Petition for Writ of Certiorari — Bernat v. Allphin

(;) Suprome Court, U.S.

041351APR 7 - 2005

© OFFIGE-OF THE CLERK

N

In The

Supreme Court of the United States

Sean Bernat, ez. al.,

Petitioners,

v.

The Honorable Michael G. Allphin, ez. al.,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court For The State Of Utah

PETITION FOR WRIT OF CERTIORARI

BENJAMIN A. HAMILTON

Counsel of Record

356 East 900 South

Salt Lake City, Utah 84111

Telephone: (801) 322-3622

QUESTIONS PRESENTED FOR REVIEW

The State of Utah employs a two-tier trial system to

provide misdemeanant defendants with their right to appeal

from a court not of record (the justice court) to a trial de novo

in a court of record (the district court). Defendants in Utah

who appeal the decision from the court not of record appear

before the court of record convicted of the very crime for

which they will be tried again. Utah’s scheme does not

vacate the judgment of the justice court prior to the appeal

and receipt of the de novo trial in the court of record.

I. Whether Utah’s failure to permit the justice court

defendant to face his de novo trial while still burdened by the

result of the first conviction violates the Double Jeopardy

Clause of the United States Constitution.

II. Whether Utah’s two-tiered system violates Due Process by

requiring the defendant to file a certificate of probable cause

and earn a right to appeal that is otherwise guaranteed him by

federal constitutional safeguards.

III. Whether Utah’s two-tiered system violates the federal

constitutional tenet of Equal Protection of the law by

providing disparate treatment for similarly situated criminal

defendants.

_————

LIST OF ALL PARTIES

(with dates of the Utah Court of Appeals

decisions joined in the Bernat case)

Sean Bernat v. The Honorable Michael G. Allphin,

2003 UT App 394, Decided June 12, 2003

Jeremy Kee v. The Honorable Bruce C. Lubeck,

2003 UT App 177, Decided May 30, 2003

Donald Lang v. The Honorable Ann Boyden,

2003 UT App 176, Decided May 30, 2003

Darrin Mann v. The Honorable Glen R. Dawson,

2003 UT App 383, Decided June 12, 2003

Matthew Phillips v. The Honorable Donald J. Eyre,

2002 UT App 311, Decided June 12, 2003

Joseph Scovell v. The Honorable Denise P. Lindberg,

2003 UT App 8, Decided June 12, 2003

Dylan T. Serre v. The Honorable Michael K. Burton,

2002 UT App 264, Decided June 12, 2003

Mark Wahlstrom v. The Honorable Glen R. Dawson

2002 UT App 309, Decided June 12, 2003

Henry T. Zakharian v. The Honorable Michael K. Burton,

2003 UT App 111, Decided April 17, 2003

il

TABLE OF CONTENTS

2 eee

QUESTIONS PRESENTED FOR REVIEW .....-c-csseeseenees i

LIST OF ALL PARTIES ...... : : ace sccccee fl

TABLE OF CONTENTS .o+++sevevsssesesenserevensnnsnsnnensnsenensnenees iii

TABLE OF AUTHORITIES .... scsccesee W

CITATIONS TO OPINIONS BELOW .......-+-++esssssseseeeres vii

STATEMENT OF JURISDICTION........ ecccscecoscccocose vii

CONSTITUTIONAL PROVISIONS. woo Vii

STATEMENT OF THE CASE........-.- secccsconscossoes viii

ARGUMENT ooccccsssssscssesecevsesssssensersensnossesonsnensnsossososssnsonssooees 1

POINT I. THE UTAH SUPREME COURT

ERRONEOUSLY DECIDED THAT DOUBLE

JEOPARDY IS NOT VIOLATED BY UTAH’S

SCHEME WHICH FAILS TO VACATE THE FIRST

TIER CONVICTION PRIOR TO DEFENDANT

APPEARING AT THE SECOND TIER DE NOVO

TRIAL.. ms

A. This issue has not been addressed previously by this

Court, and should be settled by this Court as raised in

this CASE. .c-cccccccscsseccsssssveeeeneessnssesnsncensossssnssncnssncansnsnnsncnsssceeeers 1

ill

B. Prior authority of this Court requires states to vacate

judgments from the first tier court once the de novo trial

is requested. 9

C. The Utah Supreme Court’s decision to not vacate the

judgment from the first tier court is in conflict with

decisions of other state courts of last resort. 16

II. WHETHER UTAHB’S TWO-TIERED SYSTEM

VIOLATES DUE PROCESS BY REQUIRING THE

DEFENDANT TO FILE A CERTIFICATE OF

PROBABLE CAUSE AND EARN A RIGHT TO

APPEAL THAT IS OTHERWISE GUARANTEED HIM

BY FEDERAL CONSTITUTIONAL SAFEGUARDS.. 21

A. Our Utah scheme impermissibly discourages and

burdens the right to appeal. 21

B. Our Utah scheme unlawfully shifts the burden to the

accused. 24

> ‘TI. WHETHER UTAH’S TWO-TIERED SYSTEM

VIOLATES THE FEDERAL CONSTITUTIONAL

TENET OF EQUAL PROTECTION OF THE LAW BY

PROVIDING DISPARATE TREATMENT FOR

SIMILARLY SITUATED CRIMINAL DEFENDANTS.

26

CONCLUSION 28

TABLE OF AUTHORITIES

Cases

Ball v. Jones, 132 So.2d 120, 122 (1961).......-ssssssesereerereees 19

Bernat v. Allphin, 106 P.3d 707, (2005).......::s+ssseseeeee: passim

Blackledge v. Perry, 417 U.S. 421, 422 (1974)... 17

Clark v. City of Mobile, 357 So.2d 675, 678, (Ala.Crim.App.

1978) ...ssecccsssssssscscsssssssesscecssnssnssssssssnsssscsessescasacesscensassceeess 19

Colten v. Kentucky, 407 U.S. 104 (1972)... passim

Douglas v. California, 372 U.S. 353 (1963) sacrcrsiccascsrensessess 22

Draper v. Washington, 372 U.S. 487 (19G3) acaccnacrncsrossesnceee 22

Ely v. Bugbee, 90 Conn. 584, 588, 98,A. 121, 123 ( 1916). 19

General Electric Capital Auto Financial Services, Inc. v.

Appellate division 105 Cal.Rptr.2d 552 ‘% , ) ewe 20

Green v. United States , 355 U.S. 184, 187-88 (1957).......... 7

Griffin v. Illinois, 351 U.S. 12 (1956) ......ceeseeseeereereereesees 22

Hensley v. State, 244 N.E.2d 225, 227 (Ind. 1969). ............ 20

Illinois v. Vitale, 447 U.S. 410, 415 (1980).......-seseseereereeees 7

In re Winship, 397 U.S. 358, 368 (1970)......--.-sseseseeseees 25, 27

Jones v. City of Daphne, 519 So.2d. 587 (Ala.Crim.App.

