State v. Brady , 300 P.3d 778 ( 2013 )

2013 UT App 102_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
HOYT BRADY,
Defendant and Appellant.
Memorandum Decision
No. 20110901‐CA
Filed April 25, 2013
Third District, Salt Lake Department
The Honorable Denise P. Lindberg
No. 091907406
Debra M. Nelson, Scott A. Wilson, and
Noella A. Sudbury, Attorneys for Appellant
John E. Swallow, Brett J. DelPorto, and
Daryl L. Bell, Attorneys for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGE GREGORY K. ORME concurred.
JUDGE WILLIAM A. THORNE JR. concurred, with opinion.
DAVIS, Judge:
¶1 Hoyt Brady appeals from the trial court’s ruling revoking his
probation. We affirm.
¶2 After pleading guilty to one count of communications fraud
and one count of racketeering, both second degree felonies, see
Utah Code Ann. §§ 76‐10‐1603, ‐1801 (LexisNexis 2012), Brady was
placed on probation for thirty‐six months. The conditions of his
probation included paying restitution of $479,123.13 to his victims.
On June 14, 2011, nearly one year after Brady entered his guilty
plea and was put on probation, the State filed a motion for an order
State v. Brady
to show cause, arguing that Brady violated the terms of his
probation by failing to pay “anything toward his restitution
amounts.” The trial court granted the motion, and held a hearing
on September 9, 2011.
¶3 During the hearing, Brady admitted to violating his
probation by failing to pay anything toward the restitution, but
described his efforts to find a job and his overwhelming financial
obligations in an effort to mitigate the impact of his violation. The
trial court concluded that Brady’s mitigating evidence failed to
“show [that he had made] at least a good faith effort to address the
restitution” and noted that there were “any number of things” he
could have done to satisfy this requirement. Accordingly, the trial
court revoked Brady’s probation and reinstated his prison
sentence. Brady appeals, arguing that the trial court abused its
discretion by failing to consider his mitigating evidence, to
explicitly find that his probation violation was willful, and to
consider alternative means of punishment other than reinstating
his prison sentence. Brady alternatively argues that the Order to
Show Cause hearing did not comport with the minimum
requirements of due process.
¶4 We review a trial court’s decision to revoke probation for an
abuse of discretion. State v. Orr, 2005 UT 92, ¶ 9, 127 P.3d 1213.
“Probation may not be revoked except upon a hearing in court and
a finding that the conditions of probation have been violated.”
Utah Code Ann. § 77‐18‐1(12)(a)(ii) (LexisNexis 2012). During a
revocation proceeding, “[t]he defendant may call witnesses, appear
and speak in the defendant’s own behalf, and present evidence,”
as well as question witnesses presented by the prosecution. Id. § 77‐
18‐1(12)(d)(iii)–(iv). “After the hearing the court shall make
findings of fact,” id. § 77‐18‐1(12)(e)(i), and if a violation is found,
the trial court “must determine by a preponderance of the evidence
that the violation was willful,” State v. Maestas, 2000 UT App 22,
¶ 24, 997 P.2d 314 (citation and internal quotation marks omitted).
“[T]he requirement of willfulness in the context of probation
revocation proceedings for failure to pay a court‐ordered payment
20110901‐CA 2 2013 UT App 102State v. Brady
merely requires a finding that the probationer did not make bona
fide efforts to meet the conditions of his probation.” State v.
Archuleta, 812 P.2d 80, 84 (Utah Ct. App. 1991). If the trial court
determines that a probationer’s violation was not willful, the trial
court is then required to “consider ‘whether adequate alternative
methods of punishing the defendant are available.’” Orr, 2005 UT
92, ¶ 34 (quoting Bearden v. Georgia, 461 U.S. 660, 669 (1983)).
¶5 Here, Brady spoke in his own behalf at the hearing to
explain that he had been searching for a job for eight to nine hours
a day for almost ten months, that his age and the slow housing
market—to say nothing of his recent felony convictions—were
negatively impacting his search for residential construction work,
and that he remained unable to pay restitution after he secured a
full‐time job in June 2011 because 75% of his earnings were being
garnished to pay child support and another restitution obligation.
Brady mentioned that he could get a second job and that his
brother could lend him $200 a month to pay his restitution in the
meantime, though he did not explain why the loan‐for‐restitution
option had not been implemented months earlier.
