State v. Warner , 347 P.3d 846 ( 2015 )

2015 UT App 81THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
RONALD ROGER WARNER,
Defendant and Appellant.
Memorandum Decision
No. 20130784-CA
Filed April 2, 2015
Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
Nos. 111500014 & 101500766
Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
DAVIS, Judge:
¶1 Ronald Roger Warner appeals from a hearing on a
consolidated order to show cause during which the district court
revoked his probation on two separate cases. Warner argues that
the district court did not have sufficient evidence to support its
revocations, that the court erred by failing to consider
alternatives to reinstating Warner’s sentences, and that the
court’s decision contravened public policy. The State argues that
Warner’s appeal is moot because he was released from the
reinstated jail sentences on January 29, 2014, and that, as a result,
this court lacks jurisdiction to decide the issues Warner presents
on appeal. We do not agree that mootness principles prevent our
review. We affirm the district court’s decision.
State v. Warner
I. Mootness
¶2 ‚A case is deemed moot when the requested judicial relief
cannot affect the rights of the litigants.‛ In re C.D., 2010 UT 66,
¶ 11, 245 P.3d 724 (citation and internal quotation marks
omitted). However, ‚[w]here collateral legal consequences may
result from an adverse decision, courts have generally held an
issue not moot and rendered a decision on the merits.‛ Barnett v.
Adams, 2012 UT App 6, ¶ 7, 273 P.3d 378 (citation and internal
quotation marks omitted). ‚‘*A+ criminal case is moot only if it is
shown that there is no possibility that any collateral legal
consequences will be imposed on the basis of the challenged
conviction.’‛ Duran v. Morris, 635 P.2d 43, 45 (Utah 1981)
(emphasis added) (quoting Sibron v. New York, 392 U.S. 40, 57
(1968)); accord Gardiner v. York, 2010 UT App 108, ¶ 33, 233 P.3d
500. In criminal cases, collateral legal consequences include the
effects a conviction has on ‚the petitioner’s *+ability to vote,
engage in certain businesses, or serve on a jury,‛ as well as the
effects a conviction may have in future legal proceedings, i.e., as
a tool to impeach the petitioner’s character or as a factor in
sentencing. Duran, 635 P.2d at 45 (citing Sibron, 392 U.S. at 57;
Carafas v. LaVallee, 391 U.S. 234 (1968)); see also In re Giles, 657
P.2d 285, 286 (Utah 1982) (recognizing that ‚the absence or
presence of *collateral+ consequences may determine a criminal’s
chance of rehabilitation or recidivism‛).
¶3 The State contends that Warner’s enumerated collateral
consequences are ‚merely hypothetical or possible.‛ (Citation
and internal quotation marks omitted.) This argument is based
on the standard applicable to civil cases, not criminal cases. See
Towner v. Ridgway, 2012 UT App 35, ¶ 7, 272 P.3d 765 (explaining
that collateral consequences may be presumed when ‚a party is
challenging a criminal conviction‛ but not in civil cases, where
‚a litigant must show that the collateral consequences
complained of are not merely hypothetical or possible but that
they are probable and represent actual and adverse
20130784-CA 2 2015 UT App 81State v. Warner
consequences‛ (citation and internal quotation marks omitted)).
And the potentially hypothetical nature of the collateral
consequences facing a criminal defendant has not prevented
Utah courts from reaching the merits of an otherwise-moot
criminal appeal. See, e.g., Giles, 657 P.2d at 287 (holding that a
post-release challenge to involuntary commitment to a mental
institution was not moot because of ‚the collateral consequences
that may be imposed upon appellant‛ ‚were he to face future
confrontations with the legal system‛); State v. C.H., 2008 UT
App 404U, para. 2 (holding that a mother’s challenge to a
criminal contempt order was not barred by the mootness
doctrine when the child-custody proceedings were transferred to
another state, because the mother’s conviction in Utah ‚may
negatively impact future decisions of [the Division of Child and
Family Services] with respect to [her] rights to parent her
children‛). We decline to extend the civil approach to collateral
consequences to this criminal appeal, and we are not convinced
that Warner faces no possible collateral consequences as a result
of his revoked probation terms. See Duran, 635 P.2d at 45; see also
United States v. O'Leary, No. 96-2248, 1997 WL 428597, at *1 n.1,
120 F.3d 271 (10th Cir. July 30, 1997) (applying the collateral
consequences exception to a probation-revocation challenge);
Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970) (recognizing that
probation revocation can ‚affix[] a permanent blemish to [a]
petitioner’s record‛ that could be ‚take*n+ into account‛ if the
‚petitioner ever has future difficulties with the law‛); People v.
