State v. Love

2014 UT App 175, 332 P.3d 383, 765 Utah Adv. Rep. 29, 2014 WL 3683019, 2014 Utah App. LEXIS 180
CourtCourt of Appeals of Utah
DecidedJuly 25, 2014
DocketNo. 20130027-CA
StatusPublished
Cited by5 cases

This text of 2014 UT App 175 (State v. Love) 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. Love, 2014 UT App 175, 332 P.3d 383, 765 Utah Adv. Rep. 29, 2014 WL 3683019, 2014 Utah App. LEXIS 180 (Utah Ct. App. 2014).

Opinion

BILLINGS, Senior Judge:

11 Ceazar Cedric Love argues that the district court violated his due process rights by revoking his probation based on a violation of his probation terms that happened before he was actually on probation. Love essentially argues that the jail term he was serving when the violation occurred was not part of probation but that he was serving part of his suspended incarceration term. Love alternatively argues that the evidence was not sufficient to support a finding that he willfully violated the conditions of his probation as he did not understand he was on probation while serving time in jail. We affirm.

T2 On January 31, 2012, Love pleaded guilty to charges in two separate cases. On March 13, 2012, the district court sentenced Love to prison in both cases but also stayed the sentence in each case and ordered probation, which included a term of incarceration in the Iron County Jail. In June 2012, while he was in jail, Love spat at a correctional officer, which led to a charge of propelling a substance at a correctional officer. Love pleaded guilty to this offense as well. This subsequent charge led to the December 2012 revocation of Love's probationary status in the two original cases. Love argues that such revocation was in error because his probationary term had not yet commenced when he spat at the officer and the evidence was not sufficient to support revocation.

138 "Generally, in order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (citation and internal quotation marks omitted). The Utah Supreme Court has set forth three factors to use in assessing whether the trial court had such an opportunity: "(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (8) a party must introduce supporting evidence or relevant legal authority." Id. (citation and internal quotation marks omitted). "Where there is no clear or specific objection and the specific ground for objection is not clear from the context{,] the theory cannot be raised on appeal." State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (alteration in original) (citation and internal quotation marks omitted).

14 Although Love's counsel argued against the revocation of probation, he made no argument that Love had not yet technically been on probation. Love relies on select language in asserting that such an argument [385]*385was made. But when those statements are read in context, it appears that counsel's argument was simply a plea to give Love a chanee to try probation again:

Essentially the only thing that's really happened since the time that he was sentenced in this case is that he had this incident in the jail where he, he spat. He was sentenced on the-March 18 to both of those two felony matters. His release date would have been January of this, this coming year. He's, he's not been out on the streets. He's been in the jail.
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So essentially what we have here is we, we have poor behavior at the jail around that June time that-at least that we've got reports of. And we've got no time out on the streets to know really how he's gonna act or how he's gonna behave on probation.
These are his first felonies as an adult. And essentially he's not really been on a true probation where he's been out and been checking in and doing what he's required to do as a term of his probation. Essentially he had this incident at the jail, and he's being deemed a risk, and therefore let's send him to prison.
He's simply asking for the opportunity to be out on the probation. He, he did have this incident, but since then there's been zero incidents. He's asking your Honor to revoke and restart his probation to give him the opportunity on the outs to have his probation officer see his performance.
And if the Court wants to put him on an extremely tight leash, so be it. But essentially he has-he's not really been permitted to perform on probation other than his behavior at the jail. And for that he certainly is [regretful] of what, what happened.
So essentially that's what we're asking for is an opportunity to be on the outs and, and have his probation be supervised. Actually be supervised and actually be on the outs.

(Emphasis added.) Counsel made no mention of Love's due process rights, nor did he specifically state that probation had not yet commenced. Indeed, earlier in the hearing, the district court asked, "And [Love] was placed on probation, let's see, in-was it March?" and counsel replied in the affirmative. When considering the argument as a whole, there is simply no indication that counsel believed that probation had not yet commenced, let alone any argument advanced to raise that issue to the attention of the district court. Counsel was simply asking the district court to restart probation and give Love another chance to prove himself; counsel made no suggestion that the court would be violating Love's due process rights by choosing to revoke probation. Likewise, counsel made no reference to probation revocation being inappropriate due to a lack of evidence to show a willful violation. Thus, these arguments are not preserved for appellate review.

15 Love argues that even if his claims are not preserved we should nevertheless consider them.

When a party fails to preserve an issue for appeal, we will address the issue only if (1) the appellant establishes that the district court committed plain error, (2) exceptional cireumstances exist, or (3) in some situations, if the appellant raises a claim of ineffective assistance of counsel in failing to preserve the issue.

Low, 2008 UT 58, ¶ 19, 192 P.3d 867 (citation and internal quotation marks omitted).

16 Love argues that we may review his claims under the theories of plain error and ineffective assistance of counsel. "In general, to establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (1) An error exists; (i) the error should have been obvious to the trial court; and (iii) the error is harmful...." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). "To show ineffective assistance of counsel, a defendant must (i) identify specific acts or omissions by counsel that fall below the standard of reasonable professional assistance when considered at the time of the act or omission and under all the attendant cirenmstances, and (i) demonstrate that counsel's error preju[386]*386diced the defendant...." Id. at 1225 (citing Strickland v. Washington, 466 U.S. 668, 690-91, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

17 "To establish that the error should have been obvious to the trial court, [an appellant] must show that the law governing the error was clear at the time the alleged error was made." State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276. Similarly, "[clounsel cannot be faulted for failing to advance a novel legal theory which has never been accepted by the pertinent courts." Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1005 (2002).

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 175, 332 P.3d 383, 765 Utah Adv. Rep. 29, 2014 WL 3683019, 2014 Utah App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-love-utahctapp-2014.