State Of Utah V. Howard Price Johnson

2012 UT 68

Filed October 5, 2012

The Utah Supreme Court held that an amendment to a Utah statute could not be applied retroactively to allow the State of Utah to oppose Mr. Johnson’s motion to reduce the degree of his unlawful sexual activity with a minor and enticing a minor convictions.

Mr. Johnson was charged with unlawful sexual activity with a minor and enticing a minor. He entered into a plea agreement under the terms of which he pled guilty to a third degree felony and a class A misdemeanor and the State of Utah promised not to oppose a motion to reduce the degree of his convictions after he had successfully completed probation. This promise was central to the plea deal because after a reduction in the convictions Mr. Johnson would no longer be required to register as a sex offender. At the time of Mr. Johnson’s sentencing Utah Code section 76-3-402 gave Utah district courts discretion to reduce the degree of convictions if sentencing was delayed while the defendant was on probation, if the probation was not violated, and if the judge found that it was in the interest of justice to reduce the degree of the convictions.

Mr. Johnson was sentenced to a prison term not to exceed five years but, under the terms of the plea deal, that sentence was suspended and Mr. Johnson was put on probation for three years. Utah law also required that Mr. Johnson register as a sex offender for both of his crimes. At the end of the three years, after successfully completing probation, Mr. Johnson and his criminal defense attorney filed a motion to reduce Mr. Johnson’s convictions. During the term of Mr. Johnson’s probation the Utah legislature had amended Utah Code 76-3-402 to disallow the reduction of convictions that required registration as a sex offender until the registration period for sex offends had expired. Utah prosecutors filed a notice with the Salt Lake district court notifying it of this amendment and as a result the Salt Lake district court denied Mr. Johnson’s motion to reduce his convictions. Mr. Johnson and his criminal defense lawyer appealed to the Utah Supreme Court.

At the Utah Supreme Court, Mr. Johnson’s criminal defense attorney argued that the amended section of the Utah Code could not be applied retroactively to Mr. Johnson’s case because the Utah legislature did not expressly make section 402 retroactive. Mr. Jonson’s criminal defense lawyer also argued that to apply the amended section retroactively to Mr. Johnson’s case would violate the ex post facto clause of the Utah and U.S. Constitutions and would be an unconstitutional breach of contract. The Utah Supreme Court agreed with Mr. Johnson’s criminal defense lawyer’s first argument and so did not reach the other two arguments. The law that is applied to a criminal defendant’s case is the law that was in effect “at the time of the event regulated by the law in question.” State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829. On matters of substance, the criminal defendant’s rights are governed by the law that was in effect at the time the crime was committed. On matters of procedure, the criminal defendant’s rights are governed by the law that was in effect at the time of the procedural act in question, such as filing a motion or an appeal. The right to have convictions reduced is a substantive right and not merely a procedural one, and the relevant law therefore is the law that was in effect at the time of Mr. Johnson’s crimes of unlawful sexual activity with a minor and enticing a minor.

Although the Utah Supreme Court did not reach the issue of breach of contract, it reminded Utah prosecutors in a footnote that they have a legal duty to fulfill promises made in plea agreements.