Lead Opinion
Memorandum Decision
{1 Hoyt Brady appeals from the trial court's ruling revoking his probation. We affirm.
12 After pleading guilty to one count of communications fraud and one count of racketeering, both second degree felonies, see Utah Code Ann. §§ 76-10-1608, -1801 (Lex-isNexis 2012), Brady was placed on probation for thirty-six months. The conditions of his probation included paying restitution of $479,123.18 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 order 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.
T3 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.
14 We review a trial court's decision to revoke probation for an abuse of discretion. State v. Orr, 2005 UT 92, ¶ 9, 127
I 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.
T6 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 cireumstance, 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, 103 S.Ct. 2064 (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).
17 These comments by the trial court illustrate its implicit finding of willfulness. Brady argues that an explicit finding is mandatory. We disagree.
18 Alternatively, Brady argues that the hearing did not comport with the minimum requirements of due process. Specifically, Brady argues that he was not afforded a full opportunity to be heard.
19 "[PJrobation 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. TT 11, 13-14 (recognizing that "[wlhat 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-(d)iv) (LexisNexis 2012); see also id. § (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)@®).
110 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 did 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. § Ti-18-1(12)(d); see also Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ("[In 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
. 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.
. 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 17 note 1.
Concurrence Opinion
(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 I 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 cirenmstances, 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 con-viected 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 demonstrated 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 cireumstances 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 "[the 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, 103 S.Ct. 2064, 76 L.Ed.2d 221 (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, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), requires that a failure to pay court-ordered restitution must ordi
116 So long as the sentencing judge makes this clear to a defendant at the time of the initial sentence, along with the announcement of a zero-tolerance policy for nonpayment,
117 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.
118 For these reasons, I believe that Bearden allows for the revocation of probation without a finding of willful nonpayment of restitution under the cireumstances 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 cireumstances. 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.
. 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 willfuiness was required in this case.
. I note that the concept of victims' rights has developed substantially in the thirty years since Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). See, eg., Utah Const. art. I, § 28 ("Declaration of the rights of crime victims") (adopted at election Nov. 8, 1994).
. 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.