State v. Norris , 506 Utah Adv. Rep. 3 ( 2004 )

OPINION

DAVIS, Judge:

¶ 1 After entering an unconditional, voluntary guilty plea to three counts of communications fraud, Richard Norris (Defendant) challenges the constitutionality of the underlying statute (the communications fraud statute) on appeal. See Utah Code Ann. § 76-10-1801 (2003).¹ We affirm.

BACKGROUND

¶ 2 Defendant was charged with seven counts of communications fraud and was bound over on all counts. See Utah Code Ann. § 76-10-1801 (2003). After several days of trial, Defendant entered an unconditional, voluntary guilty plea to three counts of third-degree-felony communications fraud. See id. § 76-10-1801(l)(c). After sentencing, and without moving to withdraw his guilty pleas, Defendant filed a timely notice of appeal, mounting a facial challenge to the constitutionality of the communications fraud statute on overbreadth and vagueness grounds.

ISSUES AND STANDARDS OF REVIEW

¶ 3 We consider two issues on appeal. First, we must determine whether this court has subject matter jurisdiction to consider Defendant’s constitutional challenge after Defendant entered an unconditional, voluntary guilty plea. “The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness.... ” Beaver County v. Qwest, Inc., 2001 UT 81,¶ 8, 31 P.3d 1147. Second, if this court has jurisdiction, then we must consider whether the communications fraud statute is unconstitutionally overbroad or vague on its face. “Constitutional challenges to statutes present questions of law, which we review for correctness.” Provo City Corp. v. Thompson, 2004 UT 14,¶ 5, 86 P.3d 735. “When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality.” State v. Lopes, 1999 UT 24,¶ 6, 980 P.2d 191.

ANALYSIS

I. Subject Matter Jurisdiction

¶ 4 “The general rule applicable in criminal proceedings ... is that by pleading guilty, the defendant is deemed to have admitted all of the essential elements of the crime charged and thereby waives all nonju-risdictional defects, including alleged pre-plea constitutional violations.” State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989); see also State v. Hardy, 2002 UT App 244,¶ 13, 54 P.3d 645. The State asserts that Defendant’s facial challenge to the constitutionality of the communications fraud statute falls within the ambit of the “pre-plea constitutional violations” mentioned in Parsons. 781 P.2d at 1278. Therefore, the State argues that because Defendant’s challenge is nonju-risdictional in nature, it was waived by his guilty plea. Defendant asserts that “pre-plea constitutional violations,” id., encompass violations involving such things as Miranda admonitions and search warrants, and that a facial constitutional challenge to a statute is, at its heart, a jurisdictional issue. Therefore, Defendant argues that his challenge was not waived by his guilty plea.

¶ 5 “Subject matter jurisdiction is the power and authority of the court to determine a controversy and without which it cannot proceed.” Thompson v. Jackson, 743 P.2d 1230, 1232 (Utah Ct.App.1987) (per curiam). Subject matter jurisdiction “can neither be waived nor conferred by consent of the accused. Objection to the jurisdiction of the court over the subject matter may be urged at any stage of the proceedings, and the right to make such an objection is never waived.” James v. Galetka, 965 P.2d 567, 570 (Utah Ct.App.1998) (quotations and citations omitted). When subject matter jurisdiction is an issue, “[i]t is the duty of this court to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.’ ” EEOC v. Chicago Club, 86 F.3d 1423, 1428 (7th Cir.1996) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)).²

