State v Vazquez

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 159
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
RANDY M. VAZQUEZ,
Defendant and Appellant.
Per Curiam Decision
No. 20131064-CA
Filed July 3, 2014
Second District Court, Ogden Department
The Honorable Parley R. Baldwin
Nos. 111901192 and 121900087
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and John J. Nielson, Attorneys for Appellee
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and
JUDITH M. BILLINGS.1
PER CURIAM:
¶1 Randy M. Vazquez appeals an order revoking and
reinstating his probation on convictions for possession of a forged
writing, a third degree felony, and attempted possession or use of
a controlled substance, a class A misdemeanor. We affirm.
¶2 In 2012, the district court sentenced Vazquez to concurrent
sentences in two cases. The district court sentenced Vazquez to a
prison term of zero to five years on a third degree felony conviction

State v. Vazquez
20131064-CA 2 2014 UT App 159
but suspended the prison term and placed him on probation for
thirty-six months. The court also sentenced Vazquez to serve one
year in jail on a class A misdemeanor conviction but suspended
that term and placed him on probation for eighteen months. In
addition to standard probation terms, the court ordered Vazquez
to serve 365 days in jail with an early release to the Northern Utah
Community Correctional Center (NUCCC) where he was to
complete programming. In August 2013, Adult Probation & Parole
(AP&P) filed an affidavit alleging probation violations of failure to
pay restitution and supervision fees. In September 2013, AP & P
filed an affidavit alleging probation violations based upon positive
drug tests for cocaine, marijuana, and methamphetamine and
failure to report police contact to his parole officer. Vazquez
appeared with counsel at an order to show cause hearing and
admitted the allegations of both affidavits. Vazquez’s counsel
stated that the district court should cancel a scheduled evidentiary
hearing on the violations. The district court requested an updated
presentence investigation report (PSI) and set a sentencing date.
¶3 The PSI recommended revocation of probation and
imposition of a prison sentence. The prosecutor concurred in that
recommendation. Vazquez addressed the court personally and
through counsel, claiming that he would have been successfully
terminated from probation if he had been able to pay restitution
and fees prior to his relapse. Vazquez requested revocation and
reinstatement of probation for the purpose of allowing him to pay
his financial obligations, arguing that he had completed the
required drug treatment at the NUCCC. The district court deter-
mined that Vazquez was “entitled to one more opportunity” for
probation. Accordingly, the court revoked, then reinstated,
probation, requiring Vazquez to serve a year in jail with credit for
time served and to satisfy conditions that included successful
completion of a substance abuse program chosen by AP&P. The
district court ordered that the probation would be “zero tolerance”
and that Vazquez would be committed to prison if he violated any
probation condition. Vazquez challenges that order.

State v. Vazquez
20131064-CA 3 2014 UT App 159
¶4 After the filing of an affidavit alleging facts constituting a
probation violation, a district court determines if there is probable
cause to believe that a violation has occurred and, if so, sets the
matter for an order to show cause hearing. Utah Code Ann.
§ 77-18-1(12)(b) (LexisNexis 2012). “At the hearing, the defendant
shall admit or deny the allegations of the affidavit.” Id.
§ 77-18-1(12)(d)(i). “If the defendant denies the allegations of the
affidavit, the prosecuting attorney shall present evidence on the
allegations.” Id. § 77-18-1(12)(d)(ii) (emphasis added). Because
Vazquez admitted the allegations, an evidentiary hearing was not
necessary. Upon finding a violation of the conditions of probation,
“the court may order the probation revoked, modified, continued,
or that the entire probation term may commence anew.” Id. § 77-18-
1(12)(e)(ii). “If probation is revoked, the defendant shall be
sentenced or the sentence previously imposed shall be executed.”
Id. § 77-18-1(12)(e)(iii).
¶5 Contrary to the central assertion of Vazquez’s brief, the
district court did not simply revoke his probation. Instead, the
district court revoked and then restarted probation. The State
correctly notes that if probation had been revoked as Vazquez
claims, the district court would have imposed the original sen-
tences, including the prison term for the third degree felony
conviction. The State also correctly states that Vazquez failed to
preserve his claims that the district court erred because it did not
find that his violations were willful or fully consider “the realities
of drug addiction” or his substantial compliance with probation.
Vazquez admitted the violations, and his request for reinstatement
of probation did not preserve these issues challenging the alleged
revocation of probation. In other words, Vazquez did not argue to
the district court, as he seems to argue on appeal, that his relapse
was not willful, essentially because he is addicted to drugs and
relapses are common among addicts, even those who have
successfully completed treatment.
¶6 Even if Vazquez had preserved his claims, he has not
demonstrated error. The claim that the district court erred by
failing to make a finding that the violations were willful is without

State v. Vazquez
20131064-CA 4 2014 UT App 159
merit. In State v. Hodges, 798 P.2d 270 (Utah Ct. App. 1990), which
Vazquez relies upon, we determined that the record on appeal
from a probation revocation following an evidentiary hearing was
inadequate to reveal the evidence relied upon by the district court
and the reasons for revoking probation. See id. at 275. However, we
stated “that written findings of fact are not necessary in every
judicial probation revocation” if “the record before this court
sufficiently reveals the evidence relied on and the reasons for
revoking . . . probation.” Id. at 274. The record clearly demonstrates
that the basis for revocation and reinstatement of probation was
Vazquez’s admission to the allegations in the affidavits. There was
no dispute about the merits of the allegations that required
examination of evidence. Because Vazquez admitted the
allegations, it follows that it was not necessary to make an
additional finding that the violations were willful. In addition, any
alleged error in cancelling a further hearing and revoking and
reinstating probation was arguably invited by Vazquez.
¶7 The remainder of the claims on appeal are properly charac-
terized as challenges to the sanctions imposed for the probation
violations. The district court acted within its considerable discretion
in revoking, then reinstating and restarting probation, rather than
following the recommendation of AP&P and the State to impose
the original prison sentence. An appellate court will reverse a
probation decision only when it is “clear that the actions of the
judge were so inherently unfair as to constitute an abuse of
discretion.” State v. Rhoades, 818 P.2d 1048, 1051 (Utah Ct. App.
1991) (citations and internal quotation marks omitted). Because the
“granting or withholding of probation involves considering
intangibles of character, personality, and attitude,” a district court
has “complete discretion” with respect to its decision. Id. at 1049
(citations and internal quotation marks omitted). A court abuses its
discretion only when “no reasonable [person] would take the view
adopted by the trial court.” Id. Contrary to Vazquez’s assertions,
the record amply demonstrates that the district court considered
the “realities of drug addiction” and his level of compliance with

State v. Vazquez
20131064-CA 5 2014 UT App 159
probation conditions in granting him another opportunity for
probation and requiring additional substance abuse treatment.
¶8 Accordingly, we affirm.