State v. Lane

2009 UT 35
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	Nos. 20070878
Plaintiff and Appellee, 	20061126
v.
Brandon R. Lane,
Defendant and Appellee,
F I L E D
Peggy Hay and Patricia Hay,
Victims and Appellants. 	June 12, 2009
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Eighth District, Duchesne
The Honorable John R. Anderson
No. 051800048
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Christopher D.
Ballard, Asst. Att’y Gen., Salt Lake City,
for the State
James H. Faust, Todd R. Mecham, Salt Lake City,
for Lane
Heidi M. Nestel, Salt Lake City, for the Hays
Paul G. Cassell, Douglas E. Beloof, Margaret Garvin,
Salt Lake City, amicus National Crime Victim Law
Institute
Brent M. Johnson, Salt Lake City, for Honorable
John R. Anderson
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On Certification from the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	Appellants, Peggy Hay and Patricia Hay (collectively,
the Victims), appeal the district court’s grant of
Defendant/Appellee Brandon R. Lane’s Motion to Dismiss his plea

1 Following oral argument, we requested supplemental
briefing on the issue of jurisdiction. 	The Victims attached to
their supplemental brief a document entitled “Petition, in the
Alternative, for Extraordinary Relief Under Utah Rule of Civil
Procedure 65B.” 	Procedurally, it was improper for the Victims to
request extraordinary relief within this criminal appeal. 	The
petition should have been filed separately as a civil case under
Rule 65B, with the district court named as respondent.
Accordingly, the petition is not a proper part of this appeal and
we decline to address it.
2 Our description of the allegations is largely taken from
the Victims’ brief. 	Because no evidentiary hearing was held
below, the information concerning the allegations is derived from
(continued...)
Nos. 20070878, 20061126 	2
in abeyance. 1 	Neither the State nor Lane appealed the dismissal;
thus we must determine whether the Victims may independently
appeal the dismissal of Lane’s plea in abeyance. 	We hold that
they cannot because no party to the case appealed the lower
court’s dismissal of the case and the dismissal deprives the
Victims of standing. 	Therefore, we dismiss the appeal in its
entirety.
BACKGROUND
¶2 	On February 19, 2005, the Victims and their husbands,
brothers Dan and John Hay, were traveling eastbound on Highway 40
near Duchesne. 	The Victims were riding in the back seat of the
vehicle, and their spouses were riding in the front of the
vehicle. 	Lane was traveling westbound on the same two-lane
highway.
¶3 	While traveling at an excessively high speed despite
the wet and foggy conditions of the morning, Lane moved into
oncoming traffic in an attempt to pass a semi truck. 	Lane’s
vehicle collided head on with the vehicle driven by John Hay. 	As
a result of the collision, both John Hay and Dan Hay died at the
scene of the accident. 	Peggy Hay suffered life-threatening
injuries, and Patricia Hay sustained serious injuries.
¶4 	On July 15, 2005, criminal charges were filed against
Lane, including two counts of negligent homicide, a class A
misdemeanor. 	Lane was arraigned on August 15, 2005. 	Following
the arraignment, the Victims and their families made regular
contact with investigating and prosecuting agencies, requesting
updates of any new developments. 	Also on August 15 the Victims
allege 2 that Lane’s attorney mailed a letter to the prosecutor in

2 (...continued)
the Victims’ own affidavits filed in support of their motions
below.
3 	Nos. 20070878, 20061126
which a plea agreement was discussed and the date of September
12, 2005, was acknowledged as the date the plea agreement would
be finalized during Lane’s sentencing hearing.
¶5 	On August 31, 2005, the Duchesne County prosecutor,
Karen Allen, met with the Victims to discuss the emerging plea
bargain between Lane and the State. 	The Victims allege that
during the meeting, the prosecutor “deliberately deceived and
misled the victims as to what the plea bargain would be, when the
plea would be taken, and what consequences [Lane] would have as a
result of the plea.” 	Specifically, the Victims assert that the
prosecutor advised them that only one count of negligent homicide
would be held in abeyance, the term of abeyance would be three
years, and Lane would plead guilty to the second count of
negligent homicide and be sentenced on that charge.
¶6 	During this meeting, the Victims notified the
prosecutor that they wanted to address the court and that they
would be requesting restitution. 	The Victims claim that the
prosecutor told them they could read victim impact statements at
the sentencing hearing, which would likely be in January 2006.
They also claim the prosecutor told them that the hearing
scheduled for September 12, 2005, was only a status hearing and
that they need not attend.
¶7 	On September 12, Lane entered into a plea agreement in
which he pled guilty to the two counts of negligent homicide,
among other charges. 	The agreement specified that the plea would
be held in abeyance for a period of twelve months, after which
time Lane would be allowed to withdraw his guilty pleas and have
the case dismissed with prejudice. 	Along with other terms, Lane
agreed to pay $1,500 in restitution, and the State agreed not to
pursue any further restitution.
¶8 	At the plea hearing, the prosecutor advised the court
that $1,500 would not be sufficient to cover the Victims’ losses,
which totaled “over a million dollars” at the time of the
hearing, and that the Victims would likely view the restitution
amount as “a slap in the face.” 	In response, the court converted
the $1,500 into a plea in abeyance fee. 	However, the district
court ultimately awarded no restitution to the Victims. 	The
Victims were not present at the hearing and were not given an
opportunity to be heard during Lane’s sentencing.

