South Jordan City v. Summerhays

2017 UT App 18

THE UTAH COURT OF APPEALS

SOUTH JORDAN CITY,
Appellee,
v.
IAN SUMMERHAYS,
Appellant.

Memorandum Decision
No. 20150527-CA
Filed January 26, 2017

Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 141401851

Tyler B. Ayres, Attorney for Appellant
Edward R. Montgomery and Rachel E. Otto,
Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN
concurred.

ROTH, Judge:

¶1 Before us is an interlocutory appeal from a denial of a
motion to dismiss criminal charges that implicates the Fifth
Amendment’s Double Jeopardy Clause. We affirm.

¶2 In late 2013, Defendant Ian Summerhays allegedly
violated a protective order by contacting his ex-wife via text
message, and South Jordan City charged him with two counts of
violating a protective order as a result. The prosecutor charged
the violations as class B misdemeanors and filed the criminal
information in South Jordan City Justice Court. Summerhays
pleaded guilty to one count and began serving a ten-day jail
sentence.
South Jordan City v. Summerhays

¶3 Summerhays immediately appealed his conviction to the
district court, where he moved to dismiss the charges as
improperly filed.1 In the motion, Summerhays noted that justice
courts have no jurisdiction to consider any criminal charge
above a class B misdemeanor. He also correctly pointed out that
violation of a protective order is classified by statute as a class A
misdemeanor. Compare Utah Code Ann. § 78A-7-106(1)
(LexisNexis Supp. 2016) (‚Justice courts have jurisdiction over
class B and C misdemeanors, violation of ordinances, and
infractions committed within their territorial jurisdiction by a
person 18 years of age or older.‛), with id. § 76-5-108(1) (‚Any
person . . . who intentionally or knowingly violates [a protective
order] . . . is guilty of a class A misdemeanor[.]‛). Accordingly,
Summerhays argued that the justice court lacked jurisdiction to
adjudicate the charged offenses.

¶4 The district court agreed and concluded that the justice
court lacked subject matter jurisdiction over the alleged crimes.
Cf. id. § 78A-7-106(1). The court therefore vacated his conviction,
dismissed the case, and released him from jail. By the time of his
release, Summerhays had already served seven days of his ten-
day jail term. South Jordan then filed a new information against
Summerhays, this time correctly charging the violations as class
A misdemeanors and properly filing the case in district court.

¶5 Summerhays moved to dismiss the charges against him,
arguing that the Double Jeopardy Clause prevents him ‚from
being twice put in jeopardy [of punishment] for the same crime.‛
The district court rejected that argument and ruled that
‚jeopardy did not attach in the justice court case because the
South Jordan City Justice Court did not have jurisdiction in that

1. Timely appeals taken from a justice court conviction go to the
district court, where the defendant receives a new trial. Utah
Code Ann. § 78A-7-118 (LexisNexis Supp. 2016) (‚In a criminal
case [in justice court], a defendant is entitled to a trial de novo in
the district court . . . .‛).

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South Jordan City v. Summerhays

original action.‛ On that reasoning, the court denied the motion
to dismiss and Summerhays took an interlocutory appeal to this
court. Because a ‚trial court’s grant or denial of a motion to
dismiss is a question of law,‛ the ‚standard of review . . . is
correctness.‛ State v. Griffin, 2016 UT 33, ¶ 15, 384 P.3d 186
(citation and internal quotation marks omitted). A correctness
standard ‚means the appellate court decides the matter for itself
and does not defer in any degree to the trial judge’s
determination of law.‛ State v. Anderson, 929 P.2d 1107, 1108
(Utah 1996) (citation and internal quotation marks omitted).

¶6 The Fifth Amendment to the United States Constitution
provides that no person shall ‚be subject for the same offence to
be twice put in jeopardy of life or limb.‛ U.S. Const. amend. V.
This concept, known as double jeopardy, is ‚fundamental to the
American scheme of justice,‛ Benton v. Maryland, 395 U.S. 784,
796 (1969) (internal quotation marks omitted), and ‚stem[s] from
the underlying premise that a defendant should not be twice
tried or punished for the same offense,‛ Schiro v. Farley, 510 U.S.
222, 229 (1994). Specifically, the Double Jeopardy Clause protects
criminal defendants against (1) ‚a second prosecution for the
same offense after acquittal,‛ (2) ‚a second prosecution for the
same offense after conviction,‛ and (3) ‚multiple punishments
for the same offense.‛ Jones v. Thomas, 491 U.S. 376, 381 (1989)
(citation and internal quotation marks omitted).

