State v. Hoffman

2017 UT App 173

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOHN LEVI HOFFMAN,
Appellant.

Opinion
No. 20150719-CA
Filed September 8, 2017

Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 111401279

Dustin M. Parmley, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.

POHLMAN, Judge:

¶1 John Levi Hoffman appeals the district court’s revocation
of his probation and reinstatement of his prison sentence. We
affirm.

BACKGROUND

¶2 In August 2011, Hoffman pleaded guilty to twenty counts
of sexual exploitation of a minor, all second degree felonies. The
district court sentenced him to one to fifteen years in prison on
each count. It then suspended the sentence and placed Hoffman
on probation for thirty-six months.
State v. Hoffman

¶3 The conditions of Hoffman’s probation required, among
other things, that Hoffman “[e]nter into, participate in and
successfully complete sex offender therapy as determined by the
treating facility, therapists and the Utah Department of
Corrections.” In July 2014, Adult Probation and Parole (AP&P)
filed a Progress/Violation Report with the district court,
reporting Hoffman’s “[f]ailure to complete probation in the
standard allotted time frame.” AP&P stated that Hoffman had
“made slow but steady progress,” that he was on track to
“complete his financial obligation within the next few months,”
that he “reports regularly,” and that “field visits to his residence
have found nothing of note.” However, with his “progress in sex
offender treatment coming at a slower pace,” AP&P concluded
that he would “need additional time to successfully complete
that program” and recommended that his probation be extended
for an additional thirty-six months. The district court approved
the request.

¶4 Nine months later, in April 2015, AP&P filed a second
Progress/Violation Report in which it indicated that Hoffman
had been “unsuccessfully discharged” from sex offender
treatment through the Intermountain Specialized Abuse
Treatment Center (ISAT) under the following circumstances:

In September 2014, while disclosing and
preparing for a polygraph examination, Mr.
Hoffman admitted that he had been viewing
pornography beginning in October 2013 through
July 2014, also that he had been at his brother’s
residence (more than a dozen times) with no
consideration for Mr. Hoffman’s nieces and
nephews being present and that Mr. Hoffman had
been to parks, trails and church without approved
supervisors. Due to the violations of treatment and
probation, Mr. Hoffman . . . was placed on a zero
tolerance stipulation with treatment at ISAT. Mr.
Hoffman continued with treatment.

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State v. Hoffman

On April 8, 2015, information was received
from ISAT that Mr. Hoffman continued to be
“combative and defensive during treatment,” that
he admitted he had been attending [Utah Valley
University] dances and fondling women’s breasts
and buttocks, Mr. Hoffman had failed his recent
polygraph test, admitted he had continued to look
at pornography and had violated the terms of his
zero tolerance contract with ISAT. Thus, Mr.
Hoffman was unsuccessfully discharged from
treatment.

AP&P requested that the district court hold an order to show
cause hearing to determine whether Hoffman had violated the
terms of probation and recommended, should Hoffman be
found in violation, that his probation be terminated as
unsuccessful and his prison sentence be reinstated.

¶5 At the request of Hoffman’s attorney, the district court
ordered that Hoffman undergo a competency evaluation.
Although the evaluators observed that Hoffman suffered from
cognitive impairments, they opined that he was competent. The
district court found Hoffman competent to proceed and
scheduled the order to show cause hearing.

¶6 At the hearing, Hoffman requested that the court take
judicial notice of the competency evaluations, which indicated
that Hoffman had a history of depression and anxiety, that his
IQ “fell within the Borderline Range of Intellectual Functioning,”
and that he had required “special ed/resource classes” in school.
(Emphasis omitted.) He was diagnosed with a learning disability
and a possible mood disorder. Hoffman’s father confirmed that
Hoffman was held back in school several times, evaluated as
“learning disabled,” “had to attend special classes,” and
struggled to complete school assignments. While the reports
recognized Hoffman’s mental limitations, they also indicated
that Hoffman was “defensive” and “malingering”—“exhibiting

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State v. Hoffman

false or exaggerated physical or psychological symptoms
relevant to the capacity to stand trial.” (Emphasis and internal
quotation marks omitted.)

