State of Utah v. Bird

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Timothy Scott Bird,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020114-CA
 

F I L E D
(May 15, 2003)
 

2003 UT App 143

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Third District, Salt Lake Department

The Honorable Michael K. Burton

Attorneys: Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

DAVIS, Judge:

First, Defendant argues the trial court committed plain error by revoking his probation because he did not personally admit the probation violation at the revocation hearing. Plain error is error that is obvious and prejudicial. See State v. Verde, 770 P.2d 116, 122 (Utah 1989).

Utah Code Ann. § 77-18-1(12) provides that "the defendant shall admit or deny the allegations of the affidavit" at the revocation hearing. Utah Code Ann. § 77-18-1(12)(d)(i) (Supp. 2002).(1) In this case, Defendant attended the revocation hearing. He was therefore present when his counsel admitted that he had not been accepted into a treatment program, as required by his probation, and he was present during the discussion among defense counsel, the prosecution, and the judge about the possible consequences of his inability to obtain admission. Further, when given the opportunity to speak, Defendant did not object to his counsel's admission or assert that he had been accepted to a treatment program. Instead, he informed the judge that he would be successful in a treatment program "[i]f given the chance." Thus, we determine that Defendant's admission was implied through his counsel's admission, in his presence, and his own statement that he would be successful in a treatment program "[i]f given the chance." Cf. State v. Ruesga, 851 P.2d 1229, 1232 (Utah Ct. App. 1993) (determining that defendant had notice that he must sign a probation agreement or go to prison because "the court told defense counsel, with defendant at his side").(2)

Second, Defendant argues his counsel at the revocation hearing was ineffective for failing to prevent or correct the alleged errors discussed above. To show ineffective assistance of counsel, a defendant

must establish both prongs of the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) that his counsel's performance "fell below an objective standard of reasonableness;" id. at 688, 104 S. Ct. at 2064; and (2) that counsel's performance prejudiced the defendant. Id. at 687, 104 S. Ct. at 2064.

State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994). When reviewing a defendant's claim of ineffective assistance, we "may skip to the second prong of the Strickland standard and determine that the ineffectiveness, if any, did not prejudice the trial's outcome." State v. Goddard, 871 P.2d 540, 545 (Utah 1994).

In this case, Defendant failed to satisfy the second prong of the Strickland test. To prevail on this prong, a defendant "must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Strain, 885 P.2d at 814 (citation omitted). Here, counsel's failure to make arguments to prevent or correct the trial court's alleged errors did not prejudice Defendant because, as discussed above, the trial court did not err. Thus, any arguments counsel could have made would have failed. See State v. Yanez, 2002 UT App 50,¶19, 42 P.3d 1248 (holding "trial counsel was not ineffective" for failing to raise an objection to the sufficiency of the evidence at trial because any such objection "would have been denied"), cert. denied, 53 P.3d 1 (Utah 2002).

Because the trial court did not err by finding Defendant's admission adequate under Utah Code Ann. § 77-18-1(12)(d)(i) and Defendant did not receive ineffective assistance of counsel, we affirm.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. Defendant argues that section 77-18-1(12)(d)(i) "presents a situation that is identical in scope and magnitude to the taking of pleas in all criminal cases which is governed by [r]ule 11 of the Utah Rules of Criminal Procedure." We decline to address this argument because it is inadequately briefed. See Utah R. App. P. 24(a)(9) ("The argument shall contain the contentions and reasons of the appellant with respect to issues presented, . . . with citations to the authorities, statutes, and parts of the record relied on."); State v. Montoya, 937 P.2d 145, 150 (Utah Ct. App. 1997) (declining to address an inadequately briefed issue because the "reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research" (quotations and citation omitted)).

2. Defendant also argues that the "trial court failed to make adequate findings that [Defendant] willfully violated the terms and conditions of his probation prior to revocation." However, "[t]he trial court made written findings that were adequate under the circumstances of this case" because the Sentence, Judgment and Order, as supplemented by the record and transcripts, revealed "'the evidence relied on and the reasons for revoking probation.'" State v. Cannoles, 2000 UT App 363 (per curiam) (quoting State v. Hodges, 798 P.2d 270, 274 (Utah Ct. App. 1990)). Further, the trial court was not required to make a finding that Defendant's violation was willful because the probation order clearly stated that Defendant, as a condition of his probation, was required to complete a sex offender program. See Hodges, 798 P.2d at 277-78 (noting that a trial court, "as a condition of probation," may require a defendant to "make adequate progress in treatment, regardless of fault").