¶7 The question presented in this appeal is whether jeopardy
attached during Summerhays’ initial prosecution in justice court
and if so, whether the City was thereby barred from refiling the
charges against him in the district court. That question in turn
hinges on when, and in what circumstances, jeopardy attaches to
a defendant. The Supreme Court ‚has consistently adhered to
the view that jeopardy does not attach, and the constitutional
prohibition can have no application, until a defendant is put to
trial before the trier of facts, whether the trier be a jury or a
judge.‛ Serfass v. United States, 420 U.S. 377, 388 (1975) (citation
and internal quotation marks omitted). ‚In the case of a jury
trial, jeopardy attaches when a jury is empaneled and sworn. In

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a nonjury trial, jeopardy attaches when the court begins to hear
evidence.‛ Id. If neither circumstance applies, then ‚[i]n general,
jeopardy attaches at the time the guilty plea is accepted.‛ United
States v. Avila-Gonzalez, 611 F. App’x 801, 803 (5th Cir. 2015);
accord State v. Horrocks, 2001 UT App 4, ¶ 26, 17 P.3d 1145
(‚Jeopardy, however, attached when the justice court accepted
defendant’s pleas.‛).

¶8 Here, Summerhays argues that jeopardy attached.
However, it is well settled ‚that before a person can be said to
have been put in jeopardy of life or limb the court in which he
was acquitted or convicted must have had jurisdiction to try him
for the offense charged.‛ Grafton v. United States, 206 U.S. 333,
345 (1907). Thus, when ‚a criminal defendant was never tried by
a court of competent jurisdiction, retrial is appropriate and does
not violate the Fifth Amendment to the United States
Constitution.‛ State v. Payne, 892 P.2d 1032, 1033 n.5 (Utah 1995)
(citation and internal quotation marks omitted).

¶9 Under this firmly established principle, it appears that
Summerhays was never in jeopardy because the justice court
lacked jurisdiction over the offenses charged, which were by
statute class A misdemeanors and beyond the scope of the
justice court’s authority. We now turn to Summerhays’
arguments to determine whether they convince us that his
situation is different from the apparently controlling cases
described above.

¶10 Summerhays argues that ‚‘lack of jurisdiction’ is not an
automatic bar to jeopardy.‛ He supports that proposition by
pointing us to State v. Corrado, where a Washington court
reviewed the result of a trial in which the defendant ‚was tried
without a charge.‛ 915 P.2d 1121, 1123 (Wash. Ct. App. 1996).
We do not disagree with Summerhays and the Corrado court that
a generic ‚lack of jurisdiction‛ does not per se bar the
attachment of jeopardy. But this is because the term
‚jurisdiction‛ is used in multiple ways.

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South Jordan City v. Summerhays

¶11 Indeed, as the Washington court explained in Corrado,
there are many different types of jurisdiction. Id. at 1127 (noting
that ‚[t]he phrase ‘lack of jurisdiction’ has many meanings‛).
Specifically, the Corrado court distinguished between minor
jurisdictional problems, such as when ‚a court has violated one
of its own court rules,‛ versus more fundamental problems, such
as when ‚a court lacks power to hear the type of case then before
it.‛ Id. In Corrado, the court was faced with the first type of
jurisdictional problem, deciding that, even when ‚a trial court
‘lacks jurisdiction’ due to the complete absence of a charging
document,‛ jeopardy may still attach. Id. at 1130–32. As the court
explained, the judgment did not ‚show on its face the trial
court’s lack of jurisdiction; the superior court had power to hear
and determine felonies, and its judgment gave no indication that
its power had not properly been invoked,‛ and therefore flaws
in the charging document did not implicate the court’s
fundamental authority. Id. at 1131–32. Thus, Corrado stands for
the proposition that jeopardy may attach even in the face of a
serious procedural problem such as the failure to properly
initiate a criminal case.

