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

20230251-CA 2 2023 UT App 119

¶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. 
State v. Morgan

20230251-CA 3 2023 UT App 119

¶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 
State v. Morgan

20230251-CA 4 2023 UT App 119

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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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.