly, he determined that the trial
court deprived Palmer of his constitutional right to a jury trial
when the trial judge, without a jury, convicted Palmer of a
third-degree felony. 7
¶8 	We granted certiorari to review the court of appeals’
decision. 	We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶9 	On certiorari review, we review “‘the decision of the
court of appeals, not the decision of the district court.’” 8 	In
this case, we are presented with questions of law, which we
review “for correctness, granting no deference to the legal
conclusions of the court of appeals.” 9
ANALYSIS
¶10 	In its analysis, the court of appeals focused on the
question of whether the legislature intended to give a defendant
the statutory right to have a jury determine the factual question
of whether he or she had two prior DUI convictions within ten
years of the third conviction. 10 	The court determined that the
federal constitution affords no such right and declined to
address whether the state constitution affords such a right. 11

11 (...continued)
The State argues before us that Palmer failed to preserve this
issue in the trial court. 	Because we resolve this case on the
ground that Palmer has failed to raise a question of fact, an
essential aspect to any jury-trial right, we do not reach the
issue of whether Palmer’s state constitutional argument is
properly before us.
12 See Ring v. Arizona, 536 U.S. 584, 602 (2002).
13 Utah Const. art. I, § 12.
14 U.S. Const. amend. VI.
15 United States v. Gaudin, 515 U.S. 506, 509-10 (1995)
(quoting U.S. Const. amend. V).
5 	No. 20080558
We do not reach any of these questions because we determine that
the threshold requirement for a jury determination--a disputed
issue of fact 12 --is absent in this case. 	Even if Palmer has a
constitutional right to a jury trial on the factual question of
whether he had three DUI convictions within ten years and even if
the legislature intended to make that fact an element of a
separate crime and thereby grant Palmer a statutory right to a
jury trial, in this case Palmer has admitted all relevant facts
and has only made a legal challenge to the sentence enhancement.
Accordingly, we conclude that Palmer left no work for a jury to
perform, as juries serve only as fact-finders, not law-makers or
interpreters. 	Because we resolve this case on the threshold
requirement of a factual dispute, we do not review the court of
appeals’ analysis, but instead vacate it.
¶11 	Palmer challenges his felony conviction by contending
that the conviction violated his state and federal constitutional
rights to a jury trial. 	Article I section 12 of the Utah
Constitution guarantees that “[i]n criminal prosecutions the
accused shall have the right . . . to have a speedy public trial
by an impartial jury . . . .” 13 	Likewise the Sixth Amendment to
the United States Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury.” 14 	And “[t]he Fifth
Amendment to the United States Constitution guarantees that no
one will be deprived of liberty without ‘due process of law.’” 15
Together these amendments “give[] a criminal defendant the right
to demand that a jury find him guilty of all the elements of the

16 Id. at 511.
17 Almendarez-Torres v. United States, 523 U.S. 224, 240
(1998) (quoting In re Winship, 397 U.S. 358, 364 (1970); see also
United States v. Booker, 543 U.S. 220, 230 (2005) (stating that
together the Fifth and Sixth Amendments “protect[] every criminal
defendant ‘against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged.’” (emphasis added) (quoting In re
Winship, 397 U.S. at 364)).
18 Jones v. United States, 526 U.S. 227, 243 n.6 (1999).
19 Id. at 329-30; see also Almendarez-Torres, 523 U.S. at
226 (concluding that a provision that enhanced a prison sentence
from two to twenty years did not create a jury question when the
enhancement was based solely on a prior “conviction for
commission of an aggravated felony” (internal quotation marks
omitted)).
Further, it is often appropriate to keep out “evidence of a
defendant’s prior crimes” because the introduction of such
evidence “risks significant prejudice” to the defendant.
Almendarez-Torres, 523 U.S. at 235.
We do not determine at this time whether the Utah
Constitution guarantees a right to have a jury determine the
factual question of whether there was a prior conviction. 	Our
decision in State v. Harris seems to indicate that it may. 	264
P.2d 284 (1953). 	We do not reach this issue because Palmer never
raised a factual issue regarding his prior conviction; thus the
protection potentially afforded by the Utah Constitution was not
implicated.
No. 20080558 	6
crime with which he is charged.” 16 	In the context of the right
to a jury trial, an element is defined as a “‘fact necessary to
constitute the crime.’” 17
¶12 	During sentencing, after a defendant has been charged
and convicted, he continues to have the right to a jury
determination of “any fact (other than [a] prior conviction) that
increases the maximum penalty for [the] crime.” 18 	There is no
federal constitutional right to have a jury determine at
sentencing the factual question of whether there was a prior
conviction because the right to a jury trial was satisfied when
the defendant was originally convicted. 19 	But the right to have
a jury determine facts that have not been previously determined
by a jury and that increase the maximum sentence remains intact

