State v. Labrum

ZIMMERMAN, Chief Justice,

concurring:

I agree with the majority’s conclusion that the trial court’s failure to enter written findings justifying its imposition of the gang enhancement was plain error under State v. Eldredge, 773 P.2d 29, 35-36 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). I write separately only to express my view that nothing in the opinion written for the court by Associate Chief Justice Stewart here should be interpreted as loosening the plain error test adopted by a majority of the court in Eldredge, see id. at 35-36 & n. 8, and consistently applied ever since. See, e.g., State v. Menzies, 889 P.2d 393, 403 (Utah 1994), cert. denied, — U.S. -, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995); State v. Powell, 872 P.2d 1027, 1031 (Utah 1994); State v. Elm, 808 P.2d 1097, 1100 (Utah 1991). While some language in Justice Stewart’s opinion here may appear to coincide with the somewhat less restrictive and more ad hoc approach he proposed in his dissent in Eldredge, 773 P.2d at 41-42 (Stewart, J., dissenting), the majority today does not in any way purport to abandon the analysis articulated for the majority in Eldredge.