¶12 We have also explored the difference between various
uses of the term ‚jurisdiction‛ and, like the Washington court in
Corrado, determined that not all jurisdictional problems are
materially equal. See Iota LLC v. Davco Mgmt. Co., 2016 UT App
231, ¶¶ 43–44 (distinguishing between procedural jurisdiction
and subject matter jurisdiction in determining the effects of a
jurisdictional defect). Like the Corrado court, we explained in Iota
that courts often use the term ‚jurisdiction‛ in a generic sense
that does not implicate the court’s essential power to hear and
decide a given controversy. Id. And as significant as some
procedural problems are—such as the failure to properly initiate
a prosecution in Corrado—those problems do not necessarily rise
to the same level of import as the fundamental jurisdictional
defect at issue in this case. Here we are dealing with a lack of
subject matter jurisdiction, the bedrock authority that allows a
court to act at all.

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South Jordan City v. Summerhays

¶13 Summerhays also directs our attention to Block v. State,
407 A.2d 320 (Md. 1979), where the Maryland Court of Appeals
reversed a lower court’s determination that double jeopardy did
not bar a second prosecution. Id. at 321. Like Corrado, however,
Block deals with a procedural problem, not subject matter
jurisdiction. In Block, the trial court rendered a guilty verdict but
postponed sentencing. Before she was sentenced, the defendant
moved for reconsideration. Id. The trial court granted the
defendant’s motion and changed its verdict to not guilty. Id. The
prosecution then attempted to retry the defendant, arguing that
jeopardy had not attached because the procedural rule under
which the court had acted only allowed the court to grant a new
trial—it did not provide for reconsideration or change of verdict,
and the defendant’s motion had been untimely in any event. Id.
at 321–22.

¶14 In holding that double jeopardy protected the defendant
against retrial, the court of appeals made clear ‚that the
‘jurisdiction’ of the court for purposes of this principle of double
jeopardy law means jurisdiction in the most basic sense.‛ Id. at
322 (relying on Grafton v. United States, 206 U.S. 333 (1907), and
‚many other cases‛). Thus, the Block court concluded, as did the
court in Corrado, that it is ‚jurisdiction over the offense‛ that
matters in a double jeopardy analysis. Id. at 324. Specifically, the
court determined that the crime at issue was within the trial
court’s authority—jeopardy had attached regardless of whether
the trial court had exceeded the scope of the controlling rule in
reversing its guilty verdict. Id. The court accordingly held that
the state’s attempt at a second prosecution was barred. Id.

¶15 As we have noted, the jurisdictional deficit in this case is
more fundamental than those addressed in Block and Corrado.
Here, we are faced with a situation where the justice court
lacked subject matter jurisdiction over the offenses charged.
Because subject matter jurisdiction is the most essential and
fundamental type of jurisdiction, see Iota, 2016 UT App 231,
¶¶ 43–44, the double jeopardy implications of lesser

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‚jurisdictional‛ problems like the ones discussed in Corrado and
Block do not apply.

¶16 Finally, Summerhays points out that he spent seven days
in jail under the now-vacated conviction and argues that the
Double Jeopardy Clause ‚is designed to protect against multiple
punishments‛ for the same crime. Summerhays is correct—as we
noted above, double jeopardy indeed serves that function. See
Jones v. Thomas, 491 U.S. 376, 381 (1989). However, the United
States Supreme Court has rejected double jeopardy-based
challenges to the validity of sentences imposed after a second
conviction on retrial, so long as the defendant receives credit for
any sentence already served. North Carolina v. Pearce, 395 U.S.
711, 718 (1969), narrowed on other grounds by Alabama v. Smith, 490
U.S. 794 (1989). In Pearce, the Court stated:

We hold that the constitutional guarantee against
multiple punishments for the same offense
absolutely requires that punishment already
exacted must be fully ‚credited‛ in imposing
sentence upon a new conviction for the same
offense. If, upon a new trial, the defendant is
acquitted, there is no way the years he spent in
prison can be returned to him. But if he is
reconvicted, those years can and must be
returned—by subtracting them from whatever new
sentence is imposed.

Id. at 718–19 (footnote omitted). Summerhays has not explained
why Pearce does not apply to his case, and we see no obvious
reason it should not.

¶17 For these reasons, we conclude that Summerhays’ original
conviction was void ab initio because the justice court lacked
subject matter jurisdiction over the offenses charged. Because the
justice court lacked essential jurisdiction, jeopardy never
attached. The Double Jeopardy Clause thus affords Summerhays
no protection against retrial of the charged offenses, although it

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does entitle him to credit for time served on any sentence
imposed should he be convicted.

¶18 Affirmed.

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