State v. Martinez

2021 UT 38IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
SAUL MARTINEZ,
Petitioner.
No. 20191053
Heard April 14, 2021
Filed July 29, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Richard D. McKelvie
No. 151907946
Attorneys:
Sean D. Reyes, Att’y Gen., Nathan Anderson, David A. Simpson,
Ass’t Solic. Gens., Tony F. Graf, Salt Lake City, for respondent
Nathalie S. Skibine, Lacey Cole Singleton, Salt Lake City,
for petitioner
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Saul Martinez was convicted of both felony discharge of a
firearm and attempted murder. He moved to vacate the felony
discharge counts under the doctrine of merger, asserting that the
two sets of charges arose out of the “same acts” (gunshots fired at
a man he believed to be having an affair with his wife) and were
thus subject to merger under Utah Code section 76-1-402(1). The
State opposed the motion. It noted that the merger doctrine is
subject to an exception where there is “an explicit indication of
legislative intent” to provide for conviction of two crimes that
would otherwise merge. See State v. Bond, 2015 UT 88, ¶ 70, 361
STATE v. MARTINEZ
Opinion of the Court
P.3d 104 (citation omitted). And it asserted that the legislature had
provided such an indication in Utah Code section 76-5-203(5)(a), a
provision expressly foreclosing merger for any “predicate offense
described in” the murder statute “that constitutes a separate
offense.” The State claimed that felony discharge is a separate
offense “described in” subsection (1) of the murder statute as a
“predicate offense.” See UTAH CODE § 76-5-203(1)(v), (5)(a). And it
accordingly contended that Martinez was subject to conviction
and sentencing on both sets of criminal charges.
¶2 The district court denied the motion. It acknowledged
that the “evidentiary underpinnings” of the two sets of crimes
were “the same.” And it noted that the motion raised important
questions of statutory interpretation. But it upheld the State’s
view and concluded that it could address the concerns regarding
evidentiary overlap as a matter of sentencing—and did so by
imposing sentences that were to run concurrently.
¶3 The court of appeals affirmed. See State v. Martinez, 2019
UT App 166, 452 P.3d 496. It held that the legislature had
“explicitly indicated its intent” to preclude merger of the crimes at
issue in this case. Id. ¶ 21. And in so doing it rejected two separate
arguments advanced by Martinez for avoiding the application of
Utah Code section 76-5-203(5)(a) to this case—(1) that the statute
is limited to “murder charges premised on a felony-murder
theory,” id. ¶ 22; and (2) that it “does not apply to attempt
crimes,” id. ¶ 23.
¶4 On the first point, the court of appeals concluded that
felony discharge qualifies as a “predicate offense” described in
subsection (1) of the murder statute even where such offense does
not function as a necessary element of murder—as it would with a
charge of felony murder. Id. ¶¶ 22–23. On the second point, the
court asserted that “both murder and attempted murder are
evaluated using the same statutory elements.” Id. ¶ 23. And on
that basis it held that “the prohibition against a predicate offense
merging with murder also prevents that offense from merging
with attempted murder.” Id.
¶5 We granted Martinez’s petition for certiorari in
recognition of the significant questions of statutory interpretation
presented. And we review the decision of the court of appeals for
correctness, without affording any deference to its analysis. Estate
of Faucheaux v. City of Provo, 2019 UT 41, ¶ 9, 449 P.3d 112.
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¶6 We agree with the court of appeals’ analysis on the first
point but disagree with its disposition of the second. And we
reverse on that basis. We first hold that section 203(5)(a)
encompasses any offense that is “described in” subsection (1) of
the murder statute. Like the court of appeals, we conclude that
this provision is not directed to “predicate offenses” that serve as
necessary elements of felony murder. That application is covered
separately by section 76-5-203(5)(b)—a provision that speaks to
merger where a murder conviction is “based on” a predicate
offense described in subsection (1). And on these and other
grounds we find that the legislature has given an explicit
indication of its intent to foreclose merger for any offense (like
felony discharge) that is “described in” the statutory list of
offenses.