Halterman, 359 N.E.2d 1223, 1225 (Ill. App. Ct. 1977) (same).
Accordingly, we reach the issues underlying Warner’s appeal.
See generally Sibron, 392 U.S. at 57 (recognizing, in the context of
deciding whether to ‚entertain[] moot controversies,‛ that ‚it is
far better to eliminate the source of a potential legal disability
than to require the citizen to suffer the possibly unjustified
consequences of the disability itself for an indefinite period of
time‛); Ellis v. Swensen, 2000 UT 101, ¶ 26, 16 P.3d 1233(‚Because mootness is a matter of judicial policy, the ultimate
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determination of whether to address an issue that is technically
moot rests in the discretion of this court.‛).
II. Sufficiency of the Evidence
¶4 ‚Upon a finding that the defendant violated the
conditions of probation, the court may order the probation
revoked, modified, continued, or that the entire probation term
commence anew.‛ Utah Code Ann. § 77-18-1(12)(e)(ii)
(LexisNexis Supp. 2014). ‚The decision to grant, modify, or
revoke probation is in the discretion of the trial court,‛ and ‚a
trial court’s finding of a probation violation is a factual one and
therefore must be given deference on appeal unless the finding is
clearly erroneous.‛ State v. Peterson, 869 P.2d 989, 991 (Utah Ct.
App. 1994) (citation and internal quotation marks omitted).
Finally, ‚*f+or a trial court to revoke probation based on a
probation violation, the court must determine by a
preponderance of the evidence that the violation was willful,‛
which ‚merely requires‛ an implicit or explicit ‚finding that the
probationer did not make bona fide efforts to meet the
conditions of his probation.‛ State v. Robinson, 2014 UT App 114,
¶ 16, 327 P.3d 589 (citation and internal quotation marks
omitted).
¶5 Warner appeals from a consolidated order to show cause
hearing during which the district court revoked his probations in
two separate cases. Our analysis in this section, see infra ¶¶ 6–8,
concerns the second of those cases, in which Warner pleaded
guilty to charges of domestic-violence assault and interference
with a police officer, both class-B misdemeanors (the Class-B
case). The other case involved Warner’s guilty plea to one charge
20130784-CA 4 2015 UT App 81State v. Warner
of domestic-violence assault, a class-A misdemeanor (the Class-
A case). 1
¶6 The court stayed Warner’s sentence and placed Warner
on probation for a term of eighteen months, requiring, among
other conditions, that he pay a $500 fine and a $66 fee, together,
in monthly increments of $50 ‚beginning April 1, 2011.‛
¶7 At the July 2013 consolidated order to show cause
hearing, the district court determined that Warner violated the
terms of probation ‚by having failed to pay his fines and fees as
ordered.‛ The court took ‚judicial notice of *court+ records,
indicat[ing] that [Warner] paid nothing and the entire amount
was referred to the Office of State Debt Collection on February
13th of 2012.‛ The court asked Warner’s counsel if he had any
objections to the court taking judicial notice of the enumerated
facts, and Warner’s counsel explicitly indicated that he had no
objections and no evidence to present.
¶8 Warner now contends that the district court lacked
sufficient evidence to revoke his probation in the Class-B case.
Warner argues that the probation order required him to pay the
$566 debt within sixty days of his being released from jail and
that because there was no evidence before the court indicating
when Warner was released from jail, the court could not
determine whether Warner actually violated this condition. The
probation order in the Class-B case, however, imposed no such
date on Warner’s requirement to pay fines; the probation order
established a payment schedule ‚beginning April 1, 2011.‛ There
1. In revoking Warner’s probation for the Class-A case, the court
judicially noticed several facts to support its determination that
Warner violated four terms of that probation order. Warner
acknowledged during the revocation hearing that he failed to
‚adhere to the probationary terms‛ in the Class-A case.
