2016 UT App 239

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

VICTORIA ELIZABETH FANTON,

Appellant.

Memorandum Decision

No. 20150300-CA

Filed December 8, 2016

Fifth District Court, Cedar City Department

The Honorable Keith C. Barnes

No. 141500783

Matthew D. Carling, Attorney for Appellant

Sean D. Reyes, Laura B. Dupaix, and Thomas B. 

Brunker, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in 

which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN

concurred.

ROTH, Judge:

¶1 Victoria Elizabeth Fanton was convicted of second degree 

felony robbery and third degree felony possession of a 

controlled substance. She appeals the district court’s imposition

of a jail term as a condition of her probation. We affirm.

¶2 On December 26, 2014, Fanton and two friends robbed a 

Cedar City gas station at knife-point. After absconding with 

nearly $200, their truck broke down. Fanton and her two friends 

were located on December 27 and taken into custody. When 

Fanton was booked into the Iron County Jail, the police found

syringes, a plastic pipe “used to smoke heroin,” and a “black 
State v. Fanton

20150300-CA 2 2016 UT App 239

scale” in her purse. Fanton admitted she used the scale “to 

weigh certain drug product.”

¶3 Fanton was charged in two separate cases—one 

addressing the robbery-related charges and the other addressing 

the drug-related charges. She ultimately pled guilty to robbery

and possession or use of a controlled substance. The district 

court ordered a presentence investigation report (PSI) from 

Adult Probation and Parole (AP&P), which was completed and 

submitted prior to the sentencing hearing.

¶4 In the PSI, AP&P recommended that the court sentence 

Fanton to the statutory prison terms for each conviction and 

assess substantial fines. However, AP&P further recommended 

that the prison sentences be stayed and that Fanton be placed on 

thirty-six months of supervised probation, which would include 

certain conditions. Among the conditions was a requirement that 

Fanton “[s]erve 270 days in the Iron County Jail with credit for 

time served.” The PSI also included substantial information 

about Fanton’s background, including her criminal history, 

employment and educational history, financial situation, 

accommodations, and family/marital status. It noted concerns 

associated with several of these categories, including Fanton’s 

mental health. In particular, the PSI indicated that Fanton 

suffered from mental health issues and that she had in the past

received treatment for them.

¶5 At the sentencing hearing, the State informed the court 

that it found “the recommendations made by AP&P [to be] 

appropriate.” Fanton’s counsel stated that Fanton “ha[d] no 

major qualms with anything contained [in the PSI],” except that 

she requested “that she be given credit for the time she has 

served [in jail].” Fanton’s counsel acknowledged that Fanton 

would be required to serve “an additional amount of jail time,” 

but requested that she be allowed to serve it in “three or four 

day weekend blocks” so that she could take care of her children

and also more effectively resolve “a few other cases [against her] 
State v. Fanton

20150300-CA 3 2016 UT App 239

in Washington County.” Counsel also informed the court that 

Fanton “ultimately . . . want[ed] to compact to the State of 

Michigan” to serve her jail time, because she “has family ties and 

essentially is from there.” The State objected, stating that the 

weekend blocks would be “such a hassle for the Court” and that 

due to “the seriousness” of her crimes, “straight time should be 

done.”

¶6 After hearing from both parties, the court stated that it 

“certainly agree[d] with the State . . . [about] the seriousness of 

this charge” and that the 270-day jail recommendation seemed to 

be “on the light side.” Nonetheless, the court accepted AP&P’s 

recommendations, suspending the statutory prison sentences for 

each offense and placing Fanton on supervised probation for 

thirty-six months, with several conditions. The condition at the 

heart of this appeal was that Fanton serve 270 days in jail, with 

credit for time served. The court stated that it was “not inclined” 

to allow Fanton to serve her jail sentence solely on weekends. It 

also informed her that there would be “zero tolerance for any 

violations of the terms of [her] probation.”

¶7 Fanton appealed, challenging the district court’s decision 

to require her to serve a 270-day jail sentence and, in the 

alternative, the court’s rejection of her request that she be 

allowed to serve the time on weekends. Fanton completed her 

jail term on August 5, 2015, two months before the opening brief 

in this appeal was filed. Within a month of her release, AP&P 

filed an affidavit with the district court alleging that Fanton had 

violated her probation. After finding her in violation, the court 

revoked Fanton’s probation and required her to serve the 

suspended prison sentences. Fanton has not appealed the court’s 

decision to revoke her probation and impose the original prison 

sentences.