¶7 We reach a different conclusion, however, with respect to
the statute’s application to the crime of attempted murder. We
agree with the court of appeals that there is some overlap between
the crimes of murder and attempted murder. But we also note
that the overlap is incomplete—the crime of attempted murder is
established on the basis of disparate elements, and is treated
distinctly for purposes of sentencing. The latter point is
particularly significant given that the effect of the doctrine of
merger is ultimately a matter of sentencing. And we accordingly
conclude that the legislature has not explicitly stated its intent to
foreclose the general rules of merger as applied to the crime of
attempted murder.
I
¶8 “A defendant may be prosecuted in a single criminal
action for all separate offenses arising out of a single criminal
episode.” UTAH CODE § 76-1-402(1). The code puts limits on
punishment for multiple crimes arising out of such an episode,
however. When “the same act of a defendant . . . establish[es]
offenses which may be punished in different ways under different
provisions” of the code, “the act shall be punishable under only
one such provision.” Id. This is sometimes referred to as the
principle of “same act” merger.
¶9 “A defendant may be convicted of an offense included in
the offense charged but may not be convicted of both the offense
charged and the included offense.” Id. § 76-1-402(3). But again the
code imposes limits. A defendant “may not be convicted of both
the offense charged and the included offense” where an offense is
“included” when (a) “[i]t is established by proof of the same or
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Opinion of the Court
less than all the facts required to establish the commission of the
offense charged”; (b) “[i]t constitutes an attempt, solicitation,
conspiracy, or form of preparation to commit the offense charged
or an offense otherwise included therein”; or (c) “[i]t is specifically
designated by a statute as a lesser included offense.” Id. This is
sometimes referred to as “included offense” merger.
¶10 These are the general rules of statutory merger. Yet these
rules themselves are subject to specific legislative exceptions. The
legislature may “exempt an offense from operation of the merger
doctrine” by indicating its intent to provide for multiple criminal
punishments for multiple crimes arising out of a single act, or for
a greater offense and included offense. State v. Smith, 2005 UT 57,
¶ 11, 122 P.3d 615. And the courts credit such exemptions as a
matter of statutory interpretation. We look to “the plain language
and structure of the statute defining the offense” in question. Id.Under our case law, however, it is “[o]nly when . . . an explicit
indication of legislative intent is present in the specific offense
statute will we consider it appropriate to exempt that statute from
operation of the general merger requirements” in section 76-1-402.
Id.¶11 The question presented is thus whether the legislature
explicitly provided for multiple criminal punishments for the
crimes at issue. Martinez was convicted and sentenced on charges
of felony discharge and attempted murder. Both crimes were
established on the basis of the “same act” of Martinez—gunshots
fired at another person. And the code thus provides for merger of
these crimes unless there is an explicit proviso in the code to the
contrary. See UTAH CODE § 76-1-402(1).
¶12 The code speaks to merger of crimes antecedent to
murder in section 76-5-203(5). That provision includes two
separate subsections. Subsection (5)(a) states that “[a]ny predicate
offense described in” subsection (1) of the murder statute “that
constitutes a separate offense does not merge with the crime of
murder.” Id. § 76-5-203(5)(a). And subsection (5)(b) then provides
that “[a] person who is convicted of murder, based on a predicate
offense described in Subsection (1) that constitutes a separate
offense, may also be convicted of, and punished for, the separate
offense.” Id. § 76-5-203(5)(b).
¶13 The questions presented concern the scope of and
interaction between these provisions. Martinez advances two
grounds for foreclosing the application of subsection (5)(a) to this
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case. First, he interprets the reference to “predicate offense” in
subsection (5)(a) as the adoption of a legal term of art. He asserts
that there is no such thing as a “predicate offense” for non-felony
murder. And because he was charged with attempted knowing or
intentional murder, and could not have been charged with
attempted felony murder,1 he contends that the felony discharge
counts do not qualify as predicate offenses under subsection
(5)(a).