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were other, unrelated conditions that were to be completed
within sixty days of Warner’s release. The district court
acknowledged that there was no evidence indicating when
Warner was released from jail to determine whether Warner
breached these other conditions.2 Accordingly, the court limited
its revocation decision to the judicially noticed fact that Warner
‚failed to pay his fines as ordered.‛ Warner provided no
mitigating evidence or explanation as to why he failed to make
any payment by April 1, 2011, or any payments at all on the $566
obligation. Warner’s obligation to make payments was
continuous and did not cease until he paid the entire $566
balance. The evidence shows that he made no payments during
the two-year period between the initial April 1, 2011 due date
and the time the court revoked his probation and that the entire
debt was ultimately referred to the Office of State Debt
Collection. The court’s judicial notice of its own records
indicating that no payments were ever made is sufficient
2. The State submitted testimony from an employee at the jail
where Warner was incarcerated to clarify the dates of Warner’s
incarceration and provide a framework for calculating when the
sixty-day deadline was reached. The witness testified that
Warner was released on April 1, 2011. However, Warner
successfully moved to strike that testimony on the grounds that
the State failed to include the witness in its response to Warner’s
discovery requests. We recognize that the stricken testimony
indicates that Warner’s release date of April 1, 2011, is the same
day that his first monthly payment on the $566 debt was due.
Although that stricken information may provide some
explanation or mitigation for Warner’s failure to otherwise
timely make the April 1, 2011 payment, we do not consider it in
our analysis. Rather, we rest our conclusion on the undisputed
evidence found by the district court that Warner failed to make
any payment on the $566 fine whatsoever, either in accordance
with the established payment schedule or any time thereafter.
20130784-CA 6 2015 UT App 81State v. Warner
evidence that Warner violated that term of his probation order.
Further, although the court did not ‚use the precise legal
terminology,‛ we interpret this finding as indicating that
Warner’s violation was ‚willful‛ because he failed to ‚make
bona fide efforts to meet the conditions of his probation.‛ See
Peterson, 869 P.2d at 991 (emphasis omitted) (citation and
internal quotation marks omitted).
III. Alternatives to Revocation
¶9 Warner next argues that the district court failed to
‚adequately consider alternatives to imprisonment‛ and failed
to satisfy its ‚duty . . . to inquire as to why the probation
violation occurred.‛ He raises this argument as a challenge to the
revocation of probation in both cases. Specifically, he challenges
the court’s failure to inquire further into his attorney’s statement
at the revocation hearing explaining that Warner ‚is more able to
[comply] now than he has [been] in the past because he has
made arrangements where he is back with his tribe and
reservation in Arizona where he has access to more of those
resources to be able to accomplish some of those things.‛
¶10 This argument places the burden on the district court to
identify and develop Warner’s arguments against revocation.
This is not the district court’s obligation, and we are not
convinced that the district court was required to inquire into
Warner’s counsel’s statement any further. It is only when ‚the
trial court determines that a probationer’s violation was not
willful‛ that the court must ‚‘consider ‚whether adequate
alternative methods of punishing the defendant are available.‛’‛
State v. Brady, 2013 UT App 102, ¶ 4, 300 P.3d 778 (quoting State
v. Orr, 2005 UT 92, ¶ 34, 127 P.3d 1213 (quoting Bearden v.
Georgia, 461 U.S. 660, 669 (1983))). Moreover, the requirement to
consider alternatives in the absence of a finding of willfulness
20130784-CA 7 2015 UT App 81State v. Warner
does not clearly extend beyond revocations based on a failure to
pay a fine or restitution.3
¶11 As explained above, Warner’s violation in the Class-B
case was willful. And the district court acknowledged Warner’s
attorney’s statements but nonetheless stated that Warner’s
actions during probation in both cases did not ‚convince *the
court] . . . that [Warner has] changed, that [he is] not going to hit
3. The United States Supreme Court explained in Bearden v.
Georgia, 461 U.S. 660 (1983),
If the probationer has willfully refused to pay the
fine or restitution when he has the means to pay,
the State is perfectly justified in using
imprisonment as a sanction to enforce collection.
