            This opinion is subject to revision before final
                  publication in the Pacific Reporter

                             2017 UT 60


                                IN THE

      SUPREME COURT OF THE STATE OF UTAH

                           STATE OF UTAH
                             Petitioner,
                                   v.
                  THOMAS RANDALL AINSWORTH
                          Respondent.

                           No. 20160173
                      Filed September 5, 2017

           On Certiorari to the Utah Court of Appeals

                             Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Sandi
            Johnson, Salt Lake City, for petitioner.

  Lori J. Seppi, David P.S. Mack, Salt Lake City, for respondent.

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PEARCE,
                   and JUDGE POWELL joined.

  Having recused himself, JUSTICE HIMONAS does not participate
   herein; FOURTH DISTRICT COURT JUDGE KRAIG J. POWELL sat.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
   ¶1     The Utah Code prescribes two sets of offenses for drivers
who cause death or serious bodily injury with alcohol or drugs in
their system. Under the DUI provisions of the code it is a third
degree felony to cause death or serious bodily injury while under
the influence of alcohol or any drug “to a degree that renders the
                       STATE v. AINSWORTH
                       Opinion of the Court
person incapable of safely operating a vehicle.”1 The “measurable
substance” provisions set forth a related offense. Under these
provisions it is a second degree felony to cause death or serious
bodily injury with any “measurable” amount of a Schedule I or
Schedule II drug in the person’s body.2

    ¶2    Thomas Ainsworth challenges the constitutionality of
these provisions. Ainsworth was convicted of three second degree
felonies under the measurable substance provisions. But he
asserts constitutional grounds for a reduction of each charge to a
third degree felony under the DUI provisions. And he also
challenges the decision to impose consecutive sentences for the
three counts against him.

    ¶3   The court of appeals agreed with Ainsworth in part. It
deemed the measurable substance crime a “lesser offense”
because the measurable substance provisions do not require proof
of a driver’s impairment. With this in mind, the court of appeals
concluded that the classification of Ainsworth’s crimes as second
degree felonies under the measurable substance provisions ran
afoul of the Uniform Operation of Laws Clause of the Utah
Constitution. And it accordingly vacated Ainsworth’s convictions
and remanded for the entry of third degree felony convictions and
for resentencing. In so doing, however, the court of appeals
rejected Ainsworth’s challenge to the imposition of consecutive
sentences, affirming the district court’s sentencing to that degree.




   1 UTAH CODE § 41-6a-502(1)(b); id. § 41-6a-503(2) (third degree
felony to inflict serious bodily injury as a result of operating a
vehicle in a negligent manner and in violation of section 502); id.
§ 76-5-207(2) (third degree felony to cause death of another by
operating motor vehicle in negligent manner and under the
influence of alcohol or any drug rendering the person incapable of
safely operating the vehicle).
   2 Id. § 41-6a-517 (defining the elements of the measurable
substance offense); id. § 58-37-8(2)(h) (second degree felony to
operate vehicle in negligent manner while knowingly and
intentionally having measurable amount of Schedule I or
Schedule II substance in the person’s body and causing serious
bodily injury or death of another).

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                        Opinion of the Court
   ¶4     We reverse in part and affirm in part. First, we uphold
the constitutionality of the legislature’s classification of offenses in
the DUI and measurable substance statutes and reverse the court
of appeals’ decision vacating Ainsworth’s second degree felony
convictions under the Uniform Operation of Laws Clause. Second,
we affirm the court of appeals’ decision upholding the imposition
of consecutive sentences for the three counts of conviction.
Accordingly, we reinstate the convictions and sentences as
entered and imposed against Ainsworth in the district court.

                                   I

    ¶5   On Christmas Eve 2011, Thomas Ainsworth drove his
car over a median and crashed head-on into another vehicle. An
18-month-old boy was killed and both of his parents were
seriously injured in the accident.

    ¶6    Ainsworth had methamphetamine in his system at the
time of the accident. He was charged with three counts of causing
substantial bodily injury or death while negligently driving a car
with a measurable amount of a Schedule II controlled substance in
his body. The charged offenses were second degree felonies under
Utah Code section 58–37–8(2).

