State of Utah v. Miller

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State of Utah,
Plaintiff and Appellee,

v.

Terry Ray Miller,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981179-CA

F I L E D
November 4, 1999
  1999 UT App 316

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Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Randine Salerno, Maurice Richards, Ogden, for Appellant
Jan Graham and Norman Plate, Salt Lake City, for Appellee

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Before Judges Bench, Jackson, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

The State concedes the trial court failed to issue orders to show cause in connection with the affidavits alleging defendant violated his probation. See Utah Code Ann. § 77-18-1(12)(b)(ii) (1999). However, defendant waived the issue when he failed to raise it at any of the three hearings held in February and March of 1998. See State v. Pledger, 896 P.2d 1226, 1229 n.5 (Utah 1995). "Because [defendant] does not argue that 'exceptional circumstances' or 'plain error' justifies a review of the issue, we decline to consider it on appeal." Id. (quoting State v. Archambeau, 820 P.2d 920, 926 (Utah Ct. App. 1991)).

Turning to defendant's remaining argument, defendant did not have a constitutional right to be represented by counsel during probation revocation proceedings. See State v. Byington, 936 P.2d 1112, 1115-16 (Utah Ct. App. 1997). He admitted he violated the terms of his probation. "[A] probationer's 'admission to having committed another serious crime creates the very sort of situation in which counsel need not ordinarily be provided'" as a matter of constitutional law. Id. at 1116 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 791, 93 S. Ct. 1756, 1764 (1973)).

The Utah Legislature, however, has established a statutory right to counsel during probation revocation proceedings. See Utah Code Ann. § 77-18-1(12)(c)(iii) (1999). Yet such "procedural rights do not generally warrant the same protections as do constitutional rights." Byington, 936 P.2d at 1116. Thus, the trial court was not required to give extensive admonitions regarding self-representation, seeState v. Frampton, 737 P.2d 183, 187-89 (Utah 1987), before allowing defendant to waive his right to counsel and admit the allegations against him. See Byington, 936 P.2d at 1116. Instead, defendant's waiver was effective so long as "the record as a whole reflects [defendant's] reasonable understanding of the proceedings and awareness of the right to counsel." Id. at 1117.

The trial court explicitly informed defendant, no stranger to the criminal justice system, that he was entitled to representation and that an attorney would be provided for him if he could not afford one. Defendant acknowledged his rights to consult with an attorney, to contest the averments in the affidavit, and to have a hearing "on the issue of whether [he] did or didn't violate [his] probation." Defendant nonetheless responded, without qualification, that he "just want[ed] to plead to it." We are satisfied that defendant's waiver of his statutory right to counsel was proper under the "lower standard" applicable to this probation revocation proceeding. Id.

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge

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WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

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Norman H. Jackson, Judge