20 Ring v. Arizona, 536 U.S. 584, 602 (2002).
21 Booker, 543 U.S. at 232 (quoting Blakely v. Washington,
542 U.S. 296, 303 (2004)).
22 See State v. Palmer, 2008 UT App 206, ¶ 10, 189 P.3d 69.
23 Almendarez-Torres, 523 U.S. at 228 (“We . . . look to the
statute before us and ask what [the legislature] intended. 	Did
it intend the . . . prior . . . conviction . . . to help define a
separate crime? 	Or did it intend the presence of an earlier
conviction as a sentencing factor, a factor that a sentencing
court might use to increase punishment?”).
24 Jones v. United States, 526 U.S. 227, 241 (1999).
25 Sparf v. United States, 156 U.S. 51, 71 (1895).
7 	No. 20080558
at sentencing, regardless of the label that the legislature
applies to the facts. 	If, for example, the legislature labels
these additional facts as “sentencing factors” rather than
“elements,” the facts “must [still] be found by a jury beyond a
reasonable doubt.” 20 	Thus, the right to a jury trial is
implicated not only when the government seeks to convict a
defendant of a particular crime but also “whenever a judge seeks
to impose a sentence that is not solely based on ‘facts reflected
in the jury verdict or admitted by the defendant.’” 21
¶13 	Though the federal constitution does not afford Palmer
the right to have a jury determine the factual question of
whether there were prior convictions, the court of appeals is
correct in concluding that it is within the legislature’s power
to create a statutory right to a jury determination on that
factual question. 22 	The legislature can do this by making the
prior convictions an element of a separate offense. 23 	Indeed, it
is the role of the legislature to “choose the elements that
define their crimes.” 24 	Thus, if the legislature chooses, it may
make the fact of a prior conviction an element of a crime.
¶14 	But the legislature is not empowered to expand the role
of the jury beyond fact-finders. 	Indeed, the United States
Supreme Court, analyzing this issue in 1895, stated that
“mischievous consequences . . . would flow from” permitting
juries to answer questions of law. 25 	What one jury may “declare
constitutional today another jury may declare unconstitutional

26 Id. at 73.
27 United States v. Gaudin, 515 U.S. 506, 513 (1995).
28 Winans v. Denmead, 56 U.S. 330, 338 (1854) (“[A] question
of law” is “to be determined by the court . . . . 	[A] question
of fact” is “to be submitted to a jury.”); see also Blakely v.
Washington, 542 U.S. 296, 313 (2004) (analyzing the Sixth
Amendment and stating that “every defendant has the right to
insist that the prosecutor prove to a jury all facts legally
essential to the punishment” (emphasis added) (emphasis
omitted)); Judd ex rel. Montgomery v. Drezga, 2004 UT 91, ¶ 34,
103 P.3d 135 (“[Q]uestions of fact are distinctly within the
jury’s province,” but “it is up to the court to conform the
jury’s findings to applicable law.”).
29 Gaudin, 515 U.S. at 513 (emphasis omitted); see also
Sparf, 156 U.S. at 99 (stating that it is not the role of jurors
to “respond to questions of law”).
No. 20080558 	8
tomorrow.” 26 	Thus, it is the role of the judge to “instruct the
jury on the law and to insist that the jury follow his [or her]
instructions.” 27 	It is the role of the jury to find facts and
apply them to the judge’s instructions on the law. 28 	Thus, a
defendant does not have the right, constitutional or statutory,
to a jury trial when only “pure questions of law” need to be
decided. 29
¶15 	In this case, Palmer has not asked that the jury
determine the fact of his prior conviction; that is, he has not
asked to have a jury determine whether he was previously
convicted of two DUIs. 	Rather, he has sought to have a jury
determine the legal rule governing when his conviction took
place, whether at the time of pleading guilty or at the time of
sentencing. 	Because we determine that this is a pure question of
law, which cannot implicate the right to a jury trial, we do not
reach the issue of whether a defendant who does raise a factual
question regarding his prior DUI convictions has a Utah
Constitutional or a statutory right to a jury determination on
that issue.
¶16 	“Factual questions are generally regarded as entailing
the empirical, such as things, events, actions, or conditions
happening, existing, or taking place, as well as the subjective,

30 State v. Pena, 869 P.2d 932, 935 (Utah 1994) (citing
Ronald R. Hofer, Standards of Review--Looking Beyond the Labels,
74 Marq. L. Rev. 231, 236 (1991)).
31 Id.
9 	No. 20080558
such as state of mind.” 30 	Questions of law are “essentially
[questions] of rules or principles uniformly applied to persons
of similar qualities and status in similar circumstances.” 31
¶17 	The question at issue in this case is whether a
conviction occurs when the defendant pleads guilty or when the
defendant is sentenced. 	The parties did not disagree regarding
the dates of the guilty plea or the sentencing. 	Indeed, Palmer
admitted that he would have three DUI convictions in ten years,
and qualify for the sentence enhancement, if the conviction of
his first DUI occurred when he was sentenced. 	Thus, he only
disagreed regarding the legal definition of “conviction.” 	The
question asks the court to answer when a conviction occurs--the
answer to this question is uniformly applicable. 	The answer does
not depend on particular circumstances, events, actions,
conditions, or a state of mind. 	Rather, the answer is
universally applied to the common practice of defendants entering
guilty pleas and subsequently being sentenced. 	Because Palmer’s
only contention regarding the application of the sentence
enhancement was one of law, he had neither a constitutional nor a
statutory right to a jury trial regarding his sentence
enhancement.
CONCLUSION
¶18 	Essential to the right to a jury trial is the existence
of a fact in dispute for the jury to determine. 	The right to a
jury determination is not implicated when there is only a legal
dispute. 	Because Palmer challenged only the legal “definition of
conviction” and not a factual issue, he did not have a right to
have a jury determine his guilt under the DUI recidivism
enhancement provision. 	Accordingly, we affirm the result of the
court of appeals opinion, but we vacate the court’s reasoning.
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¶19 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.