State v Wilder

Wilder sought review of his aggravated kidnapping and aggravated sexual assault convictions arguing ineffective assistance of counsel for failing to argue for merger of the convictions. The Court, with Lee concurring, affirmed. The majority held there was no ineffective assistance here as arguing the merger rule under the Finlayson-Lee precedents would be futile as that rule was bad law as it created a common law rule in an area there is a statute providing the criminal merger rule, Utah Code 76-1-402(1), the double jeopardy concern expressed in those precedents did not exist, the rule had proven unworkable in that it cannot be applied in a principled manner and there are no reliance interests and thus the Finlayson-Lee cases were overruled and the rule itself was disavowed. The majority noted it did not follow normal practice of seeing if the outcome would have been the same under the disavowed rule, but, held the case was one that development of the law should take priority. It held that Wilder failed to rise the issue of whether merger is required under 402(1) in the Utah Court of Appeals and thus waived the issue. Lee concurred arguing normal practice should be to reconsider problematic precedent not refine the bad rule and reinforce it.