2005 UT 88
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Nos. 20040763
Petitioner,
20040963
v.
The Honorable William W.
Barrett,
Respondent.
__________________________________
James Kida Pauu and
F I L E D
Inoke Vimahi,
Real Parties in Interest.
December 5, 2005
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Original Proceeding in this Court
Attorneys: Mark L. Shurtleff, Att'y Gen., J. Frederic Voros,
Jr., Asst. Att'y Gen., Byron F. Burmester, Salt Lake
City for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Joan C. Watt, Vernice S. Trease, John D. O'Connell,
Jr., Salt Lake City, for real parties in interest
---
DURRANT, Justice:
¶1
To resolve these consolidated petitions for
extraordinary relief, we must determine whether a district
court's reduction, for sentencing purposes, of a first degree
felony with a gang enhancement1 to a second degree felony without

1 Utah's gang enhancement statute effectively increases the
penalty applicable to certain enumerated crimes if the charged
crime was committed in concert with two or more persons.
Although the Utah Code refers to such an enhancement as an "in-
concert" enhancement, Utah Code Ann. § 76-3-203.1 (2003), we have
"previously referred to the statute under its commonly known
name, and we will continue to do so for ease of reference,"
(continued...)

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an enhancement constitutes an impermissible two-degree reduction
of the charged offense. If so, we must determine whether it is
appropriate to utilize our extraordinary writ powers to nullify
such a reduction. We conclude that a district court's removal of
a gang enhancement is, in effect, a one-degree reduction of the
charged offense. Therefore, reducing a first degree felony with
a gang enhancement to a second degree felony without an
enhancement amounts to a two-degree reduction from the level of
the charged offense and is impermissible absent consent from the
prosecutor. Because we conclude that such a reduction is outside
the bounds of a district court's discretion, and because we
consider this case to present a significant legal issue in need
of resolution, we nullify the reductions at issue in this
proceeding and direct the district court to enter new orders
consistent with this opinion.
BACKGROUND
¶2
The State of Utah initiated this original proceeding by
filing two petitions for extraordinary relief, each claiming that
the district court, when recording the convictions of James Pauu
and Inoke Vimahi, impermissibly reduced the degree of the offense
to which the defendants pleaded guilty. Pauu and Vimahi were
initially charged with three first degree felonies: aggravated
robbery, aggravated burglary, and theft. When charging the
defendants, the State alleged that Pauu and Vimahi committed the
offending acts in concert with two or more persons, and were
therefore subject to an enhanced penalty in relation to each
proven offense as outlined in Utah's gang enhancement statute,
see Utah Code Ann. § 76-3-203.1 (2003).
¶3
Before their trial commenced, however, both Pauu and
Vimahi entered into plea agreements with the State. Pursuant to
their plea agreements, Pauu and Vimahi pleaded guilty to
aggravated robbery, a first degree felony, and also admitted that
the crime was committed in concert with two or more persons,
triggering the gang enhancement.2 In exchange for the

1 (...continued)
State v. Lopes, 2001 UT 85, ¶ 1 n.2, 34 P.3d 762 (internal
quotation marks omitted).

2 In his brief before this court, Vimahi suggests that his
guilty plea was defective because he did not adequately admit the
facts underlying the charged gang enhancement. We express no
opinion as to the adequacy of Vimahi's plea because the issue is
not properly before us.
No. 20040763
2

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defendants' guilty pleas, the State dropped the aggravated
burglary and theft charges.
¶4
After entering their pleas, Pauu and Vimahi each filed
a motion with the district court requesting a one-degree
reduction of the aggravated robbery charges for sentencing
purposes. The defendants claimed that reducing the degree of the
charged offenses from first degree felonies with gang
enhancements to simple second degree felonies was appropriate
under the circumstances. Both motions were made pursuant to Utah
Code section 76-3-402, which grants sentencing judges the
discretion to "enter a judgment of conviction for the next lower
degree of offense and impose sentence accordingly" if it would be
"unduly harsh" to record the conviction as charged. Id. § 76-3-
402(1).
¶5
The State opposed the motions, arguing that sentencing
the defendants to the penalty applicable to the charged offense
was not "unduly harsh" when the characters of the defendants and
the violent nature of their actions were considered.
Additionally, the State contended that the court was foreclosed
from granting the defendants' request that the court reduce the
first degree offenses with enhancements to second degree offenses
without enhancements. Specifically, the State argued that such a
reduction amounted to a two-degree departure from the level of
the charged offense, a reduction outside the bounds of the
court's discretion absent consent from the prosecutor. See id.
§ 76-3-402(3). After considering the parties' arguments, the
district court reduced Pauu's and Vimahi's offenses from first
degree felonies with enhancements to second degree felonies
without enhancements. Pauu and Vimahi subsequently received
sentences corresponding to a second degree felony--specifically,
one to fifteen years in prison.
¶6
Although the State felt the district court committed
error by engaging in such a reduction, the State was unable to
appeal the appropriateness of the district court's action, as at
the time the challenged reductions were made, the Utah Code
prevented the State from pursuing a direct appeal challenging the
appropriateness of such reductions. See id. § 77-18a-1(2) (Supp.
2004) (outlining specific situations where the prosecution may
pursue a direct appeal).3 Consequently, the State filed two