¶14 Even if subsection (5)(a) is deemed to extend to the
intentional or knowing acts at issue in this case, Martinez
nonetheless challenges the applicability of this provision on a
second basis. He notes that he was charged and convicted only on
attempted murder, and emphasizes that the statute speaks only of
merger of predicate offenses and murder. And he asks us to
conclude that the statute does not explicitly foreclose merger as to
the crime of attempted murder.
¶15 We reject Martinez’s first point but accept his second.
And we reverse and remand to the district court for further
proceedings consistent with this opinion.
II
¶16 Subsection 203(5)(a) encompasses any offense that is
“described in” subsection (1) of the murder statute. It is not
directed to “predicate offenses” that serve as necessary elements
of felony murder—that application is covered separately by
subsection 203(5)(b).
¶17 We base this conclusion on explicit indications of
legislative intent in the text and structure of the statute. And we
find Martinez’s counterarguments insufficient to override our
conclusion.
A
¶18 Subsection (5)(a) provides that “[a]ny predicate offense
described in Subsection (1) that constitutes a separate offense does
not merge with the crime of murder.” The key question concerns
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1State v. Bell, 785 P.2d 390, 394 (Utah 1989) (explaining that
“the crime of attempted murder requires proof of intent to kill,”
and thus “that attempted felony-murder does not exist as a crime
in Utah”).
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STATE v. MARTINEZ
Opinion of the Court
the scope of the “predicate offense[s] described in Subsection (1).”
And the statute gives an explicit answer to that question—in the
statutory definition of “predicate offense” set forth in subsection
(1).
¶19 The definition in subsection (1) is straightforward:
As used in this section, ‘predicate offense’ means:
(a) a clandestine drug lab violation under Section 58-
37d-4 or 58-37d-5;
(b) child abuse, under Subsection 76-5-109(2)(a), when
the victim is younger than 18 years of age;
(c) kidnapping under Section 76-5-301;
(d) child kidnapping under Section 76-5-301.1;
(e) aggravated kidnapping under Section 76-5-302;
(f) rape of a child under Section 76-5-402.1;
(g) object rape of a child under Section 76-5-402.3;
(h) sodomy upon a child under Section 76-5-403.1;
(i) forcible sexual abuse under Section 76-5-404;
(j) sexual abuse of a child or aggravated sexual abuse of
a child under Section 76-5-404.1;
(k) rape under Section 76-5-402;
(l) object rape under Section 76-5-402.2;
(m) forcible sodomy under Section 76-5-403;
(n) aggravated sexual assault under Section 76-5-405;
(o) arson under Section 76-6-102;
(p) aggravated arson under Section 76-6-103;
(q) burglary under Section 76-6-202;
(r) aggravated burglary under Section 76-6-203;
(s) robbery under Section 76-6-301;
(t) aggravated robbery under Section 76-6-302;
(u) escape or aggravated escape under Section 76-8-309;
or
(v) a felony violation of Section 76-10-508 or 76-10-508.1
regarding discharge of a firearm or dangerous weapon.
UTAH CODE § 76-5-203(1).
¶20 Martinez’s felony discharge counts qualify as predicate
offenses under this definition. By statute, “predicate offense
means” the specified list of crimes. Id. (emphasis added). Felony
discharge of a firearm is on the list. Id. § 76-5-203(1)(v). And the
statutory definition is controlling. See id. § 68-3-11 (stating that
words and phrases “defined by statute” must be “construed
according to such peculiar and appropriate meaning or
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definition”); Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 30, 70
P.3d 1 (holding that “[w]hen a term is defined within [a] statute,
we look to that definition for guidance when interpreting the
statute”).
