State v. Wimberly

• Decision Date: 27 June 2013
• Docket Number: No. 20110946–CA.,20110946–CA.
• Citation: 737 Utah Adv. Rep. 46,305 P.3d 1072
• Parties: STATE of Utah, Plaintiff and Appellee, v. Elbert Clint WIMBERLY, Defendant and Appellant.
• Court: Utah Court of Appeals

305 P.3d 1072

737 Utah Adv. Rep. 46

STATE of Utah, Plaintiff and Appellee,

v.Elbert Clint WIMBERLY, Defendant and Appellant.

No. 20110946–CA.

Court of Appeals of Utah.

June 27, 2013.

Patrick W. Corum and Peter A. Daines, for Appellant.

John E. Swallow and Kris C. Leonard, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Opinion

VOROS, Judge:

¶ 1 Elbert Clint Wimberly entered a plea in abeyance to one count of aggravated assault. SeeUtah Code Ann. § 76–5–103 (LexisNexis 2012). ¹ After determining that Wimberly had violated the terms of the plea in abeyance agreement, the trial court terminated the agreement, entered the guilty plea previously held in abeyance, and sentenced him to prison. Wimberly appeals both the entry of the guilty plea and the sentence. We affirm.

BACKGROUND

¶ 2 On March 6, 2009, Wimberly pleaded guilty to one count of aggravated assault. Pursuant to a plea in abeyance agreement, the trial court held his plea in abeyance for twenty-four months, and placed Wimberly under the supervision of Adult Probation and Parole (AP & P) subject to specified conditions. In October of 2010, Wimberly was arrested on another charge of aggravated assault.

¶ 3 AP & P submitted a Progress/Violation Report (the Report). In addition to the new aggravated assault charge, the Report asserted that Wimberly had failed to contact his AP & P officer within forty-eight hours of his October arrest and failed to “participate in the dual diagnosis treatment, for Cognitive Restructuring and Domestic Violence classes.” The Report also indicated that Wimberly had previously appeared before a different trial court on a plea agreement violation for failing to obtain employment within one year of entering the plea in abeyance agreement. Finally, the Report recommended that Wimberly “be incarcerated and hopefully he can acquire the skills necessary to adhere to the Court's order.” The trial court issued an Order to Show Cause (the OSC) why Wimberly should not be found in violation of the conditions of his plea in abeyance.

¶ 4 Wimberly sought to delay the hearing on the OSC until after the disposition of the new aggravated assault charge. After granting two continuances, the trial court proceeded with an evidentiary hearing limited to the violation allegations that were not directly related to the October 2010 aggravated assault charges. At the evidentiary hearing Wimberly's AP & P officer and Wimberly both testified. At the conclusion of the hearing, the trial court found that Wimberly was in “violation of the terms of his plea in abeyance” and set the case for sentencing. After receiving an updated presentence report, the trial court sentenced Wimberly to serve zero to five years in prison.

ISSUES AND STANDARDS OF REVIEW

¶ 5 First, Wimberly contends that the trial court erred when it revoked his plea in abeyance agreement “because there was insufficient evidence to support a finding that Wimberly's violations were willful.” We review a trial court's decision to terminate a plea in abeyance agreement for an abuse of discretion. See State v. Martin, 2012 UT App 208, ¶ 10, 283 P.3d 1066 (mem.); see alsoUtah Code Ann. § 77–2a–4(1) (LexisNexis 2012) (providing that a trial court “may terminate” a plea in abeyance agreement upon a finding that the defendant “failed to substantially comply with any term or condition” of the agreement). And we review factual findings entered by a trial court for clear error. See State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251.

¶ 6 Second, Wimberly contends that the trial court abused its discretion by sentencing him to prison rather than granting him probation. We review the trial court's imposition of sentence for an abuse of discretion. State v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17 (explaining that an appellate court “will overturn a sentencing decision only if it is clear that the actions of the trial judge were so inherently unfair as to constitute an abuse of discretion.” (brackets, emphasis, citation, and internal quotation marks omitted)).

ANALYSIS

I. Termination of the Plea in Abeyance Agreement

¶ 7 Wimberly contends that the trial court “erred when it revoked Wimberly's probation because there is insufficient evidence to support a finding that Wimberly's violations were willful.” This framing of the issue assumes that Wimberly was placed on probation, that his probation was revoked, and consequently that the State was required to show that his violations were willful. We do not share these assumptions.

