State v. Pantelakis

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 113
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ANNBROSIA V. PANTELAKIS,
Defendant and Appellant.
Memorandum Decision
No. 20130222-CA
Filed May 22, 2014
Third District Court, West Jordan Department
The Honorable Terry L. Christiansen
No. 111400718
Heather J. Chesnut and Nathalie S. Skibine,
Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and MICHELE M.
CHRISTIANSEN concurred.1
BENCH, Senior Judge:
¶1 Annbrosia V. Pantelakis appeals the trial court’s termination
of her plea in abeyance agreement and entry of her guilty plea to
criminal nonsupport, a third-degree felony. See Utah Code Ann.
§ 76-7-201(1), (3) (LexisNexis 2012). We affirm.

State v. Pantelakis
20130222-CA 2 2014 UT App 113
¶2 Under the terms of the plea in abeyance agreement,
Pantelakis was required to, among other things, make monthly
payments toward her child support arrearage, make monthly
payments toward her restitution obligation, seek a full-time job,
and provide weekly reports to her plea in abeyance monitor
regarding her efforts to obtain employment. Over the course of
eight months following the plea in abeyance, Pantelakis made only
two child support payments, made no restitution payments, failed
to contact her plea in abeyance monitor, and applied for only one
job—which was unsuitable because it required a background check
that Pantelakis could not pass. Following an order to show cause
hearing, the trial court found that Pantelakis had violated the plea
in abeyance agreement “by not making the payments or by not at
least providing the monitor with the efforts that [she had] made to
secure employment.” In light of Pantelakis’s violations and her
failure to make “a reasonable effort” to support her children, the
trial court terminated the plea in abeyance agreement and entered
Pantelakis’s guilty plea.
¶3 Pantelakis first argues that we should incorporate the
willfulness standard for termination of probation articulated in
Bearden v. Georgia, 461 U.S. 660 (1983), into Utah’s statutory scheme
governing termination of plea in abeyance agreements. See Utah
Code Ann. § 77-2a-4 (LexisNexis 2012). Questions of statutory
interpretation are legal issues, which we review for correctness.
State v. Lusk, 2001 UT 102, ¶ 11, 37 P.3d 1103. “Whether a statutory
scheme conforms with state and federal constitutional provisions
is [also] a question of law.” State v. Lafferty, 2001 UT 19, ¶ 66, 20
P.3d 342.
¶4 “[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. Peterson, 869
P.2d 989, 991 (Utah Ct. App. 1994). However, “[a] plea in abeyance
is . . . analytically distinct from probation.” State v. Wimberly, 2013
UT App 160, ¶ 11, 305 P.3d 1072; see also State v. Turnbow, 2001 UT
App 59, ¶ 14, 21 P.3d 249 (“[A] plea in abeyance differs from

State v. Pantelakis
2. Because trial counsel discussed and the trial court weighed
Pantelakis’s efforts to make the payments and obtain employment
in determining whether to terminate the agreement, Pantelakis
argues that the trial court implicitly employed a willfulness
standard and that her constitutional argument was therefore
preserved. Pantelakis asserts that she “had no opportunity to argue
(continued...)
20130222-CA 3 2014 UT App 113
probation in both its statutory provisions and function. Thus, cases
decided under the probation statutes are not directly applicable to
pleas in abeyance.”). Unlike probation, a plea in abeyance is
negotiated and entered prior to a conviction. See Turnbow, 2001 UT
App 59, ¶ 17. Thus, this court has previously rejected the assertion
that the willfulness standard applicable to termination of probation
also applies in the plea in abeyance context, explaining that “[t]he
standard specified by the controlling [plea in abeyance] statute, and
uniformly applied by our case law, is substantial compliance.”
Wimberly, 2013 UT App 160, ¶ 13; see also Utah Code Ann. § 77-2a-
4(1) (“If, following 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.” (emphasis added)).
¶5 Pantelakis nevertheless attempts to raise a constitutional
challenge to the Utah Code’s substantial compliance standard. See
generally Bearden, 461 U.S. at 672–73 (holding that “the fundamental
fairness required by the Fourteenth Amendment” makes a finding
of willfulness necessary before probation may be revoked for
failure to pay a fine or restitution); Wimberly, 2013 UT App 160,
¶ 11 n.2 (“The willfulness requirement in probation revocation
cases is a judicial creation rather than a statutory one and is
necessary for the statute to comply with the Fourteenth
Amendment.”). This argument is not preserved, and we therefore
decline to address it. See generally State v. King, 2006 UT 3, ¶ 13, 1312

State v. Pantelakis
2. (...continued)
below ‘for the extension of Bearden’s reasoning to the substantial
compliance requirement in plea in abeyance cases,’” (quoting State
v. Wimberly, 2013 UT App 160, ¶ 11 n.2, 305 P.3d 1072), “because
the Bearden willfulness standard was assumed and accepted by all
parties.” As Pantelakis points out, however, “[n]either ‘willful’ nor
‘substantial compliance’ were mentioned by name during [her]
hearing,” and we do not think a discussion of her efforts was
inconsistent with a substantial compliance analysis. Thus, we are
not convinced that the trial court’s discussion of Pantelakis’s efforts
to comply with the plea in abeyance agreement demonstrates that
the court assumed the willfulness standard.
20130222-CA 4 2014 UT App 113
P.3d 202 (“We have consistently held that a defendant who fails to
preserve an objection at trial will not be able to raise that objection
on appeal unless he is able to demonstrate either plain error or
exceptional circumstances.”); Wimberly, 2013 UT App 160, ¶ 11 n.2
(“[W]e are resolute in our refusal to take up constitutional issues
which have not been properly preserved, framed and briefed . . . .”
(citation and internal quotation marks omitted)).
¶6 Pantelakis next asserts that the trial court erred in
terminating her plea in abeyance agreement. “We review a trial
court’s decision to terminate a plea in abeyance agreement for an
abuse of discretion.” Wimberly, 2013 UT App 160, ¶ 5. However,
Pantelakis does not attempt to argue that she substantially
complied with the terms of the plea in abeyance agreement; she
asserts only that her failure to substantially comply was not willful.
Therefore, in light of our determination that the Utah Code does
not require the trial court to make a finding of willfulness in order
to terminate a plea in abeyance agreement, we need not further
address her argument.
¶7 We reiterate that the statutory standard for termination of
a plea in abeyance agreement is substantial compliance. See id. ¶ 13.
Furthermore, Pantelakis did not preserve her argument that due

State v. Pantelakis
20130222-CA 5 2014 UT App 113
process requires that the Bearden willfulness standard be extended
to plea in abeyance agreements. Because we determine that
substantial compliance is the appropriate standard to apply, and
because Pantelakis makes no attempt to assert that she
substantially complied with the terms of the plea in abeyance
agreement, we determine that the trial court did not exceed its
discretion in terminating the agreement. Accordingly, we affirm.