¶6 The trial court acknowledged Brady’s mitigating evidence,
stating “that these are tough economic times,” but was ultimately
not convinced that Brady’s efforts of the previous twelve months
were sufficient “to show at least a good faith effort to address [his]
restitution.” Specifically, the trial court noted that Brady “could
have done any number of other things to demonstrate some effort,”
including finding a second job even if it was just doing handyman
work or odd jobs, which in Brady’s circumstance, seems a fair
consideration inasmuch as Brady was doing handyman work
before he was arrested and, according to a handwritten letter that
he sent to the trial court, planned on returning to handyman work,
if granted probation. But see Bearden, 461 U.S. at 673 (rejecting the
sentencing court’s comments on the availability of odd jobs as
evidence of willfulness where the sentencing court made no
finding that the probationer had not made bona fide efforts to find
work).
20110901‐CA 3 2013 UT App 102State v. Brady
¶7 These comments by the trial court illustrate its implicit
finding of willfulness. Brady argues that an explicit finding is
mandatory. We disagree.1 Cf. Orr, 2005 UT 92, ¶ 37 (applying the
analytical framework used in probation revocation proceedings to
a probation extension proceeding, and upholding the trial court’s
implicit finding of willfulness contained in its order); State v. Brooks,
2012 UT App 34, ¶ 15 & n.5, 271 P.3d 831 (describing comments
made by the trial court during sentencing as an “implicit finding of
willful behavior” and acknowledging that this implicit finding was
sufficient to satisfy the willfulness finding). Additionally, the trial
court could have based a willfulness finding on Brady’s comment
that his brother was willing to make payments on his behalf while
he looked for a second job; this comment implies that Brady could
have already been looking for a second job and already paying
restitution with his brother’s offered money. See Orr, 2005 UT 92,
¶ 34 (categorizing a probationer’s failure to make bona fide efforts
to seek employment or borrow money as willful acts). Further, as
the State pointed out at the hearing, Brady could have been paying
token amounts—“cents”—toward his restitution. See Archuleta, 812
P.2d at 85 (describing the failure to make token payments toward
restitution as a willful violation of probation). Thus, the trial court’s
implicit determination that Brady’s violation was willful was not
an abuse of discretion, and because of this finding, the trial court
was not required to consider alternative punishments before
reinstating Brady’s prison sentence.
¶8 Alternatively, Brady argues that the hearing did not
comport with the minimum requirements of due process.
1. We also reject Brady’s argument that the trial court failed to
make adequate findings of fact. Under the facts and circumstances
of this case, the “transcribed oral finding[s]” of the trial court
satisfied the requirement that the trial court make findings of fact
because the transcript of the hearing sufficiently “enable[d] the
reviewing court to determine the basis of the district court’s
decision.” See State v. Orr, 2005 UT 92, ¶ 31, 127 P.3d 1213.
20110901‐CA 4 2013 UT App 102State v. Brady
Specifically, Brady argues that he was not afforded a full
opportunity to be heard.2
¶9 “[P]robation revocation proceedings, which are not criminal
in nature and involve only a conditional liberty interest, are entitled
only to the minimum requirements of due process.” State v. Orr,
2005 UT 92, ¶ 12, 127 P.3d 1213 (footnote, citation, and internal
quotation marks omitted); see also id. ¶¶ 11, 13–14 (recognizing that
“[w]hat constitutes due process . . . depends upon the type of
proceeding and, more specifically, the nature of the individual
interest affected, the extent to which it is affected, the rationality of
the connection between legislative means and purpose, [and] the
existence of alternative means for effectuating the purpose,” and
listing what the minimum requirements of due process may entail
in any given situation (second alteration in original) (citation and
internal quotation marks omitted)). The Utah Code requires the
trial court to hold a hearing before a defendant’s probation can be
revoked and to permit a defendant to speak in his own behalf and
present evidence during the hearing. Utah Code Ann. § 77‐18‐
1(12)(a)(i)–(ii), (d)(iv) (LexisNexis 2012); see also id. § 77‐18‐
1(12)(a)(i) (noting that a defendant can waive his right to a
hearing). The statute states that probation can be revoked if, after
conducting a hearing, the trial court “find[s] that the defendant
violated the conditions of probation.” Id. § 77‐18‐1(12)(e)(ii).