1986) ...cssccossscscecsossssesecsceesescssscenscsssscncsssecssncesssassssssseerees 19

Justices of Boston Municipal Court v. Lydon, 466 U.S. 294

(1984) ....seccccsssssssesscssersssseesssssensessssnsnensasansseseserecscecees passim

Lane v. Brown, 372 U.S. 477 (1963)....-ssssssssesesreereneneenees 22

Ludwig v. Massachusetts, 427 U.S. 618 (1976)........... passim

North v. Russell, 427 U.S. 328, 334-35 (1976) .......s-essseee0 11

Price v. Georgia, 398 U.S. 323 (1970)......-s:ssssseeeresserssseseeees 8

Rinaldi v. Yeager, 384 U.S. 305, 310-11 (1966)..........-.+++ 22

Salina v. Amador, 85 P.3d 724, 726 (Kan.App. 2004)........ 18

Sandstrom v. Montana, 442 U.S. 510 (1979) ......s-sesesereseeees 25

State v. Ashman, 153 A. 654, 655 (Conn. oj | ane 19

State v. Guy, 667 A.2d 1026, 1027 (N.H. 1995) .......eceeeeeee 18

State v. Palmer, 468 A.2d 985, 988 (Me. 1983) .....--.-e00 19

Stone v. State, 685 A.2d 441, 449 (Md. App. 1996)........... 20

United States v. Ball, 163 U.S. 662, 669 (1896).......:.-+0+ 7

United States v. Jackson, 390 U.S. 570, 581 (1968)............ 23

Yarbrough v. City of Birmingham, 353 So.2d. 75

CAREER AND, TTT) cccccsccccccesccccccsssavsscnsesessnesccnaneesennses : 19

Con al a

Fifth Amendment, United States Constituion ............passim

Fourteenth Amendment, United States Constitution ...passim

Art. 1, § 12, Constitution of Utah (1896)..............ccccccceeeeees 25

CITATIONS TO OPINIONS BELOW

Judgment appealed from:

Bernat v. Allphin, 106 P.3d 707, 2005 UT 1. The

opinion is attached in Appendix A.

Opinions from the lower court:

Bernat v. Allphin, Order Denying Petition for

Extraordinary Relief. Utah Court of Appeals. Filed Jun 12,

2003. See Appendix B. Citing Zakharian v. Burton, 2003

UT App 111. Opinion not for official publication. Filed

April 17, 2003. Also see Appendix C.

Centerville City v. Bernat, 2002 UT App 394.

opinion not for official publication. Filed November 29,

2002. The opinion is attached in Appendix D.

STATEMENT OF JURISDICTION

The Utah Supreme Court denied petitioners their

federal constitutional claims of double jeopardy, due process

and equal protection violations on January 7, 2005. The

opinion is attached in Appendix A.

CONSTITUTIONAL PROVISIONS

The Fifth and Fourteenth Amendments to the United

States Constitution are reproduced in Appendix E.

vil

STATEMENT OF THE CASE ~—

Rule 4-608 of the Utah Rules of Judicial

Administration, Utah Code Ann. § 78-5-120 and Rule 27 of

the Utah Rules of Criminal Procedure (hereinafter “the Utah

scheme,” provisions reproduced in Appendix F) establish the

appellate process for a defendant convicted of a misdemeanor

in the justice courts of Utah. Importantly, Utah’s justice

courts are not courts of record. The Utah scheme requires

that those charged and convicted of misdemeanor crimes in

the justice court receive their constitutionally protected

appellate rights by appealing to the district court (the Utah

trial court with original jurisdiction and a court of record). In

the district court the defendants receive a trial de novo.

Defendants in Utah who appeal the decision from the

justice court, however, find themselves facing trial in the

district court still convicted of the very crime for which they

will be tried again. Utah’s scheme does not vacate the

judgment of the justice court on filing the appeal and on

receipt of the de novo trial in the court of record.

The petitioners herein, after suffering convictions from

a variety of justice courts throughout Utah, independently filed

timely notices of appeal to the respective district courts as

permitted by the Utah scheme. On facing their de novo trials

for the same charges they were convicted of in justice court,

and while remaining convicted of those justice court

adjudications, petitioners filed motions to dismiss their cases

due to the federal constitutional violations of double+eepardy,

due process and equal protection rights.

Specifically, petitioners did not challenge that a trial

de novo is an unconstitutional application of the right to

appeal. That issue has been decided by this Court. Rather,

petitioners claimed that Rule 4-608 of the Utah Rules of

Judicial Administration, Utah Code Ann. § 78-5-120 (1953

as amended) and Rule 27 of the Utah Rules of Criminal

Procedure operate to violate Petitioners constitutional rights

in three distinct ways.

First, double jeopardy rights are violated by the

process that requires Petitioners to arrive in district court for

a trial de novo while still under jeopardy from a justice court

conviction.

Second, due process rights are violated by the process

which unconstitutionally shifts the burden of proof and

persuasion to the accused requiring him to demonstrate that

he must earn a right to appeal that is guaranteed him by

constitutional safeguards. Due process also is violated by

the procedures which are contrary to the presumptions of

innocence and burdensome to the protected rights to a fair

trial.

Third, equal protection guarantees are violated when

others similarly situated as petitioners are offered greater

protections. Others charged with the same and similar

misdemeanor offenses that begin their charges in district court

enjoy greater rights than those offered to petitioners and those

similarly situated whose cases begin in the justice courts.

The respondent district court judges named as parties

herein failed to vindicate the important constitutional

protections complained of and redress was sought individually

by the petitioners at the Utah Court of Appeals.

Appeals to the Utah Court of Appeals were routinely

dismissed by that court asserting a lack of jurisdiction

because petitioners’ appeals allegedly failed to challenge a

statute or ordinance and were therefore not permitted an

additional appeal beyond the trial de novo. See Appendix C.

Petitioners next filed for extraordinary relief with the

Utah Court of Appeals requesting a writ of mandamus to

direct the district courts to correct the erroneous denial of the

motions to dismiss based on violations of the federal

constitution. The Utah Court of Appeals entered orders

denying the Petitions for Extraordinary Relief. See Appendix

B.

Petitioners then prepared and filed with the Utah

Supreme Court a Petition for Writ of Certiorari to the Utah

Court of Appeals. Petitioners joined together in the Petition

before the Utah Supreme Court. Their Petition was granted

by the Utah Supreme Court on September 25, 2003. The

Utah Supreme Court, however, denied petitioners claims in

the opinion now the subject of this Petition for Writ of

Certiorari. The Utah Supreme Court’s opinion is attached at

Appendix A.

