IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Michael C. Martin,

Defendant and Appellant. )

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) MEMORANDUM DECISION

Case No. 20110056

‐ CA

F I L E D

(July 27, 2012)

2012 UT App 208

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Third District, Salt Lake Department, 041907590

The Honorable Deno G. Himonas

Attorneys: Peter A. Daines and Joan C. Watt, Salt Lake City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Orme, Davis, and Roth.

ROTH, Judge:

¶1 Defendant Michael C. Martin entered a no contest plea to criminal mischief, see

Utah Code Ann. § 76

‐ 6

‐ 106 (2008), which the district court held in abeyance, see id.

§§ 76

‐ 2a

‐ 1 to

‐ 4. On appeal, Martin challenges the district court’s determination that he

violated the conditions of the plea in abeyance and the court’s subsequent entry of his

plea and imposition of sentence. See id. § 77

‐ 2a

‐ 4. We affirm.

¶2 This case arises out of a dispute between neighbors. The State charged Martin

with two counts of criminal mischief, one second and one third degree felony, for

removing a fence and landscaping features in his next door neighbor’s (Neighbor) yard.

See generally Utah Code Ann. § 76

‐ 6

‐ 106(2)(c), (3)(b)(i)

‐ (ii) (providing that “[a] person1 Martin explained that he removed the fence, grape vines, and tree because “[he]

believed [they] w[ere] impeding a right of way.”

20110056

‐ CA 2 commits criminal mischief if the person

. . . intentionally damages, defaces, or destroys

the property of another,” and further providing that criminal mischief is a “second

degree felony if the actor’s conduct causes

. . . loss equal to or in excess of $5,000 in

value” and is a “third degree felony if the actor’s conduct causes

. . . loss equal to or in

excess of $1,000 but is less than $5,000 in value”). Specifically, Martin cut down a

mature, fifty

‐ foot elm tree and removed a chain link fence along with several California

grape vines that had grown on the fence. 1

¶3 In September 2005, Martin entered a no contest plea in abeyance to the third

degree felony, and the State agreed to dismiss the second degree felony. Before

accepting Martin’s plea, the district court explained that it “w[ould] hold [Martin’s] plea

in abeyance

. . . [until he] satisf[ied] certain conditions[, and i]f those conditions [we]re

satisfied, the case w[ould] be dismissed

. . . , [but i]f they [we]re not satisfied, then the

[c]ourt w[ould] enter [a] guilty plea and [he] w[ould] be subject to punishment”

consistent with a conviction for criminal mischief. See generally Utah Code Ann. § 77

‐ 2a

‐ 3(2)(b) (“[U]pon finding that the defendant has successfully completed the terms of a

plea in abeyance agreement,” “the court may” “allow withdrawal of defendant’s plea

and order the dismissal of the case.”); id. § 77

‐ 2a

‐ 4(1) (providing that if the defendant

violates or “fail[s] to substantially comply with any term or condition of the plea in

abeyance agreement, [the court] 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”). A condition of the plea agreement was “that [Martin]

replace the chain link fence and replant an elm tree that [he] removed, and replace the

shrubs destroyed and to have the work done by a licensed third party .” (Emphasis added.)

At the plea hearing, the State explained that it was asking “that this repair [work] be

done by a licensed third party because there is still some animosity” between Martin

and Neighbor.

¶4 About a month after the plea hearing, Martin wrote a letter to the court in which

he stated, “As I remember it, I was to hire a licensed contractor to do the work. This I

have done, and the fence is in the exact location that it was previously.” Around the

same time, however, Neighbor also wrote to the court, complaining that Martin had not

complied with the conditions of the plea agreement.20110056

‐ CA 3 ¶5 At a subsequent hearing, Martin explained that he had hired “a licensed

[contractor] to do some of the work,” but the contractor he had “set up

. . . [was slow

and] bailed on him in the last minute, so

. . . [Martin] tried to

. . . patch the fence” and

“just did the work himself.” In response, Neighbor asserted that not only had Martin

installed the fence himself but he had also trespassed on her property to install the

fence. She also complained that Martin had installed the same fence he had removed

and that the posts were “loose,” the fence was “crooked” and would not stand, and the

gate could not open because it was “overlapped with wire.”

¶6 The court took no action at that time but reminded Martin that, according to the

terms of the plea agreement, “the work was to be done by a licensed third

‐ party” and

that “there was clearly an expectation that the replacement [of the fence] would be done

in a workman

‐ like fashion.” The court also encouraged the parties to “try to address

this issue privately and informally” to resolve the dispute. Nonetheless, the district

court forbade Martin from entering Neighbor’s property and issued a formal no contact

order against him.

