State v. Phillip

2016 UT App 245
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
GIRATO K AMILLO PHILLIP ,
Appellant.
Memorandum Decision
No. 20150278-CA
Filed December 22, 2016
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 101909538
Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Memorandum
Decision, in which J UDGES S TEPHEN L. R OTH and JILL M.
POHLMAN concurred.
CHRISTIANSEN, Judge:
¶1 	Girato 	Kamillo 	Phillip 	challenges 	the 	district 	court’s
decision to revoke his probation, arguing that it was improper to
base the revocation on his conduct while he was not being
supervised by Adult Probation and Parole (AP&P). He also
argues that he did not willfully violate the conditions of his
probation 	because 	he 	did 	not 	know 	he 	was 	on 	probation.
Because compliance with probation conditions is not legally
dependent on being supervised, and because Phillip knew or
should have known he was subject to probation conditions, we
affirm.

State v. Phillip
20150278-CA 	2 	2016 UT App 245
¶2 	The posture of this case flows from two distinct criminal
episodes. 	First, 	in 	February 	2009, 	Phillip 	pled 	guilty 	to 	an
aggravated assault charge, receiving a prison sentence that was
suspended in favor of probation. Second, in December 2010,
while still on probation for his aggravated assault conviction,
Phillip robbed a convenience store, which criminal act resulted
in his guilty plea to aggravated robbery in April 2011. Phillip
was statutorily sentenced to five years to life in prison for the
robbery, but that sentence was also suspended in favor of a jail
term and 36 months of probation. This appeal is brought from
the district court’s decision to revoke Phillip’s robbery probation.
¶3 	At the initial sentencing for Phillip’s robbery conviction,
the district court explained, from the bench and on the record,
some of Phillip’s probation conditions, including gang, drug,
and alcohol limitations:
He’ll have gang conditions. . . . Drug and alcohol
conditions. . . . Now 	those 	conditions 	mean 	you
can’t hang out with other gang members.[1] Also
means you can [be] drug tested when they want to.
You can be searched when they want to search
you, your car, your person, your house. When you
get to AP&P they’re going to give you a contract to
sign and it’s going to have all these conditions on
it. You make sure you understand that and you
follow it.
. . . .
1. Counsel later clarified, on the record, that Phillip was not a
gang member and that the gang condition meant “[j]ust don’t
become a gang member, don’t hang out with these guys that
are.”

State v. Phillip
20150278-CA 	3 	2016 UT App 245
[A]lso, no contact with the victim, you cannot go
back to the place where this happened, no contact
with the co-defendants you did this with.
The 	court 	also 	stated 	that 	the 	probation 	would 	be 	“zero
tolerance.”
¶4 	Roughly a month after sentencing in the robbery case,
Phillip’s probation in his assault case was revoked, apparently
due to the events of the robbery case, and he was sent to prison
on that conviction. Three months later, AP&P met with Phillip at
the prison to review his probation agreement in the robbery case.
The 	agreement 	stated 	the 	conditions 	of 	Phillip’s 	probation,
including 	obeying 	all 	state 	laws, 	abstaining 	from 	alcohol,
submitting 	to 	alcohol 	and 	drug 	testing, 	and 	not 	having 	a
dangerous weapon. The agreement also noted that his probation
was “zero tolerance.” Phillip initialed each paragraph of the
probation agreement and signed it.2 Thereafter, because Phillip
was in prison on his assault conviction, AP&P did not actively
supervise his probation in the robbery case and apparently
inadvertently closed its internal file for that case.
¶5 	Phillip was paroled from prison on the assault conviction
in May 2013. AP&P began supervising him as a parolee in the
assault case, but did not supervise him as a probationer for his
robbery conviction.
2. On appeal, Phillip explains that he is unable to read English.
As his counsel explained below, Phillip is able to understand “a
little bit and can converse in regard to [his case.]” At the relevant
hearings, he was provided with a translator. With regard to the
signed probation agreement, Phillip notes on appeal his inability
to read English but does not address whether the agreement was
read to him or whether he needed and was provided with a
translator when AP&P reviewed it with him.

State v. Phillip
20150278-CA 	4 	2016 UT App 245
¶6 	In February 2014, a parole officer noted that Phillip was
not living at the address he had provided to AP&P. The parole
officer then audited AP&P’s files on Phillip and discovered that
Phillip’s robbery probation case had been “inadvertently closed
out” in AP&P’s computer system. The officer corrected the error
and, on February 8, 2014, began dual supervision of Phillip as
both a parolee (in the assault case) and a probationer (in the
robbery case).3
¶7 	The 	officer 	later 	discovered 	that 	Phillip 	had 	tested
positive for alcohol consumption on four occasions in December
2013, January 2014, and February 2014. Accordingly, the officer
submitted a probation violation report to the district court,
alleging that Phillip had violated his robbery probation by, inter
alia, testing positive for alcohol use.
¶8 	On 	September 	24, 	2014, 	the 	AP&P 	officer 	filed 	an
amended violation report, alleging that Phillip had violated the
conditions of his probation several more times. The amended
report stated that, on September 23, 2014, Phillip pled guilty to
possession of a controlled substance and carrying a concealed
dangerous weapon. The amended report also alleged that Phillip
had “committed a new technical offense: Assault” on April 1,
2014. Finally, the amended report explained that Phillip’s parole
in the original aggravated assault case had been revoked and
that he was back in prison. AP&P sought the revocation of
Phillip’s probation in the robbery case and the reinstatement of
the five-years-to-life prison sentence.
¶9 	In March 2015, the court held a probation revocation
hearing. Phillip argued that AP&P’s failure to supervise his
3. 	Phillip 	notes on 	appeal 	that 	the 	record 	does not 	reflect
whether he was told that he was being supervised as both a
parolee and a probationer.