ARGUMENT

COMPELLING REASONS FOR

ISSUANCE OF THE WRIT OF CERTIORARI

ISSUANCE UE LS oe

The Utah Supreme Court, in authoring Bernat v.

Allphin, 106 P.3d 707, 2005 UT 1, decided important

questions of federal law that has not been, but should be,

settled by this Court. Rule i0(c), Rules of the Supreme Court

of the United States.

The Utah Supreme Court’s treatment of the federal

issues presented in Bernat decided important federal issues in

a way that conflicts with relevant decisions of this Court.

Rule 10(c), Rules of the Supreme Court of the United States.

The Utah Supreme Court in Bernat decided important

federal questions in a manner conflicting with decisions of

other state courts of last resort. Rule 10(b), Rules of the

Supreme Court of the United States.

Point I. The Utah Supreme Court erroneously

decided that double jeopardy is not violated by

Utah’s scheme which fails to vacate the first tier

conviction prior te defendant appearing at the

second tier de novo trial.

A. This issue has not been addressed

previously by this Court, and should be

settled by this Court as raised in this case.

Petitioners urged the Supreme Court of Utah to find a

federal double jeopardy violation in the Utah two tiered

scheme that provides misdemeanor defendants their appellate

right through a second tier trial de novo without vacating the

judgment of the first tier non-record court. Petitioners’ claim

is supported both explicitly and impliedly by this Court’s

prior rulings in a number of two-tiered cases. Colten v.

Kentucky, 407 U.S. 104 (1972), Ludwig v. Massachusetts,

427 U.S. 618 (1976) and Justices of Boston Municipal Court

v. Lydon, 466 U.S. 294 (1984). None of these cases,

however, focused on the precise issue presented in this case.

The Utah Supreme Court agreed stating as follows:

Neither Colten, Ludwig, nor Lydon directly addressed

whether a sentence imposed in a justice court must be

vacated pending a de novo trial. Nevertheless,

Petitioners argue that the explicit and implicit

language in these cases requires such action to

survive constitutional scrutiny under the Double

Jeopardy Clause. We disagree.

Bernat v. Allphin, 2005 UT 1, ¥ 22.

The Utah court acknowledged and conceded,

however, that the above cited cases discuss the importance of

vacating the conviction and cleaning the slate prior to the de

novo trial:

We acknowledge that a defendant’s ability to

automatically obtain a “clean slate” on appeal from a

justice court conviction played an important role in

the Court’s dete::aination that the systems examined

in Colten, Ludwig, and Lydon were constitutional.

However, the Kentucky and Massachusetts systems

examined in those cases were structured in such a

way that a defendant appealing a conviction from a

justice court was best viewed as if he or she had

successfully appealed a district court conviction,

obtained a reversal, and been granted a new trial. See

Ludwig, 427 U.S. at 631 (“A defendant who elects to

be tried de novo [under the Massachusetts system] is

in no different position than is a convicted defendant

who successfully appeals on the basis of the trial

record and gains a reversal of his conviction and a

remand of his case for a new trial.”). Utah’s justice

court system is different.

Bernat, 106 P.3d 707, 2005 UT | at § 23. The court correctly

decided that Utah’s scheme is different than those systems

examined by the United States Supreme Court but erroneously

concluded that those differences do not require the first tier

conviction to be vacated.

In finding no double jeopardy violation the Utah

Supreme Court misconstrued the critical import of what

petitioners believe is a threshold constitutional question and

requirement to vacate the conviction in the first tier

adjudication prior to providing the de novo trial. In fact, both

the petitioners and the court referenced many of the same

quotations and authority for their respective positions. This

Court should reach the double jeopardy issue presented in this

Petition, correct the state court’s interpretation and resolve

whether federal rights are violated by a state scheme to utilize

two tiered systems without vacating judgments occurring in

the first tier on the filing of the appeal to the trial de novo.

In its analysis the Utah court erroneously deduced

that Utah’s scheme did not suffer from double jeopardy

violations of constitutional significance under the theories (1)

that jeopardy does not terminate when a defendant is

convicted in the justice court and (2) that this concept of

continuing jeopardy is supported because the defendant alone

elects whether to file an appeal to instigate the de novo trial

and somehow removes any possible double jeopardy concern.

The Utah Supreme Court reasoned:

Thus, we conclude that Utah’s two-tier justice court

system does not violate the prohibition against double

jeopardy, even though a defendant’s sentence from

justice court is not automatically vacated pending a

trial de novo in district court. Jeopardy does not

terminate when a defendant is convicted in justice

court; therefore, a defendant is not placed twice in

jeopardy when he or she requests a de novo trial.

Because “*nothing in the Double Jeopardy Clause

prohibits a [s]tate from affording a defendant two

opportunities to avoid conviction and secure an

acquittal[.]’” Lydon, 466 U.S. at 312 (quoting

Ludwig, 427 U.S. at 632).

Bernat, 106 P.3d 707, 2005 UT 1 at ¥ 33(citation in original).

To reach its conclusion the court misplaced reliance

on Lydon to conclude the continuing jeopardy argument

could be applied to Utah’s scheme. It is the former

_ Massachusetts system addressed in Lydon, not Utah’s

scheme, which is constitutionally different. This Court

explained the uniqueness in Lydon as follows:

Under Massachusetts law, a defendant charged with

certain crimes in Boston Municipal Court may elect

either a bench trial or a jury trial. If a defendant

chooses a jury and is convicted, he has the normal

appellate process open to him, while a defendant

dissatisfied with the results of a bench trial, if he

elects that course, has an absolute right to a trial de

novo before a jury. A convicted defendant who has

chosen a bench trial need not allege error at that trial

to obtain de novo review. On the other hand, he may

not rely upon error at the bench trial to obtain reversal

of his conviction; his only recourse is a trial de novo.

Lydon, 466 U.S. at 297(citations and footnote omitted). At

first blush, this quote appears to support the Utah court’s

analysis. Later in the opinion, however, this Court reminded

that the key aspect of the Lydon ruling for purposes of this

issue on appeal is that the first tier conviction is in fact

vacated. The Lydon Court stated:

A number of features of the Massachusetts system

persuade us that it does not constitute “governmental

oppression of the sort against which the Double

Jeopardy Clause was intended to protect,” even when

a defendant convicted at the first tier claims

insufficiency of the evidence.

We note at the outset that Lydon was in “jeopardy” in

only a theoretical sense. Although technically

“jeopardy” under the Double J eopardy Clause entails

the “potential or risk of trial and conviction, not

punishment,” it is worthy of note that virtually

nothing can happen to a defendant at a first-tier

trial that he cannot avoid. He has an absolute right

to obtain the de novo trial, and he need not allege

error at the first-tier trial to do so. Once the right to a

de novo trial is exercised, the judgment at the bench

trial is “wiped out.”