¶7 In July 2006, the State moved for an order to show cause, alleging that Martin

had failed to comply with the terms of his plea agreement. An evidentiary hearing on

the order to show cause was held in January 2007. At the hearing, Martin explained

that he had replaced the fence with the assistance of an “electrician slash handyman,”

who he admitted was only licensed as an electrician but had “been involved in all sorts

of handyman

‐ type activities” for about twenty years. According to Martin, the

electrician was there “[t]he majority of the time” and “did most of the work

. . . as far as

tying off

. . . the fence and installing the electrical rod, which is required for grounding

of a chain

‐ link fence[ and]

. . . requires an electrician to be involved” to make sure that

the fence is clear of power lines. Martin explained that he “assisted [the electrician]

with setting the post” because he had been “taking a class in construction

. . . [on]

concrete theory” and that task required “some expert assistance” from Martin to make

sure that the fence was “reinforced so that it would be strong enough to hold this fence

if there was any type of a severe shaking on the fence.” Martin acknowledged that

there “were no holes dug” to set the posts but he had “poured the concrete into the post

to secure the design of the engineering that [he] felt was necessary to help secure those

posts.” Martin also admitted that he worked on installing the fence without the

assistance or supervision of the electrician and stated that the electrician “assisted in

finishing up the fence.”2 The State argued that Martin had also failed to fulfill the plea agreement

conditions that he “replant [the] elm tree that [he] removed, and replace the shrubs

destroyed.” The State presented evidence that Martin had replaced the mature, fifty

‐

foot elm tree he had removed with a $29.97 maple sapling. There was also evidence

that although the grape vines eventually grew back, they no longer produced fruit. The

district court concluded that while Martin had violated the “spirit” of the plea in

abeyance, the conditions relating to the tree and the grape vines were too ambiguous to

support a conclusion that Martin had violated them.

20110056

‐ CA 4 ¶8 According to Neighbor, however, the work Martin had done to replace the fence

was “not acceptable.” Neighbor acknowledged that Martin had replaced and

reinforced the fence, but it was nonetheless “crooked” and “wobbly.” Further, there

was a gap in the fence that was large enough for animals to get through, and the gate

would not close. Neighbor also explained that she had consulted a surveyor who had

told her that the fence was not on her property line.

¶9 The district court concluded that Martin had failed to comply with the conditions

required for successful completion of the plea in abeyance and entered Martin’s plea.

The court admonished Martin for “violat[ing] the spirit of the [plea] agreement” but

specified that its decision to revoke the plea in abeyance was made “solely” on the basis

that Martin did “not hav[e] all [the] work done by a licensed third party” as he had

done some of the work himself. 2 At sentencing, the court reduced the third degree

felony to a class A misdemeanor and imposed a year in jail and a $2500 fine, which it

suspended. The court also imposed twelve months of probation and ordered Martin to

complete community service and pay “full and complete restitution” to Neighbor in the

amount of $8650.

¶10 On appeal, Martin argues that the district court abused its discretion when it

revoked his plea in abeyance and entered his guilty plea. See Utah Code Ann. § 77

‐ 2a

‐ 4(1) (2008) (providing that the court “ may terminate the [plea in abeyance] agreement”

upon finding that the defendant violated or failed to substantially comply with the

terms of the agreement (emphasis added)); see also, e.g., State v. Peterson

, 869 P.2d 989,

991 (Utah Ct. App. 1994) (“The decision to grant, modify, or revoke probation is in the

discretion of the trial court.” (internal quotation marks omitted)). Specifically, Martin

argues that the plea in abeyance condition that required Neighbor’s fence to be replaced20110056

‐ CA 5 by a licensed third party was ambiguous. In the alternative, Martin argues that he

substantially complied with the condition.

¶11 Martin first contends that the plea agreement is ambiguous. See generally Utah

Code Ann. § 77

‐ 2a

‐ 2(4)(a) (“Any plea in abeyance agreement entered into between the

prosecution and the defendant and approved by the court shall include a full, detailed

recitation of the requirements and conditions agreed to by the defendant and the reason

for requesting the court to hold the plea in abeyance.”); see also State v. Patience

, 944 P.2d

381, 387 (Utah Ct. App. 1997) (explaining that “[p]rinciples of contract law provide a

useful analytic framework in cases involving plea agreements” but cautioning “that

there are limits to the contract analogy,” so “contract principles [should not] be blindly

incorporated” (first alteration in original) (internal quotation marks omitted)). Martin

argues that in requiring him to “have the work done by a licensed third party,” the plea

agreement is ambiguous in that it does not explicitly prohibit him from assisting the

licensed third party with the work. Martin contends that if the district court “intended

to prevent [him] from assisting the third party in the work, the

. . . court was required to

include that condition expressly in the agreement.” Martin thus asserts that the plea

agreement’s silence on whether he could assist the third party in doing the work makes

the agreement ambiguous on that point. And, according to Martin, because the plea

agreement is ambiguous, the district court was required to construe the ambiguity in

his favor. See Patience

, 944 P.2d at 387 (“[I]n interpreting plea agreements or

determining their validity, courts may in certain circumstances hold the government to

a higher standard than the defendant.”); see also United States v. Jefferies, 908 F.2d 1520,

1523 (11th Cir. 1990) (“[A] plea agreement that is ambiguous must be read against the

[State].” (internal quotation marks omitted)). Martin asks us to conclude that the

district court “abused its discretion when it

. . . imported language into the agreement

against [him]” to find a violation of the plea agreement.