3 Section 77-18a-1 was amended after the State filed the
present petitions for extraordinary relief. As amended, the
statute now allows the State to directly appeal a district
court's reduction in the degree of the charged offense. Utah
(continued...)
3
No. 20040763

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petitions for extraordinary relief pursuant to rule 65B(d),
claiming that the district court, by reducing first degree
felonies with enhancements to second degree felonies without
enhancements, violated the Utah Code's prohibition against two-
degree reductions absent the approval of the prosecution. See
id. § 76-3-402(3) ("An offense may be reduced only one degree
under this section unless the prosecutor specifically
agrees . . . . In no case may an offense be reduced . . . by
more than two degrees."). We consolidated the two petitions for
the purposes of our review. We have jurisdiction pursuant to
Utah Code section 78-2-2(2) (2002).
STANDARD OF REVIEW
¶7
The parties to this proceeding have focused
extensively, both during briefing and at oral argument, on
identifying the standard of review applicable to this case. In
doing so, they have concentrated their efforts on elucidating an
explanation of an apparent distinction drawn in our case law
between cases in which extraordinary relief is available based
upon a simple abuse of discretion by a lower court and cases in
which extraordinary relief is available only if the lower court
grossly and flagrantly abused its discretion. Because our
jurisprudence in this area has led to much confusion, we take
this opportunity to clarify our prior pronouncements regarding
the scope and standard of review in rule 65B(d) extraordinary
relief proceedings.4

3 (...continued)
Code Ann. § 77-18a-1(3)(i) (Supp. 2005). The parties to the
present action concede that this amendment has no retroactive
effect and therefore has no bearing on the resolution of the
State's petitions.

4 Rule 65B of the Utah Rules of Civil Procedure abolished
common law forms and pleadings for extraordinary writs but did
not diminish the availability of extraordinary relief. Renn v.
Utah State Bd. of Pardons, 904 P.2d 677, 682 (Utah 1995).
Currently, habeas corpus relief is largely available through
rules 65B(b) and 65C. See Utah R. Civ. P. 65B advisory
committee's note ("Paragraph (b) . . . governs all petitions
claiming that a person has been wrongfully restrained of personal
liberty other than those specifically governed by paragraph [sic]
Rule 65C."). Relief formerly granted under writs of mandamus or
certiorari is generally available through rule 65B(d). Renn, 904
P.2d at 683 (noting that "[r]ule 65B(e) [subsection (d) in the
current rule] includes relief that was available at common law by
(continued...)
No. 20040763
4

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¶8
This court's ability to grant extraordinary relief has
its origins in the state constitution, which vests the state
supreme court with "original jurisdiction to issue all
extraordinary writs." Utah Const. art. VIII, § 3. The Utah
Constitution also grants this court the ability to enact rules
governing judicial procedure. Id. art. VIII, § 4. Pursuant to
our rulemaking authority, we have promulgated rule 65B of the
Utah Rules of Civil Procedure, which outlines the general
mechanics of an extraordinary relief proceeding and designates
the types of situations in which extraordinary relief may be
attainable. See Utah R. Civ. P. 65B.
¶9
Rule 65B provides that, "[w]here no other plain, speedy
and adequate remedy is available, a person may petition the court
for extraordinary relief on any of the grounds" identified in the
rule. Id. 65B(a). The grounds for relief relevant to the
present dispute are enumerated in subsection (d) of rule 65B,
which addresses the wrongful use of judicial authority and the
failure to perform a duty. Id. 65B(d). Specifically, the
relevant portion of rule 65B states as follows:
Appropriate relief may be granted: (A) where
an inferior court . . . exceeded its
jurisdiction or abused its discretion; (B)
where an inferior court . . . has failed to
perform an act required by law as a duty of
office, trust or station; (C) where an
inferior court . . . has refused the
petitioner the use or enjoyment of a right or
office to which the petitioner is
entitled . . . .
Id. 65B(d)(2). The rule goes on to define the appropriate scope
of review when a court is confronted with a petition for an
extraordinary writ challenging a lower court's action or
inaction, stating that "[w]here the challenged proceedings are
judicial in nature, the court's review shall not extend further
than to determine whether the respondent has regularly pursued

