State v. Wellington

2015 UT App 12
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ANDRE WILLIAM WELLINGTON,
Defendant and Appellant.

Memorandum Decision
No. 20130107-CA
Filed January 23, 2015

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111906945

Debra M. Nelson and Nisa J. Sisneros, Attorneys
for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

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

CHRISTIANSEN, Judge:

¶1 Defendant Andre William Wellington appeals from the
revocation of his probation and the imposition of a previously
suspended sentence. We affirm.

¶2 On January 9, 2012, Defendant pled guilty to one count of
driving under the influence of alcohol (DUI), a third degree felony.
The district court sentenced Defendant to an indeterminate prison
term not to exceed five years. The court then suspended the prison
sentence, placed Defendant on probation for thirty-six months, and
State v. Wellington

ordered that he serve 240 days in jail as a condition of his
probation. The court ordered Defendant to comply with numerous
other probation conditions, including a requirement that he violate
no laws.

¶3 Defendant was released from jail on May 7, 2012, after
serving about four months of his jail term. On July 23, 2012, Adult
Probation and Parole (AP&P) filed a probation-violation report
with the court alleging that Defendant had violated several of his
probation conditions. AP&P recommended that Defendant’s
probation be revoked and that he be sent to prison. At an August
20, 2012 order-to-show-cause (OSC) hearing, Defendant admitted
that he had violated his probation in several ways. However,
neither Defendant nor the State informed the court that Defendant
had also been arrested on July 21, 2012, for other criminal conduct
not included in the July 23 probation-violation report. Based on the
admitted probation violations, the court found that Defendant had
willfully violated the conditions of his probation. Defense counsel
asked the court to give Defendant “one more shot at probation,”
and the court agreed to do so. Instead of revoking his probation,
the court modified some of Defendant’s probation conditions and
told Defendant, “I’ll give you one more chance. I’ll . . . place you on
probation for three years beginning today.” Like the initial
probation conditions, Defendant’s modified conditions required
that he violate no laws.

¶4 On August 17, 2012, the State charged Defendant with the
offenses he allegedly committed on July 21 and had not been
discussed at the August OSC hearing. On August 28, 2012,
Defendant appeared before a different judge and pled guilty to one
count of attempted theft by receiving stolen property, a third
degree felony. At the same time, AP&P filed another probation-
violation report in the original DUI case alleging that Defendant
had again violated the terms of his probation as a result of his July
21 criminal conduct. Based upon the probation-violation
allegations, the district court in the original DUI case scheduled an
OSC hearing for December 3, 2012.

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State v. Wellington

¶5 During the December OSC hearing, Defendant admitted to
violating his probation in two respects: (1) committing attempted
theft by receiving a stolen vehicle on July 21, 2012, for which he
was convicted, and (2) associating with a known criminal in a
manner reasonably likely to result in criminal activity, also
occurring on July 21, 2012. After Defendant admitted to violating
his probation, defense counsel reminded the district court that
those violations occurred before Defendant appeared at the August
OSC hearing. The court, despite acknowledging that the probation
violations occurred before the August OSC hearing, found that the
violations were willful and therefore revoked Defendant’s
probation and reimposed his suspended prison sentence.
Defendant appeals.

¶6 Generally, “[w]e review a trial court’s decision to revoke
probation for an abuse of discretion.” State v. Legg, 2014 UT App 80,
¶ 7, 324 P.3d 656. Defendant argues that the district court abused
its discretion by basing its probation-revocation decision on its
finding that Defendant willfully violated his probation. Defendant
concedes that he did not adequately preserve this claim for
appellate review; he therefore raises it under the doctrine of plain
error. To prevail on a claim based on plain error, Defendant must
satisfy three elements: “First, he must establish that an error did in
fact occur. Second, he must establish that the error should have
been obvious to the trial court. Third, [he] must establish that the
error was harmful . . . .” State v. Candland, 2013 UT 55, ¶ 22, 309
P.3d 230 (citation and internal quotation marks omitted). To
establish the first and second elements of the plain-error test—i.e.,
that the district court committed an obvious error—Defendant
argues that insufficient evidence supports the district court’s
finding of a willful probation violation.

¶7 “[I]n order for 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.” State v. Maestas, 2000
UT App 22, ¶ 24, 997 P.2d 314 (citation and internal quotation
marks omitted). A probation violation is willful if “the probationer

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State v. Wellington

did not make bona fide efforts to meet the conditions of his
probation.” Id. (citation and internal quotation marks omitted).
Additionally, a “trial court’s finding of a probation violation is a
factual [finding] and therefore must be given deference on appeal
unless the finding is clearly erroneous.” State v. Johnson, 2012 UT
App 118, ¶ 2, 276 P.3d 1254 (citation and internal quotation marks
omitted). To the extent our analysis requires the interpretation of
the Utah Code sections governing probation, we observe that
“[o]ur primary goal in construing statutory language is to give
effect to the true intent and purpose of the Legislature, and the best
tool for doing so is generally the plain language of the statute
itself.” State v. Houston, 2011 UT App 350, ¶ 12, 263 P.3d 1226
(citation and internal quotation marks omitted).