¶8 Fanton challenges the court’s imposition of jail time as a 

condition of her original probation. Specifically, Fanton argues 

on appeal that her trial counsel provided ineffective assistance 
State v. Fanton

20150300-CA 4 2016 UT App 239

by failing to request a mental health assessment based upon the 

PSI’s information about her mental illness or, alternatively, that 

the district court committed plain error by not ordering a mental 

health assessment sua sponte.1 She claims that based on the 

mental health information in the PSI, Utah Code section 77-18-

1.1(2) required that she undergo a mental health screening and 

assessment.2 She also argues that, had either her counsel or the 

court requested or ordered the mental health assessment, it was 

“quite possible that the results of the assessment would have 

found [her] eligible for release into either drug or mental health 

 

1. Fanton raises two other issues in her opening brief. First, she 

argues that the district court abused its discretion when it denied 

her request to serve her remaining jail time in three-to-four-day 

blocks on weekends. However, in her reply brief, she concedes

that this issue is “likely moot given that her trial counsel did not 

re-raise the issue at her probation revocation hearing” and “no 

appeal was taken from her revocation determination.” Second, 

she argues that her trial counsel was ineffective for failing to 

request that she be transferred to Michigan to serve her sentence 

there so that her family, who apparently resided in Michigan, 

could help with her children. Fanton has withdrawn the second 

issue based upon information she obtained after her opening 

brief had been filed indicating that Michigan did not participate 

in programs involving interstate transfer of inmates. 

Accordingly, we do not address the merits of either argument.

2. Although we do not reach the merits of Fanton’s argument on 

mootness grounds, see infra ¶¶ 9–16, we note that section 77-18-

1.1(2) of the Utah Code does not appear to apply to mental 

health issues. Rather, it mandates screening and appropriate 

follow-up for substance abuse issues. See Utah Code Ann. § 77-

18-1.1 (LexisNexis 2012); id. § 41-6a-501(1)(a) (LexisNexis 2014) 

(providing the definition of “assessment” for purposes of section 

77-18-1.1).
State v. Fanton

20150300-CA 5 2016 UT App 239

treatment or community based supervision” as alternatives to 

jail. In response, the State argues that Fanton’s challenge to the 

jail condition of her probation is moot. It contends that this court 

“cannot grant [Fanton] any relief” because she has completed 

her jail sentence. We agree with the State.

¶9 Mootness is a jurisdictional issue. Utah Transit Auth. v. 

Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶¶ 19–20, 27, 

289 P.3d 582. Our supreme court has stated that the mootness 

doctrine is “an element of the principles defining the scope of the 

‘judicial power,’ vested in the courts by the Utah Constitution,” 

and “is not a simple matter of judicial convenience or [an] ascetic 

act of discretion,” because “courts are not a forum for hearing 

academic contentions or rendering advisory opinions” when 

there is not a “controversy directly involving rights.” Id. ¶¶ 18, 

19, 27 (citations and internal quotation marks omitted). In the 

“absence of a justiciable controversy . . . the court can go no 

further, and its immediate duty is to dismiss the action.” Id. ¶ 19

(citation and internal quotation marks omitted); see also State v. 

Hooker, 2013 UT App 91, ¶ 3, 300 P.3d 1292 (explaining that a 

moot appeal “must be dismissed . . . unless it can be shown to fit 

within a recognized exception to the mootness principle”

(omission in original) (citation and internal quotation marks 

omitted)). 

¶10 An issue is moot if the requested relief—in this case, relief 

from the jail component of Fanton’s probation—has been 

rendered “impossible or of no legal effect” due to changed 

circumstances or intervening events that have effectively 

eliminated the controversy. State v. Peterson, 2012 UT App 363, 

¶¶ 4–5, 293 P.3d 1103 (citation and internal quotation marks 

omitted); see also Local 382, 2012 UT 75, ¶ 19 (explaining that 

“[t]he defining feature of a moot controversy is the lack of 

capacity for the court to order a remedy that will have a 

meaningful impact on the practical positions of the parties”); 

State v. Sims, 881 P.2d 840, 841 (Utah 1994) (“An issue on appeal 
State v. Fanton

20150300-CA 6 2016 UT App 239

is considered moot when the requested judicial relief cannot 

affect the rights of the litigants.” (citation and internal quotation 

marks omitted)).

¶11 We are not persuaded that it is possible to grant Fanton 

the relief she requests or that, assuming we could, it would affect 

her rights. Essentially, Fanton requests relief from the jail 

condition of her probation on the basis of mental health issues 

that she contends were inadequately considered at sentencing. 

She argues that, had she received a proper mental health 

evaluation, she probably would not have been required to serve 

time in jail. But even if there is a reasonable likelihood that the 

judge would not have imposed a jail term as a condition of her 

probation had he been provided with an in-depth mental health 

assessment, the fact remains that Fanton is challenging a 

condition of her probation that she has already completed. No 

relief we could grant can undo Fanton’s period of incarceration 

on probation.