    ¶7    Ainsworth moved to amend the charges on
constitutional grounds. First, he challenged the classification of
his alleged offenses—as second degree felonies—under the
measurable substance provisions of the Utah Code. He noted that
the alleged offenses would have been classified as third degree
felonies if charged under the DUI provisions of the code. And he
challenged the rationality of the legislature’s decision to increase
that classification through the measurable substance provisions
under the Uniform Operation of Laws Clause of the Utah
Constitution.

    ¶8    Ainsworth also asserted an alternative basis for
challenging the measurable substance charges under the Uniform
Operation of Laws Clause. He noted that the measurable
substance provisions recognize a defense for those who have a
prescription for the controlled substance, or otherwise use the
substance in a legal manner. And he alleged that this amounts to
irrational discrimination in favor of those who have a prescription
and against those who don’t.



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                        STATE v. AINSWORTH
                       Opinion of the Court
   ¶9    The district court rejected both arguments. It upheld the
prosecution’s decision to classify the charges against Ainsworth as
second degree felonies under the measurable substance
provisions.

    ¶10 Ainsworth reserved his right to appeal but pled guilty to
the three second degree felonies under the measurable substance
provisions. The district court then sentenced Ainsworth to three
prison terms of one to fifteen years. Over Ainsworth’s objection,
the district court ordered that those sentences should be served
consecutively.

    ¶11 Ainsworth filed a timely appeal. The court of appeals
endorsed the first of Ainsworth’s uniform operation arguments. It
noted that the measurable substance statute applies “in an offense
not amounting to a violation of [the DUI statute]” where the
defendant “knowingly and intentionally [has] in the person’s
body any measurable amount” of a controlled substance and
“operates a motor vehicle . . . in a negligent manner.” State v.
Ainsworth, 2016 UT App 2, ¶ 8, 365 P.3d 1227 (second and third
alterations in original) (quoting UTAH CODE § 58–37–8(2)(a)(i), (g)
& (h)(i)). Thus, the court of appeals observed that the measurable
substance provisions do not require proof of actual impairment of
the driver. Id. ¶ 17. And on that basis the court of appeals deemed
the measurable substance crime a “lesser crime.” Id. ¶ 16. It
accordingly held that the classification of this crime as a greater
offense—a second degree felony rather than a third degree
felony—ran afoul of the Uniform Operation of Laws Clause. Id.
¶ 17. Thus, the court vacated Ainsworth’s sentence and remanded
for resentencing—with the direction that Ainsworth be
resentenced to three third degree felonies.

   ¶12 In so doing, the court of appeals nonetheless proceeded
to affirm the district court’s decision to impose Ainsworth’s
sentences consecutively. It acknowledged that the question
presented was moot because there was no longer a sentence to
evaluate. Id. ¶ 19. But the court of appeals still addressed the issue
because it had been fully briefed and was likely to arise again on
remand. Id. On this point the court of appeals affirmed the district
court. It found no abuse of discretion because the district court
considered all of the factors of relevance to this decision and
balanced them in a permissible way. Id. ¶ 21.


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                       Opinion of the Court
    ¶13 We granted the State’s petition for certiorari and
Ainsworth’s cross-petition on the imposition of consecutive
sentences. We review the court of appeals’ decision for
correctness, without according any deference to its analysis.
Wasatch Cty. v. Okelberry, 2008 UT 10, ¶ 8, 179 P.3d 768. In so
doing, however, we note that our review of the correctness of the
court of appeals’ analysis may depend in part on whether it
afforded the appropriate level of review to the district court’s
decisions. Id.

                                 II

   ¶14 The State challenges the court of appeals’ decision
overriding the classification of Ainsworth’s offenses on uniform
operation of laws grounds. And Ainsworth on cross-petition
asserts error in the decision upholding the imposition of
consecutive sentences. We reverse the court of appeals on the first
point but affirm it on the second.

                                 A

    ¶15 Ainsworth advances two uniform operation grounds3
for questioning the classification of his offenses as second degree
felonies under the measurable substance provisions of the Utah
Code. First is the assertion that it is irrational to classify a
measurable substance-based offense as a more serious crime than
a DUI-based offense. Second is the alleged lack of a rational basis
for the distinction between those who have a prescription for a
controlled substance and those who do not.

