State v. Rawlings

• Decision Date: 17 March 1995
• Docket Number: No. 940262-CA,940262-CA
• Citation: 893 P.2d 1063
• Parties: STATE of Utah, Plaintiff and Appellee, v. Rex RAWLINGS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1063

893 P.2d 1063

STATE of Utah, Plaintiff and Appellee, v. Rex RAWLINGS, Defendant and Appellant.

No. 940262-CA.

Court of Appeals of Utah.

March 17, 1995.

Steven B. Killpack, Margaret P. Lindsay (argued), Utah County Public Defender Ass'n, Provo, for appellant.

Todd A. Utzinger (argued), Asst. Atty. Gen., Jan Graham, State Atty. Gen., Salt Lake City, for appellee.

Before BILLINGS, Associate P.J., and DAVIS and JACKSON, JJ.

OPINION

DAVIS, Associate Presiding Judge:

Defendant Rex Rawlings is before this court for the second time. Defendant is again appealing the trial court's initial order extending defendant's probation and its subsequent order revoking defendant's probation and is consequently challenging the post-remand proceedings. We reverse.

FACTS

On October 11, 1985, defendant pled guilty to a single count of attempted sodomy on a child, a first-degree felony, in violation of Utah Code Ann. § 76-5-403.1 (1985). Defendant was sentenced to five years to life in the Utah State Prison and placed on 18 months probation. A condition of defendant's probation was that he "enter and complete the long-term sex offender program [program] at the Utah State Hospital." If defendant failed to complete the program, "then execution [would] enter on the prison sentence." Defendant also signed a probation agreement with Adult Probation & Parole (AP & P) which included the condition that he complete the "sex offender program." Throughout those proceedings, defendant was represented by Sherry Ragan, a public defender. Although Ragan subsequently changed positions from public defender to county prosecutor after the sentencing proceedings were completed, she never withdrew as defendant's counsel.

Defendant's probation was to expire by operation of law ¹ on May 6, 1987. On or about April 13, 1987, AP & P generated a departmental memorandum directed to the trial court which stated that defendant "has progressed favorably in the program, but ... needs to continue in treatment." ² AP & P recommended that the court extend defendant's probation for an additional 18 months so that he could complete the program. No motion was filed or made by the court or prosecutor to extend defendant's probation. ³ However, the court was apparently made aware of the recommendation and a hearing was scheduled for April 17, 1987. ⁴ Defendant received nothing in writing of any nature from any source and learned of the hearing when advised thereof casually by a hospital aide two days before the hearing date.

At the hearing (which was characterized by the court as a "review"), Ragan appeared as counsel for the State; defendant was neither present nor represented by counsel. Ragan did not inform the court that she had initially represented the defendant at his sentencing proceedings. Some time after the proceedings had terminated, Ragan met defendant in the hall, told him the matter had already been heard and that his probation had been extended. Defendant claims that he asked Ragan whether the extension was in his best interest and she replied that it was. ⁵ Ragan then proceeded to escort defendant into the courtroom to speak to Judge Park ⁶ and, in reliance on Ragan's advice, defendant acquiesced to the extension. The following minute entry, dated April 17, 1987, was made by the trial court:

This matter came before the Court for review. Sherry Ragan, appeared as counsel for the State of Utah. The defendant was not present nor represented by counsel.

The Court reviewed the recommendation of Adult Probation and Parole Dept. requesting defendant's probation [be] extended for eighteen months in order for defendant to complete the Utah State Hospital Sex Offender Program. Court so ordered.

Later, Defendant appeared and concurred with the court's order.

Several months after his original term of probation would have expired, defendant twice appeared before the trial court ⁷ at which time the court admonished defendant for violating the program rules and ordered that defendant remain in and cooperate with the program. ⁸ On March 15, 1988, AP & P filed a motion for an order to show cause, accompanied by an affidavit, requesting that the court require defendant to show why his probation should not be revoked. The affidavit alleged that defendant had violated the conditions of his probation by not completing the program and, on this basis, the court should revoke defendant's probation and impose the prison sentence. The order was issued by the trial court and the record reflects that defendant was properly served.