Similarly, a probationer’s failure to make sufficient
bona fide efforts to seek employment or borrow
money in order to pay the fine or restitution may
reflect an insufficient concern for paying the debt
he owes to society for his crime. In such a situation,
the State is likewise justified in revoking probation
and using imprisonment as an appropriate penalty
for the offense. But if the probationer has made all
reasonable efforts to pay the fine or restitution, and
yet cannot do so through no fault of his own, it is
fundamentally unfair to revoke probation
automatically without considering whether
adequate alternative methods of punishing the
defendant are available. This lack of fault provides
a substantial reaso[n] which justifie[s] or
mitigate[s] the violation and make[s] revocation
inappropriate.
Id. at 668–69 (alterations in original) (footnote, citations, and
internal quotation marks omitted).
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people anymore, that [he is] not going to violate the law
anymore.‛ The court stated,
I don’t know if you just don’t care. I don’t know if
you’re mad at the system and you’re just not going
to do anything. I, really, don’t know why, but you
haven’t done what you’re supposed to do on
probation and I don’t think you’re going to. I think
that you’re going to continue to not comply with
probation. So, I’m not going to give you another
chance on probation.
¶12 The district court’s analysis suggests that Warner treated
probation with indifference and willful disregard for the
conditions imposed. Therefore, we conclude that the district
court implicitly found that Warner’s violations in both the Class-
A and Class-B cases were willful. The changes Warner made in
his living situation that would purportedly facilitate his future
compliance with probation do not undermine this implicit
finding of willfulness. Indeed, we have recognized that a
probationer’s failure to take mitigating actions sooner can be
indicative of willfulness. See, e.g., Brady, 2013 UT App 102, ¶ 7
(noting that evidence that the probationer ‚could have already
been looking for a second job and already paying restitution‛
supported a finding of a willful failure to comply with the
financial conditions of his probation (emphasis omitted)); State v.
Archuleta, 812 P.2d 80, 85 (Utah Ct. App. 1991) (characterizing a
probationer’s failure to pay even ‚‘one nickel’‛ toward
restitution as a willful violation of probation); State v. Hodges, 798
P.2d 270, 275 (Utah Ct. App. 1990) (equating ‚token
participation‛ in a required treatment program with ‚willfully
inadequate‛ behavior sufficient to sustain a probation
revocation). Accordingly, ‚*t+he record evidence here, viewed in
the light most favorable to the trial court’s findings, supports the
trial court’s implicit finding of willfulness,‛ see State v. Robinson,
2014 UT App 114, ¶ 19, 327 P.3d 589, and absolves the district
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court of any obligation to affirmatively consider alternatives to
revocation.
IV. Public Policy Considerations
¶13 Last, Warner argues that ‚incarcerating him on revocation
is not in line with the underlying purpose of probation and does
not serve a societal interest.‛ Central to his argument is his
assertion that the reinstatement of his sentence was not
‚necessary‛ for public safety because his particular probation
violations do not create a public endangerment. Warner has not
persuaded us that such an inquiry is necessary, particularly here,
where the underlying convictions involve violent crimes.
Indeed, the district court’s statements at the revocation hearing
depict Warner as incapable of controlling the violent impulses
that resulted in the two distinct episodes of domestic violence
underlying his cases. In addressing Warner directly, the district
court explained the purpose of Warner’s probation, stating,
‚*T+he reason *complying with probation+ is tough is because
we’re trying to . . . impose some conditions that would help you
not do this again; in other words, that you don’t go around
hitting people when you get mad at them because we just can’t
have that in society . . . .‛ Accordingly we reject this argument.
¶14 In conclusion, the district court did not abuse its
discretion in revoking both of Warner’s probation terms and
reinstating his sentences. We affirm.
20130784-CA 10 2015 UT App 81