State v. Phillip
20150278-CA 	5 	2016 UT App 245
probation negated any finding that he had failed to comply with
the conditions of probation. He further argued that he lacked
notice of the conditions of probation. After hearing arguments,
the court determined that Phillip had been on notice that he was
on probation. However, the court further determined that Phillip
was only on notice of the probation conditions announced at the
sentencing hearing.4 The court found that Phillip had not been
on notice of the probation conditions requiring him to register
his place of residence with AP&P and submit to a drug test. The
court consequently declined to find that Phillip had violated
those probation conditions. Nevertheless, the court did find that
Phillip had been on notice of the prohibitions against consuming
alcohol and against committing other crimes, by virtue of the
sentencing court’s on-the-record imposition of alcohol conditions
and zero-tolerance probation. The court ruled that Phillip had
violated those conditions, revoked his probation, and reinstated
the original prison sentence.
¶10 	Phillip appeals, contending that “[t]he district court erred
in concluding that it could revoke [his] probation for conduct
that occurred when AP&P was not supervising his probation.”
This is a challenge to the scope of the court’s judicial authority
granted by the relevant probation statutes, and we therefore
review for correctness. See State v. Flygare, 2015 UT App 188, ¶ 2,
356 P.3d 698 (“We review questions of statutory interpretation
for correctness, affording no deference to the district court’s legal
conclusions.” (citation and internal quotation marks omitted)).
¶11 	Phillip argues that “the Department’s supervision [was] a
necessary condition of the defendant’s probation.” He relies on
the statute governing probation, which sets forth three types of
probation. See Utah Code Ann. § 77-18-1(2)(a) (LexisNexis 2012).
4. The signed probation agreement was not mentioned at this
hearing.

State v. Phillip
20150278-CA 	6 	2016 UT App 245
As relevant here, the type of probation selected by the court was
“under the supervision of the Department of Corrections.” Id.
§ 77-18-1(2)(a)(i). Phillip argues that because the court put him
on probation “to be supervised by [AP&P],” AP&P’s failure to
supervise “effectively closes probation.” In other words, Phillip
believes that without AP&P’s supervision, his probation was
terminated.
¶12 	We conclude, however, that AP&P had no authority to
unilaterally terminate a defendant’s court-imposed probation.
When a court properly orders a person or organization to
undertake a specified action, failure (or refusal) to perform that
action does not render the underlying order null.
¶13 	The Utah Constitution sets forth a clear separation of
powers:
The powers of the government of the State of Utah
shall be divided into three distinct departments,
the Legislative, the Executive, and the Judicial; and
no person charged with the exercise of powers
properly belonging to one of these departments,
shall exercise any functions appertaining to either
of the others, except in the cases herein expressly
directed or permitted.
Utah Const. art. V, § 1. “The first [clause] states the general
separation of powers principle, and the second very specifically
prohibits the exercise of certain functions of one branch by one
charged with the exercise of certain powers of another branch.”
In re Young, 1999 UT 6, ¶ 7, 976 P.2d 581.
¶14 	The judicial branch has the power to sentence convicted
defendants within specified limits. See Utah Code Ann. § 77-18-4.
As relevant here, the Utah Code specifically grants a sentencing
court the ability to “suspend the execution of the sentence and