¶ 6 “In general, a plea of guilty waives all nonjurisdictional defects, but does not bar appeal of claims that the applicable statute is unconstitutional or that the indictment fails to state an offense.” United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.1979). “Although a guilty plea waives all non[ ]jurisdictional defects and fact issues, a vagueness challenge is a jurisdictional defect. Thus, following a guilty plea, a defendant could raise on appeal that he was prosecuted under an unconstitutional statute.” United States v. Skinner, 25 F.3d 1314, 1317 (6th Cir.1994) (quotations and citation omitted); see Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam) (“We simply hold that a plea of guilty to a charge does not waive a claim thaU-judged on its face — the charge is one which the State may not constitutionally prosecute.”); Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (holding that guilty plea did not preclude the defendant from raising his constitutional claims because they “went to the very power of the State to bring the defendant into court to answer the charge brought against him”); United States v. Whited, 311 F.3d 259, 262 (3d Cir.2002) (addressing defendant’s claim that the underlying statute was unconstitutional because it “properly f[e]ll within the narrow scope of review not barred by a guilty plea”), cert, denied, 538 U.S. 1065, 123 S.Ct. 2234, 155 L.Ed.2d 1121 (2003); United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (recognizing that a claim that a statute is facially unconstitutional is a jurisdictional claim not waived by a guilty plea); United States v. McKenzie, 99 F.3d 813, 816 (7th Cir.1996) (addressing defendant’s argument on appeal after his guilty plea because he made “the only argument available to him by asserting a jurisdictional challenge based on the constitutionality of the underlying statute”); United States v. Kenney, 91 F.3d 884, 885 n. 1 (7th Cir.1996) (“[The defendant] entered his guilty plea without preserving his constitutional challenge[ to the underlying statute] for appeal. However, the government has expressly declined to raise a waiver argument, citing United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.1995) (challenge to constitutionality of statute of conviction is, in certain circumstances, jurisdictional claim not waived by guilty plea).”); Bell, 70 F.3d at 496-97 (addressing defendant’s challenge to the constitutionality of the underlying statute after recognizing the principle that such a challenge “is a jurisdictional claim which is not waived by the guilty plea”); United States v. Palacios-Casquete, 55 F.3d 557, 561 (11th Cir.1995) (“A guilty plea ... does not waive the right of an accused to challenge the constitutionality of the statute under which he is convicted.”); Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir.1990) (holding that the defendant “did not waive his constitutional attack on the [underlying] statute by pleading guilty”); United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989) (stating that although the dividing line between constitutional claims that are waived by a guilty plea and those that survive the plea is not “crystal-clear,” “[e]laims that ‘the applicable statute is unconstitutional or that the indictment fails to state an offense’ are jurisdictional claims not waived by the guilty plea” (quoting Broncheau, 597 F.2d at 1262 n. 1)), amended by 907 F.2d 115 (9th Cir.1990); United States v. Barboa, 777 F.2d 1420, 1423 n. 3 (10th Cir.1985) (“A plea of guilty .... does not bar a claim that the defendant may not constitutionally be convicted in the first instance.... If [the defendant] ple[aded] guilty to something which was not a crime, he is not now precluded from raising this jurisdictional defect, which goes ‘to the very power of the State to bring the defendant into court to answer the charge brought against him.’ ” (quoting Blackledge, 417 U.S. at 30, 94 S.Ct. 2098)); United States v. Hill, 564 F.2d 1179, 1180 (5th Cir.1977) (per cu-riam) (recognizing that “a guilty plea does not bar an appeal that asserts that ... the charge is unconstitutional”); United States v. Tallant, 547 F.2d 1291, 1295 n. 5 (5th Cir. 1977) (recognizing that a claim based upon “the unconstitutionality of the statute underlying the indictment” was an “appealable issue[ ] following a ... guilty plea”); United States v. Winter, 509 F.2d 975, 978 n. 8 (5th Cir.1975) (recognizing “that after entering ... a plea of guilty, a defendant may only appeal jurisdictional defects in the proceeding below, such as ... the unconstitutionality of the statute underlying the indictment”); Mercado v. Rockefeller, 502 F.2d 666, 672 (2d Cir.1974) (“[I]t is clear that [a] guilty plea waives only nonjurisdictional defects and does not waive the right to contest the constitutionality of the statute that is the basis for a conviction.” (second alteration in original) (quotations and citation omitted)); United States v. Cox, 464 F.2d 937, 941 (6th Cir.1972) (recognizing that “[a] defendant who has pleaded guilty is not barred from claiming ... that the statute under which he was charged is unconstitutional” (quotations and citation omitted)); 1A Charles Alan Wright, Federal Practice and Procedure: Criminal § 175 (3d ed. 1999) (“[T]he preclu-sive effects of guilty pleas do not apply to constitutional claims that go ‘to the very power of the State to bring the defendant into court to answer the charge brought against him.’ A defendant who has pleaded guilty may still contend ... that the statute under which he was charged is unconstitutional.” (quoting Blackledge, 417 U.S. at 30, 94 S.Ct. 2098) (footnotes omitted)).

