State v. Gerrish

In September 1985, defendant pleaded guilty to one count of aggravated sexual abuse of a child, a first degree felony. 1 The crime is punishable by incarceration for a minimum mandatory term of three, six, or nine years. 2

In October 1985, defendant was sentenced to a minimum mandatory sentence of ten years. In November 1985, this erroneous sentence was amended without hearing to specify a minimum mandatory term of six years.

In February 1986, the trial court sua sponte resentenced defendant, with defendant and his counsel present. Defendant’s motion to have sections 76-5-404.1(4) and 76-3-406(1) declared unconstitutional was denied. Defendant was resentenced to a minimum mandatory term of six years.

On appeal, defendant claims that the minimum mandatory sentencing scheme set forth in Utah Code Ann. §§ 76-5-404.1(4) (1987), 76-3-201(5)-(10) (Supp. 1985) (amended 1986 & 1987), 76-3-406(1) (Supp. 1985) (amended 1986), and 77-27-9(2) (Supp. 1985) (amended 1986) is unconstitutionally vague. In State v. Egbert, 3 we faced a similar challenge to the minimum mandatory sentencing requirements of Utah Code Ann. § 76-5-405(2) (Supp. 1983) (amended 1986) and § 76-3-201(5) (Supp. 1983) (amended 1984, 1986, & 1987), and there the Court held the minimum mandatory provisions constitutional. The minimum mandatory sentencing scheme challenged in this case is substantively no different than that challenged in Egbert. 4 Therefore, our ruling in Egbert controls this appeal.

Defendant’s sentence is affirmed.