District Court, Ogden Department The Honorable Ernest W.
Jones No. 151902704
P. Newton, Attorney for Appellant
Christopher Allred, Nicholas Caine, and Teral L. Tree,
Attorneys for Appellee
Judges Gregory K. Orme, J. Frederic Voros Jr., and Jill M.
Justin Robinson Rogers appeals the revocation of probation
and imposition of the suspended sentence for his convictions.
This court reviews a district court's decision to revoke
probation for an abuse of discretion. See State v.
Legg, 2014 UT App 80, ¶ 7, 324 P.3d 656. "[W]e
view the evidence of a probation violation in a light most
favorable to the trial court's findings and substitute
our own judgment only if the evidence is so deficient as to
render the court's action an abuse of discretion."
State v. Maestas, 2000 UT App 22, ¶ 12, 997
P.2d 314. Because Rogers did not preserve the issues he seeks
to raise on appeal, he claims that the district court
committed plain error. "To demonstrate plain error, a
defendant has the burden of showing (i) an error exists; (ii)
the error should have been obvious to the trial court; and
(iii) the error is harmful." State v. Smit,
2004 UT App 222, ¶ 28, 95 P.3d 1203 (citation and
internal quotation marks omitted). Alternatively, Rogers
claims that his trial counsel was ineffective in representing
him in the probation revocation proceedings. To prove
ineffective assistance of counsel, a defendant must show that
counsel's performance was objectively deficient and that
a reasonable probability exists that but for the deficient
conduct, defendant would have obtained a more favorable
outcome. See State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
On February 24, 2016, the district court sentenced Rogers on
convictions for assault against a police officer, a class A
misdemeanor, and lewdness, a class B misdemeanor. A
presentence investigation report (PSI) recommended that
Rogers serve 120 days in jail followed by probation to be
supervised by Adult Probation & Parole (AP&P).
Rogers's trial counsel acknowledged that Rogers had a
history of drug use, a very poor supervision history, and
multiple arrests since being placed on probation in previous
cases. The PSI recommended that Rogers "may be released
early" upon his enrollment in a residential drug
treatment program. At sentencing, trial counsel stated that
Rogers's family had identified an out-of-state
residential drug treatment program that would accept him.
Rogers's trial counsel requested that Rogers be allowed
to serve the jail sentence in this case concurrently with his
sentence in an unrelated Utah County case, then be placed on
probation and released to the out-of-state residential drug
treatment program. The prosecutor did not oppose drug
treatment, but he noted that Rogers would need to qualify
under the interstate compact guidelines in order to leave
Utah for treatment.
At the original sentencing, the district court noted
Rogers's criminal and arrest record and stated that he
required either drug treatment or jail time. The court
observed that it was uncertain whether Rogers could be
transferred to another state under an interstate compact. The
court stated that AP&P would "have to decide . . .
whether he can be transferred and . . . whether this is the
program that they think is going to be appropriate." The
district court left the choice of any treatment program to
AP&P. The district court then sentenced Rogers to jail
terms of 365 days on the class A misdemeanor and 180 days on
the class B misdemeanor, suspended all but 120 days, and
placed Rogers on probation to be supervised by AP&P for
twenty-four months. The written judgment and sentence recited
that Rogers's family wanted him to be transferred to West
Virginia to enroll in a residential treatment program and
that AP&P "will determine if this program is
appropriate and if the defendant is eligible for transfer
under the interstate compact." The written judgment
further stated, "At the discretion of Adult Probation
and Parole, the defendant may be released early if enrolled
in a residential treatment facility." Rogers was not
released early to a drug treatment program.
In May 2016, AP&P filed an order to show cause, supported
by an affidavit alleging that Rogers violated his probation
by committing the following two criminal offenses in Salt
Lake County while on probation: aggravated assault, a third
degree felony, and criminal trespass, a class B misdemeanor.
AP&P prepared a Progress/Violation Report (PVR), dated
May 12, 2016, which stated that while a typical
recommendation would be to continue probation with a jail
sanction of zero to ninety days, AP&P's
recommendation deviated from the matrix "based on his
alleged commission of felony person crimes while being
supervised and multiple new law violations since his
probation began." AP&P recommended that Rogers's
probation should be terminated and that he should serve 180
days in jail.
Rogers initially denied the allegations of the order to show
cause and supporting affidavit. The district court continued
proceedings on the order to show cause pending resolution of
Rogers's Salt Lake County charges. On July 20, 2016,
Rogers admitted that he violated his probation by being
convicted of attempted aggravated assault, a class A
misdemeanor, in the Salt Lake County case. Based on the
admission to the probation violation, the State was not
required to present proof of the violation. The district
court set the case for consideration of the probation
violation and requested an updated report from AP&P.
At the time of the August 10, 2016 hearing, the district
court had not received an updated report from AP&P.
Rogers's trial counsel advised the court that although he
had not received an updated report, he spoke with an AP&P
agent, who stated that the sentencing recommendation made in
the May 12, 2016 PVR remained AP&P's
recommendation. The prosecutor also confirmed that he
received the same information when he contacted AP&P.
After the district court was apprised of the fact that the
May 12, 2016 PVR contained a sentencing recommendation, the
court proceeded. Noting that Rogers had roughly ninety days
left to serve on the original sentence, his trial counsel
requested "that the court follow the 180-day
recommendation of AP&P with credit for time served."
However, the prosecutor argued that probation should be
terminated and that the original sentence should be served.
The district court reviewed Rogers's history while on
probation in this and other cases and his commission of an
assault while on probation. The district court terminated
probation, reinstated the original sentence of 365 days in
jail on the class A misdemeanor and 180 days on the class B
misdemeanor, to run concurrently, with credit for time
Rogers claims on appeal that the district court plainly erred
by reinstating the original sentence without an updated PVR,
by not making a finding that the violation was willful, and
by not considering that the original sentence "required
AP&P to find [a] suitable inpatient treatment."
Alternatively, he claims that his trial counsel was
ineffective in failing to raise those issues. Rogers claims
that his release from jail without receiving treatment caused
him to violate probation by committing a new offense. Rogers
also claims that he was denied due process because he
believes a new PVR would have demonstrated that AP&P was
ordered to find a drug treatment program for him.
"Probation may not be revoked except upon a hearing in
court and a finding that the conditions of probation have
been violated." Utah Code Ann. § 77-18-1(12)(a)(ii)
(LexisNexis Supp. 2016). "At the hearing, the defendant
shall admit or deny the allegations of the affidavit."
Id. § 77-18-1(12)(d)(i). "If a
defendant denies the allegations of the affidavit, the
State shall present evidence on the allegations, "
id. § 77-18-1(12)(d)(ii) (emphasis added), and
then the defendant may call witnesses, appear, and present
evidence, see id. § 77-18-1(12)(d)(iv). Rogers
denied the allegations of the original affidavit; however, he
later admitted an amended allegation that he violated his
probation by being convicted of attempted aggravated assault.
Rogers did not preserve the claim that the district court was
required to ...