¶ 7 Because a facial challenge to the constitutionality of a statute directly cuts to “the power and authority of the court to determine a controversy,” Thompson, 743 P.2d at 1232, it is necessarily a jurisdictional matter. Accordingly, an unconditional guilty plea does not operate as a waiver of a facial constitutional challenge to a statute, because such a challenge is jurisdictional in nature.³ Therefore, we address Defendant’s arguments.⁴

II. Constitutional Challenge

¶ 8 Defendant argues that the communications fraud statute is unconstitutionally over-broad and vague. See Utah Code Ann. § 76-10-1801 (2003). We consider each of his arguments in turn.

A. Overbreadth

¶ 9 “In considering whether a statute [is overbroad], a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” In re I.M.L., 2002 UT 110,- ¶ 15, 61 P.3d 1038 (quotations and citations omitted). We examine “criminal statutes ... with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Id. (quotations and citations omitted). However, “[o]nly a statute that is substantially overbroad may be invalidated on its face.” City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). Over-breadth “must not only be real, but substantial as well.” Ashcroft v. ACLU, 535 U.S. 564, 584, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (quotations and citation omitted).

¶ 10 When interpreting the challenged language, “we look to the statute’s plain language and presume that the legislature used each term advisedly.” In re I.M.L., 2002 UT 110 at ¶ 16, 61 P.3d 1038. “Statutory language is overbroad if its language proscribes both harmful and innocuous behavior.” Salt Lake City v. Lopez, 935 P.2d 1259, 1263 (Utah Ct.App.1997) (quotations and citations omitted). The communications fraud statute prohibits

devis[ing] any scheme or artifice to defraud another or to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions, and ... communicating] directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice.

Utah Code Ann. § 76-10-1801(1). Defendant posits that the communications fraud statute is overbroad “because it permits criminal prosecution and sanctions in every case involving a communication[ ] that could be construed as dishonest.” Specifically, Defendant argues that the communications fraud statute does not require an intent to defraud, and that it criminalizes innocuous behavior because “[a]s long as there is an artifice, a false communication in any form made for the purpose of executing the artifice, and a desire to obtain anything of value, the elements of the communications fraud statute are met.” Defendant also alleges that the modes of communications prohibited in the communications fraud statute are similarly overbroad and prohibit constitutionally protected conduct. See id. § 76-10-1801(6). We disagree.

¶ 11 First, the communications fraud statute does not prohibit all false “pretenses, representations, promises, or material omissions,” only those where an individual seeks “to defraud another or to obtain from another money, property, or anything of value.” Id. § 76-10-1801(1). Second, it requires proof that the false or fraudulent “pretenses, representations, promises, or material omissions made or omitted were made or omitted intentionally, knowingly, or with a reckless disregard for the truth.” Id. § 76-10-1801(7). While the First Amendment may value some falsehoods for their contribution to public debate, see New York Times Co. v. Sullivan, 376 U.S. 254, 279 n. 19, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it has not given protection to malicious statements that were made “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” Id. at 279-80, 84 S.Ct. 710. The communications fraud statute draws the distinction between criminal and innocent behavior with a similar mens rea, and thus, it cannot be said that it is “substantially overbroad” and should be “invalidated on its face.” Hill, 482 U.S. at 458, 107 S.Ct. 2502. Accordingly, we conclude that the communications fraud statute is not over-broad on its face.

