State v. Martin

• Decision Date: 04 March 1999
• Docket Number: No. 971501-CA,971501-CA
• Citation: 976 P.2d 1224
• Parties: 364 Utah Adv. Rep. 13, 1999 UT App 62 STATE of Utah, Plaintiff and Appellee, v. Caprice T. MARTIN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1224

976 P.2d 1224

364 Utah Adv. Rep. 13, 1999 UT App 62

STATE of Utah, Plaintiff and Appellee, v. Caprice T. MARTIN, Defendant and Appellant.

No. 971501-CA.

Court of Appeals of Utah.

March 4, 1999.

Gregory M. Constantino and Edwin S. Wall, Wall & Constantino, Salt Lake City, for Appellant.

Jan Graham, Attorney General, and Kris C. Leonard, Assistant Attorney General, Salt Lake City, for Appellee.

Before WILKINS, P.J., GREENWOOD, Associate P.J., and BILLINGS, J.

OPINION

GREENWOOD, Associate Presiding Judge:

¶1 On appeal, defendant Caprice T. Martin claims his probation was improperly extended, thereby depriving the trial court of authority to revoke his probation and impose a sentence of one to fifteen years for robbery. We affirm.

BACKGROUND

¶2 On May 24, 1993, defendant was charged with aggravated robbery, in violation of Utah Code Ann. § 76-6-302 (1995 & Supp.1998), and aggravated burglary, in violation of Utah Code Ann. § 76-6-203 (1995 & Supp.1998), both first degree felonies. These charges arose from an incident in which defendant and another man entered a Salt Lake City apartment, held two people at gunpoint and with a knife, threatened to kill the victims, and stole $250 and two check books. The aggravated burglary charge was dismissed in return for defendant's guilty plea to the lesser charge of robbery, a second degree felony, in violation of section 76-6-301 of the Utah Code. See Utah Code Ann. § 76-6-301 (Supp.1998). The trial court sentenced defendant to one to fifteen years in the Utah State Prison, but stayed the prison sentence and placed defendant on probation for two years.

¶3 On December 20, 1994, defendant was arrested for violating the following terms of his probation: (1) committing domestic violence; (2) failing to obtain a GED or high school diploma; (3) failing to enter and complete substance abuse therapy; and (4) using marijuana. On January 6, 1995, a hearing was held on the State's Order to Show Cause on these charges. At the hearing, defendant was represented by counsel and admitted to three of the four allegations. As a result, the court revoked defendant's probation and placed him on the Intensive Supervision and Electronic Monitoring program. The court also reinstated defendant's probation, to end on July 6, 1996.

¶4 On May 28, 1996 approximately one month before the July 6, 1996 expiration of defendant's probation, defendant's probation officer filed a Progress/Violation Report with the court, detailing specific probation violations and recommending the probation period be extended from July 6, 1996 to July 6, 1997 to allow defendant to comply with the terms of the probation agreement, including payment of fines and completion of substance abuse counseling. Although defendant did not see this report, he discussed the probation extension with his probation officer, who informed him that if he did not waive his right to a hearing, the State would file a motion for an order to show cause and a hearing would be held at which defendant's probation could be revoked and the original prison sentence reinstated. After this conversation, defendant and his probation officer signed a Waiver of Personal Appearance Before the Court (the Waiver), stipulating to the extension of his probation. ¹ The Waiver and the Progress/Violation Report were stapled together and filed with the court. Judge Frank G. Noel dated the report May 28, 1996, and initialed the line "Approved and Ordered." ²

¶5 During the year following the extension of his probation, defendant was arrested for various crimes, thus violating the terms of his probation. On each occasion, the State sought, and defendant participated in, a hearing on the State's order to show cause in connection with the alleged probation violations. On January 31, 1997, in response to the State's motion to revoke his probation, defendant filed a Motion to Dismiss the probation revocation proceedings against him, claiming (1) his probation was improperly extended after July 6, 1996, thereby depriving the court of authority to revoke his probation

and reinstate his original prison sentence for robbery; and (2) extension of the probationary period violated his due process rights under the United States and Utah Constitutions. On May 20, 1997, the trial court denied defendant's Motion to Dismiss and entered an order holding that, pursuant to the filing of the May 28, 1996 Progress/Violation Report and Waiver, the court had properly extended defendant's probation. On June 30, 1997, after defendant admitted to escape and assault against a police officer, the trial court revoked defendant's probation, reinstating the original sentence of one to fifteen years in the Utah State Prison for the 1993 robbery conviction. This appeal followed.