¶21 There is no statutory limitation or restriction on the list of
crimes that are defined to fall within the prescribed definition of
“predicate offense.” And we are in no position to add such a
qualifier.2 Where “a definitional section says that a word ‘means’
something, the clear import is that is its only meaning.” ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS 226 (2012). This is the statutorily prescribed
meaning of “predicate offense described in Subsection (1) that
constitutes a separate offense” under section 203(5)(a). And that
meaning controls, and dictates that Martinez’s felony discharge
counts do not “merge with the crime of murder.” See UTAH CODE
§ 76-5-203(5)(a).
B
¶22 Martinez challenges the above conclusion on two central
grounds. We find neither argument sufficient.
1
¶23 Martinez first asserts that “predicate offense” is a term
with specialized meaning in the law of murder. The premise of
this position is correct as far as it goes. In our case law, “predicate
offense” is often used in reference to a crime that serves as a
necessary antecedent to or element of a charge of murder under
Utah Code subsection 76-5-203(2)(d)—so-called felony murder.3
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2See Nevares v. M.L.S., 2015 UT 34, ¶ 34, 345 P.3d 719 (rejecting
an interpretation of a statute on the ground that it ran afoul of the
canon against “read[ing] into the statute a limitation not expressly
stated on its face”); Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 18,
248 P.3d 465 (declining to “add conditions . . . that are not set forth
expressly by legislation”); Orlando Millenia, LC v. United Title
Servs. of Utah, Inc., 2015 UT 55, ¶ 84, 355 P.3d 965 (noting that even
“grave constitutional questions . . . do[] not give us license to add
a qualifier or limitation not evident on the face of the statute”).
3See, e.g., State v. Fedorowicz, 2002 UT 67, ¶¶ 52–54, 52 P.3d
1194 (child abuse as the “predicate offense” for a felony murder
conviction); State v. Graham, 2006 UT 43, ¶ 39, 143 P.3d 268(continued . . .)
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Opinion of the Court
And in that sense of the term, there is no such thing as a
“predicate offense” for a charge of murder under other
subsections of the murder statute.
¶24 Martinez correctly notes that the State is required to
prove that the defendant committed an antecedent “predicate
offense” only in connection with a charge of felony murder. If an
actor “intentionally or knowingly” caused the death of another,
caused death by an act “clearly dangerous to human life” with
intent to cause “serious bodily injury to another,” or caused death
under circumstances evidencing a “depraved indifference to
human life” while knowingly engaging in conduct creating “a
grave risk of death to another,” see id. § 76-5-203(2)(a)–(c), the
crime of murder is established without a requirement of proof of a
“predicate offense” in the sense of an antecedent crime. This
shows that “predicate offense” is limited to felony murder under
the operative definitions of the crime of murder in section 203(2).
And that premise, taken alone, conceivably could be viewed to be
reflected in the “predicate offense[s] described in Subsection (1)”
that are thus subject to merger under section 203(5).
¶25 That conclusion is foreclosed, however, by a series of
contrary indications in the language and structure of the statute.
(a)
¶26 A threshold problem with Martinez’s reading is the
statutory definition of “predicate offense” set forth in subsection
(1). That definition, as noted, says that “predicate offense means”
the crimes listed by statute. UTAH CODE § 76-5-203(1) (emphasis
added). There is no other limitation or restriction on “predicate
offense.” And the statutory definition is thus not limited to
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(kidnapping as the “predicate offense” for a felony murder
conviction). Sometimes we have also used “predicate offense” to
describe an additional offense that heightens the offense of
murder to its “aggravated” variant. See, e.g., State v. Bond, 2015 UT
88, ¶ 67, 361 P.3d 104 (referring to aggravated kidnapping as a
predicate offense for aggravated murder and citing cases that
explain that a “a predicate offense is [therefore also] a lesser
included offense”).
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offenses that establish a basis for the crime of murder (as with
felony murder).
¶27 A statutory “definition is virtually conclusive.” SCALIA &
GARNER, supra, at 228. It is not to be “replaced with another
permissible meaning of the word on the basis of other textual
indications.” Id. And that principle forecloses Martinez’s reading
of the statute, for reasons explained above and on other grounds
set forth below.