Lydon, 466 U.S. at 310(quoting Price v. Georgia, 398 U.S.

323, 329 (1970)(citations omitted)(emphasis added).

The Utah Supreme Court misplaced its focus on the

idea that Lydon’s issue was distinct than that herein. Lydon

reviewed the question whether a state could provide a two

tier system without violating double jeopardy concerns. That

issue has never been postulated by petitioners. Rather

petitioners claim has always been on whether vacating the

judgment of the first tier court is required under Fifth

Amendment Double Jeopardy jurisprudence as a threshold

consideration.

Importantly, the “continuing jeopardy” concept

embraced by a faction of the Lydon Court [and refuted by

another] passed constitutional muster only because the Court

found that the Massachusetts system placed a defendant “in

jeopardy only in a theoretical sense.” Id. at 310. This

determination was reached due to the observation that

“virtually nothing could happen to a defendant at a first-tier

trial that he [could] not avoid” because the absolute right to a

de novo trial “wiped out” the bench trial judgment. Id.’ The

“wiping out” of all the lower court’s consequences in

conjunction with the appeal for the de novo trial is the

linchpin of this reasoning. In fact, contrary to the Utah

court’s analysis, the continuing jeopardy discussion in Lydon

only becomes reasonable by understanding that the defendant

can choose to continue his original jeopardy by opting for the

de novo trial, thereby annulling the first tier judgment. Only

then are double jeopardy concerns alleviated when the

defendant stands before the second tier de novo trial

unéncumbered by the prior conviction.

Absent the automatic “wiping out” or “cleaning of the

slate,” basic to the Court’s reasoning, the defendant’s state of

jeopardy is not theoretical at all, but is real. Utah’s reliance

on “continuing jeopardy” as justification not to vacate the

judgment fails to cure constitutional defects as the Utah

scheme lacks the critical protections the system at issue in

Lydon possessed. As stated by one of the concurrences in

Lydon, the Utah decision amounts to little more than the

“mere incantation of the phrase “continuing jeopardy,”

partak[ing] in the sort of “conceptual abstractions” that [this

Court’s] decisions elaborating the requirements of the Double

Jeopardy Clause have attempted to avoid.” Lydon, 466 U.S.

at 315 (Brennan, J. Concurring in part).

In clear and unambiguous terms the Lydon Court,

talking about the different system in Massachusetts,

reiterated the nature of double jeopardy protections, to wit:

Our cases have recognized three separate guarantees

embodied in the Double Jeopardy Clause: It protects

(1) against a second prosecution for the same offense

after acquittal, (2) against a second prosecution for

the same offense after conviction, and (3) against

multiple punishments for the same offense.

Lydon, 466 U.S. at 306-07(citing Illinois v. Vitale, 447 U.S.

410, 415 (1980). The Utah Supreme Court adopted this

quote from Lydon cataloging the vagaries of multiple

prosecutions but confuses the prohibitions of second

prosecutions. The language quoted by the court from Green

v. United States is provided without the bookended

comments from either side of the quote extolling the original

purposes to the protection against double jeopardy:

The common law not only prohibited a second

punishment for the same offence, but it went further

and forbid a second trial for the same offence,

whether the accused had suffered punishment or not,

and whether in the former trial he had been acquitted

or convicted.

The prohibition is not against being twice punished,

but against being twice put in jeopardy; and the

accused, whether convicted or acquitted, is equally

put in jeopardy at the first trial.

Green, 355 U.S. 184, 187-88 (1957)(quoting United States v.

Ball, 163 U.S. 662, 669 (1896). This Court has more

recently reaffirmed this earlier statement, from Ball, by

explaining, “The ‘twice put in jeopardy' language of the

Constitution thus relates to a potential, i.e., the risk that an

accused for a second time will be convicted of the 'same

offense’ for which he was initially tried.” Price v. Georgia,

398 U.S. 323 (1970). This expanded perspective of the

purpose of double jeopardy protections discredits the Utah

court’s analysis.

Perhaps of greater concern and an even more

compelling example of the Utah Supreme Court’s result

oriented jurisprudence in denying petitioners constitutionally

protected rights is the courts treatment expounding the

design and purpose of the lower tier courts. The court, citing

Colten, supports its decision on the nature of the justice

courts quoting this Court as follows:

[These courts] are designed, in the interest of both the

defendant and the State, to provide speedier and less

costly adjudications than may be possible in the

criminal courts of general jurisdiction.

Bernat, 106 P.3d 707, 2005 UT 1 at § 32 (quoting Colten,

407 U.S. at 114.

Importantly, the quote is inequitably interrupted mid-

sentence to dissuade and rule against petitioners’ argument.

The remainder of the quote, picked up in mid-sentence from

where the Utah Supreme Court abruptly stopped, importantly

continues as follows:

... [first purpose of justice courts is speed and less

costly than general jurisdiction courts] where the full

range of constitutional guarantees is available;

second, if the defendant is not satisfied with the

results of his first trial he has the unconditional right

to a new trial in a superior court, unprejudiced by the

proceedings or the outcome in the inferior courts.

Colten, 407 U.S. at 114 (emphasis added). This deliberate

approach by the court to justify its scheme at the expense of

double jeopardy rights demonstrates this Court’s need to

grant the Writ of Certiorari.

Petitioners respectfully request the Court grant the

Petition for Writ of Certiorari in this matter and decide the

question whether the double jeopardy provision of the

federal constitution requires that states, through the

fourteenth amendment, vacate the conviction from the first

tier on the defendants invocation of his right to the de novo

trial in two tiered schemes like that of Utah.

B. Prior authority of this Court requires

states to vacate judgments from the first tier

court once the de novo trial is requested.

This Court, on at least three occasions, has reviewed

de novo appellate systems, each time for reasons similar to

yet distinct from that presented in this Petition. Importantly,

each time the Court has addressed the subject of de novo trial

appellate review in the two-tiered system the Court has

provided both explicit and implicit language instructing that

Utah’s scheme violates double jeopardy principles.

In each of the cases reviewed, this Court acknowledged

that the convictions from the trial in the non court of record

must be vacated before the de novo trial can begin.

In 1972 the Court rejected a complaint that an

enhanced punishment at the trial de novo violated due

process and double jeopardy. Colten v. Kentucky, 407 U.S.

