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

                                2013 UT 10
                               297 P.3d 614

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH
                            CARLOS VORHER,
                              Petitioner,
                                      v.
                 HONORABLE STEPHEN L. HENRIOD,
                         Respondent.

                            No. 20110737
                       Filed February 22, 2013

            On Certiorari to the Utah Court of Appeals

                   Third District, Tooele Dep’t
                The Honorable Stephen L. Henriod
                         No. 091300624

                                Attorneys:
Richard G. Uday, Charles R. Stewart, Salt Lake City, for petitioner
   Brent M. Johnson, Salt Lake City, M. Douglas Bayly, Tooele,
                          for respondent

  JUSTICE PARRISH authored the opinion of the Court, in which
 CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING, and
                      JUSTICE LEE joined.
           JUSTICE DURHAM filed a concurring opinion.

   JUSTICE PARRISH, opinion of the Court:
                          INTRODUCTION
    ¶1 At issue in this case is whether Utah Code section 76-3-
405(2)(b) applies to appeals from justice court convictions. Under
section 405(1), “[w]here a conviction or sentence has been set aside
on direct review . . . , the court shall not impose a new sentence for
the same offense . . . which is more severe than the prior sentence.”
UTAH CODE § 76-3-405(1). Section 76-3-405(2)(b) provides an
exception to this general rule when a defendant’s sentence is based
on a plea agreement. The court of appeals applied this exception to
uphold the district court’s imposition of a more severe sentence on
Petitioner following his appeal from justice court. We granted
                         VORHER v. HENRIOD
                        Opinion of the Court

certiorari on the issue of “[w]hether the court of appeals erred in
denying Petitioner’s request for extraordinary relief challenging the
imposition of a more severe penalty following a de novo trial on
appeal of his justice court guilty plea.”
                          BACKGROUND
    ¶2 Carlos Vorher was charged with voyeurism, a class B
misdemeanor, in Tooele County justice court. He pled guilty to
disorderly conduct, a class C misdemeanor, and was sentenced to
ninety days in jail and ordered to pay a fine. Mr. Vorher appealed
his conviction to the district court, which conducted a trial de novo.
Mr. Vorher argued to the district court that he could not be sen-
tenced more severely than he had been in the justice court. How-
ever, the district court convicted him of the original charge, sen-
tenced him to 180 days in jail, and imposed a higher fine.
   ¶3 Mr. Vorher petitioned the court of appeals for extraordi-
nary relief. He argued that the district court violated section 76-3-
405 of the Utah Code when it imposed a more severe punishment
than the one originally imposed by the justice court.
    ¶4 The court of appeals denied the relief requested. It
reasoned that although section 76-3-405(1) “generally prohibits the
imposition of a greater sentence after a defendant successfully
appeals,” Mr. Vorher’s “case falls outside of the general rule because
[his] original conviction and sentence resulted from a plea agree-
ment.” Vorher v. Henriod, 2011 UT App 199, ¶ 9, 262 P.3d 42. It
noted that this court had applied subsection (1) of 76-3-405 to
appeals from justice court “even though the statutory language is in
some ways inconsistent with the justice court appeal process.” Id.
¶ 12 n.4 (citing Wisden v. District Court, 694 P.2d 605 (Utah 1984) (per
curiam)). And it was “not convinced that the [L]egislature intended
to exclude justice court plea agreements” from the exception found
in subsection (2)(b). Id. ¶ 12 (emphasis added). It therefore deter-
mined that the exception contained in subsection (2)(b) applied to
justice court convictions, and that the district court did not make a
mistake of law or abuse its discretion when it sentenced Mr. Vorher
to a more severe sentence on appeal than the one originally imposed
by the justice court. Id. ¶ 14.
    ¶5 Mr. Vorher filed a petition for certiorari review and Tooele
City filed a response. We granted the petition for review and have
jurisdiction pursuant to sections 78A-3-102(3)(a) and 78A-3-102(5) of
the Utah Code.