¶8 In arguing that the district court erred by finding that he
engaged in willful conduct, Defendant essentially asserts that the
time that he spent on probation is divided into two segments, each
representing a separate probation term. The first segment spanned
from January 9, 2012, the date on which the court initially placed
Defendant on probation after his DUI conviction, until August 20,
2012, the date on which the court placed Defendant on probation
for an additional thirty-six months and modified his probation
conditions. The second segment spanned from August 20, 2012,
until December 3, 2012, the date on which the district court found
that Defendant had willfully violated his probation, revoked
Defendant’s probation, and reimposed his prison sentence. Under
these circumstances, Defendant argues that because the July 21
criminal conduct occurred before August 20, it was improper for
the district court to consider that criminal conduct in revoking
Defendant’s then-current probation term. And because the court’s
willful-violation finding stemmed from Defendant’s admission to
having committed the July 21 criminal conduct, and not from any
other offense, Defendant asserts that no evidence supported the
court’s finding of a violation of the probation term that began on
August 20.

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State v. Wellington

¶9 Defendant’s argument about two separate probationary
terms, though creative, is inconsistent with both the record before
us and the relevant law. The timeline of events in this case, together
with the plain language of the statutes governing probation,
indicate that Defendant was subject to a single probation term from
the point his prison sentence was suspended and he was initially
placed on probation on January 9, 2012, until that probation was
revoked and he was sentenced to prison on December 3, 2012. A
defendant remains on probation until his probation is terminated
“at the discretion of the court or upon completion without violation
of 36 months probation.” Utah Code Ann. § 77-18-1(10)(a)(i)
(LexisNexis Supp. 2011). As of August 20, 2012, the date on which
Defendant asserts that his first probation terminated and his
second, separate probationary term began, Defendant had not
completed thirty-six months of probation without violation. Nor
did the district court manifest any intent to terminate Defendant’s
probation at the August 20, 2012 OSC hearing. Instead, the court
elected to renew Defendant’s probation for thirty-six months from
that day, as was within its discretion after determining that
Defendant had willfully violated his probation. Indeed, “[u]pon 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.” Id.
§ 77-18-1(12)(e)(ii). By effectively ordering probation for three years
as of August 20, 2012, the court did not terminate a prior term of
Defendant’s probation in order to start a new, separate term;
rather, the court’s order operated as a modification or renewal of
Defendant’s already-existing probation term.

¶10 Moreover, the relevant Utah Code sections did not in any
way prohibit the district court from considering any potential
probation violations that occurred within that entire single
probation term. At no point did the court modify or remove the
condition of Defendant’s probation that he not violate any laws. By
admitting to the July 21 criminal conduct as alleged in AP&P’s
probation-violation report, Defendant conceded facts sufficient to
support a finding that he had failed to “make bona fide efforts to

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State v. Wellington

meet the conditions of his probation.” See Maestas, 2000 UT App 22,
¶ 24 (citation and internal quotation marks omitted). Therefore, the
district court’s finding that Defendant had willfully violated his
probation was not clearly erroneous. See Johnson, 2012 UT App 118,
¶ 2.

¶11 Because we conclude that the district court properly
determined that Defendant willfully violated the conditions of his
probation, Defendant has not established that the district court
committed an error below. See State v. Candland, 2013 UT 55, ¶ 22,
309 P.3d 230 (“To prevail under plain error review, a defendant
must demonstrate . . . that an error did in fact occur.” (citation and
internal quotation marks omitted)). Accordingly, the district court
did not commit plain error.

¶12 Affirmed.1

1. We appreciate Defendant’s concern that a probationer’s due-
process rights may be implicated in a case like this. Although the
statutes governing probation do not facially prohibit dealing with
alleged probation violations on a piecemeal basis, there seems to be
a legitimate question whether some constraint should exist on the
State’s ability to bring successive claims of probation violation. This
is particularly true where, as here, a successive violation is claimed
for criminal conduct that occurred before an OSC hearing and
which was known to the State and the defendant, but was not
brought to the district court’s attention at that hearing and as a
consequence not addressed at that time. However, after requesting
supplemental briefing from the parties on this issue, we remain
unpersuaded that due process requires any additional procedural
protections beyond those already afforded to a probationer in an
OSC hearing. Notwithstanding this conclusion, we commend the
parties for their thorough briefing on this issue.

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