Nos. 20070878, 20061126 	4
¶9 	Once the Victims learned that a plea agreement had been
entered and that the terms of that agreement were materially
different from their understanding based on the representations
of the prosecutor, they filed a complaint with the Eighth
District Victims’ Rights Committee. 	The Eighth District
eventually transferred the complaint to the Third District
Victims’ Rights Committee due to a conflict of interest. 	The
Third District Victims’ Rights Committee concluded that the
Victims’ rights had been violated: the Victims were not treated
with fairness, dignity, and respect; they were deprived of their
right to be present and heard; and they were stripped of their
right to restitution.
¶10 	Relying on the findings of the Victims’ Rights
Committee, on August 3, 2006, the Victims filed in the district
court a Motion to Set Aside Plea and for Evidentiary Hearing
claiming that their rights had been violated and that the plea in
abeyance was illegal because the prosecutor cannot waive a
victim’s right to restitution.
¶11 	After staying the plea in abeyance for approximately
three months to allow the Victims time to file a memorandum in
support of their motion, the district court entered an order on
November 9, 2006, denying the motion. 	On November 20, 2006, the
district court held a teleconference between the parties in order
to allow the Victims the opportunity to express their views
regarding Lane’s sentencing but advised the parties that the
court had previously ruled definitively on the plea. 	On December
6, 2006, the Victims appealed from the district court’s denial of
their motion. 	The case was accepted by the court of appeals on
December 20, 2006. 	The district court agreed to continue to stay
the abeyance period while the Victims pursued their appeal.
¶12 	In June 2007, while the Victims’ appeal was pending,
Lane filed in the district court a Motion to Dismiss his plea in
abeyance with prejudice pursuant to Utah Code section 77-2a-2(5).
The pertinent portion of the statute reads, “A plea shall not be
held in abeyance for a period longer than 18 months if the plea
was to any class of misdemeanor.” 	Utah Code Ann. § 77-2a-2(5)
(2008). 	In accordance with the statute, the district court
granted Lane’s motion and dismissed the case with prejudice
because Lane’s pleas had been held in abeyance for more than
eighteen months. 	The Victims also appealed this order. 	Neither
Lane nor the State appealed from any of the district court’s
rulings. 	The court of appeals consolidated both appeals and
certified the case to this court. 	Following oral arguments, all
participants submitted supplemental briefing on the issue of
jurisdiction.

3 “Although Article I, Section 28 of the Utah Constitution
is titled ‘Declaration of the rights of crime victims,’ it is
commonly referred to as the Victims’ Rights Amendment.” 	State v.
Casey, 2002 UT 29, ¶ 18 n.5, 44 P.3d 756.
5 	Nos. 20070878, 20061126
ISSUE
¶13 	The issue of whether the Victims can independently
appeal from a dismissal of Lane’s plea in abeyance is
dispositive; therefore, we do not reach any other issues.
STANDARD OF REVIEW
¶14 	Because this appeal asks us to analyze whether the
Victims themselves can appeal from a dismissal of a plea in
abeyance, we must interpret the meanings of the Victims’ Rights
Amendment 3 of the Utah Constitution and sections of the Rights of
Crime Victims Act. 	See Utah Code Ann. §§ 77-38-1 to -14 (2008).
“[I]nterpreting the Utah Constitution and the Utah Code presents
questions of law, [and] we review these questions for correctness
. . . .” 	State v. Casey, 2002 UT 29, ¶ 19, 44 P.3d 756.
ANALYSIS
¶15 	Threshold questions in any case on appeal are whether
there is an actual controversy and whether the appellants have
standing to pursue the appeal. 	In this case we do not proceed
past these threshold considerations because (1) the dismissal of
the case below and failure of either party to the case to appeal
renders this appeal moot, and (2) even if the appeal were not
moot, the Victims’ Rights Amendment of the Utah Constitution and
the Rights of Crime Victims Act specifically prohibit the Victims
from appealing any criminal judgment.
I. 	THE CASE IS MOOT DUE TO THE FAILURE OF EITHER PARTY
TO THE CASE TO APPEAL THE DISMISSAL
¶16 	A victim is not a party to a criminal case and is not
afforded the right to appeal the dismissal of a criminal
judgment. 	Under the Utah Code of Criminal Procedure, an appeal
is proper when filed by either the defendant or the prosecution.
See Utah Code Ann. § 77-18a-1 (2008). 	Specifically, among other
matters, the defendant may appeal from “a final judgment of
conviction, whether by verdict or plea,” and the prosecution may
appeal from “a final judgment of dismissal . . . [or] an order
granting a motion to withdraw a plea of guilty.” 	Id.