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                    STANDARD OF REVIEW
    ¶6 “Whether section 76-3-405 applies . . . is a matter of
statutory interpretation, which presents a question of law. We
review a [district] court’s rulings on questions of law for correct-
ness.” State v. Powell, 957 P.2d 595, 596 (Utah 1998).
                             ANALYSIS
   ¶7 Mr. Vorher argues that the court of appeals erred when it
upheld the district court’s imposition of a more severe sentence than
the one originally imposed by the justice court. Specifically, he
argues that allowing the district court’s punishment to stand would
“chill the right of appeal.” He further suggests that imposition of a
harsher punishment after appeal is a violation of his right to due
process.
    ¶8 Tooele City responds that subsection (2)(b) of section 76-3-
405 applies to appeals from justice courts because it is consistent
with this court’s precedent holding that subsection (1) applies to
justice courts. It further argues that the due process concerns
prohibiting imposition of harsher sentences following appeal do not
apply to cases involving negotiated pleas or to a two-tiered justice
court appeal system. We agree with Tooele City and hold that
section 76-3-405(2)(b) applies to appeals from justice courts.
       I. UTAH CODE SECTION 76-3-405(2)(b) APPLIES
      TO APPEALS FROM JUSTICE COURTS FOLLOWING
                  A PLEA AGREEMENT
    ¶9 Justice courts are authorized under article VIII, section 1 of
the Utah Constitution and are governed by the Utah Code. See
UTAH CODE §§ 78A-7-101 to -300. Justice courts have jurisdiction
over class B and C misdemeanors, among other things. Id. § 78A-7-
106(1). If a defendant timely appeals “a plea of guilty . . . in the
justice court,” then he is “entitled to a trial de novo in the district
court.” Id. § 78A-7-118(1)(b). But a justice court defendant has no
further right to appeal the results of the trial de novo unless “the
district court rule[d] on the constitutionality of a statute or ordi-
nance.” Id. § 78A-7-118(9).
    ¶10 We upheld the constitutionality of Utah’s justice court
system in Bernat v. Allphin, 2005 UT 1, 106 P.3d 707. Specifically, we
held that a defendant’s right to appeal a justice court judgment
through a de novo trial in the district court does not violate the
constitutional prohibition against double jeopardy, id. ¶ 33, does not



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deny a defendant’s right to due process, id. ¶ 39, and does not deny
a defendant’s right to equal protection of the law, id. ¶ 41.
    ¶11 Having described the justice court appeal framework, we
now consider the applicability of section 76-3-405(2)(b) to justice
court appeals. Subsection (1) of section 76-3-405 “provides that the
sentence imposed after retrial shall not be more severe than the
original sentence.” Wisden v. District Court, 694 P.2d 605, 606
(Utah 1984) (per curiam). In Wisden, we explicitly held that subsec-
tion (1) of section 76-3-405 applies to appeals from justice court
convictions. Id. Subsequent to our ruling in Wisden, the Legislature
added subsection (2) to section 76-3-405. Subsection (2) recognizes
two exceptions to the applicability of subsection (1). Subsection
(2)(b) states that the general prohibition against a district court
imposing a punishment in excess of that originally imposed for an
offense based on the same conduct “does not apply when . . . a
defendant enters into a plea agreement with the prosecution.” UTAH
CODE § 76-3-405(2)(b). We have yet to address whether subsection
(2)(b) applies to appeals from justice courts. We now do so.
    ¶12 By its terms, section 76-3-405 applies in cases “[w]here a
conviction or sentence has been set aside on direct review or on
collateral attack.” We acknowledge that our justice court appeal
framework does not involve setting aside justice court judgments on
direct review. See Bernat, 2005 UT 1, ¶ 20. Indeed, upon the filing of
a timely appeal, all justice court defendants are automatically
entitled to a trial de novo in the district court. UTAH CODE § 78A-7-
118(1). In short, it is semantically difficult to conceptualize a trial de
novo as an appeal. But our holding in Wisden was clear—subsection
(1) applies to justice courts. 694 P.2d 605, 606. Because subsection
(1) applies to justice courts and subsection (2) creates an exception
to subsection (1), then subsection (2) necessarily applies to appeals
from justice court convictions. To conclude otherwise would require
us to overrule Wisden.
    ¶13 “Under the doctrine of stare decisis, a party asking us to
overturn prior precedent has a substantial burden of persuasion.”
Utah Dep’t of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 16, 275
P.3d 208 (internal quotation marks omitted). “[L]ong standing
precedent should not be overruled except for the most compelling
reasons.” ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65,
¶ 23, 245 P.3d 184 (internal quotation marks omitted). Specifically,
“we may overturn our precedent if we are clearly convinced that the
rule was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by

