State v. Stewart

2011 UT App 185, 257 P.3d 1055, 684 Utah Adv. Rep. 39, 2011 Utah App. LEXIS 186, 2011 WL 2276499

• Court: Court of Appeals of Utah
• Decided: June 9, 2011
• Docket: 20090572-CA
• Status: Published

Opinions

OPINION

McHUGH, Associate Presiding Judge:

I 1 Leonard Stewart appeals from his conviction for retail theft with prior convictions, a third degree felony. See Utah Code Ann. §§ 76-6-412, -602 (2008).¹ Stewart appeals the enhancement of his retail theft conviction on the ground that the State did not adequately prove two prior convictions. We affirm.

BACKGROUND

T2 On October 5, 2008, Stewart was caught stealing a wallet and a belt buckle from a Shopko store in Spanish Fork. Although this theft would normally be classified as a class B misdemeanor, see id. § 76-6-412(1)(d) (classifying theft of property as a class B misdemeanor where the value of the stolen property is less than $800), because Stewart had previously been convicted of retail theft on at least two occasions, once in 1999 (the 1999 conviction) and once in 2008 (the 2008 conviction), he was charged with a third degree felony, see id. § 76-6-412(1)(b)@).

13 At a bench trial held on May 21, 2009,² the State presented evidence on both the underlying theft charge and of Stewart's pri- or convictions. With respect to the 1999 conviction, the State provided the trial court with a signed judgment and sentence from the Payson City Justice Court. For the 2008 conviction, however, no signed judgment was available. Instead, the State provided the trial court with a copy of the unsigned judgment, as well as the record from the previous case (the 2008 record). Although the parties have not provided us with the 2008 record, the record we do have indicates that it included documents relating to a guilty plea, Stewart's "continued participation[ ] ... with Adult Probation and Parole," and his "failure to comply with probation on the sentencing for theft." In response, Stewart argued that without a signed judgment, the 2008 record was insufficient to prove that he had been convicted in 2008.

14 The trial court first found Stewart guilty of the current charge of theft. Next, the trial court considered the issue of Stewart's prior convictions. Although the court concluded that the 2008 record provided "ample evidence" of the 2008 conviction, it granted the State's request that it be allowed "to supplement at the time of sentencing any additional information [the State] be-leve[d][it] want[ed] the Court to consider for the purpose of addressing the question on the prior conviction in the second matter." Stewart subsequently filed a motion to arrest judgment, arguing again that the 2008 conviction could not be proven without a signed judgment. The State opposed Stewart's motion and attached a copy of the 2003 judgment that had been signed nune pro tune by the original trial judge after the earlier proceedings. At the time set for sentencing, the trial court denied Stewart's motion to arrest judgment, concluding that even absent the subsequently-signed judgment, the 2008 record provided sufficient evidence of the 2008 conviction. The trial court then sentenced Stewart to zero to five years in prison. Stewart now appeals.

ISSUES AND STANDARDS OF REVIEW

15 Stewart contends that the State presented insufficient evidence to prove that he had been convicted twice previously of theft, arguing that this court's decision in State v. Anderson, 797 P.2d 1114 (Utah Ct.App.1990), requires a signed judgment to prove a prior conviction. In response, the State asserts that Anderson is distinguishable and that a signed judgment was not necessary here. In the alternative, the State contends that if a signed judgment was required, the State cured the deficiency by submitting the judgment signed nune pro tune by the judge who presided over the prior conviction.

1 6 "When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if [we] otherwise reach{ ] a definite and firm conviction that a mistake has been made." American Fork City v. Rothe, 2000 UT App 277, T 4, 12 P.3d 108 (alterations in original) (internal quotation marks omitted). However, "Iwle consider the trial court's interpretation of binding case law as presenting a question of law and review the trial court's interpretation of that law for correctness." State v. Richardson, 848 P.2d 517, 518 (Utah Ct.App. 1992), quoted in Stevensen v. Goodson, 924 P.2d 839, 346 (Utah 1996). Furthermore, we "may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent in the record." Madsen v. Washington Mut. Bank FSB, 2008 UT 69, 126, 199 P.3d 898 (emphasis and internal quotation marks omitted).

ANALYSIS

17 We agree with Stewart that Anderson requires the State to introduce a signed copy of the judgment of each prior conviction to prove the third degree felony for which Stewart was sentenced. In Anderson, this court stated,

Absent any showing that a signed, written judgment against [the defendant] was entered, the evidence is inadequate to support the trial court's finding that [the defendant] had been twice convicted of theft. Thus, the finding to that effect is clearly erroneous.... Our ruling thus requires that a judgment of prior conviction be written, clear and definite, and signed by the court (or the clerk in a jury case) in order to serve as the basis for enhancing a penalty pursuant to Utah Code Ann. § 76-(1990) [retail theft with priors].

Anderson, 797 P.2d at 1117 (emphasis added). Here, the State did not initially provide a copy of the written, signed judgment evidencing Stewart's 2008 theft conviction.

[8 Furthermore, we can see no appreciable difference between the evidence that was available to the trial court in Anderson and the 2008 record provided to the trial court here. In Anderson, the State introduced an unsigned Cireuit Court Criminal Case Filing/Disposition Report (Disposition Report) that reflected a 1982 theft charge against the defendant, his change of plea to guilty, and that the case was disposed of by sentencing the defendant to payment of a fine and restitution. See id. at 1115. Notwithstanding the information provided in the report, the Anderson court held that it was insufficient to establish the defendant's prior conviction. See id. at 1117. In the present case, the State attempted to prove that Stewart was convicted of theft in 2008 by giving the trial court the file from the earlier case. The State admitted that the file did not contain a signed judgment, but called the court's attention to an unsigned document titled "Minutes Sentence, Judgment, Commitment" (Unsigned Judgment) that it considered probative of the prior conviction. Only the minute entry was entered into evidence. That doeument, like the unsigned Disposition Report in Anderson, indicates that the defendant pleaded guilty to retail theft and was sentenced by the court.

