State v. Robinson

2014 UT App 114, 327 P.3d 589, 761 Utah Adv. Rep. 41, 2014 WL 2131665, 2014 Utah App. LEXIS 117
CourtCourt of Appeals of Utah
DecidedMay 22, 2014
DocketNo. 20120403-CA
StatusPublished
Cited by8 cases

This text of 2014 UT App 114 (State v. Robinson) 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. Robinson, 2014 UT App 114, 327 P.3d 589, 761 Utah Adv. Rep. 41, 2014 WL 2131665, 2014 Utah App. LEXIS 117 (Utah Ct. App. 2014).

Opinion

Opinion

VOROS, Judge:

{1 After convicted sex offender Robert Douglas Robinson admitted to multiple probation violations, the trial court revoked his probation and imposed his original sentence. Robinson contends that the trial court abused its discretion by revoking probation without holding an evidentiary hearing or finding that his violations were willful. We affirm.

BACKGROUND

12 The State of Utah originally charged Robinson with forcible sexual abuse, two counts of sexual battery, making a terroristic threat, and disorderly conduct.1 After he pleaded no contest to all charges, the trial court sentenced Robinson to an indeterminate prison term not exceeding five years on the conviction for forcible sexual abuse, one year on the conviction for sexual battery, 180 days on the conviction for making a terroristic threat, and 90 days on the conviction for disorderly conduct. The court suspended Robinson's sentence and placed him on probation for 86 months.

138 Three months later, the State alleged that Robinson had committed five probation violations, including not fully complying with sex-offender- and DNA-registration requirements and not reporting as directed. The trial court issued a warrant for Robinson's arrest. He was apprehended, but because his probation officer failed to appear at the scheduled evidentiary hearing the court struck the order to show cause. Five months later, the State alleged that Robinson had committed seven probation violations, again including not complying with sex-offender- and DNA-registration requirements and not reporting as directed. The trial court again issued a warrant for Robinson's arrest. Two months later Adult Probation and Parole (AP & P) filed a progress report stating that Robinson had not made contact with AP & P for eight months and that his whereabouts were unknown.

T4 Robinson was apprehended, and the trial court held a revocation hearing. Robinson waived an evidentiary hearing and admitted to three allegations. His counsel explained that predecessor counsel had led Robinson to believe that he was no longer on probation but that Robinson now knew that he needed to "strictly comply with every condition of probation." The prosecution challenged the credibility of Robinson's explanation. The trial court found a willful violation and expressed skepticism "that there would be this much confusion." Nevertheless, the court revoked and reinstated probation, adding that "any further failure to completely follow the requirements will result in the original sentence." Because Robinson told the court that he lived in Cedar City, the court instructed him to report to the Cedar City AP & P office upon his release.

{5 Robinson reported, but to the Salt Lake City AP & P office rather than to the Cedar City AP & P office. AP & P filed a [591]*591progress report alleging, among other violations, that Robinson had not reported to the Cedar City office as required, that he had not fully complied with the registration requirements, and that his whereabouts were again unknown.

T6 Robinson was located, and the trial court held another revocation hearing. Appearing with the same counsel who had represented him in the earlier revocation hearing, Robinson admitted the allegations in the violation report. He did not request an evi-dentiary hearing or expressly deny that his violations were willful. However, his counsel explained that Robinson "was under the belief that with his appeal going forward with the Court of Appeals, that the sentence essentially was stayed," but asserted, "Mr. Robinson now knows today that that's not the case." Robinson added, "It was my understanding it was under appeal, and it was just a big misunderstanding. My apologies."

ISSUE AND STANDARD OF REVIEW

T7 Robinson contends that the trial court abused its discretion by revoking his probation without holding an evidentiary hearing or entering a finding that his violations were wilifol. "The decision to grant, modify, or revoke probation is in the discretion of the trial court." State v. Jameson, 800 P.2d 798, 804 (Utah 1990). "Therefore, we view the evidence of a probation violation in a light most favorable to the trial court's findings and substitute our own judgment only if the evidence is so deficient as to render the court's action an abuse of discretion." State v. Maestas, 2000 UT App 22, 11 12, 997 P.2d 814.

ANALYSIS

18 Robinson contends that the trial court abused its discretion by revoking his probation without holding an evidentiary hearing or finding that his violations were willful. The State responds that this court should not review Robinson's claims, because he failed to preserve them in the trial court. The State also maintains that even had Robinson preserved his claims, the trial court held "a hearing that presented [Robinson] with an opportunity to deny the allegations" and made an "implied finding of willfulness." Thus, the State concludes, the trial court did not abuse its discretion in revoking Robinson's probation.

I. Evidentiary Hearing

19 To preserve an issue for appeal, a party must present it "to the trial court in such a way that the trial court has an opportunity to rule on that issue." 488 Main S%. v. Easy Heat, Inc., 2004 UT 72, 51, 99 P.3d 801 (citation and internal quotation marks omitted).

{10 In Robinson's opening brief, he argues that he preserved his claims by reciting them in his docketing statement. However, merely identifying a claim in a docketing statement does not preserve it for appeal. The appellant files the docketing statement in the appellate court. See Utah R.App. P. 9. The docketing statement therefore does not present the issue "to the trial court in such a way that the trial court has an opportunity to rule on that issue." 438 Main St., 2004 UT 72, 151, 99 P.3d 801 (citation and internal quotation marks omitted) (emphasis added). Faced with a preservation challenge in the State's brief, Robinson argued in his reply brief that he did preserve his claims in the trial court and that in any event we should review his claims under the plain error doctrine.

{11 We do not agree that Robinson preserved his challenge to the lack of an evidentiary hearing.2 Robinson argues that [592]*592while neither he nor his counsel "explicitly requested an evidentiary hearing on the allegations," Robinson asked the trial court "if he could give an explanation as to the 'misunderstandings' that led to his technical probation violations." The court granted the request. An appellant who " 'has received what he asked for'" from the trial court "'cannot be heard to complain on appeal."" See State v. Larrabee, 2013 UT 70, 1 26 n. 25, 321 P.3d 1136 (quoting Robert J. Martineau et al., Appellate Practice & Procedure, Cases & Materials 101 (2d ed. 2005)) Accordingly, this request in the revocation hearing did not preserve Robinson's claims. Neither Robinson nor his counsel sought anything from the trial court that it did not grant except reinstatement of probation.

112 Robinson's plain error claim comes too late. If an appellant fails to preserve an issue in the trial court, the plain error exception allows "the appellate court to balance the need for procedural regularity with the demands of fairness." State v. Hol-gate, 2000 UT 74, 113, 10 P.3d 346 (citation and internal quotation marks omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 114, 327 P.3d 589, 761 Utah Adv. Rep. 41, 2014 WL 2131665, 2014 Utah App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robinson-utahctapp-2014.