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departing from precedent.” Admiral Beverage Corp., 2011 UT 62, ¶ 16
(internal quotation marks omitted). But Mr. Vorher has not even
articulated an argument suggesting that we overrule our precedent
in Wisden. Therefore, stare decisis dictates that section 76-3-405,
including subsection (2)(b), applies to justice courts.
    ¶14 Our conclusion is buttressed by the legislative history.
Section 76-3-405 was first enacted in 1973. We issued our opinion in
Wisden in 1984. And the Legislature added subsection (2) in 1997.
The fact that the Legislature added subsection (2) after we had
explicitly held that section 76-3-405 applied to appeals from justice
courts suggests that the Legislature intended subsection (2) to apply
to justice courts as well.
    ¶15 In addition, the policy reasons that support subsection
(2)(b) apply equally to appeals from justice courts and traditional
appeals. We have previously recognized that
       it would be unwise to hold that a sentence imposed
       pursuant to a plea agreement should limit a sentence
       subsequently imposed at trial after [the] defendant has
       withdrawn his plea. Plea bargains are entered into so
       that both sides may avoid the expense and uncertainty
       of a trial. In exchange for conserving State resources,
       [the] defendant usually receives a lower charge or
       lesser sentence. Thus, it would be anomalous to allow
       a defendant to keep the benefit of an agreement he
       repudiated while requiring the State to proceed to trial
       and prove its case.
State v. Powell, 957 P.2d 595, 597 (Utah 1998).
    ¶16 We also agree with the concern noted by the court of
appeals in this case. Specifically, “prosecutors might be less willing
to entertain justice court plea agreements at all if defendants could
lock in their maximum sentence with a plea agreement and then
demand a trial de novo in the district court.” Vorher v. Henriod, 2011
UT App 199, ¶ 13 n.5, 262 P.3d 42. In short, application of 76-3-
405(2)(b) to justice court convictions is consistent with both Utah
precedent and the public policies that support it.
       II. SECTION 76-3-405(2)(b) IS CONSISTENT WITH
       UNITED STATES SUPREME COURT PRECEDENT
    ¶17 In arguing that section 76-3-405(2)(b) should not be applied
to appeals from justice court convictions, Mr. Vorher argues that the
United States Supreme Court opinion in North Carolina v. Pearce, 395

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                         Opinion of the Court

U.S. 711 (1969), “expressly forbids actions which chill the right to
appeal by disallowing a more severe sentence at trial.” But Mr.
Vorher has not articulated an argument that the statute is unconsti-
tutional under the United States Constitution.1 Nor would he be
successful in doing so under controlling Supreme Court precedent.
    ¶18 In Pearce, the defendant was convicted of assault with
intent to commit rape. Id. at 713. The North Carolina Supreme
Court reversed his conviction and granted Pearce a new trial. Id.
Upon retrial, Pearce was convicted and sentenced to what amounted
to a longer total sentence than that originally imposed. Id. The
United States Supreme Court granted habeas corpus review and
held that neither the Double Jeopardy Clause nor the Equal Protec-
tion Clause provided an absolute bar to a more severe sentence upon
reconviction. Id. at 717–23. The Court reasoned that “it would be a
flagrant violation of the Fourteenth Amendment for a state trial
court to follow an announced practice of imposing a heavier
sentence upon every reconvicted defendant for the explicit purpose
of punishing the defendant for his having succeeded in getting his
original conviction set aside.” Id. at 723–24. Thus, the Court held
that “[d]ue process of law . . . requires that vindictiveness against a
defendant for having successfully attacked his first conviction must
play no part in the sentence he receives after a new trial. “ Id. at 725.
    ¶19 The Court has subsequently made clear, however, that a
presumption of vindictiveness does “not apply in every case where
a convicted defendant receives a higher sentence on retrial.” Texas
v. McCullough, 475 U.S. 134, 138 (1986). And in Alabama v. Smith, it
specifically held that federal due process does not require a pre-
sumption of vindictiveness in circumstances where a defendant
initially pled guilty pursuant to a plea agreement and a sentencing
judge had more information after hearing evidence at trial. 490 U.S.
794, 801 (1989). As a result, “the majority of the circuits have
concluded that the Pearce presumption does not apply in the plea
bargaining context.” Kurtis A. Kemper, Annotation, Propriety of
Sentencing Judge’s Imposition of Harsher Sentence than Offered in
Connection with Plea Bargain Rejected or Withdrawn Plea by Defendant -
Federal Cases, 200 A.L.R. Fed. 591 (2005).
   ¶20 Without a presumption of vindictiveness, a defendant
seeking to establish the unconstitutionality of a harsher sentence


   1
    Mr. Vorher also has not argued that there should be a different
outcome under the Utah Constitution.

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                        Opinion of the Court

following an appeal must demonstrate actual vindictiveness. But
“courts have uniformly held that no actual vindictiveness was
established by the mere fact that the defendant’s sentence exceeded
that offered in a plea bargain.” Id. (emphasis added). Because Mr.
Vorher has failed to articulate any evidence suggesting vindictive-
ness, any claim that section 76-3-405(2)(b) is unconstitutional would
necessarily have been unsuccessful.
                          CONCLUSION
   ¶21 We hold that the section 76-3-405(2)(b) exception against
imposing a harsher sentence on appeal when a defendant has
entered into a plea agreement applies to justice court proceedings.
Therefore, the court of appeals did not err in denying Mr. Vorher’s
request for extraordinary relief.

