State v. Redden

2022 UT App 14

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
JOEL CHANCE REDDEN,
Appellee.

Opinion
No. 20200700-CA
Filed January 27, 2022

Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 191500842

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellant
Gary W. Pendleton, Attorney for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and RYAN D. TENNEY concurred.

POHLMAN, Judge:

¶1 Joel Chance Redden committed two domestic violence
offenses in October 2019, and the district court entered judgment
on those convictions in January 2020. In the present case, Redden
was charged with violating a protective order in October 2019
when he allegedly called his former girlfriend ten times. Later,
the State sought to amend the information to add new charges
for violating the protective order, enhanced from class A
misdemeanors to third degree felonies based on the domestic
violence enhancement statute. Redden opposed the
enhancement, arguing that the new crimes had to be committed
after his January 2020 convictions. The magistrate agreed with
Redden and bound him over for trial on the new charges as class
A misdemeanors. The State now appeals, arguing that it could
State v. Redden

enhance the charges so long as Redden is actually convicted of
the new crimes within ten years after his January 2020
convictions. We agree with the State and therefore reverse.

BACKGROUND1

¶2 Redden was subject to a protective order that prohibited
him from contacting or communicating in any way with
Michelle,2 his former girlfriend. Notwithstanding this directive,
Redden contacted Michelle on October 4, 2019, and threatened
her. This conduct led the State to prosecute Redden in Weber
County, and he pleaded guilty to stalking and violating a
protective order, both third degree felonies. Redden entered his
plea on December 4, 2019, and the judgment was entered on
January 22, 2020 (the January 2020 convictions).

¶3 The present case arises out of Redden’s conduct on
October 9, 2019. At that time, Redden was jailed in Texas on
unrelated charges, and Michelle was visiting Cedar City, Utah.
Beginning at 8:34 a.m., Redden allegedly telephoned Michelle
ten times over the next three hours. According to Michelle, she
answered the second call, which was a collect call from Redden
from the Texas jail. Michelle accepted the call and spoke to
Redden briefly. She told him, “Just don’t ever call me again,”
and hung up. She also answered one of Redden’s later calls and
recorded it, but she did not accept it to speak with him.

1. “At a preliminary hearing, the magistrate should view the
evidence in a light most favorable to the prosecution and resolve
all inferences in favor of the prosecution.” State v. Arghittu, 2015
UT App 22, ¶ 2 n.2, 343 P.3d 709 (cleaned up). Because this
appeal arises from a preliminary hearing, we recite the
background facts with that standard in mind.

2. A pseudonym.

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State v. Redden

¶4 After Michelle reported these phone calls to law
enforcement, the State filed an information against Redden in
Iron County on December 30, 2019. It charged Redden with two
counts of violation of a protective order for his October 9
conduct. It pursued both counts as third degree felonies
enhanced from class A misdemeanors based on Redden’s
conduct underlying his January 2020 convictions. Yet the State
did not present evidence of the January 2020 convictions at a
May 2020 preliminary hearing, and consequently, Redden
moved to reduce both counts to class A misdemeanors.
Although the State moved to continue the hearing, the
magistrate denied that request. The magistrate then agreed with
Redden and found the State had not met its burden on
enhancing the misdemeanors to felony charges, and the
magistrate instead bound Redden over on the two counts as
class A misdemeanors.3

¶5 The State next moved for leave to amend the information.
While it would still pursue the two misdemeanor counts (Counts
9 and 10) that had already been bound over for trial, the State
sought to include eight additional counts of violation of a
protective order, which would be enhanced to third degree
felonies based on Redden’s prior convictions. Over Redden’s
objection, the magistrate allowed the State to amend the
information.

¶6 At the preliminary hearing on the eight additional
charges, the State presented evidence to support those eight
counts. And unlike in the first preliminary hearing, the State
included evidence of the January 2020 convictions. Still, Redden
argued that the eight counts could be bound over only as
misdemeanors because the January 2020 convictions did not
qualify as “prior conviction[s]” to the eight alleged offenses

3. The State does not contest this bindover ruling on appeal.

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committed on October 9, 2019. Relying on Utah Code section
77-36-1.1(2)(c)(ii)(B), which applies when “the individual is
convicted of the domestic violence offense . . . within 10 years
after the individual is convicted of a qualifying domestic
violence offense,” Utah Code Ann. § 77-36-1.1(2)(c)(ii)(B)
(LexisNexis Supp. 2019), Redden asserted that to be enhanced to
third degree felonies, the new offenses had to be committed
within ten years after his January 2020 convictions. The State
responded that even though “the prior conviction was for facts
arising from October 4,” the enhancement provision in Utah
Code section 77-36-1.1(2)(c)(ii)(B) required only that Redden be
convicted of the new crimes within ten years after his January
2020 convictions.

