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State v. Ferguson3/24/2005
For Official Publication
This case arises from a much publicized incident initially reported as involving a possible rooftop terrorist in Salt Lake City. See Rooftop Gunman Spurs S.L. Search, Deseret News, Mar. 24, 2003, at B2; Ashley Broughton, Man Charged in Rooftop Gun Incident, Salt Lake Tribune, Mar. 27, 2003, at C2. We have before us an interlocutory appeal from an order by the trial court reducing a charge of violating a protective order, under Utah Code section 76-5-108, from a third degree felony to a class A misdemeanor. See Utah Code Ann. § 76-5-108 (2003). We affirm in part, and reverse and remand in part.
BACKGROUND
On January 21, 2003, a protective order was issued prohibiting Defendant Michael Von Ferguson from having contact with a girlfriend he had lived with for twenty years. The protective order specifically required that Ferguson stay away from his girlfriend's place of employment, as well as other places she frequented. On March 18, 2003, Ferguson pled guilty to violating the protective order, a class A misdemeanor, and he was sentenced to 365 days in jail. The jail sentence was suspended in its entirety, and Ferguson was placed on probation. Ferguson was not represented by counsel when he entered his plea. Later that same month, Ferguson was spotted near his girlfriend's place of employment, in violation of the protective order. On March 26, 2003, the State filed an information that alleged, in part, that Ferguson had violated the protective order again. This time the State charged Ferguson with a third degree felony based on his prior conviction for violation of the protective order. At the preliminary hearing, Ferguson objected to the use of the prior conviction to enhance the second violation to a third degree felony, arguing that an uncounseled plea could not be used to enhance a subsequent offense. The trial court overruled the objection and bound Ferguson over for trial on the third degree felony charge of violating the protective order.
Ferguson filed a motion to quash the bindover, renewing his argument that his prior, uncounseled misdemeanor conviction could not be used to enhance the subsequent offense, and he urged the court to strike the third degree felony enhancement. The trial court heard arguments on the issue and granted Ferguson's motion to quash the bindover on the enhancement of the protective order violation, leaving the charge as a class A misdemeanor rather than a third degree felony. The State petitioned this court for permission to appeal the trial court's interlocutory order. We granted the petition.
ISSUES AND STANDARD OF REVIEW
This appeal presents two issues. First, we are asked to review whether the trial court correctly concluded that Ferguson's prior misdemeanor conviction cannot be used to enhance his second violation of the protective order. The prior conviction resulted in a suspended jail term, and the conviction was based on an uncounseled guilty plea. Ferguson insists such a conviction will not support felony enhancement unless the prosecution presents evidence that the defendant knowingly and voluntarily waived his right to counsel. The State specifically asks this court to reverse the trial court's interpretation of United States Supreme Court precedent. Our review of a lower court's interpretation of case law presents a legal question that we review for correctness. See State v. Leyva, 951 P.2d 738, 741 (Utah 1997).
Second, the State asks this court to determine who rightfully bears the burden of proof on the question of whether a defendant knowingly or voluntarily waived his right to counsel in the prior plea proceeding. The trial court conclu
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