¶12 In the context of this case, the condition that Martin “have the work done by a

licensed third party” was meant, in part, to prevent any further animosity and conflict

between Martin and Neighbor. See generally Jefferies, 908 F.2d at 1523 (explaining that

the plea agreement “should be viewed against the background of the negotiations and

should not be interpreted to directly contradict an oral understanding” (internal

quotation marks omitted)). This purpose is clear it light of the State’s explanation for

the condition that was given at the plea hearing, that is, that there was ongoing

animosity between Neighbor and Martin. In other words, the purpose of the condition20110056

‐ CA 6 was to make sure that someone not involved in this dispute did the restoration work,

not Martin. Under the circumstances, it is simply unreasonable to interpret the absence

of an affirmative prohibition as allowing the very thing that the court intended to

prevent.

¶13 Further, even looking to the plain language of the plea agreement in isolation, the

requirement that Martin “have the work done by a licensed third party” is clear. See id.

(explaining that in interpreting a plea agreement, the court should not engage in “a

hyper

‐ technical reading of the written agreement and a rigidly literal approach in the

construction of language should not be accepted” (internal quotation marks omitted)).

Certainly, the condition could have read that Martin “have all the work done by a

licensed third party” or that Martin “have the work done by only a licensed third party”

or even that “the work is to be done by a licensed third party, without any participation

by Martin.” But this added language does not substantively change the meaning of the

condition as it is. Rather, such additional language only serves to make more clear

what is already clear in the language itself: that Martin “have the work done by a

licensed third party.” This phrase clearly does not include the participation of the

unlicensed, directly

‐ involved Martin. The requirement that the work be done by a

licensed third party requires a third party to do the work and, in so requiring, excludes

the possibility of Martin’s participation in the work. Accordingly, we conclude that the

requirement that Martin “have the work done by a licensed third party” is not

ambiguous because, by its plain language and in the context of the proceedings, it

clearly excludes the possibility that Martin do the work himself or take any part in the

work.

¶14 In the alternative, Martin argues that he “substantially complied with the terms

of the [plea] agreement” because he “made bona fide efforts to satisfy the [requirement

that he]

. . . replac[e] the chain

‐ link fence.” See generally Utah Code Ann. § 77

‐ 2a

‐ 4(1)

(explaining that if the district “court finds that the defendant has failed to substantially

comply with any

. . . condition of the plea in abeyance agreement, [the court] may

terminate the agreement”). According to Martin, although he assisted the electrician in

installing the fence and sometimes worked on the fence himself without supervision,

the work to install the fence was nonetheless mostly “done by a licensed third party”

and the fence was ultimately installed as required. Martin thus asserts that he made a

“good faith attempt to comply” with the conditions of the plea agreement and that he

“accomplished the essential purpose of the agreement by [installing] the fence.”20110056

‐ CA 7 ¶15 Martin’s argument is premised on the notion that the purpose of this condition

was simply to have a fence installed on Neighbor’s property. This condition, however,

served two additional purposes. First, as we have discussed, having the work done by

a disinterested third party was meant to prevent any further conflict and animosity

between Martin and Neighbor. Second, having the work done by a licensed party was

meant to ensure that the fence would be installed with quality workmanship. Martin’s

conduct in installing the fence does not substantially comply with either of these

purposes. Although Martin installed a fence on Neighbor’s property, the condition and

quality of the fence was “not acceptable.” Further, Martin’s participation in installing

the fence only exacerbated the existing animosity between him and Neighbor. Martin’s

argument that he made a good faith attempt to comply with this condition of the plea

agreement is not supported by the facts or any reasonable interpretation of the

condition. We therefore conclude that Martin failed to substantially comply with this

condition of the plea agreement.

¶16 Because the plea agreement is not ambiguous and Martin did not substantially

comply with the plea agreement, we conclude that the district court acted within its

discretion in revoking Martin’s plea in abeyance. Accordingly, we affirm.

____________________________________ Stephen L. Roth, Judge

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¶17 WE CONCUR:

____________________________________ Gregory K. Orme, Judge

____________________________________ James Z. Davis, Judge