    ¶16 The court of appeals endorsed the first argument but
rejected the second. We reject both. We uphold the

   3  Ainsworth also vaguely asserts a due process basis for his
challenge. But he does not identify a distinct basis in the Due
Process Clause for his constitutional challenge. His briefing just
recasts his uniform operation arguments in due process terms—
asserting that the measurable substance classification falls short
under the Due Process Clause because there is no rational basis
for punishing the (purportedly lesser) measurable substance
offense more harshly than the DUI offense. For that reason we do
not treat the due process claim separately in this opinion. We treat
it as Ainsworth does—as a mere restatement of the uniform
operation challenge—and reject it for reasons set forth below.

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                       STATE v. AINSWORTH
                      Opinion of the Court
constitutionality of the classification of Ainsworth’s offenses as
second degree felonies under the measurable substance
provisions.

                                1

    ¶17 A driver who causes death or serious bodily injury with
alcohol or drugs in his body may be subject to one of two offense
classifications under the Utah Code. The crime could be a third
degree felony under the DUI provisions of the code—if it can be
shown that the alcohol or drug influenced the driver “to a degree
that renders the person incapable of safely operating a vehicle.”4
And the crime could be a second degree felony under the
measurable substance provisions—without any proof of
impairment of the driver’s ability to safely operate a vehicle.5

    ¶18 This was the basis for the court of appeals’ decision to
override the classification of Ainsworth’s crimes as second degree
felonies. Because the measurable substance provisions do not
require proof of impairment, the court of appeals viewed crimes
charged under those provisions as “lesser crime[s].” Ainsworth,
2016 UT App 2, ¶ 16. And it accordingly found the governing
statutory scheme unconstitutional under the Uniform Operation
of Laws Clause. It concluded, specifically, that there was no
“rational basis for punishing individuals who have ‘any
measurable amount’ of controlled substance in their bodies more
harshly than individuals who have an incapacitating amount of the
substance in their bodies.” Id. ¶ 9 (emphases added). And it

   4 UTAH CODE § 41-6a-502(1)(b); id. § 41-6a-503(2) (third degree
felony to inflict serious bodily injury as a result of operating a
vehicle in a negligent manner and in violation of section 502); id.
§ 76-5-207(2) (third degree felony to cause death of another by
operating motor vehicle in negligent manner and under the
influence of alcohol or any drug rendering the person incapable of
safely operating the vehicle).
   5 Id. § 41-6a-517 (defining the elements of the measurable
substance offense); id. § 58-37-8(2)(h) (second degree felony to
operate vehicle in negligent manner while knowingly and
intentionally having measurable amount of Schedule I or
Schedule II substance in the person’s body and causing serious
bodily injury or death of another).

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                       Opinion of the Court
accordingly endorsed Ainsworth’s assertion that the code
“punishes less culpable offenders with a significantly higher level
of punishment.” Id. ¶ 13.

    ¶19 We view the matter differently. The measurable
substance provisions do not define a “lesser crime.” And
offenders under these provisions are not “less culpable.” They are
more culpable in the view of the legislature. Unlike the court of
appeals, moreover, we see a rational basis for this classification. It
is true that the measurable substance provisions do not require
proof of an “incapacitating amount” of a drug; “any measurable
amount” is sufficient. Id. ¶ 9. But the measurable substance
provisions require an element not required under the DUI laws: A
second degree felony is established under the measurable
substance provisions only upon a showing that the drug in
question is a Schedule I or II substance. See UTAH CODE § 58-37-
8(2)(h). The DUI provisions are different. They are triggered by
the use of alcohol or any drug. See id. § 41-6a-502(1)(b); id. § 76-5-
207(2). And the legislature obviously deemed that difference
significant. It was so concerned about the use of Schedule I or II
drugs by drivers that it deemed that element enough to bump the
offense level to a second degree felony (even in cases in which
there is no showing of actual impairment).

