State v. Brady

2013 UT App 102, 300 P.3d 778, 2013 WL 1771367, 2013 Utah App. LEXIS 102
CourtCourt of Appeals of Utah
DecidedApril 25, 2013
Docket20110901-CA
StatusPublished
Cited by6 cases

This text of 2013 UT App 102 (State v. Brady) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brady, 2013 UT App 102, 300 P.3d 778, 2013 WL 1771367, 2013 Utah App. LEXIS 102 (Utah Ct. App. 2013).

Opinions

Memorandum Decision

DAVIS, Judge:

{1 Hoyt Brady appeals from the trial court's ruling revoking his probation. We affirm.

12 After pleading guilty to one count of communications fraud and one count of racketeering, both second degree felonies, see Utah Code Ann. §§ 76-10-1608, -1801 (Lex-isNexis 2012), Brady was placed on probation for thirty-six months. The conditions of his probation included paying restitution of $479,123.18 to his victims. On June 14, 2011, nearly one year after Brady entered his guilty plea and was put on probation, the State filed a motion for an order to show cause, arguing that Brady violated the terms of his probation by failing to pay "anything toward his restitution amounts." The trial court granted the motion, and held a hearing on September 9, 2011.

T3 During the hearing, Brady admitted to violating his probation by failing to pay anything toward the restitution, but described his efforts to find a job and his overwhelming financial obligations in an effort to mitigate the impact of his violation. The trial court concluded that Brady's mitigating evidence failed to "show [that he had made] at least a good faith effort to address the restitution" and noted that there were "any number of things" he could have done to satisfy this requirement. Accordingly, the trial court revoked Brady's probation and reinstated his prison sentence. Brady appeals, arguing that the trial court abused its discretion by failing to consider his mitigating evidence, to explicitly find that his probation violation was willful, and to consider alternative means of punishment other than reinstating his prison sentence. Brady alternatively argues that the Order to Show Cause hearing did not comport with the minimum requirements of due process.

14 We review a trial court's decision to revoke probation for an abuse of discretion. State v. Orr, 2005 UT 92, ¶ 9, 127 [780]*780P.3d 1218. "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 2012). During a revocation proceeding, "[the defendant may call witnesses, appear and speak in the defendant's own behalf, and present evidence," as well as question witnesses presented by the prosecution. Id. § 77-18-1(12)(d)@ii)-(iv). "After the hearing the court shall make findings of fact," id. § T7i-18-1(12)(e)@), and if a violation is found, the trial 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). "[The requirement of willfulness in the context of probation revocation proceedings for failure to pay a court-ordered payment merely requires a finding that the probationer did not make bona fide efforts to meet the conditions of his probation." State v. Archuleta, 812 P.2d 80, 84 (Utah Ct.App.1991). If the trial court determines that a probationer's violation was not willful, the trial court is then required to "consider 'whether adequate alternative methods of punishing the defendant are available"" Orr, 2005 UT 92, ¶ 34, 127 P.3d 1213 (quoting Bearden v. Georgia, 461 U.S. 660, 669, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)).

I 5 Here, Brady spoke in his own behalf at the hearing to explain that he had been searching for a job for eight to nine hours a day for almost ten months, that his age and the slow housing market-to say nothing of his recent felony convictions-were negatively impacting his search for residential construction work, and that he remained unable to pay restitution after he secured a full-time job in June 2011 because 75% of his earnings were being garnished to pay child support and another restitution obligation. Brady mentioned that he could get a second job and that his brother could lend him $200 a month to pay his restitution in the meantime, though he did not explain why the loan-for-restitution option had not been implemented months earlier.

T6 The trial court acknowledged Brady's mitigating evidence, stating "that these are tough economic times," but was ultimately not convinced that Brady's efforts of the previous twelve months were sufficient "to show at least a good faith effort to address [his] restitution." Specifically, the trial court noted that Brady "could have done any number of 'other things to demonstrate some effort," including finding a second job even if it was just doing handyman work or odd jobs, which in Brady's cireumstance, seems a fair consideration inasmuch as Brady was doing handyman work before he was arrested and, according to a handwritten letter that he sent to the trial court, planned on returning to handyman work, if granted probation. But see Bearden, 461 U.S. at 673, 103 S.Ct. 2064 (rejecting the sentencing court's comments on the availability of odd jobs as evidence of willfulness where the sentencing court made no finding that the probationer had not made bona fide efforts to find work).

17 These comments by the trial court illustrate its implicit finding of willfulness. Brady argues that an explicit finding is mandatory. We disagree.1 Cf. Orr, 2005 UT 92, ¶ 37, 127 P.3d 1213 (applying the analytical framework used in probation revocation proceedings to a probation extension proceeding, and upholding the trial court's implicit finding of willfulness contained in its order); State v. Brooks, 2012 UT App 34, ¶ 15 & n. 5, 271 P.3d 831 (describing comments made by the trial court during sentencing as an "implicit finding of willful behavior" and acknowledging that this implicit finding was sufficient to satisfy the willfulness finding). Additionally, the trial court could have based a willfulness finding on Brady's comment that his brother was willing to make payments on his behalf while he looked for a second job; this comment implies that Brady could have already been [781]*781looking for a second job and already paying restitution with his brother's offered money. See Orr, 2005 UT 92, ¶ 34, 127 P.3d 1213 (categorizing a probationer's failure to make bona fide efforts to seek employment or borrow money as willful acts). Further, as the State pointed out at the hearing, Brady could have been paying token amounts-"cents"toward his restitution. See Archuleta, 812 P.2d at 85 (describing the failure to make token payments toward restitution as a willful violation of probation). Thus, the trial court's implicit determination that Brady's violation was willful was not an abuse of discretion, and because of this finding, the trial court was not required to consider alternative punishments before reinstating Brady's prison sentence.

18 Alternatively, Brady argues that the hearing did not comport with the minimum requirements of due process. Specifically, Brady argues that he was not afforded a full opportunity to be heard.2

19 "[PJrobation revocation proceedings, which are not criminal in nature and involve only a conditional liberty interest, are entitled only to the minimum requirements of due process." State v. Orr, 2005 UT 92, ¶ 12, 127 P.3d 1213 (footnote, citation, and internal quotation marks omitted); see also id. TT 11, 13-14 (recognizing that "[wlhat constitutes due process ...

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Bluebook (online)
2013 UT App 102, 300 P.3d 778, 2013 WL 1771367, 2013 Utah App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brady-utahctapp-2013.