T9 Thus, the record before us does not support a conclusion that the information provided to the trial court here was significantly different than that provided with respect to the 1982 prior conviction in Anderson. In both instances, the sentencing court had access to documents from the prior case that strongly suggested the defendant was convicted and sentenced for theft; yet, the sentencing court in neither case had a written, signed judgment of conviction available to it. We held in Anderson that this was not enough.³

€10 For these reasons, the State's initial attempt to establish Stewart's 2008 conviection did not meet Anderson's requirement that "a judgment of prior conviction be written, clear and definite, and signed by the court (or the clerk in a jury case) in order to serve as the basis for enhancing a penalty." State v. Anderson, 797 P.2d 1114, 1117 (Utah Ct.App.1990). While Judge Davis is convinced that our interpretation of Anderson is too restrictive on the prosecution's use of other evidence of a prior conviction, we need not address that issue here, because the State provided the trial court with a written, signed judgment of conviction of the 2008 theft executed nune pro tune.

[ 11 Stewart challenges the State's reliance on the nune pro tune order on the ground that it was offered too late. We disagree. After the trial court heard the evidence on the current charge, the State offered the evidence relevant to Stewart's prior convie-tions. At that time, the State explained that the file from the 2008 theft charge against Stewart did not include a signed judgment, offered the file to the trial court for review, and requested that the trial court "determine guilt [on the current offense} at this point, and wait until sentencing to determine the degree of the offense, whether it be a class B misdemeanor or third degree felony, and give the [State an opportunity to present additional prior thefts, robbery, or burglary convictions." The trial court did just that, finding Stewart guilty of the current charges but leaving the record open so that the State could "supplement at the time of sentencing" with any additional evidence relating to Stewart's prior conviction. Between the initial hearing and the time set for sentencing, the State obtained a signed judgment entered nunc pro tune on the 2008 offense. Thus, the State did precisely what Anderson suggested to correct the deficiency in the 2008 record. See id. at 1117 n. 13 (noting that the lack of a signed order could be corrected, under appropriate cireumstances, "by entry nune pro tunc, with any required opportunity for the defendant to respond").

T 12 Furthermore, we disagree with Stewart that this case raises any constitutional concerns. The State asked the trial court to leave the record open so that it could present additional evidence before the court determined the degree of the offense. The trial court, without objection from Stewart, agreed to do so. The trial court then took additional evidence before finding Stewart guilty of felony theft and proceeded to sentencing only after doing so. We conclude that the trial court acted within its considerable discretion in leaving the record open for that purpose. See State v. Jackson, 2010 UT App 328, 1 23, 243 P.3d 902 (rejecting defendant's challenge to trial court's decision to reopen the case to allow the State to present evidence of the defendant's identity with respect to his prior conviction).

CONCLUSION

113 The State corrected any deficiency with respect to the use of the Unsigned Judgment to prove the 2008 conviction by obtaining a judgment signed nune pro tune. The trial court did not exceed its discretion in leaving the record open so that the State could offer additional evidence on that point. Therefore, we affirm Stewart's conviction of third degree felony theft.

1 . Utah Code section 76-6-412 has been amended since the commission of the crimes at issue in this case. See Utah Code Ann. § 76-6-412 (Supp.2010). Thus, we cite to the version of the statute in effect at the time the crimes were committed.

2 . Stewart waived his right to a jury trial and the matter was tried to the court.

3 . Furthermore, we do not believe that Stewart should be held accountable for the absence of the entire 2003 file from the record on appeal. It was the State's burden to prove that Stewart had, two or more times in the past, been convicted of theft. See State v. Triptow, 770 P.2d 146, 149 (Utah 1989). Yet, the State did not enter a copy of the entire 2003 file into evidence. Before giving the file to the trial court, the prosecutor stated, "Here is the court's file. I had it pulled hoping that I would see a signed copy [of the 2003 judgment of conviction], the same order, and it's not signed...." Thus, it appears that the State handed the trial court the original file of the 2003 proceedings and then returned the file to the clerk's office after the hearing. Although we ordinarily will presume the regularity of the proceedings in the trial court when a party fails to transcribe a relevant hearing, see State v. Blubaugh, 904 P.2d 688, 699 (Utah Ct. App.1995), or does not otherwise provide us with a way to review relevant record evidence, see Sampson v. Richins, 770 P.2d 998, 1006 (Utah Ct.App.1989) (holding that, in the absence of a complete record, the court would presume that the trial court's finding of causation was supported by the evidence), we are unwilling to do so when the evidence in question was never made part of the record by the party who bears the burden on that issue, of. Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, 125, 222 P.3d 1164 (noting that the appellant's "appeal can ... only be interpreted to be an appeal from the sufficiency of the admitted evidence"). The record on appeal includes all of the evidence admitted by the trial court. While the Utah Supreme Court recognizes a presumption of regularity that attaches to prior convictions, such a presumption arises upon the admission of [a) previous judgment of conviction so proven." Tripftow, 770 P.2d at 149; see also State v. Ferguson, 2007 UT 1, 134, 169 P.3d 423 ("[The State may satisfy its initial burden of establishing the validity of the [prior] conviction by producing a certified copy of the conviction.").