4 (...continued)
writs of certiorari and mandamus"). The text of rule 65B(d)
contains an abuse-of-discretion component, while the text of rule
65B(b) does not. Our analysis in this case is confined to
petitions properly brought under rule 65B(d). See Renn, 904 P.2d
at 681 ("We . . . look to the substance of the action and the
nature of the relief sought in determining the true nature of the
extraordinary relief requested.").
5
No. 20040763

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its authority." Id. 65B(d)(4). To determine the practical
effect of the rule's terms, a brief history and analysis of the
rule is necessary.
¶10
Our decision in Renn v. Utah State Board of Pardons,
904 P.2d 677 (Utah 1995), provides a thorough examination of the
origins of rule 65B and identifies the concerns the rule was
designed to address. Specifically, in Renn we discussed in some
detail the common law writs of certiorari and mandamus and
acknowledged that rule 65B subsumed those writs. 904 P.2d at
682. We noted that, "[w]ith the promulgation of Rule 65B of the
Utah Rules of Civil Procedure, the common law forms and
procedures for extraordinary writs were abolished in keeping with
modern concepts of pleading and practice . . . ." Id.; see also
Utah R. Civ. P. 65B(a) ("There shall be no special form of
writ."). As within the rules of civil procedure, the movement
toward simplification of the writ process also led to a revision
of the state constitution, which at one time listed each type of
writ that was within this court's jurisdiction to grant, but
which was amended in 1984 to read simply that the supreme court
has jurisdiction to issue "all extraordinary writs." See
Judicial Article Revision, 1984 Utah Laws 2d spec. sess. 268,
269.
¶11
Although the practice of specifically listing each
available common law writ has been abandoned, Renn makes clear
that the remedies provided by those writs remain available. 904
P.2d at 682. As a result, rule 65B can be thought of as a
repository of all the extraordinary writs that, in the past, were
envisioned as separate and distinct proceedings. In Renn, we
concluded that the portion of rule 65B covering the wrongful use
of judicial authority or the failure to comply with a duty is
properly conceived as including the "relief that was available at
common law by writs of certiorari and mandamus," id. at 683,
which were commonly used to review the actions of a lower
tribunal. The fact that rule 65B has subsumed the common law
writs does not, however, change the reality that "a court must
look to the nature of the relief sought, the circumstances
alleged in the petition, and the purpose of the type of writ
sought in deciding whether to grant extraordinary relief." Id.
¶12
Both the State and the defendants argue that the
outcome of the present case is controlled by our determination of
whether the district court abused its discretion by reducing the
degree of the defendants' offenses in the manner it did. But as
noted above, the State argues that extraordinary relief is
warranted if we conclude that the district court abused its
discretion, while the defendants contend that such relief is
No. 20040763
6

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warranted only if we conclude that the district court committed a
gross and flagrant abuse of discretion. Before addressing the
parties' disagreement on this question, we must first discuss the
nature of the action being challenged in this proceeding.
¶13
To begin with, no party to this proceeding alleges that
the district court knowingly violated the Utah Code by reducing
the degree of the defendants' offenses from first degree felonies
with enhancements to second degree felonies without enhancements.
Further, the State has not asserted that the district court acted
in an otherwise rogue fashion. Rather, the State maintains that
the district court incorrectly interpreted the relevant
provisions of the Utah Code and that this misinterpretation led
the court to take an action contrary to the statutory scheme.
¶14
We have consistently held that the proper
interpretation of a statute is a question of law that should be
reviewed for correctness. See Savage v. Utah Youth Vill., 2004
UT 102, ¶ 17, 104 P.3d 1242. Consequently, it would appear
reasonable to assume that, in the present case, we should
undertake a correctness review and grant the State relief if the
district court misinterpreted the Utah Code. Neither the State
nor the defendants have argued that such a standard is applicable
here, however. Rather, both parties argue that extraordinary
relief is only appropriate if the district court abused its
discretion. This position is entirely consistent with the
language of rule 65B, which provides that relief can be granted
if a lower court "exceeded its jurisdiction or abused its
discretion." Utah R. Civ. P. 65B(d)(2)(A). As a result, we must
determine whether a lower court abuses its discretion when it
makes a mistake of law.
¶15
It could certainly be argued that any mistake of law
made by a court is, by definition, an abuse of discretion. For
example, in Koon v. United States, the United States Supreme
Court, when articulating the standard of review applicable to a
district court's decision to depart from sentencing guidelines,
stated that
[a] district court by definition abuses its
discretion when it makes an error of law.
That a departure decision . . . may call for
a legal determination does not mean, as a
consequence, that parts of the review must be
labeled de novo while other parts are labeled
an abuse of discretion. The abuse-of-
discretion standard includes review to
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No. 20040763

