Dan Hay and John Hay

The state of Utah and the families of two Colorado men killed in a 2005 head-on collision want the Utah Supreme Court to send the case of the man who caused the crash back to district court.

The victims' families believe their rights were violated by a prosecutor who they say lied to them regarding a plea bargain and denied them the chance to make a victim impact statement to the judge in a timely way. They also want to address restitution issues.

The state, meanwhile, wants the Supreme Court to set aside the plea bargain and have the district court launch further proceedings, which is not what the victims want.

But the lawyer for the driver says none of this should happen — his client did everything a judge asked of him and any misbehavior by the prosecutor isn't his client's fault.

The Supreme Court heard oral arguments in the matter Wednesday before an audience filled with a number of victims rights advocates.

The saga began in 2005 when Brandon Lane tried to pass a semitrailer with a double trailer on U.S. 40 in Duchesne County. He slammed head-on into a Jeep Cherokee carrying brothers John Hay, 60, and Dan Hay, 61, who both died, and their respective wives, Patricia and Peggy, who were both seriously injured.

Lane was charged with two class A misdemeanor counts of negligent homicide and two class C misdemeanor counts of improper passing on the left. The charges were filed by then-Duchesne County Attorney Karen Allen.

Lane was permitted to enter into a plea bargain in which he got a "plea in abeyance," which means that if he complied with all orders imposed by a judge, the slate would essentially be wiped clean.

Patricia and Peggy Hay say they had been assured by Allen that Lane would plead guilty to at least one negligent homicide charge and that the Hay family would be allowed to give victim impact statements to the judge when the plea was entered.

But the Hays said they were denied these things, which violates their rights as victims.

However, Lane's attorney argues that Lane has done everything the district court judge required of him, and the time for challenging a plea in abeyance has lapsed. Lane's attorney also says the victims lack legal standing to get relief from an appeals court when a district court judge eventually permitted victim impact statements from a relative and a representative for the Hays at a later date.

Heidi Nestel, attorney for the Hays, said getting a chance to make a victim impact statement after a sentence has been imposed does not give victims a chance to say anything meaningful. The purpose of the statements is to possibly persuade a judge not to accept a plea or influence a sentence.

Nestel said Allen had a written plea agreement in place before she communicated with the Hays and lied to them about the legal process, as well as hearing times and dates. Nestel said Allen also lied to the court, telling the judge the Hays' endorsed the case and the restitution, which was $1,500.

"The plea was illegal," Nestel said.

Chief Justice Christine Durham expressed concern that the case has now been dismissed, which puts the high court in a difficult position since there is no pending case to send back to district court.

Associate Chief Justice Justice Michael Wilkins spoke of his own "dissatisfaction" with the situation since it appears on the face of it that the Hays' constitutional rights were violated, but there seems to be no legitimate legal way to address the dilemma.

Assistant Attorney General Christopher Ballard told the court that "a judgment based on a fraud shouldn't stand, and we ask that the parties be put back in the position they were before the judgment."

However, Todd Mecham, defense attorney for Lane, said sending the case back to the district court would be unfair to Lane — he fulfilled the community service hours and paid the restitution that the lower court required of him. Mecham also said that Lane did not know of Allen's behavior and should not be held responsible for it.

E-mail: [email protected]