State v. Hodges, 890086-CA
| Decision Date | 31 August 1990 |
| Docket Number | No. 890086-CA,890086-CA |
| Citation | 798 P.2d 270 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Early Gilbert HODGES, Jr., Defendant and Appellant. |
| Court | Utah Court of Appeals |
Karen Stam, Joan C. Watt (argued), Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.
R. Paul Van Dam, Atty. Gen., Judith S.H. Atherton (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Before DAVIDSON, BILLINGS and GREENWOOD, JJ.
Appellant Early Gilbert Hodges, Jr. appeals the revocation of his probation and imposition of imprisonment for attempted sexual abuse of a child. We reverse and remand for a new hearing.
On November 16, 1987, appellant pled guilty to the charge of attempted sexual abuse of a child, a third degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1990).
On December 14, 1987, a sentencing hearing was held. The trial court reviewed a presentence report and victim impact statement prepared for the hearing. The court was informed by the Adult Probation and Parole (AP & P) officer who had prepared the presentence report that appellant had been screened by and accepted for treatment in the sex offender program at the Bonneville Community Correctional Center. The AP & P representative described the Bonneville program as a safe inpatient facility operated by the Department of Corrections. She further described the program as providing close patient monitoring and sophisticated treatment specifically designed to deal with offenders like appellant. The duration of treatment was said to usually be fifteen months, with some patients staying as long as two years.
Pursuant to the presentence report, the description of the Bonneville program by the AP & P representative, and the agreement of counsel for appellant and the state, the trial court imposed a sentence of zero to five years in the Utah State Prison. This sentence was stayed and appellant was placed on eighteen months probation subject to certain conditions. Chief among these conditions was the requirement that appellant enter, participate in, and successfully complete the Bonneville program. Addressing appellant directly, the trial court warned him that strict compliance with the Bonneville program would be required to maintain his probation. Appellant responded that he understood and agreed to this requirement.
Appellant entered the Bonneville program in January, 1988. After only eight months at Bonneville, the staff concluded that appellant was not making sufficient progress in his treatment. An order to show cause why appellant's probation should not be revoked or modified was issued in September, 1988. The order to show cause was based upon the state's allegation that appellant had failed to enter, participate in, and complete the Bonneville program. 1
Appellant was transferred to the Salt Lake County Jail and then to the Utah State Hospital to evaluate him for possible acceptance into its sex offenders program. He was rejected by the State Hospital after sixty days of evaluation and was returned to Salt Lake City for an order to show cause hearing on the issue of whether probation should be revoked or modified.
The hearing was held before the trial court on January 13, 1989. Two psychologists from the Bonneville program, Dr. Rosalita Cespedes and Dr. Stephen Kramer, testified for the state. Both had been involved in appellant's treatment. They acknowledged that appellant had entered and participated in the program, which included weekly individual and group therapy as well as "sex modification therapy" designed to change appellant's sexual arousal patterns. These therapies also included various "homework" assignments to be completed by appellant between actual therapy sessions. Dr. Cespedes described the total program duration to average eighteen months, with a two year maximum; the shortest time to completion was one year.
The psychologists testified that appellant had difficulty with the treatment program and had failed to make satisfactory progress during his eight months at Bonneville. They stated that appellant had physical and mental problems that interfered with his ability to effectively participate in treatment. Dr. Kramer testified that appellant's physical problems included the use of a crutch for walking, Parkinson's symptoms, extreme shakiness, and frequent difficulty with motor coordination.
Dr. Cespedes testified that appellant's mental problems had existed at least since 1960 and included "entrenched" behavior patterns and personality traits, including manipulative behavior. However, no specific instances of undesirable behavior or non-compliance with Bonneville program rules were described.
Dr. Kramer testified that appellant's mental diagnoses included pedophilia, atypical depression, post-traumatic stress disorder, and mixed personality disorder with dependent and anti-social features. Again, no specific instances of improper behavior by appellant were described. Dr. Kramer did report that defendant had great difficulty participating in treatment, frequently requiring extra help to complete his therapy homework assignments.
Dr. Kramer also testified that in addition to his other physical problems, appellant suffered from an inability to have penile erections. Dr. Kramer stated that measurement of penile tumescence through the use of a plethysmograph was the key method of assessing whether the sex modification therapy was successfully altering sexual arousal patterns. Appellant's inability to become tumescent therefore made it impossible to measure his progress in Bonneville's sex modification therapy.
