2013 UT App 102

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, Plaintiff and Appellee,

v.

H OYT B RADY

, Defendant and Appellant.

Memorandum Decision

No. 20110901

‐ CA

Filed April 25, 2013

Third District, Salt Lake Department

The Honorable Denise P. Lindberg

No. 091907406

Debra M. Nelson, Scott A. Wilson, and

Noella A. Sudbury, Attorneys for Appellant

John E. Swallow, Brett J. DelPorto, and

Daryl L. Bell, Attorneys for Appellee

J UDGE J AMES Z. D AVIS authored this Memorandum Decision, in

which J UDGE G REGORY K. O RME concurred.

J UDGE W ILLIAM A. T HORNE J R

. concurred, with opinion.

DAVIS, Judge:

¶1 Hoyt Brady appeals from the trial court’s ruling revoking his

probation. We affirm.

¶2 After pleading guilty to one count of communications fraud

and one count of racketeering, both second degree felonies, see

Utah Code Ann. §§ 76

‐ 10

‐ 1603,

‐ 1801 (LexisNexis 2012), Brady was

placed on probation for thirty

‐ six months. The conditions of his

probation included paying restitution of $479,123.13 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 orderState v. Brady

20110901

‐ CA 2013 UT App 102 2 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.

¶3 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.

¶4 We review a trial court’s decision to revoke probation for an

abuse of discretion. State v. Orr

, 2005 UT 92, ¶ 9, 127 P.3d 1213.

“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, “[t]he 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)(iii)–(iv). “After the hearing the court shall make

findings of fact,” id. § 77

‐ 18

‐ 1(12)(e)(i), 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).

“[T]he requirement of willfulness in the context of probation

revocation proceedings for failure to pay a court

‐ ordered paymentState v. Brady

20110901

‐ CA 2013 UT App 102 3 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 (quoting Bearden v. Georgia

, 461 U.S. 660, 669 (1983)).

¶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.

¶6 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 circumstance, 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 (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).State v. Brady

1. We also reject Brady’s argument that the trial court failed to

make adequate findings of fact. Under the facts and circumstances

of this case, the “transcribed oral finding[s]” of the trial court

satisfied the requirement that the trial court make findings of fact

because the transcript of the hearing sufficiently “enable[d] the

reviewing court to determine the basis of the district court’s

decision.” See State v. Orr, 2005 UT 92, ¶ 31, 127 P.3d 1213.

20110901

‐ CA 2013 UT App 102 4 ¶7 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 (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 looking for a second job and already paying

restitution with his brother’s offered money. See Orr, 2005 UT 92,

¶ 34 (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.

¶8 Alternatively, Brady argues that the hearing did not

comport with the minimum requirements of due process.State v. Brady

2. Because of our determinations above that the trial court’s oral

findings were adequate and that the evidence was sufficient to

support the trial court’s revocation, we need not address Brady’s

similar challenges to the findings raised within the alternative

argument he presents on appeal. See supra ¶ 7 note 1.

20110901

‐ CA 2013 UT App 102 5 Specifically, Brady argues that he was not afforded a full

opportunity to be heard. 2

¶9 “[P]robation 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. ¶¶ 11, 13–14 (recognizing that

“[w]hat constitutes due process

. . . depends upon the type of

proceeding and, more specifically, the nature of the individual

interest affected, the extent to which it is affected, the rationality of

the connection between legislative means and purpose, [and] the

existence of alternative means for effectuating the purpose,” and

listing what the minimum requirements of due process may entail

in any given situation (second alteration in original) (citation and

internal quotation marks omitted)). The Utah Code requires the

trial court to hold a hearing before a defendant’s probation can be

revoked and to permit a defendant to speak in his own behalf and

present evidence during the hearing. Utah Code Ann. § 77

‐ 18

‐ 1(12)(a)(i)–(ii), (d)(iv) (LexisNexis 2012); see also id. § 77

‐ 18

‐ 1(12)(a)(i) (noting that a defendant can waive his right to a

hearing). The statute states that probation can be revoked if, after

conducting a hearing, the trial court “find[s] that the defendant

violated the conditions of probation.” Id. § 77

‐ 18

‐ 1(12)(e)(ii).

