State v. Maguire , 341 Utah Adv. Rep. 27 ( 1998 )

HOWE, Chief Justice:

The court of appeals reversed a district court order denying defendant Brian Ma-guire’s motion to correct his sentence. We then granted the State’s petition for a writ of certiorari to review the court of appeals’ decision that Utah Code Ann. § 76-3-405 (1995) precluded the district court from imposing a more severe sentence on Maguire after he was reconvicted following the withdrawal of his no contest plea.

BACKGROUND

While on parole from the Utah State Prison for a prior murder conviction, Maguire assaulted his grandmother and tore off the top third of her ear. The State revoked his parole and charged him with aggravated assault, a third degree felony; mayhem, a second degree felony; and being a habitual criminal, a first degree felony. Maguire entered into a plea agreement with the prosecutor wherein he pleaded no contest to the aggravated assault charge. In exchange for this plea, the prosecutor agreed to dismiss the other two charges and recommended reducing the aggravated assault conviction from a third degree felony to a class A misdemeanor. The district court judge accepted the plea agreement and sentenced Maguire to a term of not more than one year in the Utah State Prison. This term ran concurrently with the murder sentence that he was serving because the trial judge did not specify it as “consecutive.” See Utah Code Ann. § 76-3-401(1).

Shortly after Maguire was sentenced, he moved to withdraw his no contest plea. The court ultimately denied his motion, but by that time, he had served his one-year sentence.¹ He appealed, and the court of appeals, in an unpublished memorandum decision, reversed the district court’s order denying Maguire’s motion to withdraw his plea because the district court had not strictly complied with the requirements of rule 11 of the Utah Rules of Criminal Procedure in accepting his plea. On writ of certiorari, we affirmed the court of appeals’ decision. State v. Maguire, 830 P.2d 216 (Utah 1991) (per curiam). On remand to the district court, Maguire was finally allowed to withdraw his no contest plea.

After Maguire withdrew his plea, the State reinstated the aggravated assault, mayhem, and habitual criminal charges, and a trial date was set. During trial, the prosecutor again offered Maguire a plea bargain which he accepted. As before, Maguire agreed to plead guilty to aggravated assault in exchange for the dismissal of the mayhem and habitual criminal charges. However, this time, the prosecutor did not agree to recommend that Maguire be sentenced to a class A misdemeanor, and the district court judge sentenced him to a term not to exceed five years.² Furthermore, the judge expressly stated that this term was to run consecutively to the term he was already serving for his prior murder conviction.

Approximately two years after the court sentenced Maguire pursuant to his second plea, he moved to correct his sentence pursuant to Utah Code Ann. § 76-3^05 (1995).³ He argued that this section precluded the court from imposing a more severe sentence on him for aggravated assault than was imposed after his first plea and conviction. The district court denied this motion, and Ma-guire appealed.

On appeal to the court of appeals, he again argued that his second sentence was unlawful under section 76-3-405. He also argued that his second sentence violated the prohibition against double jeopardy. See U.S. Const, amend. V; Utah Const, art. I, § 12; Utah Code Ann. § 77-l-6(2)(a). The court of appeals agreed with Maguire’s argument under section 76-3-405 and reversed his second sentence. See State v. Maguire, 924 P.2d 904, 906-07 (Utah Ct.App.1996). Because the court based its decision on section 76-3-405, it did not reach Maguire’s double jeopardy arguments. We then granted the State’s petition for writ of certiorari to review the court of appeals’ decision. See State v. Maguire, 931 P.2d 146 (Utah 1997).

ANALYSIS

The narrow issue presented by this case is whether section 76-3-405 prohibited the district court from imposing a more severe sentence on Maguire for aggravated assault after he prevailed on appeal and was allowed to withdraw his first plea. That section provides:

Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied.

Utah Code Aon. § 76-3-405 (emphasis added). The court of appeals determined that the plain language of this statute precluded Maguire’s second sentence. See Maguire, 924 P.2d at 907.

While we agree that the language of section 76-3-405 is plain, the fundamental question that we must answer in this ease is whether Maguire’s conviction was actually “set aside on direct review or collateral attack.” We hold that it was not.

The court of appeals overlooked the fact that Maguire simply appealed from the district court’s order denying his motion to withdraw his no contest plea; he did not actually attack his conviction. This distinction is important because in State v. Powell, 957 P.2d 595 (Utah 1998), a case also decided today, we held that

[w]hen an order denying a motion to withdraw a plea is reversed on appeal, the appellate court does not “set aside” the conviction. Rather, the appellate court merely overturns the trial court’s order and then remands the case to allow the defendant to withdraw his plea if he still desires to do so.