104 (1972). The Court examined the two-tiered appellate

process of Kentucky and repeatedly recognized the

requirement that the second prosecution continues without

any consequence or remaining jeopardy from the results of

the first prosecution. ;

Kentucky, like many other States, has a two-tier

system for adjudicating less serious criminal cases. In

Kentucky, at the option of the arresting officer, those

crimes classified under state law as misdemeanors

may be charged and tried in a so-called inferior court,

where, as in the normal trial setting, a defendant may

choose to have a trial or to plead guilty. If convicted

after trial or on a guilty plea, however, he has a right

to a trial de novo in a court of general criminal

jurisdiction, so long as he applies within the statutory

time. The right to a new trial is absolute. A defendant

need not allege error in the inferior court proceeding.

If he seeks a new trial, the Kentucky statutory

scheme contemplates that the slate be wiped clean.

Prosecution and defense begin anew. . . . The case is

to be regarded exactly as if it had been brought there

in the first instance. A convicted defendant may seek

review in the state appellate courts in the same

manner as a person tried initially in the general

criminal court. However, a defendant convicted after

a trial or plea in an inferior court may not seek

ordinary appellate review of the inferior court's

ruling. His recourse is the trial de novo.

Colten, 407 U.S. at 112-13 (emphasis added; citations

omitted). Later the Court stated:

We are not persuaded, however, that the Kentucky

arrangement for dealing with the less serious offenses

disadvantages defendants any more or any less than

trials conducted in a court of general jurisdiction in

the first instance, as long as the latter are always

available. Proceedings in the inferior courts are

simple and speedy, and, if the results in Colten's case

are any evidence, the penalty is not characteristically

severe. Such proceedings offer a defendant the

opportunity to learn about the prosecution's case and,

if he chooses, he need not reveal his own. He may

also plead guilty without a trial and promptly secure

a de novo trial in a court of general criminal

jurisdiction. He cannot, and will not, face the realistic

threat of a prison sentence in the inferior court

without having the help of counsel, whose advice will

also be available in determining whether to seek a

new trial, with the slate wiped clean, or to accept the

penalty imposed by the inferior court. The State has

no such options. Should it not prevail in the lower

court, the case is terminated, whereas the defendant

has the choice of beginning anew.

Colten, 407 U.S. at 118-19 (emphasis added).

Importantly, the Kentucky scheme analyzed in Colten

expressly provided that on the filing of the appeal the

sentence of the justice court was to be vacated.

In all instances, a defendant in Kentucky facing a

criminal sentence is afforded an opportunity to be

tried de novo in a court presided over by a lawyer-

judge since an appeal automatically vacates the

conviction in police court. The trial de novo is

available after either a trial or a plea of guilty in the

police court; a defendant is entitled to bail while

awaiting the trial.

North v. Russell, 427 U.S. 328, 334-35 (1976)(citations

omitted)(emphasis added). Notably, the North Court

concluded that a two-tiered de novo trial system utilizing

non-lawyer judges in the inferior court violated neither due

process nor equal protection precisely because the accused

were provided a de novo trial under the Kentucky scheme

before a court of general criminal jurisdiction. Id. at 337-39.

Significantly, the Court relied on language from Colten

noting:

11

A defendant can have an initial trial before a lawyer-

judge by pleading guilty in the police court, thus

bypassing that court and seeking the De novo Trial,

"erasing . . . any consequence that would otherwise

follow from tendering the (guilty) plea."

Id. at 337 (quoting Colten v. Kentucky, 407 U.S. at 119-20).

Utah permits non-lawyer judges in justice courts. That use

of lay judges in Utah justice courts is not itself a violation as

explained in North; except that the conviction obtained from

that justice court in Utah is not vacated on the filing of the

Notice of Appeal as the North Court analyzed as the saving

principle in such cases. Utah’s failure to “wipe the slate

clean” and “begin anew” in the court of general criminal

jurisdiction renders the Utah scheme unconstitutional under

double jeopardy grounds.

As in Colten, the system in Ludwig survived scrutiny

precisely because the jeopardy from the first case was

vacated under the Massachusetts’s scheme and any

consequences of that conviction terminated prior to or with

the filing of the notice of the accused's intent to take his trial

de novo appeal. Massachusetts’s scheme survived the

constitutional challenge for the same reason Kentucky’s

scheme survived. Each system vacated the conviction from

the inferior court on filing the notice to appeal. Again,

Utah's scheme contrarily does not vacate the conviction from

the inferior court. When Petitioners arrive in district court

in Utah they therefore face jeopardy for the second time on

the same charges of which they are currently guilty—in

violation of double jeopardy safeguards.

Ludwig demonstrates this critical difference at the

outset of the opinion as the Court explains the procedure

employed.

12

Unlike the two-tier Kentucky system under

consideration in Colten v. Kentucky an accused in

Massachusetts does not avoid trial in the first instance

by pleading guilty. Nevertheless, he achieves

essentially the same result by an established, informal

procedure known as "admitting sufficient findings of

fact." This procedure is used "[i]f the defendant

wishes to waive a trial in the District Court and save

his rights for a trial in the Superior Court on the

appeal." The trial court then hears only enough

evidence to assure itself that there is probable cause to

believe that the defendant has committed the offense

with which he is charged. The court, however, does

make a finding of guilt and enter a judgment of

conviction.

Once a person convicted in the [inferior jurisdiction]

indicates that he is going to appeal, his conviction is

vacated.

Ludwig, 427 U.S. at 621-22 (emphasis added; citations

omitted). The Court then later added a significant

observation:

The decision to secure a new trial rests with the

accused alone. A defendant who elects to be tried de

novo in Massachusetts is in no different position than

is a convicted defendant who successfully appeals on

the basis of the trial record and gains a reversal of

his conviction and a remand of his case for a new

trial. Under these circumstances, it long has been

clear that the State may reprosecute. The only

difference between an appeal on the record and an

appeal resulting automatically in a new trial is that a

convicted defendant in Massachusetts may obtain a

"reversal" and a new trial without assignment of

error in the proceedings at his first trial. Nothing in

13

;

the Double Jeopardy Clause prohibits a State from

affording a defendant two opportunities to avoid

conviction and secure an acquittal.

Ludwig, 427 U.S. at 631-32 (emphasis added; citations

omitted). The Court in Ludwig highlights the critical

distinction missing from our Utah scheme that "/ojnce a

person convicted in the [first court] indicates that he is

going to appeal, his conviction is vacated." Ludwig, 427

U.S. at 621-22 (emphasis added).

Finally, in Justices of Boston Municipal Court v. cece

Lydon, 466 U.S. 294 (1984), the United States Supreme

Court again included as a part of its holding the very

important factual understanding of the rules pertinent to

Massachusetts. The exact issue in the case is distinct from

that presented in this writ; yet the Court's conclusions against

Lydon fully support and establish that the first and

underlying conviction is vacated on inception of the de novo

trial as an appeal.