A. The Statutory “Substantial Compliance” Standard Governs the Termination of Plea in Abeyance Agreements.

¶ 8 The record leaves no doubt that Wimberly entered a plea in abeyance. A plea in abeyance is a court order “accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in a plea in abeyance agreement.” Utah Code Ann. § 77–2a–1(1) (LexisNexis 2012). A plea in abeyance agreement is “an agreement entered into between the prosecution and the defendant setting forth the specific terms and conditions upon which, following acceptance of the agreement by the court, a plea may be held in abeyance.” Id. § 77–2a–1(2). Thus, “[w]hen a plea in abeyance agreement is approved, the trial court agrees to accept a guilty plea but not, at that time, enter a conviction nor impose a sentenceon the condition that the defendant comply with the conditions set forth in the agreement.” State v. Turnbow, 2001 UT App 59, ¶ 10, 21 P.3d 249 (citing Utah Code Ann. § 77–2a–1(1)). After successful completion of those conditions, a trial court may dismiss the charge and no conviction will remain on the defendant's record. “A court may not hold a plea in abeyance without the consent of both the prosecuting attorney and the defendant.” Utah Code Ann. § 77–2a–3(6) (LexisNexis 2012).

¶ 9 While a plea in abeyance agreement is not probation, “[t]he court may require the Department of Corrections to assist in the administration of the plea in abeyance agreement as if the defendant were on probation to the court under Section 77–18–1.” Id. § 77–2a–3(4) (emphasis added).

¶ 10 If the court learns from AP & P or otherwise that the defendant may have violated the terms of the plea in abeyance agreement, the court “may issue an order requiring the defendant to appear before the court at a designated time and place to show cause why the court should not find the terms of the agreement to have been violated and why the agreement should not be terminated.” Id.§ 77–2a–4(1) (LexisNexis 2012). If after an evidentiary hearing “the court finds that the defendant has failed to substantially comply with any term or condition of the plea in abeyance agreement, it may terminate the agreement and enter judgment of conviction and impose sentence against the defendant for the offense to which the original plea was entered.” Id. (emphasis added).

¶ 11 A plea in abeyance is thus analytically distinct from probation. “Probation has two roles under Utah law. It is both a sentence and an alternative sanction to be imposed after the suspension of a harsher sentence.” State v. Anderson, 2009 UT 13, ¶ 15, 203 P.3d 990. “On a plea of guilty, guilty with a mental illness, no contest, or conviction of any crime or offense, the court may, after imposing sentence, suspend the execution of the sentence and place the defendant on probation.” Utah Code Ann. § 77–18–1(2)(a) (LexisNexis 2012). “If a violation of the probationary conditions occurs, the court ‘may order the probation revoked, modified, continued, or that the entire probation term commence anew.’ ” Anderson, 2009 UT 13, ¶ 15, 203 P.3d 990 (quoting Utah Code Ann. § 77–18–1(12)(e)(ii)). Before a court may revoke probation based on a probation violation, “ ‘the court must determine by a preponderance of the evidence that the violation was willful.’ ” ²State v. Maestas, 2000 UT App 22, ¶ 24, 997 P.2d 314 (quoting State v. Peterson, 869 P.2d 989, 991 (Utah Ct.App.1994)).

¶ 12 Although at various times the trial court, AP & P, and counsel all referred to the plea in abeyance agreement as “probation,” Wimberly was in fact never placed on probation. Rather, the trial court directed AP & P “to assist in the administration of the plea in abeyance agreement as if [Wimberly] were on probation.” SeeUtah Code Ann. § 77–2a–3(4). We detect no fundamental confusion on the trial court's part. It issued an order to show cause and scheduled an evidentiaryhearing. At the conclusion of the hearing it found that Wimberly was “in violation of the terms of his plea [in] abeyance” and accordingly “enter[ed] the plea,” with the result that “he now has a third degree felony on his record.” The trial court then scheduled the matter for sentencing. All this was in keeping with Utah Code section 77–2a–4(1).

¶ 13 Wimberly contends that the trial court erred by terminating the plea in abeyance agreement without evidence that his violations were willful. Thus, in effect, Wimberly “argues that the reasoning of the probation statute cases should be applied to plea in abeyance proceedings.” See State v. Turnbow, 2001 UT App 59, ¶ 14, 21 P.3d 249. We have rejected this contention in a related context, holding that “a plea in abeyance differs from probation in both its statutory provisions and function. Thus, cases decided under the probation statutes are not directly applicable to pleas in abeyance.” Id. (referring to defendant's argument “that proceedings to determine whether a defendant has violated the terms of an abeyance agreement must be initiated prior to expiration of the term of the agreement”). No Utah case has ever held or implied that a finding of willfulness is required before a trial court may terminate a plea in abeyance agreement, enter a conviction, and impose a...