    ¶20 We see nothing irrational in that decision. Schedule I and
II drugs are those viewed as having a greater potential for abuse
and a greater risk of dependence than other controlled substances.
See UTAH CODE § 58-38a-204(1)–(5); 21 C.F.R. §§ 1308.11–1308.15.
That concern can certainly sustain a rational decision by the
legislature to punish the use of these substances more harshly
than the use of other substances. See State v. Outzen, 2017 UT 30, ¶
23, __ P.3d __ (upholding Utah Code section 41-6a-517 against
similar constitutional attack; concluding that classification treating
those with a valid prescription differently may be understood to
“promote[] public safety by discouraging individuals who have
ingested controlled substances from operating motor vehicles and
creating potentially dangerous driving conditions”). And that is
sufficient to sustain the constitutionality of this statutory scheme.

    ¶21 The court of appeals’ contrary conclusion seems rooted
in its concern about the arbitrariness of a prosecutor’s charging
decision in this field. In reversing Ainsworth’s second degree
felony convictions and reducing them to third degree felony
convictions, the court of appeals expressed the view that there is
no “rational basis for charging” a second degree felony under the
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                       STATE v. AINSWORTH
                       Opinion of the Court
measurable substance provisions instead of a third degree felony
under the DUI provisions. Ainsworth, 2016 UT App 2, ¶ 17. This
concern implicates a line of our cases—tracing back to State v.
Shondel, 453 P.2d 146 (Utah 1969). Yet neither the parties nor the
court of appeals cited the Shondel line of cases in the court of
appeals. And that line of cases alleviates the charging concern
cited by the court of appeals.

    ¶22 Shondel enforces a narrow principle of uniform operation
or equal protection of the laws. The Shondel principle is implicated
at the intersection of duplicative criminal statutes. In that context
our cases have warned of the risk of arbitrary prosecutorial
discretion. And Shondel articulated a rule of interpretation aimed
at eliminating that risk.

    ¶23 In Shondel we confronted a circumstance in which the
legislature had simultaneously enacted two statutes criminalizing
the possession of LSD—one classifying the crime as a
misdemeanor and the other deeming it a felony. Id. at 147. The
defendant, charged with a felony, raised a uniform operation
objection, asserting a right to the lesser, misdemeanor charge. This
court sustained that objection. Id. at 148. We held that the
defendant could not properly be charged with a felony in those
circumstances and was entitled to the misdemeanor charge. Id.
We noted, in so holding, that the two statutes at issue had been
“passed at the same session of the legislature” and had “the same
effective date.” Id. at 147. With that in mind, we noted that we
could not give effect to the “generally-recognized rule that where
there is conflict between two legislative acts the latest will
ordinarily prevail.” Id. Thus, because both statutes had the same
effective date and classified the same crime differently, we treated
the lesser (misdemeanor) provision as controlling.

    ¶24 Shondel was not a picture of clarity. The principle driving
the decision, moreover, has been often misunderstood and
frequently misapplied. Our more recent cases, however, have
limited and clarified the Shondel decision. And they do so in a
manner that avoids any Shondel issue here.

    ¶25 “[T]he Shondel doctrine treats as irrelevant the conduct of
a particular defendant; only the content of the statutes matters.”
State v. Williams, 2007 UT 98, ¶ 14, 175 P.3d 1029. Thus, the Shondel
doctrine “applies only when ‘two statutes are wholly duplicative
as to the elements of the crime.’” Id. (citation omitted). “If each
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                        Cite as: 2017 UT 60
                       Opinion of the Court
statute ‘requires proof of some fact or element not required to
establish the other,’ there is no Shondel problem. . . .” State v.
Arave, 2011 UT 84, ¶ 13, 268 P.3d 163 (quoting State v. Clark, 632
P.2d 841, 844 (Utah 1981)).

    ¶26 The above implies a two-step formulation of the Shondel
inquiry. A threshold question is whether the elements of two
statutes are wholly duplicative. If each statute requires proof of
some fact or element not required to establish the other, then there
is no Shondel problem—no complete overlap and thus no barrier
to a discretionary charge under one or the other provision.

    ¶27 The second question concerns the timing of enactment of
the two statutory provisions. Even if two statutes are wholly
duplicative, Shondel does not necessarily require a reduction to the
lesser offense. This requirement is triggered only as to two
provisions with identical effective dates. Otherwise the later-
enacted provision will be deemed to impliedly repeal the earlier
one.