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determine that the discretion was not guided
by erroneous legal conclusions.
518 U.S. 81, 100 (1996) (internal citations omitted) superseded
by statute on other grounds as stated in United States v. Stultz,
356 F.3d 261, 264 (2d. Cir. 2004); Freeman v. Case Corp., 118
F.3d 1011, 1014 (4th Cir. 1997) ("[A]n error of law constitutes
an abuse of discretion.").
¶16
On the other hand, it seems that one must have
discretion before one is able to abuse that discretion. See
Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 8, 100 P.3d 1211
(holding that while a denial of a motion to vacate is typically
reviewed for an abuse of discretion, when the motion is based on
a claim that the court lacks jurisdiction, the question becomes
one of law); State v. Petersen, 810 P.2d 421, 425 (Utah 1991)
("[T]rial courts do not have discretion to misapply the law.
Therefore, legal determinations concerning the proper
interpretation of the statute which grants the trial court
discretion are reviewed for correctness." (footnote omitted)).
¶17
As a general matter, we agree with the proposition that
the abuse-of-discretion standard of review will at times
necessarily include review to ensure that no mistakes of law
affected a lower court's use of its discretion.5 This case
presents such a situation, as determining the breadth of the
district court's discretion entails interpreting the statutory

5 There may be situations in which a court has
misinterpreted a statute defining the scope of its discretionary
power but that misinterpretation does not result in a technical
abuse of discretion. For example, a statute may grant a court
the discretion to choose one of two different courses, (a) or
(b), to follow when presented with a certain fact scenario. If
the fact scenario does not meet the statutory criteria, the court
may only be empowered to pursue course (a). Therefore, it is
possible that a court could misinterpret the relevant statute in
such a manner as to mistakenly believe that it is faced with a
situation in which either of the two courses, (a) or (b), may be
pursued. But if the court chooses course (a), an option
available under both the correct interpretation of the statute
and the incorrect interpretation, the court has committed an
error of law (through misinterpretation), but yet has not
exceeded the bounds of discretion granted by the proper
interpretation of the statute. In such a situation, corrective
appellate action may be warranted to enable the lower court to
exercise its discretion with the proper legal boundaries in mind.
No. 20040763
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language granting the court the discretion to lower the degree of
a defendant's offense for sentencing purposes.
¶18
Nevertheless, the defendants argue that, even if the
district court did misinterpret the relevant statutory
provisions, extraordinary relief is not available to correct
simple mistakes of law because such mistakes do not amount to a
gross and flagrant abuse of discretion. This argument is
primarily grounded in our decision in Renn, 904 P.2d 677, and two
court of appeals decisions issued in extraordinary writ
proceedings, State v. Stirba, 972 P.2d 918 (Utah Ct. App. 1998),
and Utah County v. Alexanderson, 2003 UT App 153, 71 P.3d 621,
vacated, 2005 UT 67. A brief discussion of each case is
necessary to understand the defendants' argument.
¶19
In Renn, a prisoner attempted to challenge the decision
of the board of pardons "to postpone the hearing at which his
parole release date is set." 904 P.2d at 682. At the outset of
our consideration of Renn's petition, however, we were forced to
grapple with a provision of the Utah Code that immunized
decisions of the board of pardons from judicial review. Id. at
683. Despite the presence of the statute foreclosing judicial
review, we relied upon this court's constitutional authority to
issue extraordinary writs as a basis for reviewing Renn's
petition for extraordinary relief. See id. at 680-84. In an
attempt to reconcile our review of Renn's petition with the
presence of the statutory prohibition against judicial review of
board of pardons decisions, we stated that
[b]ecause the legislature has directed that
there be no right of appeal from Board of
Pardons actions, [extraordinary relief] may
not be used as a substitute for a statutory
appeal. Nevertheless, where there is a gross
and flagrant abuse of discretion and
fundamental principles of fairness are
flouted, a court may, giving appropriate
deference to legislative policy and the
extraordinarily difficult duties of the Board
of Pardons, intervene to correct such abuses
by means of an appropriate extraordinary
writ.
Id. at 683-84 (citation omitted).
¶20
In Stirba, the court of appeals concluded that a
district court had improperly interpreted the Utah Code in
concluding that a crime victim was not entitled to additional
9
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restitution if that victim had already received a recovery from a
personally held insurance policy. 972 P.2d at 923. Despite
identifying this mistake of law, the court of appeals declined to
grant relief, and, relying on Renn, stated that "a simple mistake
of law does not qualify as the kind of gross and flagrant abuse
of discretion necessary for [an extraordinary] writ to issue."
Id. Although Stirba is not clear on this point, it apparently
interpreted our decision in Renn as holding that, at least in
situations in which the legislature has precluded the right to
pursue ordinary appellate channels, extraordinary relief is
appropriate only if the lower court grossly and flagrantly abused
its discretion.
¶21
In Alexanderson, the court of appeals took this line of
reasoning one step further and expressly stated what Stirba
implied. Specifically, Alexanderson read Stirba as prohibiting
extraordinary relief in any rule 65B proceeding, whether a
statutory prohibition on appeal is present or not, absent a
showing that the lower tribunal committed a gross and flagrant
abuse of discretion. Alexanderson, 2003 UT App 153, ¶ 8 n.5.
¶22
Further complicating this state's case law addressing
extraordinary relief is the reality that this court has arguably
varied between abuse-of-discretion and gross-and-flagrant-abuse-
of-discretion review standards when considering petitions for
extraordinary relief. Compare Kawamoto v. Fratto, 2000 UT 6,
¶¶ 1 n.1, 7, 994 P.2d 187 (reviewing for an abuse of discretion
even though a statutory abrogation of the right to appeal
existed) with Renn, 904 P.2d at 683-84 (applying gross-and-
flagrant-abuse-of-discretion standard due to the presence of a
statutory prohibition on judicial review). See Panos v. Third
Jud. Dist. Ct., 2004 UT 87, ¶ 16, 103 P.3d 695 (questioning
appropriateness of the review undertaken in Kawamoto).
¶23
To resolve the confusion surrounding the appropriate
standard of review in the rule 65B(d) extraordinary relief