We note at the outset that Lydon was in "jeopardy" in

only a theoretical sense. Although technically

"jeopardy" under the Double Jeopardy Clause entails

the "potential or risk of trial and conviction, not

punishment," it is worthy of note that virtually

nothing can happen to a defendant at a first-tier

trial that he cannot avoid. He has an absolute right to

obtain the de novo trial, and he need not allege error

at the first-tier trial to do so. Once the right to a de

novo trial is exercised, the judgment at the bench

trial is "wiped out."

Lydon, 466 U.S. at 310 (emphasis added; citations omitted).

The Court then added:

14

To put the matter another way, as we observed in

Colten v. Kentucky, a defendant's choices in a two-

tier system are [iJ]n reality . . . to accept the decision

of the judge and the sentence imposed in the inferior

court or to reject what in effect is no more than an

offer in settlement of his case and seek the judgment

of a judge or jury in the superior court, with

sentence to be determined by the full record made in

that court.

Lydon, 466 U.S. at 312 (emphasis added; citation omitted).

Notably, the reliance by the Lydon Court on Colten requires

inclusion of the concluding comment by the Court in Colten

v. Kentucky when it states:

Colten urges that his [double jeopardy] claim is

stronger because the Kentucky system forces a

defendant to expose himself to jeopardy as a price for

securing a trial that comports with the Constitution. .

. The contention [of Colten] also ignores that a

defendant can bypass the inferior court simply by

pleading guilty and erasing immediately thereafter

any consequence that would otherwise follow from

tendering the plea.

Colten v. Kentucky, 407 U.S. at 119-20. Critically, Utah’s

scheme falls short of those schemes from Massachusetts and

Kentucky examined and approved by the United States

Supreme Court as discussed in the above cases.

Unlike Utah’s scheme, the systems evaluated in these

cases vacate the judgments of the prior jeopardy in order to

place the accused in the appropriate constitutional posture

before a new trial. Utah justice courts, by rule and practice,

are not “erasing immediately thereafter any consequence" on

filing of a notice of appeal as required by the double jeopardy

clauses and the decisions from the Supreme Court. Rather,

15

the Utah justice courts leave the convicted justice court

defendant under jeopardy while sending him to appeal te the

district court by de novo trial, thereby violating the double

jeopardy provision of successive prosecutions on the same

charges.

This Court should issue the Writ of Certiorari as prior

decisions from this Court demonstrate the erroneous nature

of the Utah Supreme Court’s opinion.

C. The Utah Supreme Court’s decision to

not vacate the judgment from the first

tier court is in conflict with decisions of

other state courts of last resort.

Over twenty years ago this Court made note in Lydon

of the number of states that incorporate a two-tier system for

adjudicating less serious criminal offenses. Lydon, 466 U.S.

at 112 (listing statutory references to 24 different states that

had incorporated a two-tier system). Utah’s two tiered de

novo appellate scheme and the holding in this case now

~ before the Court are in conflict with many of the two tiered

systems of those other states.

In examining how other states work with a two-tier

system, we begin with those systems which have already

undergone the scrutiny of this Court. This Court has

reviewed and deemed as constitutional the two-tier systems

in Massachusetts, Kentucky and North Carolina — all three of

these states share as a common characteristic the “clean

slate” petitioners contend is required. See Ludwig, 427 U.S.

at 632 (stating that a convicted defendant in Massachusetts

may obtain a reversal and a new trial without assignment of

error in the proceedings at his first trial.); Lydon, 466 U.S. at

310 (commenting that once the right to a de novo trial is

exercised, the judgment at the bench trial is “wiped out.”);

16

;

:

:

,

‘

.

:

Colten, 407 U.S. at 113 (asserting that if a defendant seeks a

new trial the Kentucky statutory scheme contemplates that

the slate be wiped clean); Blackledge v. Perry, 417 USS. 421,

422 (1974)(mentioning that in North Carolina any defendant

convicted in District Court has an absolute right to a trial de

novo in Superior Court, and when the appeal is taken . . . the

slate is wiped clean; the prior conviction is annulled, and the

prosecution and the defense begin anew in the Superior

Court). a

The court below acknowledged that “a defendant’s

ability to automatically obtain a “clean slate” on appeal from

a justice court conviction played an important role in the

[Supreme] Court’s determination that the systems examined

in Colten, Ludwig, and Lydon were constitutional.” See

Bernat, 106 P.3d 707, 2005 UT 1 at §j 23. The Utah court

does not offer sufficient justification for a system to exist

without such a protection, it merely posits that the posture of

the defendant justifies maintaining their guilty status. Id. The

fact remains that regardless of how a defendant’s posture 1s

framed, any system requiring convicted defendants to face an

entirely “new trial” on the same facts is disingenuous and in

violation of Fifth Amendment double jeopardy protections.

Along with this Court’s more than incidental

treatment of the role of a “clean slate” in a trial de novo, a

number of other states have explained the critical

requirement of vacating the lower court’s conviction as a

constitutionally essential component of their two-tier

systems.

For example, case law from the state of Kansas

demonstrates that “Kansas has codified the protection against

double jeopardy” and directly applied the same to their two-

tier system. Salina v. Amador, 85 P.3d 724, 726 (Kan.App.

2004). The relevant Kansas code section provides:

17

(1) A prosecution is barred if the defendant was

formerly prosecuted for the same crime, based upon

the same facts, if such former prosecution:

(a) Resulted in either a conviction or an acquittal.

Kan. Stat. Ann. § 21 — 3108(1)(a) (2003). This section has

been construed by the Kansas courts to stand for the premise

that a defendant’s “conviction by the municipal court [is]

vacated when he appeal|[s] to the district court for a trial de

novo.” Amador, 85 P.3d at 727.

The Supreme Court of New Hampshire has spoken

regarding their framework of their two-tier system.

According to the highest court in New Hampshire:

A person convicted by a district or a municipal court

of a class A misdemeanor, at the time the sentence is

declared, may appeal therefrom to the superior court

which shall hear the appeal. The effect of such an

appeal is to vacate that judgment and transfer the

whole proceeding to the Superior Court, there to be

tried de novo on the original complaint.

State v. Guy, 667 A.2d 1026, 1027 (N.H. 1995)(emphasis in

original, internal quotations and citations omitted).

The courts in Connecticut have defined as well the

position of their state regarding necessary steps to protect

against double jeopardy. The courts in this state have long

held that, “It is well settled in this state that an appeal from

the judgment of a justice of the peace vacates the judgment of

the justice, and the case stands in the appellate court precisely

as though brought there in the first instance.” State v.

Ashman, 153 A. 654, 655 (Conn. 1931); Ely v. Bugbee, 90

Conn. 584, 588, 98 A. 121, 123 (Conn. 1916).

