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GANG-ENHANCEMENT SENTENCE VACATED

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When Troy Labrum was sentenced for attempted murder in 1993, the judge added gang and firearm enhancements to his prison sentence. He made a point of telling the young man that he was doing so because this was a "gang related offense."

What the judge didn't do was include his reasons for determining that the shooting that injured one person was gang-related in his written opinion. Tuesday, that led the Utah Supreme Court to vacate the additional six years in prison imposed by the gang enhancement.The Supreme Court decision noted that the law providing for gang enhancements says the penalty is "explicitly contingent upon findings of particular enumerated facts that must be rendered in writing."

What a judge must find, the law states, is that two or more persons acted in concert when committing a criminal act.

And while the judge who sentenced Labrum stated that he found that to be the case with Labrum and his two co-defendants, the judge didn't write that finding into his judgment.

Labrum and David Mills were convicted by juries of attempted murder, a second degree felony. Court records say Mills was driving a vehicle carrying Labrum and another teenage boy, who was prosecuted in juvenile court.

Labrum and Mills flashed gang signs at a carload of teens and then followed them. At some point, Labrum leaned out of the passenger window and fired a number of shots at the other boys. One boy was hit in the back.

The Utah Court of Appeals, in Labrum's initial appeal, noted that the judge erred when he didn't write his rationale for imposing the gang enhancement in his judgment but refused to vacate the sentencing enhancement because it decided that neither Labrum nor his attorney raised that issue at sentencing, thereby waiving the ability to appeal that issue.

Labrum's trial attorney didn't argue that the incident wasn't gang-related, he only asked that the enhancement not be imposed. Labrum also had a firearm enhancement of five years added to the 1 to 15 year sentence for the actual crime. The judge imposed the sentences consecutively, which the Board of Pardons and Parole interpreted to mean Labrum's maximum sentence would be 26 years.

The Court of Appeals said the board erred, ruling that the consecutive nature of the sentences would increase Labrum's minimum prison term, not the maximum. Thus, instead of 1 to 15 years in prison, Labrum should have been sentenced to six to 15 years in prison.

The Supreme Court ruling said it also found that neither Labrum nor his attorney raised the issue in court, but said in some cases of "plain error" a defendant doesn't give up the right to appeal issues that should have been raised during the trial or sentencing.

The Supreme Court vacated the gang enhancement and sent the case back to the trial court for "further proceedings."