State v. Warner, 20130784–CA.

• Decision Date: 02 April 2015
• Docket Number: No. 20130784–CA.,20130784–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ronald Roger WARNER, Defendant and Appellant.
• Court: Utah Court of Appeals

347 P.3d 846

2015 UT App 81

STATE of Utah, Plaintiff and Appellee

v.Ronald Roger WARNER, Defendant and Appellant.

No. 20130784–CA.

Court of Appeals of Utah.

April 2, 2015.

Matthew D. Carling, for Appellant.

Sean D. Reyes and Deborah L. Bulkeley, Salt Lake City, for Appellee.

Judge JAMES Z. DAVIS authored this Memorandum Decision, in which Judges STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

Memorandum Decision

DAVIS, Judge:

¶ 1 Ronald Roger Warner appeals from a hearing on a consolidated order to show cause during which the district court revoked his probation on two separate cases. Warner argues that the district court did not have sufficient evidence to support its revocations, that the court erred by failing to consider alternatives to reinstating Warner's sentences, and that the court's decision contravened public policy. The State argues that Warner's appeal is moot because he was released from the reinstated jail sentences on January 29, 2014, and that, as a result, this court lacks jurisdiction to decide the issues Warner presents on appeal. We do not agree that mootness principles prevent our review. We affirm the district court's decision.

I. Mootness

¶ 2 “A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.” In re C.D., 2010 UT 66, ¶ 11, 245 P.3d 724 (citation and internal quotation marks omitted). However, “[w]here collateral legal consequences may result from an adverse decision, courts have generally held an issue not moot and rendered a decision on the merits.” Barnett v. Adams, 2012 UT App 6, ¶ 7, 273 P.3d 378 (citation and internal quotation marks omitted). “ ‘[A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.’ ” Duran v. Morris, 635 P.2d 43, 45 (Utah 1981) (emphasis added) (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ); accord Gardiner v. York, 2010 UT App 108, ¶ 33, 233 P.3d 500. In criminal cases, collateral legal consequences include the effects a conviction has on “the petitioner's [ ]ability to vote, engage in certain businesses, or serve on a jury,” as well as the effects a conviction may have in future legal proceedings, i.e., as a tool to impeach the petitioner's character or as a factor in sentencing. Duran, 635 P.2d at 45 (citing Sibron, 392 U.S. at 57, 88 S.Ct. 1889 ; Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) ); see also In re Giles, 657 P.2d 285, 286 (Utah 1982) (recognizing that “the absence or presence of [collateral] consequences may determine a criminal's chance of rehabilitation or recidivism”).

¶ 3 The State contends that Warner's enumerated collateral consequences are “merely hypothetical or possible.” (Citation and internal quotation marks omitted.) This argument is based on the standard applicable to civil cases, not criminal cases. See Towner v. Ridgway, 2012 UT App 35, ¶ 7, 272 P.3d 765 (explaining that collateral consequences may be presumed when “a party is challenging a criminal conviction” but not in civil cases, where “a litigant must show that the collateral consequences complained of are not merely hypothetical or possible but that they are probable and represent actual and adverse consequences” (citation and internal quotation marks omitted)). And the potentially hypothetical nature of the collateral consequences facing a criminal defendant has not prevented Utah courts from reaching the merits of an otherwise-moot criminal appeal. See, e.g., Giles, 657 P.2d at 287 (holding that a post-release challenge to involuntary commitment to a mental institution was not moot because of “the collateral consequences that may be imposed upon appellant” “were he to face future confrontations with the legal system”); State v. C.H., 2008 UT App 404U, para. 2, 2008 WL 4817192 (holding that a mother's challenge to a criminal contempt order was not barred by the mootness doctrine when the child-custody proceedings were transferred to another state, because the mother's conviction in Utah “may negatively impact future decisions of [the Division of Child and Family Services] with respect to [her] rights to parent her children”). We decline to extend the civil approach to collateral consequences to this criminal appeal, and we are not convinced that Warner faces no possible collateral consequences as a result of his revoked probation terms. See Duran, 635 P.2d at 45 ; see also United States v. O'Leary, No. 96–2248, 1997 WL 428597, at *1 n. 1, 120 F.3d 271 (10th Cir. July 30, 1997) (applying the collateral consequences exception to a probation-revocation challenge); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir.1970) (recognizing that probation revocation can “affix[ ] a permanent blemish to [a] petitioner's record” that could be “take[n] into account” if the “petitioner ever has future difficulties with the law”); People v. Halterman, 45 Ill.App.3d 605, 4 Ill.Dec. 271, 359 N.E.2d 1223, 1225 (1977) (same). Accordingly, we reach the issues underlying Warner's appeal. See generally Sibron, 392 U.S. at 57, 88 S.Ct. 1889 (recognizing, in the context of deciding whether to “entertain [ ] moot controversies,” that “it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time”); Ellis v. Swensen, 2000 UT 101, ¶ 26, 16 P.3d 1233 (“Because mootness is a matter of judicial policy, the ultimate determination of whether to address an issue that is technically moot rests in the discretion of this court.”).