¶7 Hoffman argued that his cognitive difficulties prevented
him from successfully completing sex offender treatment and
that his violation was therefore not willful. The district court
rejected these arguments and found that Hoffman willfully
violated his probation by failing to successfully complete his sex
offender treatment. The court determined that “[t]he findings
and analysis contained in the competency reports do not support
a conclusion that Mr. Hoffman could not successfully complete
probation,” explaining that “Mr. Hoffman’s learning disability
does not explain [his] resistance to participating in group
therapy to the extent that other participants complained” and
that “Mr. Hoffman’s learning challenges do not significant[ly]
mitigate the fact that he relapsed repeatedly in using the internet
inappropriately, specifically looking at pornography for a period
of months.” Despite finding a probation violation, the court
declined to immediately assess sanctions and instead gave
Hoffman the opportunity to seek an adequate alternative
treatment program before the court decided whether to send
him to prison.

¶8 At the later sanctions hearing, Hoffman presented letters
from four potential treatment providers. All the proposed
programs involved outpatient sex offender treatment. Without a
viable inpatient treatment option and given that Hoffman had
been unsuccessful at addressing his issues in outpatient therapy
after several years, the district court determined that “the best
way forward is for Mr. Hoffman to be committed to the Utah
State Prison.” The district court therefore terminated Hoffman’s
probation and reinstated his original prison sentence, with the
sentences to run concurrently with one another. Hoffman
appeals.

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State v. Hoffman

ISSUES AND STANDARDS OF REVIEW

¶9 Hoffman challenges the district court’s willfulness finding
and its decision to reinstate his prison sentence. “The district
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. Meronk, 2016 UT App 27, ¶ 12, 367
P.3d 1045 (citation and internal quotation marks omitted). “We
review the district court’s ultimate decision to revoke probation
for abuse of discretion.” Id. (citation and internal quotation
marks omitted).

ANALYSIS

I. The District Court Did Not Err in Finding That Hoffman’s
Violation Was Willful.

¶10 Hoffman first argues that the district court erred in
determining that his failure to complete sex offender treatment
was willful. To revoke probation, the district court must find, by
a preponderance of the evidence, that the probationer willfully
violated the probation agreement. See State v. Snyder, 2015 UT
App 172, ¶ 7, 355 P.3d 246. “[A] finding of willfulness merely
requires a finding that the probationer did not make bona fide
efforts to meet the conditions of his probation.” Id. (alteration in
original) (citation and internal quotation marks omitted).

¶11 Hoffman asserts that his violation was not willful because
his mental deficiencies prevented him from successfully
completing his sex offender treatment. In support of his
argument, Hoffman relies on State v. Hodges, 798 P.2d 270 (Utah
Ct. App. 1990), in which this court reversed a district court’s
decision to revoke probation due to inadequate findings
regarding whether the probationer’s failure to complete sex
offender treatment was willful. See id. at 279. But Hodges does not
stand for the proposition that a mental deficiency necessarily
precludes a finding of willfulness. Indeed, the evidence in

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State v. Hoffman

Hodges suggested “several possible causes” for the probationer’s
slow progress, including “long-standing mental problems,
physical problems, medications, manipulative behavior, and
inconsistent motivation.” Id. at 272, 274. While “some of these
problems raised questions of [the probationer’s] ability rather
than willfulness . . . , the manipulativeness and motivation
problems were apparently regarded [by psychologists in his
treatment program] as subject to his control.” Id. at 274–75. This
court explained that if the probationer’s “inadequate progress
was caused by non-genuine, token participation in the [therapy]
program, he has willfully violated the requirement that he
participate in treatment,” id. at 277, and that had the district
court, “based on sufficient evidence, specifically found that [the
probationer’s] slow progress . . . was due to willfully inadequate
participation in his treatment, it would have had discretion to
revoke his probation,” id. at 275. But because the district court
failed to make such a finding on the record, and the record
revealed evidence that could support a finding that the
violations were not within the probationer’s control, this court
remanded for additional findings. See id.

¶12 We are not faced with such a situation here. The district
court made the following findings:

The findings and analysis contained in the
competency reports do not support a conclusion
that Mr. Hoffman could not successfully complete
probation. In fact, the ISAT therapist testified that
when Mr. Hoffman exerted himself he could
complete assignments. The therapist also indicated
that ISAT individualizes treatment and did make
accommodation for Mr. Hoffman’s learning
disability.

Mr. Hoffman’s learning disability does not
explain Mr. Hoffman’s resistance to participating
in group therapy to the extent that other

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State v. Hoffman

participants complained. Mr. Hoffman’s learning
challenges do not significantly mitigate the
fact that he relapsed repeatedly in using the
internet inappropriately, specifically looking at
pornography for a period of months. Mr. Hoffman
offered no excuse or misunderstanding when
confronted by ISAT’s testimony that Mr. Hoffman
watch[ed] films containing nudity to which he
masturbated.

