State v. Rogers , 405 P.3d 801 ( 2017 )

2017 UT App 156THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JUSTIN ROBINSON ROGERS,
Appellant.
Per Curiam Opinion
No. 20170041-CA
Filed August 24, 2017
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 151902704
Samuel P. Newton, Attorney for Appellant
Christopher Allred, Nicholas Caine, and Teral L.
Tree, Attorneys for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
JILL M. POHLMAN.1
PER CURIAM:
¶1 Justin Robinson Rogers appeals the revocation of
probation and imposition of the suspended sentence for his
convictions. We affirm.
¶2 This court reviews a district court’s decision to revoke
probation for an abuse of discretion. See State v. Legg, 2014 UT
App 80, ¶ 7, 324 P.3d 656. “[W]e view the evidence of a
probation violation in a light most favorable to the trial court’s
1. Judge J. Frederic Voros Jr. participated in this case as a
member of the Utah Court of Appeals. He retired from the court
before this decision issued.
State v. Rogers
findings and substitute our own judgment only if the evidence is
so deficient as to render the court’s action an abuse of
discretion.” State v. Maestas, 2000 UT App 22, ¶ 12, 997 P.2d 314.
Because Rogers did not preserve the issues he seeks to raise on
appeal, he claims that the district court committed plain error.
“To demonstrate plain error, a defendant has the burden of
showing (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful.” State v.
Smit, 2004 UT App 222, ¶ 28, 95 P.3d 1203 (citation and internal
quotation marks omitted). Alternatively, Rogers claims that his
trial counsel was ineffective in representing him in the probation
revocation proceedings. To prove ineffective assistance of
counsel, a defendant must show that counsel’s performance was
objectively deficient and that a reasonable probability exists that
but for the deficient conduct, defendant would have obtained a
more favorable outcome. See State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162.
¶3 On February 24, 2016, the district court sentenced Rogers
on convictions for assault against a police officer, a class A
misdemeanor, and lewdness, a class B misdemeanor. A
presentence investigation report (PSI) recommended that Rogers
serve 120 days in jail followed by probation to be supervised by
Adult Probation & Parole (AP&P). Rogers’s trial counsel
acknowledged that Rogers had a history of drug use, a very poor
supervision history, and multiple arrests since being placed on
probation in previous cases. The PSI recommended that Rogers
“may be released early” upon his enrollment in a residential
drug treatment program. At sentencing, trial counsel stated that
Rogers’s family had identified an out-of-state residential drug
treatment program that would accept him. Rogers’s trial counsel
requested that Rogers be allowed to serve the jail sentence in this
case concurrently with his sentence in an unrelated Utah County
case, then be placed on probation and released to the out-of-state
residential drug treatment program. The prosecutor did not
oppose drug treatment, but he noted that Rogers would need to
qualify under the interstate compact guidelines in order to leave
Utah for treatment.
20170041-CA 2 2017 UT App 156State v. Rogers
¶4 At the original sentencing, the district court noted
Rogers’s criminal and arrest record and stated that he required
either drug treatment or jail time. The court observed that it was
uncertain whether Rogers could be transferred to another state
under an interstate compact. The court stated that AP&P would
“have to decide . . . whether he can be transferred and . . .
whether this is the program that they think is going to be
appropriate.” The district court left the choice of any treatment
program to AP&P. The district court then sentenced Rogers to
jail terms of 365 days on the class A misdemeanor and 180 days
on the class B misdemeanor, suspended all but 120 days, and
placed Rogers on probation to be supervised by AP&P for
twenty-four months. The written judgment and sentence recited
that Rogers’s family wanted him to be transferred to West
Virginia to enroll in a residential treatment program and that
AP&P “will determine if this program is appropriate and if the
defendant is eligible for transfer under the interstate compact.”
The written judgment further stated, “At the discretion of Adult
Probation and Parole, the defendant may be released early if
enrolled in a residential treatment facility.” Rogers was not
released early to a drug treatment program.
¶5 In May 2016, AP&P filed an order to show cause,
supported by an affidavit alleging that Rogers violated his
probation by committing the following two criminal offenses in
Salt Lake County while on probation: aggravated assault, a third
degree felony, and criminal trespass, a class B misdemeanor.
AP&P prepared a Progress/Violation Report (PVR), dated May
12, 2016, which stated that while a typical recommendation
would be to continue probation with a jail sanction of zero to
ninety days, AP&P’s recommendation deviated from the matrix
“based on his alleged commission of felony person crimes while
being supervised and multiple new law violations since his
probation began.” AP&P recommended that Rogers’s probation
should be terminated and that he should serve 180 days in jail.
¶6 Rogers initially denied the allegations of the order to
show cause and supporting affidavit. The district court
20170041-CA 3 2017 UT App 156State v. Rogers
continued proceedings on the order to show cause pending
resolution of Rogers’s Salt Lake County charges. On July 20,
2016, Rogers admitted that he violated his probation by being
convicted of attempted aggravated assault, a class A
misdemeanor, in the Salt Lake County case. Based on the
admission to the probation violation, the State was not required
to present proof of the violation. The district court set the case
for consideration of the probation violation and requested an
updated report from AP&P.
