Orem City v. Koyle

----ooOoo----

Orem City,
Plaintiff and Appellee,

v.

Sherwin Koyle,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020174-CA

F I L E D
July 18, 2002 2002 UT App 242 -----

Fourth District, American Fork Department
The Honorable Howard H. Maetani

Attorneys:
Sherwin Koyle, Orem, Appellant Pro Se
Robert J. Church, Orem, for Appellee -----

Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

Appellant Sherwin Koyle appeals from the Amended Order to Show Cause, ultimately set for November 27, 2001, which was entered on February 27, 2002. The order entered by the court following the hearing found Koyle to be in violation of his probation, entered a no contest plea to be held in abeyance, and ordered him to serve ten days in jail.(1) This case is before the court on a sua sponte motion for summary disposition.

On August 14, 2000, Koyle pleaded guilty to one count of Failure to Obtain a Building Permit and no contest to one count of Failure to Meet Required Setbacks. The latter plea was held in abeyance for six months, pending successful completion of probation. At sentencing, the court verbally ordered Koyle to bring his entire parcel of property into "complete and absolute compliance with the city building code and the zoning ordinances of Orem City." The court further stated that compliance meant "everything . . . . That means permits, any applications, variances, anything he has to do to bring the property into compliance." The pleas required: (1) bringing the entire property into compliance with Orem's zoning ordinances within thirty days; (2) painting the roof of the RV shed with nonreflective coating; (3) installing rain gutters to keep water runoff on his own property; and (4) having no contact with his neighbor. Koyle was present personally and through counsel at sentencing, and did not object to any requirement.

To the extent this appeal challenges the original pleas, we lack jurisdiction to consider the claims because Koyle did not file a timely motion to withdraw the guilty or no contest pleas. See State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630. Similarly, we cannot consider claims of pre-plea discovery violations because the judgment resulted from entry of pleas of guilty and no contest.

Koyle's due process challenge to the Amended Order is without merit. Koyle contends he was not adequately notified of all items he was required to complete because the entire oral order was not incorporated in the court's written judgment and original minute entry. However, Koyle was present at sentencing, and was notified of the requirement to bring his property into complete compliance with zoning ordinances. He has identified no specific requirement he was not advised of at sentencing. On appeal, Koyle has provided only the transcript of the sentencing hearing, and apparently contends that comparison of that transcript with the written judgment and minute entry establishes his claim. We disagree. He did not provide a transcript of the hearing on the order to show cause. We are unable to determine the basis for termination of probation, including whether Koyle complied with requirements that were enumerated in the judgment or minute entry. An appellant challenging factual findings of the trial court must include in the record "a transcript of all evidence relevant to such finding." Utah R. App. P. 11(e)(2). In the absence of an adequate record on appeal, this court will presume that the trial court's findings were based upon sufficient evidence and that the disposition of the case was correct. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct. App. 1990).

Accordingly, we affirm.
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Koyle filed four appeals from orders in this case and allowed all but this appeal to be dismissed for failure to prosecute.