(b)
¶28 A second barrier to Martinez’s view appears in the
textual trigger for the anti-merger clause in subsection (5)(a)—and
the contrast between that trigger and the one set forth in
subsection (5)(b). Subsection (5)(a) forecloses merger “with the
crime of murder” as to “[a]ny predicate offense described in
Subsection (1) that constitutes a separate offense.” UTAH CODE § 76-5-
203(5)(a) (emphasis added). (5)(b) has a different focus. It
forecloses merger for any “person who is convicted of murder,
based on a predicate offense described in Subsection (1).” Id. § 76-5-
203(5)(b) (emphasis added). And the distinction between the
triggers for these two provisions undermines Martinez’s attempt
to limit the former to crimes that form a basis for felony murder.
¶29 A crime that is enumerated in subsection (1) is
“described” therein. And it is thus covered by the anti-merger
clause in subsection (5)(a) so long as it “constitutes a separate
offense.” Subsection (5)(a) thus encompasses any and all separate
crimes listed in subsection (1). Merger is foreclosed for all separate
offenses “described in” the statutory definition without any
requirement that the crime of murder be “based on” the separate
offense.
¶30 The “based on” requirement, in fact, appears in
subsection (5)(b). That provision forecloses merger for any
“person who is convicted of murder, based on a predicate offense
described in Subsection (1) that constitutes a separate offense.” Id.
§ 76-5-203(5)(b) (emphasis added). The contrast with (5)(a) is
striking. If the legislature had intended to limit subsection (5)(a) to
murder “based on” a predicate offense it could have said so—as it
did in subsection (5)(b). In speaking instead of any “predicate
offense described in Subsection (1),” the legislature was explicitly
stating its intent to foreclose merger not just for offenses that form
the basis for felony murder (as it did in (5)(b)), but for all offenses
enumerated as “predicate offenses” in subsection (1).
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Opinion of the Court
¶31 This highlights a distinct focus for the terms of
subsections (5)(a) and (b). Subsection (5)(a) obviates merger for
non-felony murder (where the separate offense is “described in”
subsection (1)), while (5)(b) does so for felony murder (where the
murder conviction is “based on” the separate offense). Martinez’s
interpretation treats these provisions as equally focused on felony
murder. But such reading fails to credit the distinct terms of each
provision. We reject it on that basis.
(c)
¶32 A final barrier to Martinez’s view appears in the statute of
limitations for predicate offenses. This provision first defines
“predicate offense” as “an offense described in Section 76-5-203(1)
if a person other than a party . . . was killed in the course of the
commission, attempted commission, or immediate flight from the
commission or attempted commission of the offense.” Id. § 76-1-
301(1)(b) (emphasis added). And it then provides that prosecution
may be commenced at any time for “any predicate offense to a
murder or aggravating offense to an aggravated murder.” Id. § 76-
1-301(2)(q).
¶33 The “if” in this statutory definition is significant. It
reinforces the conclusion that a bare reference to “predicate
offense[s]” “described in Section 76-5-203(1)” is not in itself
limited to offenses that are necessary elements of felony murder.
If “predicate offense” were always viewed in that way, there
would be no need for the “if” clause—an express requirement (for
the unlimited limitations period to apply) that the “predicate
offense” “described in Section 76-5-203(1)” also involve the death
of a person killed in the course of an offense that serves as an
element of felony murder. And such reading would run afoul of
the presumption of avoidance of an interpretation rendering
“parts or words in a statute inoperative or superfluous.” Monarrez
v. Utah Dep’t of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846 (citation
omitted).
¶34 Martinez asserts that “predicate offense” is only and
always a reference to a necessary element of felony murder. But
that position is belied by the terms and conditions of the Utah
Code. “Predicate offense” bears a distinct meaning as defined in
section 76-5-203(1)—in an unadorned list of criminal offenses.
And that defined meaning is carried forward in at least two places
in the code: (a) in the terms and structure of subsection 203(5)(a)
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(which, as noted above, covers all separate offenses “described in”
subsection 203(1)); and (b) in the statute of limitations provision.