context, we will first make clear the discretionary nature of
that relief. Unlike a party filing a direct appeal, a petitioner
seeking rule 65B(d) extraordinary relief has no right to receive
a remedy that corrects a lower court's mishandling of a
particular case. Rather, whether relief is ultimately granted is
left to the sound discretion of the court hearing the petition.
See Utah R. Civ. P. 65B(d)(2) ("Appropriate relief may be granted
. . . where an inferior court . . . abused its
discretion . . . ." (emphasis added)). Because a party
petitioning for rule 65B(d) extraordinary relief is not entitled
to receive relief, even if that party successfully establishes
No. 20040763
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that a lower court abused its discretion, such relief will be,
naturally, more difficult to obtain.
¶24
Indeed, in a particular case, relief may very well be
available under the terms of rule 65B(d) itself--which states
that a petitioner has established adequate grounds for relief
upon showing that a lower court "abused its discretion," Utah R.
Civ. P. 65B(d)(2)(A)--but a court may nevertheless withhold
relief. In sum, if a petitioner is able to establish that a
lower court abused its discretion, that petitioner becomes
eligible for, but not entitled to, extraordinary relief. A court
faced with a petition for extraordinary relief will consider
multiple factors when determining whether or not to grant the
relief requested in the petition. For example, factors such as
the egregiousness of the alleged error, the significance of the
legal issue presented by the petition, the severity of the
consequences occasioned by the alleged error, and additional
factors, may all affect the court's decision to grant or withhold
relief. The exercise of the court's discretion when deciding
whether to grant rule 65B(d) extraordinary relief is akin to this
court's exercise of its certiorari review powers. Rule 46 of the
Utah Rules of Appellate Procedure states that "[r]eview by a writ
of certiorari is not a matter of right, but of judicial
discretion and will be granted only for special and important
reasons." Utah R. App. P. 46(a). The rule goes on to provide a
list of factors "neither controlling nor wholly measuring the
Supreme Court's discretion," but which "indicate the character of
reasons that will be considered" when deciding whether to grant
certiorari review. Id. Among the considerations identified is
whether a panel of the court of appeals "has rendered a decision
that has so far departed from the accepted and usual course of
judicial proceedings . . . as to call for an exercise of the
Supreme Court's power of supervision." Id. 46(a)(3).
¶25
Renn serves as an example of the type of considerations
that this court will examine when deciding whether to grant rule
65B(d) extraordinary relief. In Renn, our recognition that the
legislature had adopted a policy foreclosing judicial review,
combined with our assessment that the board of pardons is charged
with an extraordinarily difficult task, led us to conclude that a
substantial violation of rights was necessary before the court
system should interfere. 904 P.2d at 683. In Renn, the
egregiousness of the alleged error was a factor in our analysis
addressing whether our entry into the fray was warranted in order
to grant Renn relief from the alleged error. But as noted above,
the egregiousness of the alleged error is only one of multiple
factors bearing on the decision to grant extraordinary relief.
After all, a simple mistake of law or a simple abuse of
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discretion can have dramatic consequences, and it would be a
disservice to this state for this court to adopt a standard of
review so stringent as to foreclose the possibility of remedying
such an error. Consequently, although a petitioner seeking
extraordinary relief establishes adequate grounds for the
granting of that relief upon showing that the lower court abused
its discretion, this court will weigh the various interests
implicated by the proceeding and the potential consequences of
judicial action or inaction before deciding whether to exercise
its discretion by granting extraordinary relief.
¶26
Given the above discussion, it is incorrect to state
that a petitioner seeking rule 65B(d) extraordinary relief must
establish a gross and flagrant abuse of discretion before
extraordinary relief can be granted. While the egregiousness of
the alleged error is a factor that should be considered when the
court reviewing the petition assesses the propriety of exercising
its discretion to grant relief, extraordinary relief may be
granted in situations where a simple abuse of discretion has
occurred. This approach is consistent with the text of rule
65B(d) itself, which makes no mention of gross and flagrant
abuses of discretion. In sum, rule 65B(d) extraordinary relief
is available upon a showing that the lower court abused its
discretion, and a mistake of law may constitute an abuse of
discretion. A petitioner need not show a gross and flagrant
abuse of discretion in order to establish adequate grounds for
this relief, but the egregiousness of the alleged error may be a
factor the reviewing court considers when making its
discretionary decision to grant or deny relief. Having outlined
the appropriate standard of review, we now turn to the merits of
this case.
ANALYSIS
¶27
At issue in these consolidated cases is whether the
district court's reduction of the defendants' first degree
felonies with enhancements to second degree felonies without
enhancements amounted to an abuse of discretion. The State
contends that the decreases in question constituted two-degree
reductions, which are prohibited by the Utah Code absent consent
from the prosecutor. We agree.
¶28
To determine whether the reductions undertaken by the
district court were permissible, we must interpret two sections
of the Utah Code. The first provision grants judges the
discretion to reduce the degree of the charged offense "to the
next lower degree" for sentencing purposes if recording the
conviction as charged would be "unduly harsh." Utah Code Ann.
No. 20040763
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§ 76-3-402 (2003). The second provision outlines the nature and
effect of a gang enhancement. Id. § 76-3-203.1.
¶29
When interpreting statutes, this court first looks to
the plain language. Savage v. Utah Youth Vill., 2004 UT 102,
¶ 18, 104 P.3d 1242. "We presume that the legislature used each
word advisedly and give effect to each term according to its
ordinary and accepted meaning." C.T. ex rel. Taylor v. Johnson,
1999 UT 35, ¶ 9, 977 P.2d 479 (internal quotation marks omitted).
Furthermore, we "read the plain language of the statute as a
whole, and interpret its provisions in harmony with other
statutes in the same chapter and related chapters." Miller v.
Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. Other interpretive tools