Alabama speaks forcefully with regard to this

question. According to Alabama law, “when an appeal is

allowed by statute from the judgment of an inferior court to a

superior court, where the case is to be tried de novo,... a

trial de novo means a new trial 'as if no trial had ever been

had, and just as if it had originated in the circuit court." Ball

v. Jones, 132 So.2d 120, 122 (1961). This stance has been

given even further clarification as another Alabama court

asserted: “A trial de novo means that the slate is wiped clean

and a trial in the Circuit Court is had without any

consideration being given to prior proceedings in another

Court." Clark v. City of Mobile, 357 So.2d 675, 678,

(Ala.Crim.App. 1978)(quoting Yarbrough v. City of

Birmingham, 353 So.2d. 75 (Ala.Crim.App. 1977)). Yet

another court in Alabama further clarified, “[w]hen on appeal

the case is triable de novo, it stands as though no judgment

had ever been rendered in the lower court.” Jones v. City of

Daphne, 519 So.2d. 587 (Ala.Crim.App. 1986).

Maine echoes the protective language of these other

states in their consideration of this issue. The Supreme Court

in Maine expressed the view that “a defendant found guilty in

the District Court ha[s] a right to appeal and get a trial de

novo. When the case comes before the Superior Court, the

entire slate is wiped clean as if brought there initially. An

entirely different court hears the case anew.” State v. Palmer,

468 A.2d 985, 988 (Me. 1983).

Indiana takes a similar view with their process,

contending that in their two-tier system, “The appeal [to the

higher court], in fact, is more than a stay of the judgment of

conviction before the justice. It vacates that judgment and

transfers the whole proceeding to the court appealed to, there

to be tried .. . de novo.” Hensley v. State, 244 N.E.2d 225,

227 (Ind. 1969).

19

These examples of states that hold the opposing

viewpoint of the Utah Supreme Court’s ruling is not intended

to be exhaustive, but rather to serve as an illustration of the

split of authority in interpreting two tiered jurisprudence.

These examples also demonstrate the pressing need for this

Court to grant this Petition and determine the matter.'

Some states have ruled consistent with Utah’s court.

In the state of Washington, “A trial de novo in superior court

as the result of a conviction and appeal taken in municipal

court does not signal the initiation of an entirely new criminal

process or procedure.” Seattle v. Crockett, 551 P.2d 740,

741-742 (Wash. 1976). The Washington system maintains

that, “The slate has not been wiped clean . . . The judgment

of conviction rendered by the municipal court still exists and

the appeal merely suspends operation of the judgment.” Id.

Although the Washington system fails to vacate the lower

court conviction, it is worth noting that the automatic

suspension of the judgment offers a defendant more

protection than the Utah scheme. See e.g., City of St. Louis v.

Rollins, 32 S.W.3d 187, 189 (Mo.App. E.D., 2000)

(explaining that the filing of an application for trial de novo

alone does not vacate or annul the municipal court’s

judgment, but that the application for appeal merely suspends

the execution of the judgment pending final disposition of the

trial de novo.) See Petitioner’s Point II, Due Process

Argument.

Notably, California and Massachusetts have recently taken

measures to eliminate the two tier systems they once had in place. See

generally General Electric Capital Auto Financial Services, Inc. v.

Appellate Division, 105 Cal.Rptr.2d 552 (Cal.App.2.Dist., 2001)

(discussing at length the trial court unification following a 1998 voter

proposition authorizing an amendment to the state constitution); See also

Stone v. State, 685 A.2d 441, 449 (Md. App. 1996) (noting that as of

January 1, 1994, Massachusetts abolished their two-tier system).

Unfortunately, this disagreement or split existing

among the states identifies that an individual’s Fifth

Amendment double jeopardy protection fragilely is

dependent upon the state in which he resides. This Court

should grant the Petition for Writ of Certiorari and resolve

the conflict in interpretation of the fifth amendment rights.

Il. Whether Utah’s two-tiered system violates Due

Process by requiring the defendant to file a

certificate of probable cause and earn a right to

appeal that is otherwise guaranteed him by federal

constitutional safeguards.

The Utah trial de novo scheme, including Rule 4-608

of the Rules of Judicial Administration, Utah Code Ann. §

78-5-120 and Rule 27 of the Utah Rules of Criminal

Procedure (see Appendix F) operates to deny the petitioners

their constitutionally protected rights to due process as

guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution.

Besides violating double jeopardy rights, the scheme

violates due process in a variety of ways: (a) impermissibly

discourages and burdens the accused in his attempt to

exercise his constitutional right to appeal, and (b) unlawfully

shifts the burden to the accused requiring that he demonstrate

and earn a right to appeal that is actually guaranteed him by

the state constitution.

A. Our Utah scheme impermissibly

discourages and burdens the right to appeal.

This Court often has demonstrated the

inappropriateness of encumbering constitutionally protected

rights.

21

This Court has never held that the States are required

to establish avenues of appellate review, but it is now

fundamental that, once established, these avenues

must be kept free of unreasoned distinctions that can

only impede open and equal access to the courts.

Rinaldi v. Yeager, 384 U.S. 305, 310-11 (1966) (citing

Douglas v. California, 372 U.S. 353 (1963); Lane v. Brown,

372 U.S. 477 (1963); Draper v. Washington, 372 U.S. 487

(1963); Griffin v. Illinois, 351 U.S. 12 (1956)).

The Utah scheme violates this well established rule

by making it extremely burdensome to get a stay prior to the

trial de novo, particularly if a forthwith sentence is ordered

by the justice court. The timelines alone for a hearing on the

petition are draconian as they relate to justice court matters.

Often times a justice court sentence could be served before

the rigorous steps of a certificate of probable cause are met.

For example, a certificate of probable cause cannot be

issued except upon application of the defendant. Rule

27(d)(1). The application must

be in writing and supported by a memorandum of law

identifying the issues to be presented on appeal and

supporting the defendant’s position that those issues

raise a substantial question of law or fact reasonably

likely to result in reversal, an order for a new trial or a

sentence that does not include a term of incarceration

in jail or prison.

Rule 27(d)(2). The rule allows the prosecution 10 days to

respond, and allows the court an additional 10 days after that

to hear the matter. If the prosecution fails to respond the

court still can wait fifteen days to hear the matter and no

requirement is provided for the court to rule on the matter

within any time frame. If the justice court denies the petition,

22

then the matter must be presented to the district court and

these time lines are repeated. Meanwhile the sentence may

be served while the accused is awaiting his automatic appeal

in the form of a new trial.