¶35 A crime can count as a “predicate offense” for felony
murder purposes only if it serves as a necessary element of a
charge of murder under Utah Code section 76-5-203(2)(d). And
that is an important sense of “predicate offense” in our law. But
this is not the only sense of this term. And it is not the sense of the
term at work in the anti-merger clause in subsection 203(5).
2
¶36 Martinez also claims that the specialized sense of
“predicate offense” is established by the purpose and legislative
history of subsection 203(5). He asserts that this provision was
added to the code (in 2008) in response to this court’s decision in
State v. Ross, 2007 UT 89, 174 P.3d 628, abrogated in part by State v.
Hummel, 2017 UT 19, 393 P.3d 314, in an effort “to exempt merger
in the context of felony murder and aggravated murder.” And he
asks us to adopt a limiting construction of subsection 203(5)(a) in
light of this background.
¶37 The Ross decision undoubtedly was on the legislature’s
radar when it enacted the current language of subsection 203(5).
And Martinez has identified statements in legislative hearings
that suggest that some legislators may have been focused on
merger as applied to felony murder and aggravated murder—as
in the Ross case. See Ross, 2007 UT 89, ¶ 61 (concluding that
convictions for aggravated murder and attempted aggravated
murder may not stand when “when the attempted murder of [one
person] was the only aggravating factor” in the completed murder
of another person). But “[l]egislative history is not law.” Graves v.
N.E. Servs., Inc., 2015 UT 28, ¶ 64, 345 P.3d 619. It does not “define
the full breadth of [a] statute’s scope” and cannot be taken to limit
the reach of a statute to the problem giving rise to its enactment.
Id. ¶ 65 (noting that that “would give primacy to legislative
history, and only secondary significance to the duly enacted
statute”).
¶38 We “cannot presume that the legislature meant only to
deal with [one] particular problem, as legislative bodies often start
with one problem in mind but then reach more broadly in their
ultimate enactment.” Hooban v. Unicity Int’l, Inc., 2012 UT 40, ¶ 17,
285 P.3d 766. And we have thus emphasized that “we cannot limit
the reach of [a statute] to the ill that initially sparked [the
legislature’s] interest.” Id.; see also Myers v. Myers, 2011 UT 65,
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¶¶ 26–28, 266 P.3d 806 (noting that “the legislative debate” on a
statute “was addressed mainly to the need to remove a loophole,”
but emphasizing that we cannot “construe” the legislation “as
aimed at that purpose alone”).
¶39 Martinez’s argument fails on this basis. The legislative
hearings that led to the enactment of subsection 203(5) admittedly
reflect a proponent’s view that the 2008 amendments were aimed
at “codif[ying] existing . . . case law” on merger and “felony
murder”—in providing that “if you’re committing a felony and
you cause the death of somebody else you can be convicted both
of the murder . . . and the underlying felony.” Criminal Penalties
Revisions: Hearing on S.B.150 Before the Sen. Judiciary, Law
Enforcement, & Crim. Just. Comm., (Utah Jan 25, 2008),
https://le.utah.gov/av/committeeArchive.jsp?timelineID=47738
(statement of Creighton Horton, Asst. Att’y Gen., minutes 42:22–
40). And the felony murder application may well have been the
“ill that initially sparked” the “interest” of the legislature in this
issue. See Hooban, 2012 UT 40, ¶ 17. But this is just one application
of the text that was enacted into law in 2008. It “cannot properly
be read to define the full breadth of the statute’s scope,” Graves,
2015 UT 28, ¶ 65, where the text itself encompasses not just felony
murder (in the subsection 203(5)(b) reference to murder “based on
a predicate offense”) but also intentional or knowing murder (in
the subsection 203(5)(a) reference to a “predicate offense
described in Subsection (1) that constitutes a separate offense”).