¶10 Here, Brady was permitted to speak in his own behalf
during the hearing. During the hearing, Brady also offered the
court evidence in support of his justifications for violating his
probation—a log book in which he recorded the details of his job
search and pay stubs to prove that 75% of his wages were already
being garnished. As previously determined, the trial court did
2. Because of our determinations above that the trial court’s oral
findings were adequate and that the evidence was sufficient to
support the trial court’s revocation, we need not address Brady’s
similar challenges to the findings raised within the alternative
argument he presents on appeal. See supra ¶ 7 note 1.
20110901‐CA 5 2013 UT App 102State v. Brady
consider Brady’s mitigating evidence, although it did not view the
log book or pay stubs and expressed impatience at Brady’s attempt
to offer the log book as evidence. Nonetheless, we fail to see how
this amounted to a violation of Brady’s due process rights,
especially where he admitted to violating his probation and the
trial court considered his mitigating testimony. See id. § 77‐18‐
1(12)(d); see also Bearden v. Georgia, 461 U.S. 660, 672 (1983) (“[I]n
revocation proceedings for failure to pay a fine or restitution, a
sentencing court must inquire into the reasons for the failure to
pay.”). Further, the two items of evidence that Brady described do
little more than bolster the credibility of the statements that he
made in his own behalf, and even when viewing all of that
evidence as true, it does not address the grounds on which the trial
court ultimately revoked his probation—failure to make even token
restitution payments. After the trial court expressed its impatience,
Brady offered to get a second job and to start paying restitution
with money borrowed from his brother. However, these statements
work against Brady as much as they mitigate in his favor because
they illustrate additional actions Brady could have taken to enable
him to make at least token restitution payments in the year leading
up to the State’s Motion for an Order to Show Cause. Even
excusing Brady’s having not found (or perhaps even started
looking for) a second job due to factors beyond his control—i.e., his
age and the difficult job market—Brady offered no reason at the
hearing explaining why he did not obtain a loan from his brother
sooner, and indeed, he suggested the loan option only after the trial
court appeared to become frustrated with him. For all of these
reasons, we reject Brady’s argument that the hearing did not
comport with the minimum requirements of due process and
affirm the trial court’s revocation of his probation.
THORNE, Judge (concurring):
¶11 I concur with the majority opinion, as I agree that Brady
willfully failed to make restitution payments as required by the
terms of his probation. However, I write separately because I
20110901‐CA 6 2013 UT App 102State v. Brady
believe that there should be a separate legal framework for
evaluating probation violations when the sole purpose of granting
probation was to benefit the victims by enabling the offender an
opportunity to make restitution payments. In such circumstances,
it would be entirely appropriate for a sentencing judge to impose
a strict liability standard on an offender’s restitution payments,
requiring the offender to essentially waive all due process and
liberty interests related to those payments as a condition of
probation.
¶12 Had such a sentence been imposed on Brady in this case, the
trial court would not have needed to concern itself with whether
Brady’s failure to pay was willful, reasonable, or anything else.
Instead, the trial court could simply have revoked Brady’s
probation for failure to pay restitution as ordered and as agreed to
by Brady. I see no constitutional problem with such an approach
under existing case law, but if such a problem exists, I would urge
a reevaluation of the standards governing probation violations to
allow for such an approach in appropriate cases.
¶13 My concern arises from situations similar to Brady’s
involving frauds in which a serious crime has been committed, and
the perpetrator has pled guilty to or been convicted of a felony
offense warranting a lengthy prison sentence. The sentencing judge
may well look at the severity of the crime committed, the
defendant’s criminal history, and other relevant factors and
conclude that the most appropriate sentence is to commit the
defendant to prison. However, it is not uncommon in these
situations for the victims to argue for probation instead of
imprisonment when the defendant “promises” that he is able to
make restitution if he is simply given a chance. In those situations
victims often plead passionately in favor of probation for the
defendant on the grounds that restitution payments will occur only
if the defendant is not imprisoned. It is often difficult for the
sentencing judge to ignore these pleas, particularly when the
victims may have lost their entire life savings in the defendant’s
fraud scheme. And the defendant—who has already demonstrated
20110901‐CA 7 2013 UT App 102State v. Brady
an ability to persuade others to part with their money—has every
interest in representing to the victims and the court that all will be
made right if only the court orders probation instead of
imprisonment.