are not needed in analyzing the statute when the language of the
statute is plain. Adams v. Swensen, 2005 UT 8, ¶ 8, 108 P.3d
725. But "[i]f we find the provision ambiguous . . . we then
seek guidance from the legislative history and relevant policy
considerations." State v. Ostler, 2001 UT 68, ¶ 7, 31 P.3d 528.
Having articulated the proper method of interpretation, we now
turn to the statutes at hand.
¶30
We commence our analysis by examining section 76-3-402
of the Utah Code. Section 76-3-402 allows a sentencing judge,
after reviewing "the nature and circumstances of the offense" and
"the history and character of the defendant," to reduce the
degree of the charged offense to the "next lower degree of
offense" when the penalty associated with the charged offense
would be "unduly harsh." Utah Code Ann. § 76-3-402(1). Although
this statute grants sentencing judges discretion to reduce the
degree of the charged offense, it also limits that discretion,
providing that "[a]n offense may be reduced only one degree under
this section unless the prosecutor specifically agrees in writing
or on the court record that the offense may be reduced two
degrees. In no case may an offense be reduced under this section
by more than two degrees." Id. § 76-3-402(3).
¶31
The offense reduction statute is straightforward. If a
sentencing judge is convinced that the penalty applicable to the
charged offense is unduly harsh under the circumstances, the
judge can reduce the degree of the offense when recording the
conviction. But the presence of a gang enhancement complicates
this process. Therefore, we now turn to the language of the gang
enhancement statute and discuss the manner in which it operates.
¶32
The gang enhancement statute mandates that the level of
the charged offense be increased by one degree if the underlying
offense is committed in concert with two or more persons. Id.
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§ 76-3-203.1. Specifically, the enhancement scheme provides as
follows:
The enhanced penalty for a:
(a) class B misdemeanor is a class A
misdemeanor;
(b) class A misdemeanor is a third
degree felony;
(c) third degree felony is a second
degree felony;
(d) second degree felony is a first
degree felony; and
(e) first degree felony is an
indeterminate prison term of not less
than nine years and which may be for
life.
Id. § 76-3-203.1(3).
¶33
In this case, both Pauu and Vimahi pleaded guilty to
aggravated robbery, a first degree felony, with a gang
enhancement. According to the enhancement scheme outlined above,
both defendants were to be sentenced to no fewer than nine years
to life in prison. Id. But the district court exercised its
discretion to lower the degree of the charged offenses and
reduced those offenses to second degree felonies, imposing prison
terms of one to fifteen years. See id. § 76-3-203(2) (outlining
sentencing term applicable to second degree felonies). The State
argues that the district court only had discretion to reduce the
charged offenses to first degree felonies without enhancements
and, therefore, the district court exceeded the bounds of its
discretion when it reduced the charged first degree felonies with
enhancements to second degree felonies without enhancements.
¶34
According to the State, this conclusion is inescapable
because the district court did not merely reduce the charged
offenses to "the next lower degree of offense," but actually
reduced the charged offenses by two degrees. The State explains
its position by articulating a three-step process that the
district court must have followed when reducing the degree of the
defendants' offenses. First, the district court reduced the
charged offenses by one degree, lowering the enhanced first
degree felonies to enhanced second degree felonies. Second, the
enhancement operated to raise the enhanced second degree felonies
to first degree felonies without enhancements. Third, the
district court lowered the first degree felonies to second degree
felonies. According to the State, the district court was not
empowered to undertake the third step because it had already
No. 20040763
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exercised its discretion to lower the charged offenses by one
degree.
¶35
In contrast, the defendants argue that the gang
enhancement statute does not increase the degree of a charged
offense, but merely imposes a harsher penalty for the charged
offense. Consequently, under the defendants' theory, an enhanced
first degree felony is a first degree felony with an increased
penalty, and the district court is empowered to reduce that
felony to a second degree felony without an enhancement. The
defendants find support for their position in the language of the
gang enhancement statute, which seems to acknowledge a
distinction between penalties and offenses, listing "penalties"
in subsection (3) and "offenses" to which those penalties are
applicable in subsection (4). Id. § 76-3-203.1(3) to (4).
¶36
Despite the presence of some textual support for the
defendants' interpretation, their approach is flawed because it
disregards the plain language used in outlining the enhancement
scheme, which literally raises the degree of a charged offense in
order to effect the enhanced penalty. See id. § 76-3-203.1(3)
("The enhanced penalty for a . . . second degree felony is a
first degree felony . . . ."). The defendants would like the
statute to state that the enhanced penalty for a second degree
felony is the penalty applicable to a first degree felony. But
the statute is not written in that manner. Defendants fail to
recognize that the penalty provided by the enhancement statute is
not an increased sentence, but an elevation of the degree of the
charged offense, which ultimately results in an increased
sentence. The legislature could certainly have provided
increased penalties for crimes committed in concert with two or
more persons by simply listing the penalty it desired to impose
instead of raising the degree of the charged offense to effect an
increased punishment. The plain language of the statute,
however, reveals that the legislature did not choose to pursue
such a course. See id.
¶37
The defendants argue, however, that the legislature
did, in fact, pursue such a course in designating the appropriate
enhancement when the underlying crime is a first degree felony.
In support of this position, the defendants again point to the
language of the statute, which, as a general matter, expressly
lists the next higher degree of offense as the appropriate
penalty to impose, but which merely increases the applicable
prison term when the underlying offense is a first degree felony.
Compare id. § 76-3-203.1(3)(d) (The enhanced penalty for a
"second degree felony is a first degree felony.") with id. § 76-
3-203.1(3)(e) (The enhanced penalty for a "first degree felony is
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No. 20040763

