State v. Morgan

2023 UT App 119

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KYLE OMAR MORGAN,
Appellant.

Per Curiam Opinion
No. 20230251-CA
Filed October 5, 2023

Seventh District Court, Morgan Department
The Honorable Don Torgerson
No. 221700064

Dylan Carlson, Benjamin Miller, and Debra M.
Nelson, Attorneys for Appellant
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee

Before JUDGES RYAN M. HARRIS, RYAN D. TENNEY,
and JOHN D. LUTHY.

PER CURIAM:

¶1 Kyle Omar Morgan appeals the district court’s decision to
revoke his probation. He asserts that the district court plainly
erred by failing to consider mitigating evidence and that he
received ineffective assistance of counsel because his counsel
failed to present the mitigating evidence to the district court.
Because the State did not respond to Morgan’s memorandum, he
need only “establish a prima facia showing of a plausible basis for
reversal.” AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42,
¶ 19, 496 P.3d 76. Because Morgan has established a plausible
basis for us to conclude that he received ineffective assistance of
counsel, we reverse the district court’s decision and remand for a
new hearing.
State v. Morgan

¶2 Morgan pleaded guilty to stalking (domestic violence),
criminal mischief, and possession of drug paraphernalia. He was
sentenced to two 364-day jail terms and one six-month jail term,
all to run concurrently, and ordered to pay $2,853.09 in restitution
in increments of $50 per month. The court suspended the jail
sentences and placed Morgan on probation for twenty-four
months.

¶3 Morgan struggled on probation and was sanctioned
several times for violating his probation by using drugs and
alcohol, associating with known criminals, and frequenting bars
and liquor stores, but his probation was never revoked. Finally,
about nine months into his probation, the court issued an order to
show cause why Morgan’s probation should not be revoked
based on his various ongoing violations. Adult Probation and
Parole (AP&P) prepared a report outlining the violations and
labeling Morgan as an “intensive risk.” The report also indicated
that Morgan was homeless and had only recently become
employed, that he had paid $100 toward restitution, and that he
had “made some effort in getting his Mental Health and
Substance Abuse assessment completed” and had “attended
treatment four times at the Moab Recovery Center.”

¶4 At the order to show cause hearing, Morgan admitted to all
but one of the violations and asked the court to revoke and
reinstate his probation.

¶5 The State expressed its opinion that Morgan’s “interactions
and all his violations” indicated he was “not very amenable to
probation.” But the State was also “torn” in its recommendation
on whether Morgan’s probation should be reinstated because it
felt that Morgan needed help to prevent him from drinking. The
State suggested that the court might consider revoking and
reinstating probation, having Morgan serve 120 days in jail, and
then putting him on an alcohol ankle monitor for another 90 or
120 days to hold him accountable for drinking.

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State v. Morgan

¶6 Morgan’s counsel (Counsel) indicated that an ankle
monitor would be an appropriate solution. He informed the court
that Morgan finally had a job lined up and that he had
experienced financial and other stresses during the holiday
season, which had led him to relapse. Counsel argued that
Morgan should be given a second opportunity to comply with
probation conditions. However, Counsel did not discuss the
efforts Morgan had made to complete his assessment and
participate in treatment.

¶7 The court found that Morgan was in violation of his
probation. It also noted that Morgan’s “relapse” had involved
periods outside the “holiday season,” beginning in September
and continuing through February. The court observed that AP&P
had labeled Morgan an intensive risk and that Morgan did not
appear to be making “any effort whatsoever not to be drinking, not
to be associating with known criminals and not to be affiliated
with drug use.” (Emphasis added.) Although the court
recognized that a year in jail would not get Morgan the treatment
he needed, the court was also “not persuaded” that Morgan
would engage in additional treatment on probation, based on his
history.

¶8 Morgan asserts that the district court committed plain
error by failing to consider mitigating factors and that he received
ineffective assistance of counsel because Counsel failed to present
mitigating evidence to the court. Specifically, he asserts that the
court’s ruling would have been different had it appropriately
considered his efforts to participate in the mental health and
substance abuse assessment, to attend treatment on four
occasions, and to pay $100 in restitution despite being homeless
and unemployed. On appeal, we find it necessary to address only
Morgan’s ineffective assistance of counsel argument.

¶9 To prevail on grounds of ineffective assistance, a defendant
must demonstrate, first, “that counsel’s performance was

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State v. Morgan

deficient, in that it fell below an objective standard of reasonable
professional judgment,” and, second, “that counsel’s deficient
performance was prejudicial—i.e., that it affected the outcome of
the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
However, because the State did not file a memorandum in this
case, Morgan’s appellate burden of persuasion is lower than
usual: in this situation, he need only “establish a prima facie
showing of a plausible basis for reversal.” AL-IN Partners, LLC v.
LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation
simplified); see also Zions Bancorporation, NA v. Schwab, 2023 UT
App 105, ¶ 15. Employing this standard, we conclude that Morgan
has established a prima facia showing of a plausible basis that he
received ineffective assistance of counsel.

¶10 A major focus of the probation revocation hearing was on
whether reinstating Morgan’s probation would allow him to
receive treatment and overcome his problems with alcohol and
drugs. The State was “torn” on its recommendation because,
despite Morgan’s violations, it believed a program of ankle
monitoring and drug testing was more likely to help Morgan
become sober than going to jail. Thus, Morgan’s best argument
was that he was, in fact, amenable to supervision and willing to
take steps to become sober. The strongest evidence available in
support of that argument was the fact that he had already made
efforts toward completing his mental health and substance abuse
assessment and that he had attended treatment on four occasions,
and there was no apparent strategic reason for Counsel not to
bring that up. Given the importance of that evidence, Morgan
thus argues that a reasonable attorney would have highlighted it
at the hearing; based on the limited briefing before us, we agree.
Because Counsel did not do so, Morgan has made a prima facia
showing of a plausible basis that Counsel performed deficiently.

¶11 As for prejudice, the court’s explanation of its ruling
suggests it is at least plausible that Morgan was prejudiced by
Counsel’s failure to highlight the mitigating evidence. The court

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State v. Morgan

found that Morgan did not “appear” to have made “any effort
whatsoever not to be drinking, not to be associating with known
criminals and not to be affiliated with drug use.” This suggests
that the court did not take into account the efforts Morgan had
already made to participate in drug treatment. Given the State’s
position, it is plausible that the court would have reinstated
Morgan’s probation had Counsel brought to the court’s attention
evidence that Morgan had made some efforts toward getting
treatment.

¶12 Because we conclude that Morgan has satisfied the lower
burden at issue in this appeal, we reverse on that basis alone and
remand for a new probation revocation hearing.

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