¶14 These circumstances present the sentencing judge with a
difficult dilemma, particularly if the judge does not believe that
adequate—or, for that matter, any—restitution will really be
forthcoming. It is against this backdrop that I propose an exception
to the general rule that “[t]he fundamental fairness requirement of
the Fourteenth Amendment forbids the revocation of probation
when a probationer has failed to pay restitution or a fine through
no fault of his own.” State v. Orr, 2005 UT 92, ¶ 33, 127 P.3d 1213(citing Bearden v. Georgia, 461 U.S. 660, 668 (1983)). This “special
terms probation” would allow a judge who may ordinarily find
that the probability of any meaningful restitution is too low and
that justice is best served by imprisonment to grant probation
based on a defendant’s questionable promise of repayment.
¶15 The normal rule, originating in Bearden v. Georgia, 461 U.S.
660 (1983), requires that a failure to pay court‐ordered restitution
must ordinarily be willful in order to support the revocation of
probation. See id. at 668. However, Bearden presupposed that
probation is imposed as “the appropriate and adequate penalty for
the crime,” id. at 667, and that “[t]he decision to place the
defendant on probation . . . reflects a determination by the
sentencing court that the State’s penological interests do not
require imprisonment,” id. at 670. This is not the case where, as I
have described, a court believes that imprisonment is the
appropriate punishment but grants probation solely for the
purpose of allowing a chance of restitution to the victims.
¶16 So long as the sentencing judge makes this clear to a
defendant at the time of the initial sentence, along with the
20110901‐CA 8 2013 UT App 102State v. Brady
announcement of a zero‐tolerance policy for nonpayment,3 I see no
violation of the principles announced in Bearden when probation is
subsequently revoked based on a bare finding of nonpayment. To
the contrary, Bearden expressly allows for the revocation of
probation without a finding of willful nonpayment upon a
“determin[ation] that alternatives to imprisonment are not
adequate in a particular situation to meet the State’s interest in
punishment and deterrence.” Id. at 672. In the situation I have
described, the sentencing court would make the determination that
imprisonment is required to vindicate the State’s interests at the
time that sentence is imposed. Nevertheless, the court would stay
the imposition of imprisonment for the benefit of third parties, i.e.,
the victims of the defendant’s fraudulent acts.4
¶17 A sentencing court’s decision to impose probation for the
sole purpose of allowing restitution payments defers the State’s
interest in punishment and deterrence indefinitely in favor of the
victims’ interests in obtaining compensation for their losses.5 When
the victims’ interests are not being met due to the defendant’s
nonpayment of restitution as ordered, the only reason to continue
3. The transcript of Brady’s sentencing hearing is not a part of the
record on appeal, but under the circumstances it would not
surprise me if the sentencing judge made comments substantially
expressing these concepts to Brady. However, in light of the
record’s silence on this matter, I agree with the majority opinion
that a finding of willfulness was required in this case.
4. I note that the concept of victims’ rights has developed
substantially in the thirty years since Bearden v. Georgia, 461 U.S.
660 (1983). See, e.g., Utah Const. art. I, § 28 (“Declaration of the
rights of crime victims”) (adopted at election Nov. 8, 1994).
5. Of course, additional probation requirements may be imposed
that relate to ordinary correctional concerns. Defendants accused
of violations of those terms would receive the normal due process
protections already in the law related to probation revocations.
20110901‐CA 9 2013 UT App 102State v. Brady
to defer the imprisonment that the crime demands evaporates, and
this is true regardless of the reason for the nonpayment. As a
practical matter, some defendants may then be imprisoned despite
their best efforts at obtaining the funds to pay restitution. However,
“[u]ltimately, it must be remembered that the sentence was not
imposed for a circumstance beyond the probationer’s control ‘but
because he had committed a crime.’” Id. at 668 n.9 (citation
omitted).
¶18 For these reasons, I believe that Bearden allows for the
revocation of probation without a finding of willful nonpayment
of restitution under the circumstances I have described. To the
extent that Bearden does not allow for such a result, I would urge its
reconsideration to create such an exception in these circumstances.
Nevertheless, as to Brady, I agree with the majority that he
willfully failed to make restitution payments as ordered.
Accordingly, I concur in the majority opinion.
20110901‐CA 10 2013 UT App 102