B. Vagueness

¶ 12 Defendant argues that the communications fraud statute is unconstitutionally vague in its use of the terms “artifice,” “communicate,” and “anything of value.” Utah Code Ann. § 76-10-1801(1), (6)(a). “The void-for-vagueness doctrine requires that a statute or ordinance define an offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Lopez, 935 P.2d at 1265 (quotations and citations omitted). However, because the communications fraud statute “implicates no constitutionally protected conduct,” Defendant must show that it “is impermissibly vague in all of .its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

¶ 13 Defendant argues that the term “artifice,” Utah Code Ann. § 76-10-1801(1), is defined too broadly' and would encompass any form of'deceit so that ordinary persons would not know whether the deceit was prohibited. While not defined in the communications fraud statute, “artifice” is commonly understood to mean “an artful stratagem,” or a “trick.” Webster’s New Collegiate Dictionary 106 (9th ed.1986). Black’s Law Dictionary defines “artifice” similarly as “[a] clever plan or idea, especially] one intended to deceive.” Black’s Law Dictionary 108 (7th ed.1999). Additionally, we do not read the term “artifice,” Utah Code Ann. § 76-10-1801(1), in a vacuum, but rather as it relates to the other terms within the communications fraud statute. See Dowling v. Bullen, 2004 UT 50,¶ 8, 94 P.3d 915 (stating that “[s]ubsections of a statute should not be construed in a vacuum but must be read as part of the statute as a whole” (alteration in original), (quotations and citation omitted)). Contrary to Defendant’s assertions, the communications fraud statute does not prohibit all artful stratagems and tricks, only those meant to, inter alia, defraud others. While the term “artifice,” Utah Code Ann. § 76-10-1801(1), may be construed broadly, “a statute is not unconstitutionally vague because it is broad.” State v. Wareham, 772 P.2d 960, 966 (Utah 1989). We conclude that the term “artifice,” Utah Code Ann. § 76-10-1801(1), is used with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Lopez, 935 P.2d at 1265 (quotations and citations omitted). Therefore, we conclude that the term “artifice,” as used in the communications fraud statute, is not unconstitutionally vague. Utah Code Ann. § 76-10-1801(1).

¶ 14 Defendant next argues that the term “communicate,” Utah Code Ann. § 76-10-1801(6)(a), is vague because it is “given the broadest possible definition” under the communications fraud statute. The communications fraud statute prohibits “communi-cat[ing] directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice.” Id. § 76-10-1801(1). Additionally, it specifically states that to communicate “means to bestow, convey, make known, recount, impart; to give by way of information; to talk over; or to transmit information.” Id. § 76-10-1801(6)(a). Defendant’s argument is unavailing. Although “communicate,” Utah Code Ann. § 76 — 10—1801(6)(a), is broadly defined, this does not necessarily make the term unconstitutionally vague. See Wareham, 772 P.2d at 966. Indeed, the communications fraud statute does not seek to punish those who keep an artifice or scheme to themselves. Defendant fails to demonstrate how “ordinary people can[not] understand what conduct is prohibited,” Lopez, 935 P.2d at 1265 (quotations and citations omitted), and therefore, fails to demonstrate that the term “communicate,” as used in the communications fraud statute, is unconstitutionally vague. Utah Code Ann. § 76 — 10—1801(6)(a).

¶ 15 Finally, Defendant argues that the phrase “anything of value,” Utah Code Ann. § 76-10-1801(1), is unconstitutionally vague because it is undefined and left open to a variety of interpretations. Defendant proffers numerous hypothetical situations in an attempt to illustrate the vagueness of the phrase “anything of value.” Id. However, “speculation about possible vagueness in hypothetical situations not before the [e]ourt will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications.” Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quotations and citation omitted). Defendant was charged under the communications fraud statute because he devised a scheme to defraud others of “money.” Utah Code Ann. § 76-10-1801(1). We believe that “the vast majority of [the communications fraud statute’s] intended applications,” Colorado, 530 U.S. at 733, 120 S.Ct. 2480 (quotations and citations omitted), will involve incidents where individuals have defrauded others of “money” or “property,” Utah Code Ann. § 76-10-1801(1), both of which are terms that are sufficiently understood to allow ordinary citizens to determine what conduct is prohibited. See Lopez, 935 P.2d at 1265. Additionally, ■ because Defendant was charged with devising a scheme to defraud others of “money,” Utah Code Ann. § 76-10-1801(1), his actions do not fall within the “anything of value” realm, id., and thus, he may not challenge this phrase as unconstitutionally vague. See Village of Hoffman Estates, 455 U.S. at 495 n. 7, 102 S.Ct. 1186 (“One to whose conduct a statute clearly applies may not successfully challenge .it for vagueness.” (quotations and citation omitted)).⁵

¶ 16 Defendant’s constitutional challenge to the communications fraud statute fails. We conclude that the communications fraud statute is neither unconstitutionally overbroad, nor unconstitutionally vague.

