State v. Marshall11/14/2003
th Defendant's general argument, which is that the 2001 amendment is an ex post facto law because it takes into account offenses committed before its enactment for purposes of enhancement. If, as Defendant suggests, a statute is rendered constitutionally infirm if it "looks back" to offenses committed before its enactment, such infirmity would not be cured by looking back only six years instead of ten.
**14 The United States Supreme Court has consistently upheld the constitutionality of recidivist statutes, explaining that "[a]n enhanced sentence imposed on a persistent offender ... 'is not to be viewed as [an] additional penalty for the earlier crimes' but as 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' " Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 2250, 141 L.Ed.2d 615 (1998) (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)). See also Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745 (1994) ("Enhancement statutes, whether in the nature of criminal history provisions ... or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.... '[T]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant.' ") (citation omitted); Parke v. Raley, 506 U.S. 20, 26-27, 113 S.Ct. 517, 521-22, 121 L.Ed.2d 391 (1992) (noting that "[s]tatutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times"; "[s]uch laws currently are in effect in all 50 States"; "[s]tates have a valid interest in deterring and segregating habitual criminals"; and "we have repeatedly upheld recidivism statutes 'against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities' ") (quoting Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967)) (other citations omitted). [FN4]
FN4. Some of the United States Supreme Court cases we cite here are not necessarily pristine ex post facto cases, but they nevertheless apply by analogy. Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), for example, was a double jeopardy case, but its reasoning is applicable here, where Defendant argues that the 2001 amendment operates to punish him (again) for conduct that occurred before its enactment. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 1149, 155 L.Ed.2d 164 (2003) (noting relationship between ex post facto and double jeopardy jurisprudence).
*780 **15 While Utah appellate courts have not had occasion to rule on the constitutionality of the 2001 amendment to the DUI statute in the face of an ex post facto challenge, [FN5] the Utah Supreme Court has upheld recidivist statutes under analogous circumstances. One such case is particularly instructive. In Zeimer v. Turner, 14 Utah 2d 232, 381 P.2d 721 (1963), the defendant challenged his conviction as a habitual criminal, stemming from violations occurring in 1949 and 1955. See id. at 722. Like Utah's DUI statute, the habitual criminal statute had been amended to allow for stiffer penalties for recidivists. See id. at 722-23. Under the 1950 version of the statute, the defendant's 1949 offense could not be considered in determining his status as a habitual criminal, but under the 1951 version, it could. See id. The defendant argued that his conviction under the 1951 version of the statute was illegal, as it took into account an offense that occurred before its enactment. See id. at 723. Th
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