   JUSTICE DURHAM, concurring in the result:
     ¶22 I concur in the result reached by the majority but write
separately to express my disagreement with the majority’s conclu-
sion that Utah Code section 76-3-405(2) applies to appeals from
justice court. The majority recognizes that “it is semantically
difficult” to reconcile the statute with the justice court appeal
process, yet feels bound to do so by Wisden v. District Court, 694 P.2d
605 (Utah 1984) (per curiam). Supra ¶ 12. In my view, Wisden is of
little precedential value because it is a thirty-year-old per curiam
opinion with no statutory analysis. We should not feel bound by
such an opinion to adhere to a conceptually, semantically, and
constitutionally problematic interpretation of a statute.
   ¶23 Utah Code section 76-3-405 provides as follows:
       (1) Where a conviction or sentence has been set aside
       on direct review or on collateral attack, the court shall
       not impose a new sentence for the same offense or for
       a different offense based on the same conduct which
       is more severe than the prior sentence less the portion
       of the prior sentence previously satisfied.
       (2) This section does not apply when:
           ...
            (b) a defendant enters into a plea agreement with
       the prosecution and later successfully moves to
       invalidate his conviction, in which case the defendant
       and the prosecution stand in the same position as


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             JUSTICE DURHAM, concurring in the result

       though the plea bargain, conviction, and sentence had
       never occurred.
    ¶24 By its plain language, section 76-3-405 applies “[w]here a
conviction or sentence has been set aside on direct review or on
collateral attack.” The exception in subsection (2)(b) applies where
“a defendant . . . successfully moves to invalidate his conviction.”
When a justice court defendant exercises the right to appeal to the
district court, the conviction and sentence from the justice court are
not “set aside on review or on collateral attack” or “invalidate[d].”
Although the sentence may be stayed, the conviction and sentence
remain in force during the appeal. See Bernat v. Allphin, 2005 UT 1,
¶¶ 22–23, 106 P.3d 707. Furthermore, subsection (2)(b) states that
when a conviction resulting from a guilty plea is invalidated, “the
defendant and the prosecution stand in the same position as though
the plea bargain, conviction, and sentence had never occurred.” As
the court of appeals recognized, it is impossible for defendants who
appeal their justice court convictions to stand “as though the plea
bargain, conviction, and sentence had never occurred because they
have lost the right to appellate review.” Vorher v. Henriod,
2011 UT App 199, ¶ 12, 262 P.3d 42 (citation omitted) (internal
quotation marks omitted).
    ¶25 Thus, by its plain language, section 76-3-405 does not apply
to appeals from justice court. The majority recognizes this fact in
paragraph 12, and we recognized this fact in Wisden. We noted in
Wisden that “[t]he district court judge, sitting as a trial judge, may
have reasoned that section 76–3–405 did not apply, since the first
conviction was not ‘set aside on direct review or on collateral
attack.’” 694 P.2d at 606 (quoting UTAH CODE § 76-3-405). We did not
proceed to explain how the statutory language could be reconciled
with the justice court appeal system. Rather, we said, “Our rule is
not confined to the statutory limitation,” and proceeded to identify
a constitutional foundation for our holding. Id.
    ¶26 The majority finds support for its position in the Legisla-
ture’s post-Wisden addition of subsection (2). See supra ¶ 14. How-
ever, if the Legislature had been mindful of Wisden when it enacted
subsection (2), it should have either clarified that section 76-3-405
does not apply to justice court appeals or amended the language to
make it compatible with the justice court appeal process. Instead, the
Legislature simply added subsection (2), which, like the current
subsection (1), includes language that is incompatible with justice
court appeals. Thus, the Legislature appears not to have been


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considering either Wisden or the justice court appeal process when
it added subsection (2).
    ¶27 Notwithstanding my disagreement with the majority’s
statutory interpretation, I concur in the result because, as the
majority explains in paragraphs 17 through 20, the harsher sentence
imposed on Mr. Vorher by the district court does not violate his
federal due process rights. The sentence may arguably violate his
right to appeal or his due process rights under the Utah Constitu-
tion, see City of Monticello v. Christensen, 788 P.2d 513, 519–20
(Utah 1990) (Durham, J., dissenting), but Mr. Vorher has not asked
us to consider his state constitutional rights.




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