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an indeterminate prison term of not less than nine years and
which may be for life.").
¶38
Adopting the defendants' interpretation would lead to
anomalous treatment of first degree felons under the enhancement
scheme. Specifically, under the defendants' interpretation of
the statute, defendants who are convicted of enhanced first
degree felonies are placed on the same footing as defendants
convicted of simple first degree felonies because both categories
of defendants could benefit from a discretionary reduction to
simple second degree felonies. There is nothing in the language
of the statute that indicates that the legislature intended such
a result. Rather, the statute illustrates the Legislature's
desire to increase penalties for certain crimes committed in
concert with two or more persons and its chosen method to
accomplish that goal: raising the degree of the underlying
offense in such situations.
¶39
That the Legislature did not intend to place defendants
who are convicted of a first degree felony with an enhancement
and defendants who are convicted of a first degree felony without
an enhancement on equal footing is apparent when the general
manner in which the statute operates is analyzed. If a defendant
is convicted of an enhanced crime, it is undisputed that the net
effect of a one-degree reduction for sentencing purposes is the
imposition of the sentence appropriate for the underlying crime,
so long as that crime is classified anywhere from a class B
misdemeanor to a second degree felony. The enhancement and
reduction statutes, in effect, cancel each other out. For
example, a third degree felony that is enhanced results in a
second degree felony, which, when reduced, becomes a third degree
felony. Yet, under the defendants' interpretation, the
enhancement and reduction statutes would fail to cancel each
other out when the underlying crime is a first degree felony.
This is the case as, according to the defendants, the enhancement
statute does not raise the degree of the crime when the
underlying offense is already a first degree felony. If the
defendants' position is accepted, in situations in which an
underlying offense is a first degree felony, the district court
would be empowered to effectively remove the enhancement and
lower the degree of the underlying offense.
¶40
We are convinced, however, that under the correct
reading of the statute an enhanced first degree felony is a crime
of a higher degree than a simple first degree felony. Equating
an enhanced first degree felony with a crime of a higher degree
alleviates the anomalous results discussed above and brings
clarity to the proper implementation of the statutory scheme.
No. 20040763
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Such an approach is also consistent with our case law addressing
enhancements.
¶41
For example, in State v. Lopes, we determined that a
previous version of the gang enhancement statute was
unconstitutional because it allowed a judge to serve as a
factfinder when determining whether the underlying crime was
committed "in concert" with other individuals. 1999 UT 24, ¶ 17,
980 P.2d 191. As a predicate to that conclusion, we initially
determined that, by enacting the gang enhancement statute, the
legislature had essentially created a new offense and that every
element of that offense must be proven to a jury beyond a
reasonable doubt. Id. ¶¶ 15, 17. Specifically, we stated that
the legislature, "[i]n essence, . . . created a specific new
crime or a crime of a higher degree." Id. ¶ 15.
¶42
In Lopes, we also analogized the gang enhancement
statute to Utah's firearm enhancement statute, as then in effect,
stating that
the legislature, by enacting the firearm
enhancement, . . . increased the degree of
the crime by establishing a separate set of
elements that, if proven, warranted a higher
punishment. . . . [W]hile the State did not
need to separately charge the enhancement as
a crime, it did need to prove each element,
including the defendant's use of a firearm,
beyond a reasonable doubt because the crime
was increased as to degree by the presence of
the firearm.
Id. ¶ 12. Lopes concluded "that the gang enhancement statute
creates a new and separate offense." Id. ¶ 22.
¶43
After our decision in Lopes, the legislature amended
the gang enhancement statute to conform with our holding.
Specifically, the legislature struck the provision that declared
that "[t]his section does not create any separate offense but
provides an enhanced penalty for the primary offense," and added
a requirement that the underlying facts supporting the charged
enhancement must be proven to the factfinder beyond a reasonable
doubt. See Act of Feb. 29, 2000, ch. 214, sec. 2, § 76-3-203.1,
2000 Utah Laws 717, 717-18.
¶44
Our conclusion that a gang enhancement operates to
raise the degree of an underlying offense is further strengthened
by our decision in State v. Helmick, 2000 UT 70, 9 P.3d 164. In
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No. 20040763