In total this Court determines by a
preponderance of the evidence that Mr. Hoffman
has willfully violated his probation by failing to
complete his sex offender treatment.

These findings are supported by the record. An ISAT therapist
testified that after his lapse, Hoffman “became treatment
resistant,” making comments such as “‘I can’t learn anything else
from ISAT’” and “‘I shouldn’t have to deserve any
consequences.’” He also became “defensive” and “closed off to
feedback” during group treatment. However, the therapist
indicated that he was “able to complete assignments” when he
“put forth the effort.” Further, the record indicates that although
Hoffman had a low IQ and struggled to complete school
assignments, he was able to complete college courses with
assistance. The competency evaluators had only “mild” and “not
significant” concerns about his ability to participate in and
comprehend the legal proceedings, and one of the evaluators
opined that Hoffman was “malingering”—attempting to
exaggerate his symptoms. (Emphasis omitted.)

¶13 This evidence was sufficient for the district court to
conclude, by a preponderance of the evidence, that Hoffman
failed to make bona fide efforts to successfully complete his sex
offender treatment, see Snyder, 2015 UT App 172, ¶ 7, and that
the failure was within his control, see Hodges, 798 P.2d at 275,
277. Thus, the court did not clearly err in finding that Hoffman’s

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State v. Hoffman

probation violation was willful. See State v. Meronk, 2016 UT App
27, ¶ 12, 367 P.3d 1045.

II. The District Court Did Not Exceed Its Discretion by Revoking
Hoffman’s Probation.

¶14 Hoffman next argues that the district court exceeded its
discretion by revoking his probation and reinstating his prison
sentence rather than permitting him to enroll in a new treatment
program. Although Hoffman acknowledges that prison was a
sanction within the district court’s discretion, he argues that
once the district court had expressed its preference for treatment
over prison and had given Hoffman an opportunity to find
alternative providers, it was an abuse of the district court’s
discretion to reject Hoffman’s proposed treatment options.

¶15 “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). “If probation is revoked, the defendant
shall be sentenced or the sentence previously imposed shall be
executed.” Id. § 77-18-1(12)(e)(iii).1 Although courts are
encouraged to consider possible alternatives to imprisonment
before revoking probation, the ultimate choice of sanction falls
within the district court’s discretion. See Black v. Romano, 471 U.S.
606, 613 (1985). “[D]ue process does not require a reviewing
court to second-guess the factfinder’s discretionary decision as to

1. This provision was amended effective October 1, 2015, after
the district court’s order was issued. See Act of Mar. 31, 2015, ch.
412, §§ 205, 211, 2015 Utah Laws 2254, 2351, 2356 (codified as
amended at Utah Code Ann. § 77-18-1 (LexisNexis Supp. 2016)).
We therefore rely on the version of this provision in effect at the
time Hoffman’s probation was revoked and his sentence was
reinstated.

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State v. Hoffman

the appropriate sanction,” and the factfinder need not “elaborate
upon the reasons for a course not taken.” Id. Due process is
satisfied where the probationer has “an opportunity to present
mitigating evidence and to argue that alternatives to
imprisonment are appropriate” and “the factfinder state[s] the
reason for its decision and the evidence relied upon.” Id. at 614.

¶16 Here, Hoffman was given the opportunity to argue for an
alternative sanction and was even permitted time to seek
alternative treatment programs that could provide appropriate
counseling. Although Hoffman found several outpatient options,
one of which was more intensive than his previous program, the
district court ultimately found that “where years of probation
and treatment have not brought Mr. Hoffman to a state where
[the] Court has any confidence that he will not recidivate, and
where the potential for innocent children to be abused (directly
or indirectly [through] viewing child pornography) is so great,”
anything short of a “semi-secure treatment environment” would
be inadequate to allow Hoffman to “address his issues” while
also protecting the community. The fact that the district court
had previously indicated a preference for treatment over prison
and had not explicitly excluded outpatient treatment as an
option did not preclude it from finally determining that nothing
short of inpatient treatment would provide an adequate
alternative to prison. Thus, the district court did not exceed its
discretion in revoking Hoffman’s probation and reinstating his
prison sentence. See Meronk, 2016 UT App 27, ¶ 12.

CONCLUSION

¶17 The district court did not clearly err in finding that
Hoffman willfully violated his probation. Likewise, it was within
the court’s discretion to revoke Hoffman’s probation and
reinstate his prison sentence. Accordingly, we affirm.

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