¶10 Here, Brady was permitted to speak in his own behalf

during the hearing. During the hearing, Brady also offered the

court evidence in support of his justifications for violating his

probation—a log book in which he recorded the details of his job

search and pay stubs to prove that 75% of his wages were already

being garnished. As previously determined, the trial court didState v. Brady

20110901

‐ CA 2013 UT App 102 6 consider Brady’s mitigating evidence, although it did not view the

log book or pay stubs and expressed impatience at Brady’s attempt

to offer the log book as evidence. Nonetheless, we fail to see how

this amounted to a violation of Brady’s due process rights,

especially where he admitted to violating his probation and the

trial court considered his mitigating testimony. See id. § 77

‐ 18

‐ 1(12)(d); see also Bearden v. Georgia

, 461 U.S. 660, 672 (1983) (“[I]n

revocation proceedings for failure to pay a fine or restitution, a

sentencing court must inquire into the reasons for the failure to

pay.”). Further, the two items of evidence that Brady described do

little more than bolster the credibility of the statements that he

made in his own behalf, and even when viewing all of that

evidence as true, it does not address the grounds on which the trial

court ultimately revoked his probation—failure to make even token

restitution payments. After the trial court expressed its impatience,

Brady offered to get a second job and to start paying restitution

with money borrowed from his brother. However, these statements

work against Brady as much as they mitigate in his favor because

they illustrate additional actions Brady could have taken to enable

him to make at least token restitution payments in the year leading

up to the State’s Motion for an Order to Show Cause. Even

excusing Brady’s having not found (or perhaps even started

looking for) a second job due to factors beyond his control—i.e., his

age and the difficult job market—Brady offered no reason at the

hearing explaining why he did not obtain a loan from his brother

sooner, and indeed, he suggested the loan option only after the trial

court appeared to become frustrated with him. For all of these

reasons, we reject Brady’s argument that the hearing did not

comport with the minimum requirements of due process and

affirm the trial court’s revocation of his probation.

THORNE, Judge (concurring):

¶11 I concur with the majority opinion, as I agree that Brady

willfully failed to make restitution payments as required by the

terms of his probation. However, I write separately because IState v. Brady

20110901

‐ CA 2013 UT App 102 7 believe that there should be a separate legal framework for

evaluating probation violations when the sole purpose of granting

probation was to benefit the victims by enabling the offender an

opportunity to make restitution payments. In such circumstances,

it would be entirely appropriate for a sentencing judge to impose

a strict liability standard on an offender’s restitution payments,

requiring the offender to essentially waive all due process and

liberty interests related to those payments as a condition of

probation.

¶12 Had such a sentence been imposed on Brady in this case, the

trial court would not have needed to concern itself with whether

Brady’s failure to pay was willful, reasonable, or anything else.

Instead, the trial court could simply have revoked Brady’s

probation for failure to pay restitution as ordered and as agreed to

by Brady. I see no constitutional problem with such an approach

under existing case law, but if such a problem exists, I would urge

a reevaluation of the standards governing probation violations to

allow for such an approach in appropriate cases.

¶13 My concern arises from situations similar to Brady’s

involving frauds in which a serious crime has been committed, and

the perpetrator has pled guilty to or been convicted of a felony

offense warranting a lengthy prison sentence. The sentencing judge

may well look at the severity of the crime committed, the

defendant’s criminal history, and other relevant factors and

conclude that the most appropriate sentence is to commit the

defendant to prison. However, it is not uncommon in these

situations for the victims to argue for probation instead of

imprisonment when the defendant “promises” that he is able to

make restitution if he is simply given a chance. In those situations

victims often plead passionately in favor of probation for the

defendant on the grounds that restitution payments will occur only

if the defendant is not imprisoned. It is often difficult for the

sentencing judge to ignore these pleas, particularly when the

victims may have lost their entire life savings in the defendant’s

fraud scheme. And the defendant—who has already demonstratedState v. Brady

20110901

‐ CA 2013 UT App 102 8 an ability to persuade others to part with their money—has every

interest in representing to the victims and the court that all will be

made right if only the court orders probation instead of

imprisonment.