¶7 The magistrate agreed with Redden that the eight counts
could not be enhanced to third degree felonies under the statute.
He then determined that the State had presented sufficient
evidence to establish probable cause “that the offenses of
violation of [a] protective order were committed in eight
instances.” Accordingly, the magistrate bound Redden over for
trial on all ten counts as class A misdemeanors.

¶8 In light of the magistrate’s decision finding no probable
cause that Redden had committed the eight third-degree felonies
as charged in the amended information, the State “decline[d] to
file a second amended information bringing the charges in line
with the Court’s findings.” Instead, it moved to dismiss all
charges in lieu of amending the information.

¶9 The magistrate granted the State’s request and dismissed
all charges against Redden. The two original misdemeanor
charges were dismissed pursuant to rule 25(a) of the Utah Rules
of Criminal Procedure, and the eight additional charges were

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State v. Redden

dismissed pursuant to rule 7B(c).4 The State now appeals the
order of dismissal. See Utah Code Ann. § 77-18a-1(3)(a)
(LexisNexis 2017) (“The prosecution may, as a matter of right,
appeal from . . . (a) a final judgment of dismissal, including a
dismissal of a felony information following a refusal to bind the
defendant over for trial . . . .”); id. § 78A-4-103(2)(e) (2018)
(providing that the Utah Court of Appeals has jurisdiction over
appeals from criminal cases not involving first degree felonies).

ISSUES AND STANDARDS OF REVIEW

¶10 The State contends that the magistrate misinterpreted the
enhancement statute when he refused to bind Redden over on
the eight counts as third degree felonies. The decision to bind
over a criminal defendant for trial typically presents a mixed
question of law and fact to which we grant some deference to the
magistrate. See State v. Prisbrey, 2020 UT App 172, ¶ 18, 479 P.3d
1126. But because the bindover decision here turned on a
question of statutory interpretation, we review it for correctness.
See State v. Thompson, 2020 UT App 148, ¶ 13, 476 P.3d 1017.

¶11 Rather than defending the magistrate’s decision on its
merits, Redden contends that this court lacks jurisdiction over

4. Rule 25(a) states, “In its discretion, for substantial cause and in
furtherance of justice, the court may, either on its own initiative
or upon application of either party, order an information or
indictment dismissed.” Utah R. Crim. P. 25(a). Rule 7B(c)
provides, “If the magistrate does not find probable cause to
believe the crime charged has been committed or the defendant
committed it, the magistrate must dismiss the information and
discharge the defendant. The magistrate may enter findings of
fact, conclusions of law, and an order of dismissal. The dismissal
and discharge do not preclude the state from instituting a
subsequent prosecution for the same offense.” Id. R. 7B(c).

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State v. Redden

the State’s appeal, asserting that the State was not entitled to
appeal from a dismissal order entered at its own request.
“Whether appellate jurisdiction exists is a question of law which
we decide in the first instance.” State v. Arghittu, 2015 UT App
22, ¶ 12, 343 P.3d 709 (cleaned up).

ANALYSIS

I. The State’s Argument on Appeal

¶12 The State argues that the magistrate erred in determining
that the domestic violence enhancement statute did not apply to
the eight additional counts that it raised in the amended
information. According to the State, it could enhance those
charges from class A misdemeanors to third degree felonies so
long as Redden is ultimately convicted on the charges within ten
years after his January 2020 convictions. Thus, the State argues,
“until and unless the State fails to convict Redden of the new
domestic violence charges before January 22, 2030, the [statute]
allows the State to prosecute the new charges as third-degree
felonies.” We agree.

¶13 When we interpret a statute, “we look first to the best
evidence of a statute’s meaning, the plain language of the act,
and we do not look beyond a statute’s plain language unless it is
ambiguous.” State v. Thompson, 2020 UT App 148, ¶ 33, 476 P.3d
1017 (cleaned up). “Wherever possible, we give effect to every
word of a statute, avoiding any interpretation which renders
parts or words in a statute inoperative or superfluous.” State v.
Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515 (cleaned up).

¶14 The crime that Redden is alleged to have committed—
violating a protective order—is a class A misdemeanor but is
subject to increased penalties in accordance with the domestic
violence enhancement statute. See Utah Code Ann. § 76-5-108

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(LexisNexis Supp. 2019). That enhancement statute states, in
relevant part,

(2) An individual who is convicted of a domestic
violence offense is: . . .