    ¶28 This two-part test puts to rest the Shondel issue in this
case. First, the DUI and measurable substance provisions are not
wholly duplicative. Each set of statutes requires proof of an
element not required by the other. The extra element in the DUI
provisions is apparent: To establish a third degree felony under
these provisions it must be shown that the defendant is “under
the influence” of alcohol or a drug “to a degree that renders the
person incapable of safely operating a vehicle.” UTAH CODE § 41-
6a-502(1)(b). Though less obvious, the measurable substance
provisions also require an additional element: A second degree
felony can be established under these provisions only upon proof
of a measurable amount of a particular kind of drug—a Schedule I
or II substance. Id. § 58-37-8(2)(h).

    ¶29 This shows that these two offenses are not wholly
duplicative. And it forecloses the court of appeals’ determination
that the measurable substance crime is a “lesser crime.” It is
possible to see it that way given that the DUI provisions require
proof of impairment. But the legislature apparently viewed the
matter differently. It considered the use of a Schedule I or II drug
a sufficient concern that it deemed the mere presence of such a
substance adequate to trigger a second degree felony—even
without proof of impairment. And that is its prerogative. We are
in no position to second-guess that decision by concluding that we

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                       STATE v. AINSWORTH
                       Opinion of the Court
think the element of impairment a more significant aggravator
than the presence of a particular drug.

    ¶30 Second, and in any event, the measurable substance
provisions were enacted after the DUI provisions. This is an
independent basis for our holding. Even if the two provisions
defined duplicative crimes we would give effect to the
legislature’s final say in the matter—and that is to classify
Ainsworth’s crime as a second degree felony.

   ¶31 For these reasons we reverse the court of appeals. We
uphold the classification of Ainsworth’s offense as a second
degree felony against his first argument under the Uniform
Operation of Laws Clause.

                                 2

   ¶32 A defendant charged with a second degree felony under
the measurable substance provisions may defend on the ground
that the substance in question was “prescribed by a practitioner
for use by the accused.” UTAH CODE § 41-6a-517(3)(b). This
provision accordingly distinguishes between those who use
Schedule I or II drugs under a prescription and those who have no
prescription. And Ainsworth challenges this distinction on
uniform operation grounds. He asserts that there is no rational
basis for a preference for drug use under a prescription,
contending that the existence of a prescription has no effect on the
level of a driver’s impairment.

   ¶33 We reject this argument on the basis of our recent
decision in State v. Outzen. 2017 UT 30. In Outzen we upheld the
reasonableness of the prescription defense in the measurable
substance statute against a uniform operation challenge. We held
that the statute deters illegal drug use and promotes public safety
by “discouraging individuals who have [illegally] ingested
controlled substances from operating motor vehicles and creating
potentially dangerous driving conditions.” Id. ¶ 23. This is a
reasonable objective. And we reject Ainsworth’s second uniform
operation argument on that basis.

                                 B

   ¶34 Ainsworth also challenges the district court’s decision to
order him to serve his three sentences consecutively. The court of

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                        Cite as: 2017 UT 60
                       Opinion of the Court
appeals rejected this argument under an abuse of discretion
standard of review. We affirm.

   ¶35 Ainsworth does not claim that the district court failed to
consider any of the factors it was required by law to account for.
See UTAH CODE § 76-3-401(2). He complains only that the court
abused its discretion by “fail[ing] to adequately consider” them.
And he points to several potential mitigating factors that would
support a decision to impose concurrent sentences.

   ¶36 That is insufficient. District courts have “wide latitude in
sentencing.” State v. Bluff, 2002 UT 66, ¶ 66, 52 P.3d 1210, abrogated
on other grounds by Met v. State, 2016 UT 51, 388 P.3d 447. They
exceed the bounds of their discretion only “when [they fail] to
consider all legally relevant factors, or if the sentence imposed
exceeds the limits prescribed by law.” Id.

    ¶37 This showing has not been made here. We affirm the
sentence imposed in this case because Ainsworth has not carried
his burden of establishing an abuse of discretion.

                                 III

   ¶38 For the reasons set forth above we reverse the court of
appeals in part and affirm it in part. And we reinstate the
judgment and sentence imposed against Ainsworth in the district
court.




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