The psychologists also testified that appellant had been taking a number of medications for his physical and mental problems. There had been concern that these medications were interfering with appellant's treatment progress. Accordingly, about four months after entering the Bonneville program, appellant had been transferred to the Veterans Administration Hospital for assessment of his medications. Changes in his medications were made, and on return to Bonneville from the Veterans Administration Hospital, his progress in the program was improved. Dr. Kramer admitted complimenting appellant on his improved progress after the medication adjustments. However, Dr. Cespedes testified that this improvement was due more to confrontation of appellant's manipulative behavior than to the medication changes.
The psychologists stated that in their opinion, the Bonneville treatment program would not, even in the possible two year maximum stay, sufficiently reduce the possibility that appellant might again commit a sexual offense. The reasons given for this opinion varied. Dr. Cespedes grounded her opinion on appellant's "entrenched" behavior problems. Dr. Kramer indicated that the primary problems were medical and psychiatric, and that further medication adjustment was needed to enable appellant to participate effectively in therapy. While admitting that many of these problems were not within appellant's control, Dr. Kramer also stated that appellant's motivation for treatment appeared to fluctuate, and that the Bonneville staff had been unable to get him to diligently and consistently work at his therapy.
Both psychologists testified that adequate treatment for appellant's problems would require at least four years, and recommended placement in the sex offenders program at the Utah State Prison. Dr. Kramer maintained that placement in the Bonneville program had been improper in the first place. In contrast to the information supplied to the trial court at the original sentencing hearing, Dr. Kramer stated that appellant had never been accepted for treatment by Bonneville, but that he had been ordered in against Bonneville's objections.
Appellant testified on his own behalf. He testified that he had been trying hard but doing poorly in the Bonneville treatment program until the medication changes. He testified that the medication changes had in fact improved his mental alertness. As a result, he had completed therapy homework assignments that he had failed to complete previously, and also completed subsequent assignments. Finally, appellant expressed a desire to receive treatment so that his chances of re-offending might be reduced.
The trial court received two letters sent to the court into evidence at the hearing. One letter was from a social worker at the State Hospital, written near the end of appellant's evaluation there in January, 1989. The other was from a Department of Corrections worker who supervised the Bonneville program, and had been sent in September, 1988, when the order to show cause was first issued. These letters do not appear in the record before this court, nor does the transcript of the hearing reveal their contents.
After the hearing, the trial court revoked appellant's probation and ordered the imposition of the stayed prison sentence. Along with this order, the court recommended that appellant be placed into the sex offenders program at the prison.
The trial court made no written findings of fact to support its decision. However, a transcript of the hearing was made. The transcript revealed the court's finding that appellant "did some things, but he did not effectively participate in and he did not complete the [Bonneville] program." The court made no finding as to whether the lack of "effective participation" in treatment was due to willful behavior or other fault of appellant. Finding that there were no other available treatment alternatives for appellant, the original prison sentence was imposed.
On appeal, we address the following issues: (1) Did the trial court's failure to make written findings of fact as to the nature of appellant's probation violation and the evidence relied upon violate his right to due process? (2) Was there a lack of evidentiary support for the finding that Mr. Hodges violated a condition...
To continue reading
Request your trial
-
State v. Davis
...established by § 53a-32 is akin to a civil proceeding. See Turner v. State, 784 S.W.2d 342, 344 (Mo.App.1990); State v. Hodges, 798 P.2d 270, 278 (Utah.App.1990). Therefore, our determination is guided by the general rule that when a civil statute is silent as to the applicable standard of ......
-
State v. Maurice M.
...all of the statutory sentence, and the probationer in turn agrees to perform or abstain from performing certain acts.” State v. Hodges, 798 P.2d 270, 278 (Utah App.1990); see also State v. Davis, supra, 229 Conn. at 296, 641 A.2d 370 (observing that burden of proof in probation violation ca......
-
State v. Shambley
...P.2d 1109 (1988); Com. v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983); Lloyd v. State, 574 S.W.2d 159 (Tex.Crim.App.1978); State v. Hodges, 798 P.2d 270 (Utah App.1990); State v. Begins, 147 Vt. 295, 514 A.2d 719 (1986); State ex rel. Thompson v. Riveland, 109 Wis.2d 580, 326 N.W.2d 768 (1982)......
-
State v. Bruun
...defer to the trial court regarding the weight it assigns to the evidence and in its credibility determinations. See State v. Hodges , 798 P.2d 270, 274 (Utah Ct. App. 1990) ("In a bench trial or other proceeding in which the judge serves as fact finder, the court has considerable discretion......