State of Utah v. Cannoles

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Christopher Cannoles,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990085-CA

F I L E D
December 14, 2000 2000 UT App 363 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Kenneth L. Combs, St. George, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Billings.

PER CURIAM:

Christopher Cannoles appeals an order revoking probation. Probation revocation proceedings are conducted subject to the procedural requirements of Utah Code Ann. § 77-18-1(12)(a) (1999). In State v. Martin, 1999 UT App 62, 976 P.2d 1224, we held "the plain meaning of section 77-18-1 leads to the conclusion that probationers may elect either to have a hearing complete with all of the statutory protections set forth in subsections (b) through (e) or may waive the right to a hearing, thereby foregoing the procedural safeguards guaranteed in the statute." Id. at ¶9 (emphasis in original).

At the January 6, 1999 hearing, the trial court stated it had received a violation report and a motion for an order to show cause why probation should not be revoked. The court indicated it was issuing the order to show cause, which would be served on Cannoles, requiring him to appear on January 13, 1999 to address the allegations. Cannoles, through counsel, stated he wanted "to resolve it today." He then admitted the allegation that he had violated probation by failing to complete the Life Skills Program during his incarceration in the Purgatory Facility. By waiving a hearing and admitting the allegation, Cannoles waived the statutory requirements to be served with an order to show cause at least five days before a hearing, to require the State to present evidence based upon a denial of the allegations, to be allowed to cross examine the State's witnesses, and to require the court to make written findings on "disputed" facts. See Utah Code Ann. §§ 77-18-1(12)(b) to (e) (1999). But for the actions of Cannoles and his counsel, the court would have proceeded under the statute. Thus, the court did not deny Cannoles due process in the proceedings.

Cannoles next contends the trial court was required to make written findings of fact under State v. Hodges, 798 P.2d 270 (Utah Ct. App. 1990). The trial court made written findings that were adequate under the circumstances of this case. "A complete trial court record and transcript can suffice in lieu of written findings." Id. at 274. "However, the record and transcript must still satisfy the Gagnon [v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973)] requirement that the evidence relied on and the reasons for revoking probation be revealed." Id. Contrary to Cannoles's assertion, the record contains the Progress/Violation Report, the Affidavit in Support of Motion for Order to Show Cause, the Order to Show Cause executed by the court, and supporting materials. The court's findings in the judgment and sentencing order stated that Cannoles was served with the order to show cause and that he desired to make an admission and proceed. The court further found that Cannoles admitted his probation violation, and that his probation was terminated unsuccessfully. Cannoles now contends that the State was required to present evidence of willfulness and that the trial court was required to make findings on that issue. However, unlike the defendant in Hodges, Cannoles admitted the violation, and there were no disputed facts before the court for resolution. Although the State mentioned numerous disciplinary lockdowns as a factor in Cannoles's failure to complete the Life Skills Course, Cannoles's counsel made no argument in support of his present claim of lack of willfulness. This issue was not raised in the trial court and was not preserved for appeal.

The judgment and sentence are affirmed.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Judith M. Billings, Judge