(c) guilty of a felony of the third degree if:

(i) the domestic violence offense described in this
Subsection (2) is designated by law as a class A
misdemeanor; and

(ii)(A) the domestic violence offense described in
this Subsection (2) is committed within 10 years after
the individual is convicted of a qualifying domestic
violence offense that is not a criminal mischief
offense; or

(B) the individual is convicted of the domestic
violence offense described in this Subsection (2)
within 10 years after the individual is convicted of
a qualifying domestic violence offense that is not a
criminal mischief offense.

Id. § 77-36-1.1 (emphases added). As we read this plain
language, section 77-36-1.1(2)(c) allows the State to enhance a
class A misdemeanor charge to a third degree felony when a
defendant either “commit[s]” or “is convicted of” the current
crime “within 10 years after” the defendant “is convicted of a
qualifying domestic violence offense.” Id. Thus, we agree with
the State’s reading of the statute. Redden, tellingly, has not
offered an alternative interpretation.

¶15 Further, we agree with the State’s application of the
statute to this case. The parties do not dispute that Redden’s

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January 2020 convictions constitute “a qualifying domestic
violence offense” under the statute.5 Because it is still possible
that Redden could be “convicted of” the eight current charges
“within 10 years” after he was convicted of qualifying domestic
offenses in January 2020, section 77-36-1.1(2)(c)(ii)(B) permits the
State to enhance the eight counts to third degree felonies. The
magistrate erred in concluding otherwise. The magistrate
appears to have reasoned that subsection 77-36-1.1(2)(c)(ii)(B)
applies only if the defendant’s current charges stem from
conduct that occurred after the defendant was convicted of the
qualifying domestic offense. But this interpretation would
render subsection 77-36-1.1(2)(c)(ii)(A) superfluous because that
subsection expressly addresses such circumstances—when the
current offense “is committed” after the conviction on the
qualifying domestic offense. We will not read the statute in a
way that would conflate both subsections and make one
subsection inoperative. See Stewart, 2018 UT 24, ¶ 12.

¶16 In sum, we conclude that for the enhancement under
subsection 77-36-1.1(2)(c)(ii)(B) to apply, the State has until
January 22, 2030, to obtain a conviction against Redden for the
eight counts. We therefore reverse the magistrate’s decision
binding Redden over on these counts as class A misdemeanors
and direct that Redden be bound over on them as third degree
felonies.

5. As used in the statute, the term “domestic violence offense”
includes “commission or attempt to commit” stalking and
violating a protective order when committed “by one cohabitant
against another.” Utah Code Ann. § 77-36-1(4)(j), (l) (LexisNexis
Supp. 2019). The term “cohabitant” includes, among other
things, individuals who “reside[] or [have] resided in the same
residence” or who are or were “in a consensual sexual
relationship.” Id. § 77-36-1(1); id. § 78B-7-102(2)(f), (g) (2018).

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State v. Redden

II. Redden’s Procedural Arguments

¶17 While Redden concedes that the State’s reading of the
enhancement statute is appropriate, he nevertheless argues that
the State’s appeal is improper, given that the State itself moved
for the order of dismissal. In Redden’s view, the State could have
petitioned for interlocutory review of the magistrate’s second
bindover decision, but it was not allowed to “circumvent the
appellate court’s discretion to grant or deny petitions for review
by requesting a dismissal and then relying on the statutory
provision granting [the] prosecution an appeal of right from a
final judgment of dismissal.”6 Redden thus asserts that this court
does not have jurisdiction over this appeal.

¶18 Redden’s argument is foreclosed by precedent. In State v.
Gomez, 722 P.2d 747 (Utah 1986), the trial court agreed with the
defendant that the charges should be reduced to a lesser offense.
Id. at 748. In response, the State refused to amend the
information to conform to the court’s ruling and instead urged
the court to dismiss the information. Id. The court then
dismissed the information and the State appealed that dismissal.
Id. at 748–49. On appeal, the Utah Supreme Court addressed the
defendant’s threshold argument that the State could not use the
order of dismissal, which the State itself requested, as a means of
obtaining review of “a decision that would not otherwise be
appealable as a matter of right.” Id. at 749. The supreme court

6. Rule 5 of the Utah Rules of Appellate Procedure sets forth the
procedure regarding discretionary appeals from interlocutory
orders. The Utah Code allows the prosecution an appeal, as a
matter of right, from a final judgment of dismissal. Utah Code
Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may,
as a matter of right, appeal from . . . (a) a final judgment of
dismissal, including a dismissal of a felony information
following a refusal to bind the defendant over for trial . . . .”).