State v. Phillip
20150278-CA 	7 	2016 UT App 245
place the defendant on probation.” Id. § 77-18-1(2)(a). The code
also imbues the court with the authority to terminate probation
early. Id. § 77-18-1(10)(a)(i). Thus, the judicial branch has the
authority to begin probation and to terminate probation for
those convicted offenders whose prison sentences have been
suspended in favor of probation.
¶15 	AP&P, as a division of the Department of Corrections, is a
creature of the executive branch. In Phillip’s view, AP&P’s
failure 	to 	supervise 	probation 	results 	in 	the 	automatic
termination 	of 	probation. 	But 	the 	authority 	to 	terminate
probation before its natural expiration has been allocated by
statute to the judicial branch. Id. Allowing the executive branch,
through 	AP&P, 	to 	exercise 	that 	same 	power, 	by 	failing 	or
refusing to supervise a convicted defendant, therefore offends
the 	Utah 	Constitution’s 	separation 	of 	powers 	provision.
Accordingly, we conclude that AP&P could not have terminated
Phillip’s probation early, regardless of whether it acted willfully
or negligently in not supervising that probation. It follows that
Phillip’s probation was not terminated by AP&P’s failure to
supervise him.
¶16 	Phillip next contends that “[t]he district court erred in
concluding that it could revoke [his] probation where the record
indicates that [he] did not willfully violate his probation.” To
successfully 	challenge 	the 	factual 	basis 	for 	a 	probation
revocation, 	a 	defendant 	must 	show 	that 	the 	evidence 	of 	a
probation violation, viewed in the light most favorable to the
district court’s findings, was so deficient that the district court
abused its discretion in revoking probation. State v. Legg, 2014
UT App 80, ¶¶ 2, 7, 324 P.3d 656; State v. Peterson, 869 P.2d 989,
991 (Utah Ct. App. 1994). But to the extent that this contention
challenges the district court’s reading of the relevant probation
statutes, we review for correctness. State v. Flygare, 2015 UT App
188, ¶ 2, 356 P.3d 698.

State v. Phillip
20150278-CA 	8 	2016 UT App 245
¶17 	The 	district 	court 	assumed 	that, 	in 	order 	to 	revoke
probation based on a probation violation, it was required to
determine by a preponderance of the evidence that the violation
was willful. See State v. Pantelakis, 2014 UT App 113, ¶ 4, 327 P.3d
586. But see Bearden v. Georgia, 461 U.S. 660, 668 & n.9 (1983)
(noting that “the probationer’s lack of fault in violating a term of
probation,” in circumstances other than failing to pay a fine or
restitution due to impecuniosity, does not prevent a court from
revoking probation).5 The district court determined that Phillip
had not been given notice of several of the conditions of his
probation 	and 	that 	his 	violation 	of 	those 	conditions 	was
therefore not willful. Accordingly, it did not base its revocation
decision on those violations. Instead, the basis of the district
court’s decision to revoke probation was that Phillip had notice
of the probation conditions that forbade the consumption of
alcohol and the commission of new crimes and that Phillip’s
violation of those conditions was therefore willful.
¶18 	Phillip argues that he “could not have known or believed
that 	he 	was 	on 	probation 	during 	the 	time 	of 	the 	alleged
conduct.” He asserts that he could not have willfully violated his
probation 	conditions 	if 	he 	did 	not 	know 	that 	he 	was 	on
probation. In Phillip’s view, it was reasonable for him to believe
5. 	The 	purposes 	of 	probation 	are 	several 	and 	include 	the
protection of society and the deterrence of criminal behavior. See
State v. Candedo, 2010 UT 32, ¶ 21, 232 P.3d 1008. When a
probationer’s 	voluntary 	activities 	contradict 	the 	goals 	of
probation, even if it was not his or her purpose to frustrate them,
the supervising court has the discretion to revoke probation in
furtherance of those goals. See, e.g., United States v. Warner, 830
F.2d 651, 657 (7th Cir. 1987) (observing that, where “probation’s
purposes have been frustrated” by the probationer’s continued
criminal behavior, “revocation is fair and appropriate even if the
probationer did not willfully violate his probation conditions”).

State v. Phillip
20150278-CA 	9 	2016 UT App 245
that he was not on probation, because AP&P failed to supervise
or meet with him after the initial meeting at which he signed the
probation agreement.
¶19 	We disagree. During the plea colloquy, the court stated
that the maximum penalty for aggravated robbery was “five
years to life in the prison” and that, although “we have all
agreed that you are going to do a year in jail and then go to
AP&P probation,” “you need to understand if you don’t comply
with probation . . . , a judge could bring you back and sentence
you 	to 	that 	maximum 	amount.” 	Phillip 	responded, 	“Yes, 	I
understand.” After Phillip entered his guilty plea, the court
stated, “[T]he sentence of this Court will be to stay the five to life
in prison . . . and place the defendant with [AP&P] for a period
of 36 months.” The court then noted and explained several,
albeit not all, of the conditions of Phillip’s probation. In light of
these statements, and Phillip’s later signing of the probation
agreement, it was unreasonable for him to believe that he was
not on probation simply because AP&P was not supervising that
probation. In other words, the absence of an agency monitoring
a defendant’s compliance with probation conditions does not
render reasonable the defendant’s belief that the conditions no
longer exist or that he or she is no longer required to comply
with the court order setting them.
¶20 	Because 	Phillip’s 	probation 	was 	not 	terminated 	by
AP&P’s inaction, the district court had jurisdiction to revoke that
probation. 	And 	because 	Phillip 	could 	not 	have 	reasonably
believed that the conditions of probation no longer applied to
him, the district court did not err in determining that he had
willfully 	violated 	those 	conditions. 	We 	therefore 	affirm 	the
district court’s probation revocation ruling.