¶40 We reject Martinez’s reliance on the legislative history on
this basis. We conclude, for the reasons noted above, that the
statutory text expressly forecloses merger both for predicate
offenses that are the basis for a murder charge and for those that
are simply described in subsection 203(1). And we hold that the
broad sweep of the statute cannot be limited by the cited
statements in the legislative history.
III
¶41 The crimes of murder and attempted murder admittedly
overlap. As the court of appeals noted, “there is no stand-alone
attempted murder statute that is separate from the murder
statute.” State v. Martinez, 2019 UT App 166, ¶ 23, 452 P.3d 496.
And “Martinez was charged with attempted murder pursuant to
[Utah Code] section 76-5-203, the murder statute.” Id.¶42 The overlap is not complete, however. It is not quite right
to say that “both murder and attempted murder are evaluated
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using the same statutory elements.” Id. There is a key difference in
the actus reus required for each: murder requires proof that the
defendant caused the death of another person, see UTAH CODE §
76-5-203(2), while attempted murder requires proof only of a
“substantial step toward” such an act, id. § 76-4-101(1). And the
two crimes are treated quite differently as a matter of sentencing.
The minimum statutory sentence for murder is fifteen years, see id.
§ 76-5-203(3)(b), while the minimum for attempted murder is
three years, see id. § 76-4-102(1)(c)(i).
¶43 These differences are significant under our case law on
the law of merger. Our cases note that the general rules for
statutory merger of criminal offenses are subject to legislative
exemptions. But we have also required that any exemptions be set
forth in “an explicit indication of legislative intent” in “the plain
language and structure” of the code. State v. Smith, 2005 UT 57,
¶ 11, 122 P.3d 615. And we have held that the explicit indication
must “demonstrate” that a particular provision of the criminal
code “is intended to operate as an enhancement provision”—a
statute “enhancing the penalty for” a given offense. Id. ¶ 13.
Otherwise, “the general merger requirements in section 76-1-
402[]” retain their applicability. Id. ¶ 11.
¶44 The general merger rule at issue provides that a single act
that establishes multiple “offenses” in the criminal code “shall be
punishable under only one such provision.” UTAH CODE § 76-1-
402(1). And the legislature has enacted an explicit exemption from
that provision with regard to “the crime of murder.” Id. § 76-5-
203(5)(a). For that crime, the legislature has expressly stated that a
“predicate offense described in” subsection (1) of the murder
statute “does not merge.” Id. That is an explicit statement of
legislative intent that the offenses described in subsection 203(1)
are to operate as “enhancing the penalty” for murder. Smith, 2005
UT 57, ¶ 13.
¶45 There is no such explicit statement, however, for the crime
of attempted murder. And we find the lack of such statement
controlling given the core difference in the elements of the two
crimes and, perhaps most importantly, the substantial disparity in
the statutorily prescribed sentence. These differences suggest that
these are distinct crimes on the key ground at issue here. And
they are sufficient to persuade us that the legislature has not
enacted an explicit indication of intent to treat the offenses
13
STATE v. MARTINEZ
Opinion of the Court
described in subsection 203(1) as “enhancing the penalty” for
attempted murder.4
¶46 We reverse on this ground. We hold that the anti-merger
clause in subsection 203(5) does not extend to the crime of
attempted murder.
IV
¶47 Utah Code section 76-5-203(5)(a) expressly forecloses
merger for all offenses “described in” subsection (1) of the murder
statute. It does not explicitly extend to the crime of attempted
murder, however.
¶48 We reverse the court of appeals on this basis. And we
remand to the district court for further proceedings consistent
with this opinion.
______________________________________________________________________________
4 Perhaps there were members of the 2008 legislature who
anticipated that the merger clause in section 203(5)(a) might
extend not just to the “crime of murder” but to the crime of
attempted murder as well. The two crimes, as noted, certainly
overlap to some degree. But our cases require an explicit
statement of intent to override the general rules of statutory
merger in a provision providing for a sentencing enhancement.
And the text that was enacted into law in 2008 falls short of so
doing. A future legislature is certainly entitled to take a different
course.
14