A hearing on the order to show cause was held June 3, 1988. Defendant was present with counsel. Because defendant had failed to complete the program at the Utah State Hospital, a condition of his probation, the trial court ordered on July 8, 1988 that defendant's probation be revoked and that his original sentence be imposed. Defendant appealed, arguing that the trial court lacked jurisdiction to revoke his probation because of procedural defects in his probation extension proceedings. However, because the trial court's minute entry extending defendant's probation was unsigned, this court in State v. Rawlings, 829 P.2d 150, 153 (Utah App.1992), determined that it lacked jurisdiction to consider the issue. Thus, the case was remanded for further proceedings to address both the propriety of the extension proceedings and the trial court's resulting jurisdiction over the revocation proceedings.

On remand, evidentiary hearings on the propriety of the extension proceedings were commenced before Judge Park ⁹ and concluded before Judge Sawaya. ¹⁰ Judge Sawaya found that, while it was unclear whether defendant was notified in writing, defendant knew of the April 17, 1987 extension hearing and its purpose ¹¹ and, therefore, had adequate and proper notice. Judge Sawaya further concluded that, based on defendant's need for additional time to complete the long-term sex offender program, a requirement of his probation, the court had good cause to extend defendant's probation. Thus, Judge Sawaya entered a nunc pro tunc order dated May 25, 1993 extending defendant's probation. ¹²

Defendant's probation revocation proceedings were then returned to Judge Park so that the court could enter findings of fact and conclusions of law in support of the probation revocation order. Judge Park found that defendant had willfully violated the rules of the program and, hence, willfully violated the requirement of his probation agreement. As a result, a nunc pro tunc order dated February 3, 1994 was entered by Judge Park revoking defendant's probation.

Defendant appeals both the propriety of the original extension proceedings and the subsequent revocation proceedings.

ISSUE

Although defendant raises several issues on appeal, we need reach only one: whether defendant's probation was properly extended on April 17, 1987, or whether defendant's probation had expired on May 6, 1987, leaving the trial court without jurisdiction to revoke defendant's probation on July 8, 1988 or conduct any further proceedings in an effort to remedy errors.

STANDARD OF REVIEW

Whether the trial court had the authority to extend defendant's probation is a question of law. "[W]e accord a trial court's conclusions of law no particular deference, reviewing them for correctness." State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991).

ANALYSIS

Defendant claims that the trial court lacked the authority to extend his probation because the April 17, 1987 proceedings were not conducted in accordance with the provisions of Utah Code Ann. § 77-18-1 (Supp.1985), and in particular, because he was not given proper notice of the hearing. ¹³ The State responds that defendant received adequate notice of the extension proceedings and, therefore, no procedural defects were present which would have rendered the April 17, 1987 hearing ineffectual. The State concedes, however, that had defendant not received proper notice of the hearing, the extension proceedings were not "properly initiated prior to the end of his probation [and, therefore,] defendant would ... be[ ] entitled to a reversal of the 1988 order revoking his probation on the ground that the district court lacked jurisdiction over the matter."

It is well settled that a probationer shall be accorded due process at revocation proceedings because revoking probation seriously deprives a person of his or her liberty. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Smith v. Cook, 803 P.2d 788, 795 (Utah 1990); State v. Bonza, 106 Utah 553, 150 P.2d 970, 972 (Utah 1944). What is less clear is whether due process attaches to probation extension proceedings. Some courts have held, without reference to any statutory law, that due process protections do not attach to probation extension proceedings. Even so, because of the high risk of prejudice to the probationer when he or she is not given notice of the extension hearing and the hearing is conducted ex parte, these courts have invoked their supervisory powers requiring the necessary parties to (1) give the probationer notice of the extension hearing; (2) advise the probationer that he or she has a right to a hearing; and/or (3) advise the probationer that he or she has the right to the assistance of counsel. Forgues v. United States, 636 F.2d 1125, 1127 (6th Cir.1980); United States v. Cornwell, 625 F.2d 686, 689 (5th Cir.1980), cert. denied Cornwell II v. U.S., 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 610 (1980); Skipworth v. United States, 508 F.2d 598, 602-03 (3d Cir.1975). But see United States v. Carey, 565 F.2d 545, 547 (8th Cir.1977), cert. denied 435 U.S. 953, 98 S.Ct. 1582, 55 L.Ed.2d 803 (1978).

We hold that a probationer in the State of Utah is accorded a measure of due process at a probation extension proceeding and is thus entitled to the available protections. The language contained in section 77-18-1 provides that "[a]t any time prior to the...