Nos. 20070878, 20061126 	6
¶17 	Only the State and the defendant are actual parties to
a criminal action. 	For example, in State v. Harrison, 2001 UT
33, 24 P.3d 936, we held that it was error for the trial court to
allow the guardian ad litem to participate in a criminal trial
because the victim was not a party to the case. 	Id. ¶ 30.
Additionally, in State v. Sun Surety Insurance Co., 2004 UT 74,
99 P.3d 818, we held that because the surety company was not a
party to the criminal case, “an independent direct appeal was
improper.” 	Id. ¶ 9.
¶18 	Moreover, if a case is dismissed and neither party
appeals, the dismissal is final, the case is moot, and any appeal
by a nonparty is moot. 	“[W]e will not adjudicate issues when the
underlying case is moot. 	‘A case is deemed moot when the
requested judicial relief cannot affect the rights of the
litigants.’” 	Ellis v. Swensen, 2000 UT 101, ¶ 25, 16 P.3d 1233
(quoting Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989)).
“An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” 	Baker v. Stevens, 2005 UT 32, ¶ 9, 114 P.3d 580
(quoting Richards v. Baum, 914 P.2d 719, 720 (Utah 1996))
(internal quotation marks omitted).
¶19 	Here, no party to the case appealed. 	Lane did not
appeal the withdrawal of his guilty plea or the dismissal of his
plea in abeyance. 	The State failed to appeal and conceded as
much at oral argument before this court. 	The Victims were not
parties to the case. 	Accordingly, because neither party to the
case appealed the dismissal of the plea in abeyance, the order
below is final and this appeal is moot. 	Because the case that
forms the basis for both of the motions from which the Victims
appeal is moot, our dismissal applies to both the Victims’ appeal
of the denial of their Motion to Set Aside the Plea in Abeyance
and their appeal of the district court’s grant of Lane’s Motion
to Dismiss the plea in abeyance.
II. 	THE UTAH VICTIMS’ RIGHTS AMENDMENT PROHIBITS THE VICTIMS
FROM APPEALING THE DISMISSAL OF THE PLEA IN ABEYANCE
¶20 	Even if the case were not moot, the Victims lack
standing to appeal the dismissal of Lane’s plea in abeyance
because they are barred by the express language of the Utah
Constitution. 	See Utah Const. art. I, § 	28.
¶21 	The Victims’ Rights Amendment of the Utah Constitution
sets forth the general rights of crime victims. 	Id. 	Those
rights include the right “[t]o be treated with fairness, respect,
and dignity . . . throughout the criminal justice process.” 	Id.

7 	Nos. 20070878, 20061126
at (1)(a). 	These rights are further implemented by title 77,
chapter 38 of the Utah Code. 	Utah Code Ann. §§ 77-38-1 to -14
(2008). 	That chapter, formally titled the Rights of Crime
Victims Act, specifies the various ways in which crime victims in
this state are to be treated and recognized during criminal
proceedings. 	See id.
¶22 	In examining the Victims’ Rights Amendment and the
Rights of Crime Victims Act, we respect “the analytical hierarchy
relative to constitutions and statutes.” 	State v. Casey, 2002 UT
29, ¶ 20, 44 P.3d 756. 	We first consider the Victims’ Rights
Amendment and “scrutinize the plain meaning of the constitutional
provision. 	We need not inquire beyond the plain meaning of the
amendment unless we find it ambiguous.” 	Id. (internal citation
omitted). 	We then review the Rights of Crime Victims Act. 	“As
with our constitutional analysis, we look first to the plain
meaning of the statute[] and go no further unless [it is]
ambiguous.” 	Id.
¶23 	Read together, the language of both the Victims’ Rights
Amendment and the Rights of Crime Victims Act does much to
balance the treatment of victims in criminal cases with that
afforded to defendants. 	However, the rights afforded to crime
victims pursuant to the constitutional amendment and
corresponding statutes were drafted so as to not infringe on the
constitutional protections belonging to defendants.
Specifically, the Victims’ Rights Amendment states, “Nothing in
this section shall be construed as creating a cause of action for
. . . or relief from any criminal judgment.” 	Utah Const. art. I,
§ 28(2). 	Additionally, although the Rights of Crime Victims Act
states that a victim of a crime may appeal an adverse ruling in a
few limited scenarios, Utah Code Ann. § 77-38-11, the plain
language also specifies that the Act itself “may not be construed
as creating a basis for . . . vacating any . . . plea of guilty
. . . or for appellate . . . relief from a judgment in any
criminal . . . case.” 	Utah Code Ann. § 77-38-12(2).
¶24 	As applied here, the plain language of the
constitutional amendment and the Rights of Crime Victims Act--
both intended to assist crime victims--actually prohibits the
Victims from pursuing the relief they seek in this case. 	The
order allowing Lane to withdraw his guilty pleas and dismissing
his case with prejudice is a criminal judgment that the Victims
are constitutionally and statutorily barred from challenging.
See Casey, 2002 UT 29, ¶ 46 (Wilkins, J., concurring) (“The
defendant’s plea, once accepted by the court and sentence
imposed, is a criminal judgment.”).

