State v. Orr

• Decision Date: 30 December 2005
• Docket Number: No. 20041057.,20041057.
• Citation: 2005 UT 92,127 P.3d 1213
• Parties: STATE of Utah, Plaintiff and Respondent, v. David J. ORR, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 1213

127 P.3d 1213

2005 UT 92

STATE of Utah, Plaintiff and Respondent, v. David J. ORR, Defendant and Petitioner.

No. 20041057.

Supreme Court of Utah.

December 30, 2005.

Mark L. Shurtleff, Att'y Gen., Laura B. DuPaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Larry R. Keller, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

DURRANT, Justice:

INTRODUCTION

¶ 1 The question before us is whether the district court erred in extending David J. Orr's probation when (1) Orr did not receive notice that the State intended to seek an extension of probation until seven days after his probation was originally set to expire and (2) the district court, in its written order, did not expressly find that Orr had violated a term of his probation or that such violation was willful. We conclude that notice of a probation extension proceeding is sufficient, even if served after the original probationary term was set to expire, provided a probation violation report is filed prior to the original expiration date and that the notice complies with due process. We further conclude that to extend probation a court must make written findings that a defendant violated the terms of probation, but that a transcript of oral findings may satisfy this requirement. Applying these conclusions of law to the facts presented in this case, we affirm the judgment of the court of appeals that the district court properly extended Orr's probation.

BACKGROUND

¶ 2 Orr pleaded guilty to two third degree felonies in connection with alleged fraud and securities violations. On May 12, 2000, the district court sentenced Orr to two consecutive prison terms of zero-to-five years. The district court suspended Orr's sentence and placed him on thirty-six months probation under the supervision of the Utah Adult Probation and Parole Department ("AP & P"). One of the conditions of Orr's probation was that he pay $365,504.39 in restitution in monthly installments of "no less than $1,000 . . . or 25% of [his] income."

¶ 3 Until May 2003, the month Orr's probation was set to expire, Orr made monthly restitution payments of approximately $1,000. In that month, however, Orr failed to make his restitution payment. Because Orr had failed to pay the full restitution amount, AP & P filed a probation violation report on May 9, 2003,¹ and asked the court to order Orr to show cause as to why his probation should not be revoked. On May 12, 2003, the court issued the order to show cause, which was served on Orr on May 19, 2003.

¶ 4 Orr moved to dismiss the order to show cause, arguing that the district court lost jurisdiction to extend his probation on May 12, when his probation expired. Orr further argued that the district court did not have jurisdiction over him because AP & P did not file its report and serve him with notice before his probation expired. The court, citing Utah Code section 77-18-1(11)(b) (2003),² held that the May 9 filing tolled Orr's probationary period and provided it with jurisdiction to extend Orr's probation. The district court then extended Orr's probation for the full ten-year term of Orr's suspended prison sentence.

¶ 5 Orr appealed to the court of appeals, where he again raised the notice argument and further argued that the district court lacked authority to extend his probation because it did not make a specific factual finding that he willfully violated his probation terms.³ State v. Orr, 2004 UT App 413, ¶¶ 8, 11, 103 P.3d 164. The court of appeals affirmed the district court's holding that the May 9 filing tolled Orr's probationary period. Id. ¶ 10. The court of appeals did not determine whether a written statement of factual findings or a finding of willfulness was required to extend probation, but instead determined that even if these rules were applicable to probation extension, the district court's order and record demonstrated a sufficient factual basis to extend Orr's probation. Id. ¶¶ 11-13.

¶ 6 We granted certiorari to review the court of appeals' decision. We have jurisdiction pursuant to Utah Code section 78-2-2(5) (2002).

STANDARD OF REVIEW

¶ 7 On certiorari, we review the court of appeals' decision for correctness and grant no deference to its conclusions of law. Allstate Ins. Co. v. Wong, 2005 UT 51, ¶ 12, 122 P.3d 589. "Our review extends no further than to determine whether the court of appeals accurately reviewed the trial court's decision under the appropriate standard of review." Id. (internal quotation marks omitted).