957 P.2d at 596. Therefore, Maguire’s conviction was not actually “set aside” on appeal.

Nevertheless, we note that the court of appeals stated in its unpublished memorandum decision that “we vacate defendant’s conviction and remand to the trial court to allow defendant to withdraw his no contest plea.” State v. Maguire, No. 900045, slip op. 1, 3 (Utah Ct.App. Nov. 16, 1990) (mem.) (emphasis added). In our view, the highlighted portion of this statement is neither correct nor tenable. First, it is incorrect because, as stated above, a defendant’s conviction is not actually “set aside” when the appellate court merely reverses the trial court’s denial of a motion to withdraw a plea. Rather, defendant sets aside his own conviction by withdrawing his plea on remand. Second, it is untenable because there would have been no reason to remand the case for the purpose of allowing him to withdraw his plea if Maguire’s conviction was actually vacated by the court on appeal. His conviction would have already been vacated and the only reason for remand would be to conduct a trial. For these reasons, we conclude that, in actuality, the court of appeals merely reversed the trial court’s order denying Ma-guire’s motion and then remanded the case to allow him to withdraw his plea.⁴ Thus Maguire’s conviction was “set aside” on remand, not on appeal. Accordingly, we hold that section 76-3-405 did not preclude the district court from imposing a more severe sentence on Maguire after he withdrew his first no contest plea and then entered a second plea to the same offense.

As explained further in Powell, our decision today is consistent with the purposes of section 76-3-405. It is also in accord with the plain language of that statute as demonstrated above. And finally, it advances public policy by preventing a defendant from retaining the benefits of a plea bargain while rescinding his part of the agreement.

In addition to the foregoing, Maguire also argues that we must reverse his second sentence because it violates the guarantee against double jeopardy. However, this issue is outside the scope of our review on a writ of certiorari. In granting the State’s petition for certiorari, we only agreed to review the court of appeals’ decision applying section 76-3-405 to preclude Maguire’s second sentence. The court of appeals did not reach the double jeopardy issue, and therefore, neither can we. See Utah R.App.P. 49(a)(4) (stating that supreme court will only consider those issues that are fairly included in the petition for writ of certiorari). Hence, the proper procedure is for us to reverse the court of appeals’ decision and remand this case to that court for consideration of the double jeopardy issue.

CONCLUSION

For the reasons stated above and in our decision in Powell, we conclude that the court of appeals erred in holding that section 76-3-405 precluded the district court from imposing a more severe sentence on Maguire after he prevailed on appeal and was allowed to withdraw his first plea. Moreover, we hold that Maguire’s double jeopardy arguments are not properly before us. Therefore, we reverse the court of appeals’ decision and remand this case to that court to decide whether double jeopardy prevented the imposition of Maguire’s second sentence.

Reversed and remanded.

STEWART, ZIMMERMAN and RUSSON, JJ., concur in Chief Justice HOWE’s opinion.

1 . On April 21, 1988, the trial court sentenced him to one year in prison with thirty days credit for time already served. The trial court did not deny his motion to withdraw his plea until December 1, 1989. Therefore, Maguire had fully completed his sentence at the time of the court’s ruling.

2 . The court sentenced Maguire on November 30, 1992, and gave him credit for the time already served since April 21, 1988. The sentence imposed by the trial court was in accord with the indeterminate term prescribed by statute for a third degree felony. See Utah Code Ann. § 76-3-203(3).

3 .Section 76-3-405 was amended in 1997 making it inapplicable to cases where a defendant enters into a plea agreement and then later successfully moves to withdraw his plea. However, because Maguire's second sentence was imposed before the 1997 amendment, we must rely on the pre-amended version of the statute to decide this case. Therefore, all further references to section 76-3-405 are to the 1995 version unless stated otherwise.

4 . We also note that in affirming the opinion of the court of appeals, we likewise stated, "The decision of the court of appeals vacating defendant’s conviction and remanding the case for a withdrawal of plea is affirmed.” Maguire, 830 P.2d at 217. For the reasons stated above, the foregoing statement by this court is also incorrect. Maguire's conviction was not actually vacated until he withdrew his plea on remand to the trial court.