II. Sufficiency of the Evidence

¶ 4 “Upon a finding that the defendant violated the conditions of probation, the court may order the probation revoked, modified, continued, or that the entire probation term commence anew.” Utah Code Ann. § 77–18–1(12)(e)(ii) (LexisNexis Supp.2014). “The decision to grant, modify, or revoke probation is in the discretion of the trial court,” and “a trial court's finding of a probation violation is a factual one and therefore must be given deference on appeal unless the finding is clearly erroneous.” State v. Peterson, 869 P.2d 989, 991 (Utah Ct.App.1994) (citation and internal quotation marks omitted). Finally, “[f]or a trial court to revoke probation based on a probation violation, the court must determine by a preponderance of the evidence that the violation was willful,” which “merely requires” an implicit or explicit “finding that the probationer did not make bona fide efforts to meet the conditions of his probation.” State v. Robinson, 2014 UT App 114, ¶ 16, 327 P.3d 589 (citation and internal quotation marks omitted).

¶ 5 Warner appeals from a consolidated order to show cause hearing during which the district court revoked his probations in two separate cases. Our analysis in this section, see infra ¶¶ 6–8, concerns the second of those cases, in which Warner pleaded guilty to charges of domestic-violence assault and interference with a police officer, both class-B misdemeanors (the Class–B case). The other case involved Warner's guilty plea to one charge of domestic-violence assault, a class-A misdemeanor (the Class–A case).¹

¶ 6 The court stayed Warner's sentence and placed Warner on probation for a term of eighteen months, requiring, among other conditions, that he pay a $500 fine and a $66 fee, together, in monthly increments of $50 “beginning April 1, 2011.”

¶ 7 At the July 2013 consolidated order to show cause hearing, the district court determined that Warner violated the terms of probation “by having failed to pay his fines and fees as ordered.” The court took “judicial notice of [court] records, indicat[ing] that [Warner] paid nothing and the entire amount was referred to the Office of State Debt Collection on February 13th of 2012.” The court asked Warner's counsel if he had any objections to the court taking judicial notice of the enumerated facts, and Warner's counsel explicitly indicated that he had no objections and no evidence to present.

¶ 8 Warner now contends that the district court lacked sufficient evidence to revoke his probation in the Class–B case. Warner argues that the probation order required him to pay the $566 debt within sixty days of his being released from jail and that because there was no evidence before the court indicating when Warner was released from jail, the court could not determine whether Warner actually violated this condition. The probation order in the Class–B case, however, imposed no such date on Warner's requirement to pay fines; the probation order established a payment schedule “beginning April 1, 2011.” There were other, unrelated conditions that were to be completed within sixty days of Warner's release. The district court acknowledged that there was no evidence indicating when Warner was released from jail to determine whether Warner breached these other conditions.² Accordingly, the court limited its revocation decision to the judicially noticed fact that Warner “failed to pay his fines as ordered.” Warner provided no mitigating evidence or explanation as to why he failed to make any payment by April 1, 2011, or any payments at all on the $566 obligation. Warner's obligation to make payments was continuous and did not cease until he paid the entire $566 balance. The evidence shows that he made no payments during the two-year period between the initial April 1, 2011 due date and the time the court revoked his probation and that the entire debt was ultimately referred to the Office of State Debt Collection. The court's judicial notice of its own records indicating that no payments were ever made is sufficient evidence that Warner violated that term of his probation order. Further, although the court did not “use the precise legal terminology,” we interpret this finding as indicating that Warner's violation was “willful” because he...