¶ 8 In this case, no party has asserted that the court of appeals applied an incorrect standard of review to either of the issues before us on certiorari. The court of appeals appropriately applied a correctness standard of review to the questions of law and a clearly erroneous standard of review to the district court's factual findings. State v. Orr, 2004 UT App 413, ¶ 7, 103 P.3d 164.

¶ 9 The court of appeals does not, however, set forth the standard of review for mixed questions of law and fact such as whether the district court's factual findings were sufficient to support the extension of Orr's probation under the applicable laws. In a probation extension proceeding, the district court has discretion "to grant, modify, or revoke probation." State v. Jameson, 800 P.2d 798, 804 (Utah 1990). Therefore, to reverse the district court's decision in such proceedings, a reviewing court must determine "that the evidence of a probation violation, viewed in a light most favorable to the trial court's findings, is so deficient that the trial court abused its discretion in revoking [or modifying appellant's] probation." Id. Thus, in addressing the question of whether there were sufficient factual findings to support the extension of Orr's probation, we will review the district court's determination for an abuse of discretion.

ANALYSIS

¶ 10 In this case, Orr argues that the district court improperly extended his probation (1) because he did not receive notice that the State intended to extend his probation until after his probation was set to expire and (2) because the district court's findings were insufficient. Before addressing these arguments, we must first decide the threshold issue of whether the due process requirements for probation extension are coextensive with those provided for probation revocation.

I. AT BOTH PROBATION REVOCATION AND PROBATION EXTENSION PROCEEDINGS, A DEFENDANT SHOULD BE AFFORDED THE MINIMUM REQUIREMENTS OF DUE PROCESS.

¶ 11 The Fourteenth Amendment of the United States Constitution forbids a state from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. This amendment guarantees both substantive and procedural due process rights. What constitutes due process, however, 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." Bearden v. Georgia, 461 U.S. 660, 666-67, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (alteration in the original) (internal quotation marks omitted).

¶ 12 Based on these considerations, the United States Supreme Court has determined that probation revocation proceedings, which are not criminal in nature⁴ and involve only a conditional liberty interest, are entitled only to the "minimum requirements of due process." Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (internal quotation marks omitted).

¶ 13 Neither this court nor the United States Supreme Court has addressed the question of whether a defendant in a probation extension proceeding is entitled to the same rights as a defendant in a probation revocation proceeding. Clearly, a defendant in an extension proceeding is not entitled to greater due process rights, because at such a proceeding we are not dealing with the immediate, "grievous loss of liberty implicated in a revocation of probation," but instead with a mere continuation of probationary restrictions and the "possibility of future revocation." United States v. Ortiz, 733 F.2d 1416, 1417-18 (10th Cir.1984).

¶ 14 What is less clear, however, is whether a defendant is entitled to any due process rights at an extension proceeding. Many jurisdictions have held that due process protections do not attach to probation extension proceedings.⁵ Skipworth v. United States, 508 F.2d 598, 601-02 (3d Cir.1975) (holding that due process does not require notice and hearing for a probation extension because the loss of liberty is "merely potential"); United States v. Carey, 565 F.2d 545, 547 (8th Cir.1977) ("[A] mere noncustodial period of supervision to a term within the statutory limits [does not] implicate[] a liberty interest sufficient to require a pre-extension hearing as a constitutionally commanded right."); United States v. Cornwell, 625 F.2d 686, 688 (5th Cir.1980) ("[E]xtension of a non-custodial period of supervision to a term within the statutory limits (does not) implicate a liberty interest sufficient to require a preextension hearing as a constitutionally commanded right." (internal quotation marks omitted)); Forgues v. United States, 636 F.2d 1125, 1127 (6th Cir.1980) (holding ex parte extension did not offend due process because "[p]robation . . . is a non-custodial supervisory period far less onerous to the probationer than the incarceration which results from the revocation of probation"); United States v. Silver, 83 F.3d 289, 291-92 (9th Cir.1996) (holding probation extension does not result in "a liberty interest [being] so infringed as to require this court to call for additional protections as per the Due Process Clause"). But many of these same courts have invoked their supervisory power to require that the probationer receive notice of the extension hearing and be advised of a...