¶12 Further, Fanton has not shown that her jail sentence gave 

rise to the sort of long-term effects that would bring her situation 

within the collateral consequences exception to the mootness 

doctrine. See Hooker, 2013 UT App 91, ¶ 3 (explaining that this 

court will reach the merits of a moot appeal only if a recognized 

exception to the mootness doctrine, such as collateral legal 

consequences, applies). While Fanton raises the collateral 

consequences exception, she does so only briefly, in one 

sentence, simply contending that the State “has failed to show 

that there is no possibility that any collateral legal consequences 

can be imposed on the basis of the challenged sentence.”

However, we have consistently held that we will not presume 

the existence of collateral legal consequences in criminal cases 

unless the appellant is challenging the validity of her underlying 

conviction. See, e.g., Duran v. Morris, 635 P.2d 43, 45–46 (Utah 

1981); State v. Legg, 2016 UT App 168, ¶¶ 17–25, 380 P.3d 360, 

petition for cert. filed, Sept. 30, 2016 (No. 20160810); State v. Moore, 
State v. Fanton

20150300-CA 7 2016 UT App 239

2009 UT App 128, ¶¶ 9–17, 210 P.3d 967; cf. Sibron v. New York, 

392 U.S. 40, 58 (1968) (explaining that a defendant “has a 

substantial stake in the judgment of conviction which survives 

the satisfaction of the sentence imposed on him” (citation and 

internal quotation marks omitted)). Here, Fanton is challenging 

only her jail sentence, not the validity of her criminal 

convictions. As a result, she bears the burden to demonstrate 

that she will suffer collateral legal consequences as a result of her 

jail sentence. See Legg, 2016 UT App 168, ¶ 18 (noting that in 

cases where we will not presume that collateral legal 

consequences exist, the “party seeking to survive dismissal bears 

the burden” to demonstrate the applicability of the exception). 

She has not done so. Accordingly, we conclude that the collateral 

consequences exception does not apply here.

¶13 Finally, Fanton contends that, because she remains 

incarcerated under the original sentences, her challenge remains 

“viable.” She argues that she is “serving prison sentences based 

upon the lack of mental health assessment in the PSI for 

sentencing.” But Fanton is not serving prison sentences because 

she did not have a mental health assessment in connection with 

her original sentencing. Her current incarceration, while 

certainly flowing from the original judgment, which sentenced 

her to suspended prison terms, is the result of choices and legal 

determinations made apart from, and subsequent to, the 

imposition and completion of her jail time. Fanton served her jail 

sentence successfully, as ordered. Shortly afterward, however, 

she violated other terms of her probation. It was that violation 

that led the court to revoke her probation and execute her 

original suspended prison terms.

¶14 And the contention Fanton seems to make on appeal—

that she is now in prison because she did not receive the 

treatment or tools she needed for success in the first instance—is 

a matter that might have been appropriately raised in the 

probation revocation proceedings as a reason for the court to 
State v. Fanton

20150300-CA 8 2016 UT App 239

forbear from executing the original prison sentences in favor of 

further probation and treatment. But that matter is not an 

appropriate subject for this appeal. We cannot reach potential 

errors in the district court’s decision to revoke Fanton’s 

probation and execute her prison sentences through a challenge 

to the conditions of probation imposed in the original sentencing 

proceeding. The court’s subsequent decision to revoke her 

probation was based on considerations pertinent to the 

circumstances at that later time and thus was independent of 

those in play during the original proceeding. Indeed, the posture 

of this appeal makes it impossible for us to know what the court 

did and did not consider in the revocation proceeding. On this 

record, the connection between the lack of a mental health 

assessment and the events that led to the revocation of her 

probation is no more than a matter of speculation.

¶15 More significantly, we cannot remedy the district court’s 

decision to revoke Fanton’s probation by tracing back, even if 

that were possible here, the sort of indeterminate effects that 

might have flowed from any failure to request or have a mental 

health assessment completed in connection with the original 

sentencing. At the time of the district court’s ultimate decision to 

revoke her probation, the effects of any alleged error involving 

Fanton’s mental health on the district court’s determination of 

her original probation terms had run their course and cannot be 

undone by any decision we might make here. See State v. 

Peterson, 2012 UT App 363, ¶ 4, 293 P.3d 1103 (discussing how an 

issue becomes moot). And “[w]here the issues that were before 

the [district] court no longer exist, the appellate court will not 

review the case.” Id. (first alteration in original) (citation and 

internal quotation marks omitted).

¶16 Accordingly, we conclude that Fanton’s appeal is moot, 

and we dismiss it for lack of jurisdiction.