¶7 At the time of the August 10, 2016 hearing, the district
court had not received an updated report from AP&P. Rogers’s
trial counsel advised the court that although he had not received
an updated report, he spoke with an AP&P agent, who stated
that the sentencing recommendation made in the May 12, 2016
PVR remained AP&P’s recommendation.2 The prosecutor also
confirmed that he received the same information when he
contacted AP&P. After the district court was apprised of the fact
that the May 12, 2016 PVR contained a sentencing
recommendation, the court proceeded. Noting that Rogers had
roughly ninety days left to serve on the original sentence, his
trial counsel requested “that the court follow the 180-day
recommendation of AP&P with credit for time served.”
However, the prosecutor argued that probation should be
terminated and that the original sentence should be served. The
district court reviewed Rogers’s history while on probation in
this and other cases and his commission of an assault while on
probation. The district court terminated probation, reinstated the
original sentence of 365 days in jail on the class A misdemeanor
and 180 days on the class B misdemeanor, to run concurrently,
with credit for time served.
2. Trial counsel did not oppose a continuance to obtain a new
PVR, but counsel stated that he was also prepared to proceed
because the recommendation had not changed.
20170041-CA 4 2017 UT App 156State v. Rogers
¶8 Rogers claims on appeal that the district court plainly
erred by reinstating the original sentence without an updated
PVR, by not making a finding that the violation was willful, and
by not considering that the original sentence “required AP&P to
find [a] suitable inpatient treatment.” Alternatively, he claims
that his trial counsel was ineffective in failing to raise those
issues. Rogers claims that his release from jail without receiving
treatment caused him to violate probation by committing a new
offense. Rogers also claims that he was denied due process
because he believes a new PVR would have demonstrated that
AP&P was ordered to find a drug treatment program for him.
¶9 “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 Supp.
2016). “At the hearing, the defendant shall admit or deny the
allegations of the affidavit.” Id. § 77-18-1(12)(d)(i). “If a defendant
denies the allegations of the affidavit, the State shall present
evidence on the allegations,” id. § 77-18-1(12)(d)(ii) (emphasis
added), and then the defendant may call witnesses, appear, and
present evidence, see id. § 77-18-1(12)(d)(iv). Rogers denied the
allegations of the original affidavit; however, he later admitted
an amended allegation that he violated his probation by being
convicted of attempted aggravated assault. Rogers did not
preserve the claim that the district court was required to find
that his violation was “willful” despite his admission to the
probation violation. The district court did not plainly err by not
making a finding on an issue that was no longer in dispute.
¶10 Rogers claims that the district court ordered AP&P to find
a suitable residential drug treatment program but that AP&P
failed to do so. Thus, he argues that the district court plainly
erred by failing to consider that alleged failure when it sentenced
Rogers on the probation violation. Rogers asserts that he cannot
be held responsible for a probation violation by committing a
new criminal offense because “all parties” agreed he needed
treatment. The record does not support the claim. Both the
written judgment and sentence and the original sentencing
20170041-CA 5 2017 UT App 156State v. Rogers
transcript reflect that trial counsel represented that Rogers’s
family wished to have him released early from jail into an out-of-
state residential drug treatment program. The prosecutor did not
oppose treatment but expressed doubt about Rogers’s eligibility
to participate in the proposed treatment under an interstate
compact. The district court authorized an early release from jail
if Rogers were enrolled in a residential drug treatment program,
but the court specifically left the determination whether Rogers
would be placed in a program to the discretion of AP&P. The
district court did not order AP&P to find a drug treatment
program.
¶11 Finally, the district court did not abuse its discretion, let
alone plainly err, in revoking Rogers’s probation and reinstating
the original sentence, with credit for time served. Although
AP&P did not prepare an additional PVR after May 12, 2016,
Rogers’s trial counsel and the prosecutor confirmed with AP&P
that its sentencing recommendation on the probation violation
remained the same. The district court did not plainly err in
proceeding on the information from the May 12, 2016 report, as
supplemented by the undisputed representations concerning
recent contacts with AP&P.
¶12 Under these circumstances, Rogers has also failed to
demonstrate that his trial counsel was ineffective. Trial counsel
was not deficient for failing to make an unsupported claim that
AP&P did not comply with the original sentencing order.
Furthermore, trial counsel pursued a legitimate trial strategy by
supporting the AP&P recommendation, which was reasonably
calculated to obtain an earlier release from jail. Finally, when the
district court expressed concern that the new offense involved
violence, Rogers’s trial counsel endeavored to challenge the
court’s perception of the offense in an effort to argue for a more
favorable sentence.
¶13 Affirmed.
20170041-CA 6 2017 UT App 156