¶14 These circumstances present the sentencing judge with a

difficult dilemma, particularly if the judge does not believe that

adequate—or, for that matter, any—restitution will really be

forthcoming. It is against this backdrop that I propose an exception

to the general rule that “[t]he fundamental fairness requirement of

the Fourteenth Amendment forbids the revocation of probation

when a probationer has failed to pay restitution or a fine through

no fault of his own.” State v. Orr

, 2005 UT 92, ¶ 33, 127 P.3d 1213

(citing Bearden v. Georgia

, 461 U.S. 660, 668 (1983)). This “special

terms probation” would allow a judge who may ordinarily find

that the probability of any meaningful restitution is too low and

that justice is best served by imprisonment to grant probation

based on a defendant’s questionable promise of repayment.

¶15 The normal rule, originating in Bearden v. Georgia

, 461 U.S.

660 (1983), requires that a failure to pay court

‐ ordered restitution

must ordinarily be willful in order to support the revocation of

probation. See id. at 668. However, Bearden presupposed that

probation is imposed as “the appropriate and adequate penalty for

the crime,” id. at 667, and that “[t]he decision to place the

defendant on probation

. . . reflects a determination by the

sentencing court that the State’s penological interests do not

require imprisonment,” id. at 670. This is not the case where, as I

have described, a court believes that imprisonment is the

appropriate punishment but grants probation solely for the

purpose of allowing a chance of restitution to the victims.

¶16 So long as the sentencing judge makes this clear to a

defendant at the time of the initial sentence, along with theState v. Brady

3. The transcript of Brady’s sentencing hearing is not a part of the

record on appeal, but under the circumstances it would not

surprise me if the sentencing judge made comments substantially

expressing these concepts to Brady. However, in light of the

record’s silence on this matter, I agree with the majority opinion

that a finding of willfulness was required in this case.

4. I note that the concept of victims’ rights has developed

substantially in the thirty years since Bearden v. Georgia

, 461 U.S.

660 (1983). See, e.g.

, Utah Const. art. I, § 28 (“Declaration of the

rights of crime victims”) (adopted at election Nov. 8, 1994).

5. Of course, additional probation requirements may be imposed

that relate to ordinary correctional concerns. Defendants accused

of violations of those terms would receive the normal due process

protections already in the law related to probation revocations.

20110901

‐ CA 2013 UT App 102 9 announcement of a zero

‐ tolerance policy for nonpayment, 3 I see no

violation of the principles announced in Bearden when probation is

subsequently revoked based on a bare finding of nonpayment. To

the contrary, Bearden expressly allows for the revocation of

probation without a finding of willful nonpayment upon a

“determin[ation] that alternatives to imprisonment are not

adequate in a particular situation to meet the State’s interest in

punishment and deterrence.” Id. at 672. In the situation I have

described, the sentencing court would make the determination that

imprisonment is required to vindicate the State’s interests at the

time that sentence is imposed. Nevertheless, the court would stay

the imposition of imprisonment for the benefit of third parties, i.e.,

the victims of the defendant’s fraudulent acts. 4

¶17 A sentencing court’s decision to impose probation for the

sole purpose of allowing restitution payments defers the State’s

interest in punishment and deterrence indefinitely in favor of the

victims’ interests in obtaining compensation for their losses. 5 When

the victims’ interests are not being met due to the defendant’s

nonpayment of restitution as ordered, the only reason to continueState v. Brady

20110901

‐ CA 2013 UT App 102 10 to defer the imprisonment that the crime demands evaporates, and

this is true regardless of the reason for the nonpayment. As a

practical matter, some defendants may then be imprisoned despite

their best efforts at obtaining the funds to pay restitution. However,

“[u]ltimately, it must be remembered that the sentence was not

imposed for a circumstance beyond the probationer’s control ‘but

because he had committed a crime.’” Id. at 668 n.9 (citation

omitted).

¶18 For these reasons, I believe that Bearden allows for the

revocation of probation without a finding of willful nonpayment

of restitution under the circumstances I have described. To the

extent that Bearden does not allow for such a result, I would urge its

reconsideration to create such an exception in these circumstances.

Nevertheless, as to Brady, I agree with the majority that he

willfully failed to make restitution payments as ordered.

Accordingly, I concur in the majority opinion.