Nos. 20070878, 20061126 	8
¶25 	We note that while the Victims rely on Casey for their
argument that a misplea should be entered, contrary to the
district court’s denial of their Motion to Set Aside the Plea,
such reliance is misplaced. 	In Casey, we held that the victim
had been denied the right to be heard but that the district court
had remedied this error appropriately. 	2002 UT 29, ¶ 2. 	There,
the victim filed two motions to set aside the plea bargain
following the entry of the defendant’s plea because the victim
had not been afforded the opportunity to be heard at the change
of plea hearing. 	Id. ¶¶ 1-2. 	Although the trial court denied
both motions, the court did “‘informally’ reopen the plea
hearing,” id. ¶ 12, to accept testimony from the victim regarding
the inadequacy of the plea bargain. 	Id. ¶ 10. 	We held that
while the victim’s rights had been violated and thus the victim
“was entitled to appellate review of the district court’s ruling
related to” the right to be heard, the “court remedied its
initial violation of [the victim’s] right to be heard . . . by
reopening the plea hearing and receiving testimony . . . .” 	Id.
¶ 17.
¶26 	Casey is distinguishable from the present case on two
points. 	First, the criminal case in Casey was not moot on
appeal. 	The defendant’s plea had not been withdrawn and the case
against him had not been dismissed with prejudice. 	Second, the
appeal in Casey related solely to the victim’s motions to set
aside the plea. 	There, the victim was not appealing from the
dismissal of the case against the defendant. 	In contrast, the
Victims in the present case are appealing from both the denial of
their motion to set aside the plea and the grant of Lane’s motion
to dismiss his plea.
¶27 	Once more, “our hands are tied by the same
constitutional and statutory provisions that gave [the Victims
their] right to be heard.” 	Casey, 2002 UT 29, ¶ 48 (Wilkins, J.,
concurring). 	Even aside from the mootness of this appeal, the
Victims lack standing once a criminal judgment has been rendered
because they are barred by the very provisions that were enacted
to help them. 	Under the Victims’ Rights Amendment and the Rights
of Crime Victims Act, the dismissal of Lane’s plea bargain is a
criminal judgment from which the Victims cannot seek appellate
relief.
CONCLUSION
¶28 	We note that the allegations of fraud asserted by the
Victims in this case against the prosecutor are serious and
troubling. 	If such allegations are true, they would warrant

4 Alternative avenues of relief may be available to the
Victims, including a complaint filed with the Office of
Professional Conduct of the Utah State Bar or a grand jury
complaint. 	These avenues are wholly within the discretion of the
Victims to pursue.
9 	Nos. 20070878, 20061126
investigation in another, more appropriate setting. 4 	However,
the Victims’ Rights Amendment to the Utah Constitution and the
Rights of Crime Victims Act preclude judicial relief in the
actual criminal case once it has been dismissed. 	We hope and
expect that the trial courts will continue to be vigilant in
their efforts to recognize crime victims’ constitutional rights
and ensure those rights are protected and upheld in a timely
fashion during the trial process.
¶29 	We hold that the appeal is moot where the case was
dismissed below and no party to the case filed an appeal, and
that the Victims lack standing to appeal the dismissal of Lane’s
plea in abeyance because the Victims’ Rights Amendment and the
Rights of Crime Victims Act bar the Victims from pursuing the
relief sought here. 	We therefore dismiss the appeal.
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¶30 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.