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that case, we determined that the gang enhancement statute
contemplates only one sentence being imposed, not a sentence for
the underlying crime and a subsequent enhancement of that
sentence. Id. ¶ 19. In reaching this conclusion, we stated that
the
statute expressly addresses the sentence the
trial judge must impose once the gang
enhancement has been found proper. Nowhere
does it require the trial judge to impose a
sentence first on the underlying charge, and
only then on the gang enhancement. To the
contrary, the statute provides that only one
sentence should be imposed: an enhanced
minimum sentence.

Id.6
¶45
As in the present case, Lopes and Helmick both involved
an underlying crime classified as a first degree felony as well
as a gang enhancement. Our discussions in Lopes and Helmick lend
considerable support to our conclusion that the enhancement
scheme considers an enhanced first degree felony a crime of a
higher degree than a simple first degree felony.
¶46
Absent any reduction in the degree of their offenses,
Pauu and Vimahi should have been sentenced to prison terms of
nine years to life, the penalty applicable to enhanced first
degree felonies. But the district court used its discretion to
reduce the charged offenses by one degree. Under the proper
interpretation of the relevant statutes, the defendants' offenses
should have been reduced to simple first degree felonies with
accompanying prison terms of five years to life. Utah Code Ann.
§ 76-3-203(1). The district court abused its discretion by
reducing those offenses to simple second degree felonies.
CONCLUSION

6 Subsequent to our decision in Helmick, the Legislature
amended the gang enhancement statute once again, striking
language referring to the enhancement of a first degree felony as
an "enhanced minimum term." See Act of Feb. 21, 2001, ch. 209,
sec. 2, § 76-3-203.1, 2001 Utah Laws 990, 993. As amended, the
statute simply designates that the enhanced penalty for a first
degree felony "is an indeterminate prison term not less than nine
years and which may be for life." Id.
No. 20040763
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¶47
We conclude that the district court abused its
discretion when it reduced defendants' first degree felonies with
gang enhancements to second degree felonies without enhancements.
An enhanced first degree felony is, for the purposes of the
enhancement statute, a crime of a higher degree than a first
degree felony. Because we conclude that the district court
abused its discretion in this matter, the State has established
adequate grounds for extraordinary relief. Given the significant
nature of the legal question presented by these consolidated
petitions, we exercise our discretionary authority to grant such
relief. We therefore vacate the orders reducing the degree of
the defendants' offenses and direct the district court to enter
orders consistent with this opinion.
---
¶48
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.
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No. 20040763

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