ISSUES

¶6 On appeal, defendant raises two procedural issues in challenging the extension and subsequent revocation of his parole. Defendant also argues that he did not knowingly waive his right to an extension hearing and that the Waiver was signed in violation of his constitutional due process rights. ³

ANALYSIS

I. Procedural Challenges

¶7 Defendant challenges the procedures used to extend his probation under section 77-18-1 of the Utah Code. See Utah Code Ann. § 77-18-1 (Supp.1998). Because the interpretation and application of a statute is a question of law, we review whether the trial court had jurisdiction to extend defendant's probation for correctness. See State v. Grate, 947 P.2d 1161, 1164 (Utah Ct.App.1997).

¶8 Defendant raises two procedural challenges on appeal. First, he argues his probation was improperly extended because there was no motion before the court to extend his probation and the court did not enter a proper order effectuating the extension. ⁴ Second, defendant claims the trial court erred in failing to follow the steps set forth in subsections (b) through (e) of section 77-18-1(12).

¶9 Section 77-18-1(12)(a)(i) provides, "Probation may not be modified or extended except upon waiver of a hearing by the probationer or upon a hearing and a finding in court that the probationer has violated the conditions of probation." Utah Code Ann. § 77-18-1(12)(a)(i) (Supp.1998) (emphasis added). Subsections (b) through (e) detail the procedures that must be followed if the probationer elects to have a hearing to address whether the probationer has violated the terms of probation and whether probation should be modified, extended, or revoked. Applying long-standing rules of statutory construction, see Sierra Club v. Utah Solid and Hazardous Waste Control Bd., 964 P.2d 335, 344 (Utah Ct.App.1998) (stating appellate courts guided by the long-standing rule that statutes should be construed according to plain language), the plain meaning of section 77-18-1 leads to the conclusion that probationers may elect either to have a hearing complete with all of the statutory protections set forth in subsections (b) through (e), or may waive the right to a hearing, thereby foregoing the procedural safeguards guaranteed in the statute. See Utah Code Ann. 77-18-1(12)(b) to (e). In the absence of any statutory or other guidance ⁵ as to the precise procedures that must be followed to extend probation, we conclude the Progress/Violation Report that was filed requesting extension of defendant's probation and approved by Judge Noel, in addition to defendant's Waiver in compliance with subsection 12(a)(i), were sufficient to comport with the statutory scheme for extensions of probation. We also reject defendant's argument

that the trial court was required to follow the steps in subsections (b) through (e), because this argument is inconsistent with the statutory language that a probationer may either elect to have a hearing--comporting with the statutory requirements--or may waive his right to a hearing, thereby losing the procedural protections under the statute.

II. Waiver

¶10 Although we review the trial court's decision to revoke defendant's probation for correctness, see State v. Grate, 947 P.2d 1161, 1164 (Utah Ct.App.1997), we accord substantial deference to the trial court's underlying factual determinations regarding defendant's Waiver, which we will only disturb upon a finding of clear error. See State v. Pena, 869 P.2d 932, 935-36 (Utah 1994).

¶11 Defendant argues his probation was improperly extended in violation of the statutory protections afforded probationers in section 77-18-1 of the Utah Code, see Utah Code Ann. § 77-18-1 (1997), and his constitutional due process rights. We disagree.

¶12 In enacting section 77-18-1(12), our legislature requires that probationers be afforded certain procedural protections before probation is extended. See id. § 77-18-1(12); see also State v. Rawlings, 893 P.2d 1063, 1067 (Utah Ct.App.1995) (holding probationers facing extension proceedings are afforded "a measure of due process"). It is these statutory requirements "to which due process protections attach." Id. (citations omitted). In addition to affording probationers certain procedural protections, however, the statute also allows a defendant to waive the statutory requirements. See Utah Code Ann. § 77-18-1(12) (1997). Additionally, we have held that a probationer may waive his constitutional due process rights, provided the waiver is knowing and voluntary. See Rawlings, 893 P.2d at 1070. That is, " '[u]nder the due process clause, [a defendant is] entitled to have [adequate notice] imparted to him [or her]; that he [or she] might make an intelligent and informed decision as to whether to waive his [or her] constitutional right to a ... hearing.' " Id. (quoting Worrall v. Ogden City Fire Dep't. 616 P.2d 598, 602 (Utah 1980)). Thus, we must decide whether defendant effectively waived his right to a hearing by knowingly and voluntarily executing the Waiver.

¶13 Defendant argues that Smith v. Cook, 803 P.2d 788 (Utah 1990), prohibits revoking or extending probation unless a probationer is given notice of the...