Moreover, the economic burdens placed on a justice

court defendant to accomplish even one round of filing a

petition, let alone the possibility, if not the likelihood of the

second round, are prohibitive for a system designed to

advantage citizens in its simplicity. Likewise, numerous

litigants in justice courts proceed pro se and are without the

legal ken to maneuver these procedures independently. Such

procedural hurdles violate due process by overly-burdening

an accused in his pursuit to effect his guaranteed right to

appeal the decision of the justice court to a court of record.

In fact, no circumstances actually exist for a justice

court judge to find that the accused is not entitled to a de

novo trial given the language in the rule itself and in the

statute which guarantees the accused that right once timely

requested. Notably, the rule itself (2)(d) makes no mention

of the certificate but rather refers only to the filing of the

notice of the appeal.

This state scheme process needlessly and

impermissibly “chills” the right of the justice court defendant

to appeal. In United States v. Jackson, 390 U.S. 570, 581

(1968), this Court examined legislation, the Federal

Kidnapping Act, which more harshly punished defendants

who elected to exercise their trial rights over those agreeing

to a plea bargain. The government argued that the intent of

the legislation was to mitigate punishment for those who

cooperated. The government claimed the incidental effect of

inducing defendants not to fully contest their charges was

irrelevant. To that position the Jackson Court stated the

following:

23

Whatever might be said of Congress’ objectives, they

cannot be pursued by means that needlessly chill the

exercise of basic constitutional rights. The question is

not whether the chilling effect is "incidental" rather

than intentional; the question is whether that effect is

unnecessary and therefore excessive. In this case the

answer to that question is clear. .. . Congress cannot

impose such a penalty in a manner that needlessly

penalizes the assertion of a constitutional right. . . .

For the evil in the federal statute is not that it

necessarily coerces guilty pleas and jury waivers but

simply that it needlessly encourages them. A

procedure need not be inherently coercive in order

that it be held to impose an impermissible burden

upon the assertion of a constitutional right.

Id. at 581-83 (emphasis added; citations omitted) Due

process is violated by the rule and the statute spec. fically as it

relates to justice court cases.

B. Our Utah scheme unlawfully shifts the

burden to the accused.

Our most basic principles of criminal law permit an

accused to be tried while enjoying, inter alia, the presumption

of innocence. Due process is violated on these facts because

Rule 4-608 and § 78-5-120 eviscerate this presumption of

innocence and place on an accused an impermissible burden

and create a chilling effect on the exercise of appellate rights

afforded under Utah’s constitution and the Constitution of the

United States. The scheme requires the filing of a petition

and a memorandum of points and authorities in support of

~ that petition to gain the appeal that the constitution and the

scheme themselves identify as an automatic right on timely

filing of the notice to appeal. Art. 1, § 12, Constitution of

Utah (1896); Utah Code Ann. § 78-5-120 (2001).

This Court stated the following in In re Winship, 397

U.S. 358, 368 (1970):

Lest there remain any doubt about the constitutional!

stature of the reasonable-doubt standard, we explicitly

hold that the Due Process Clause protects the accused

against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute

the crime with which he is charged.

Seven years later this Court reaffirmed the point and added:

[A] State must prove every ingredient of an offense

beyond a reasonable doubt, and. . . may not shift the

burden of proof to the defendant by means of such a

presumption. .

Sandstrom v. Montana, 442 U.S. 510 (1979)(citations

omitted; emphasis added). These quotes identify the

infirmity contained in rule 4-608, that the defendant who is

convicted in the justice court must meet an affirmative duty

to prove or persuade the court of his automatic right to

appeal. The de novo trial is an entitlement under the

Constitution of Utah and the very scheme employed to

provide him his appeal. ,

The Utah scheme requiring a certificate of probable

cause to gain a right already guaranteed is too fraught with

the potential to harass and otherwise burden an important

constitutional right.

This Court should declare unconstitutional as

violative of due process considerations this Utah scheme

which impermissibly shifts the burden to the defendant to

establish that he has constitutionally protected rights to

appeal.

25

III. Whether Utah’s two-tiered system violates the

federal constitutional tenet of Equal Protection of

the law by providing disparate treatment for

similarly situated criminal defendants.

The Fourteenth Amendment of the United States

Constitution prohibits the states from enacting laws that deny

"any person within its jurisdiction equal protection of the

laws."

Petitioners assert that equal protection rights assured ‘

by both constitutions are violated by Rule 4-608 and § 78-5-

120 because the scheme they establish for an accused to

perfect an appeal requires facing a second de novo trial while

maintaining a guilty status from the justice court. These

same circumstances are not true had the accused initially

been charged in the court of record and then received a new

trial on remand from the appellate court. E.g., Colten v.

Kentucky, 407 U.S. 104 (1972). In the later circumstances

his conviction would be purged prior to the second or new

trial.

The equal protection violation occurs not because the

Utah scheme has allowed the defendants to receive different

types of process, but precisely because when facing the

second trial as discussed above the two types of defendants

are not and must not be treated any differently. Both the

justice court defendant on his trial de novo and the district

court defendant on his retrial after reversal of his conviction

and remand from the appellate court must be treated the

same. At that juncture in the process both defendants are

indistinguishable; they are both defendants charged with

crimes in a tribunal within the state and they both possess the

full panoply of rights afforded anyone accused in this country

of committing a criminal violation. In re Winship, 397 U.S.

at 368.

26

This Court examined an analogous appellate situation

with a New Jersey statute that authorized extracting an

expense for transcripts and concluded as follows:

Apart from its fiscal objective, the only other purpose

of this law advanced by the appellees is the deterrence

of frivolous appeals. Assuming a law enacted to

perform that function to be otherwise valid, the

present statutory classification is no less vulnerable

under the Equal Protection Clause when viewed in

relation to that function. By imposing a financial

obligation only upon inmates of institutions, the

statute inevitably burdens many whose appeals,

though unsuccessful, were not frivolous, and leaves

untouched many whose appeals may have been

frivolous indeed.

This Court has never held that the States are required

to establish avenues of appellate review, but it is now

fundamental that, once established, these avenues

must be kept free of unreasoned distinctions that can

only impede open and equal access to the courts. We

may assume that a State can validly provide for

recoupment of the cost of appeals from those who

later become financially able to pay. But any such

provision must, under the Equal Protection Clause, ve

applied with an even hand.

Rinaldi, 384 U.S. at 310-11 (citations omitted). The Court

struck down the statute in question.

Similarly, on these same equal protection grounds,

this Court should correct our scheme which treats similarly

situated defendants at the retrial procedures differently and

thereby unconstitutionally under equal protection safeguards.

27

CONCLUSION

For all or any of the foregoing reasons, Petitioners

respectfully request this Court to grant the petition for Writ

of Certiorari.

fi-

RESPECTFULLY SUBMITTED this 7 day of

April, 2005.

BENJAMIN A. HAMILTON

Attorney for Petitioners

28