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State v. Redden

explained that “the trial court’s determination that the charges
should be reduced to an offense carrying a lesser penalty not
charged in the original information prevented the State from
proceeding on the original charges.” Id. Importantly, “[t]he effect
of the trial court’s ruling was to block prosecution and, in effect,
to dismiss the original charges.” Id. The supreme court
concluded that, under these circumstances, “the State properly
suggested that the trial court formally dismiss the information
and then appealed from a final judgment of dismissal.” Id.
(cleaned up). This court reached the same conclusion on similar
facts in State v. Arghittu, 2015 UT App 22, 343 P.3d 709. Id. ¶¶ 15–
17 & n.4 (allowing the State to appeal after it had voluntarily
moved for dismissal after the magistrate bound the defendant
over on only a lesser and uncharged offense).7

¶19 Like Gomez, the magistrate’s decision binding Redden
over on eight new misdemeanors rather than the charged eight
third-degree felonies had the “effect of . . . block[ing] prosecution
and . . . dismiss[ing] the [eight] original charges.” See Gomez, 722
P.2d at 479. The State therefore acted properly in moving to
dismiss the information and then appealing from “a final
judgment of dismissal.” See Utah Code Ann. § 77-18a-1(3)(a)

7. Redden relies on State v. Waddoups, 712 P.2d 223 (Utah 1985),
to support his position. In that case, the trial court granted a
defense motion to suppress certain evidence, and the State chose
to dismiss the information and attempted to appeal the dismissal
in order to challenge the suppression ruling. Id. at 223. The
supreme court concluded that the State’s appeal was improper
under those facts. Id. at 224. The case at hand, however, is much
more like Gomez than Waddoups, and Redden overlooks that the
supreme court in Gomez specifically decided that the facts of
Waddoups were “quite different” given that Waddoups did not
involve the trial court reducing the original charges. See State v.
Gomez, 722 P.2d 747, 749 (Utah 1986).

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State v. Redden

(LexisNexis 2017) (“The prosecution may, as a matter of right,
appeal from . . . (a) a final judgment of dismissal, including a
dismissal of a felony information following a refusal to bind the
defendant over for trial . . . .”); see also Gomez, 722 P.2d at 479;
Arghittu, 2015 UT App 22, ¶¶ 15–17. Thus, Redden’s challenge to
appellate jurisdiction is unavailing.

¶20 Lastly, in two ways, Redden challenges the fairness of the
State’s actions. He first suggests that the State’s filing of the eight
new charges against him violated the principles set forth in State
v. Brickey, 714 P.2d 644 (Utah 1986). In Brickey, the Utah Supreme
Court held that a prosecutor is prohibited from “refiling criminal
charges earlier dismissed for insufficient evidence unless the
prosecutor can show that new or previously unavailable
evidence has surfaced or that other good cause justifies refiling.”
Id. at 647 (emphasis added). Redden’s reliance on Brickey is
misplaced, however, because no charges have been refiled against
him. Rather, the State amended the information to add eight new
charges that had not been addressed at the first preliminary
hearing. The rules of criminal procedure allow such
amendments “at any time before trial has commenced so long as
the substantial rights of the defendant are not prejudiced.” Utah
R. Crim. P. 4(d). The court also held a second preliminary
hearing to address the eight additional charges. See id. (“If an
additional or different offense is charged, the defendant has the
right to a preliminary hearing on that offense . . . .”). Moreover,
as the United States Supreme Court has recognized, a
prosecutor’s initial charging decision “should not freeze future
conduct” and “does not necessarily define the extent of the
legitimate interest in prosecution.” United States v. Goodwin, 457
U.S. 368, 380, 382 (1982); accord State v. Finlayson, 2014 UT App
282, ¶ 23 n.11, 362 P.3d 926.

¶21 Second, Redden generically complains that he pleaded
guilty to the charges in Weber County as “a global resolution of
the charges” related to Michelle and that he did not realize the

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resulting convictions “would later be asserted as a basis for
enhancing additional charges” filed in Iron County. Although he
suggests that his due process rights have therefore been violated,
he has not established his lack of understanding as a factual
matter. Nor has he established that he was not actually afforded
all the process to which he was entitled under the law.

¶22 For the foregoing reasons, Redden’s counterarguments
are unpersuasive.

CONCLUSION

¶23 Having rejected Redden’s contention that we lack
jurisdiction over this appeal, we conclude that the State’s appeal
is well taken and that the magistrate erred in binding Redden
over on the eight new counts as class A misdemeanors.
Accordingly, we reverse the magistrate’s bindover and dismissal
orders and remand for further proceedings consistent with this
opinion.

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