CONCLUSION

¶ 17 A facial challenge to the constitutionality of a statute is jurisdictional in nature and, therefore, we conclude that Defendant’s facial challenge to the constitutionality of the communications fraud statute is not barred by his voluntary, unconditional guilty plea. However, in considering Defendant’s facial challenge to the communications fraud statute on overbreadth and vagueness grounds, we conclude that it is not unconstitutionally overbroad or vague. Accordingly, we affirm Defendant’s conviction. .

1 . Because the communications fraud statute has not changed since Defendant was charged, we cite to the most current version for convenience.

2 . Instead of focusing on whether subject matter jurisdiction exists in a particular context, Judge Bench relies on Utah cases generally describing jurisdiction of our courts of general jurisdiction. The issue squarely presented in this case has not been addressed by Utah courts.

Our jurisprudence, however, is no stranger to the concept that a court with general jurisdiction over a particular claim may or may not have subject matter jurisdiction over that claim. Although not directly analogous to the case at bar, perhaps the best example involves claims against governmental entities. There is no question that courts of general jurisdiction in Utah have jurisdiction over those claims. This notwithstanding, however, Utah appellate decisions have repeatedly held that the failure to strictly comply with the statutory requirements for claims against governmental entities deprives those courts of subject matter jurisdiction over such claims. See, e.g., Greene v. Utah Transit Auth., 2001 UT 109,¶¶ 16-17, 37 P.3d 1156; Security Inv. Ltd. v. Brown, 2002 UT App 131,¶ 13, 47 P.3d 97.

3 . The justice court appeal process analog in Judge Bench's opinion is somewhat puzzling.

Since justice courts are not courts of record, traditional appellate review is generally unavailable or severely limited. This notwithstanding, the Utah Constitution guarantees "the right to appeal in all[ criminal] cases.” Utah Const. art. I, § 12. In City of Monticello v. Christensen, 788 P.2d 513 (Utah 1990), our supreme court ruled that the trial de novo appellate procedure now set out in Utah Code Annotated section 78-5-120 (2002) satisfied this constitutional mandate. See Christensen, 788 P.2d at 518-19. Following a trial de novo, traditional appeal therefrom is available only if "the district court rules on the constitutionality of a statute or ordinance.” Utah Code Ann. § 78-5-120(7).

In our view, this unique process for obtaining review of justice court proceedings has nothing to do with issue preservation or waiver of nonju-risdictional constitutional claims by voluntary guilty plea — section 78-5-120 makes no reference to either. Indeed, if anything, it is a recognition of the importance of claims involving the constitutionality of statutes or ordinances, specifically contemplating such challenges in the court of record in the first appeal. Under the statutory scheme, raising the constitutional challenge to the statute or ordinance is the method by which jurisdiction is conferred on appellate courts to entertain further appeals, the defendant having already been accorded his or her constitutional right of appeal from the justice court by trial de novo in a court of record. This is a far cry from the ability to challenge subject matter jurisdiction in an initial appeal of right.

4 . The State argues that Myers v. State, 2004 UT 31, 94 P.3d 211, both addresses and disposes of the issues herein. The appellant's claims in Myers were based upon the Post-Conviction Remedies Act, see id. at ¶ 10; and, to the extent the appellant alluded to constitutional defects in a statute, his challenge was not facial. Accordingly, the Utah Supreme Court characterized his argument as based on an "allegedly incorrect legal interpretation [of a rule of law],” and never addressed or ruled upon the effect of a facial constitutional challenge. Id. at ¶ 17.

5 . In his brief on appeal, Defendant states that "[a]rguably, this is precisely the type of conduct the communications fraud statute was intended to prohibit.”