State v. Love

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 175
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CEAZAR CEDRIC LOVE,
Defendant and Appellant.
Memorandum Decision
No. 20130027-CA
Filed July 25, 2014
Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
Nos. 111500605 and 121500013
Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye,
Attorneys for Appellee
SENIOR JUDGE JUDITH M. BILLINGS authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and JOHN A.
PEARCE concurred.1
BILLINGS, Senior Judge:
¶1 Ceazar Cedric Love argues that the district court violated his
due process rights by revoking his probation based on a violation
of his probation terms that happened before he was actually on
probation. Love essentially argues that the jail term he was serving
when the violation occurred was not part of probation but that he

State v. Love
20130027-CA 2 2014 UT App 175
was serving part of his suspended incarceration term. Love
alternatively argues that the evidence was not sufficient to support
a finding that he willfully violated the conditions of his probation
as he did not understand he was on probation while serving time
in jail. We affirm.
¶2 On January 31, 2012, Love pleaded guilty to charges in two
separate cases. On March 13, 2012, the district court sentenced Love
to prison in both cases but also stayed the sentence in each case and
ordered probation, which included a term of incarceration in the
Iron County Jail. In June 2012, while he was in jail, Love spat at a
correctional officer, which led to a charge of propelling a substance
at a correctional officer. Love pleaded guilty to this offense as well.
This subsequent charge led to the December 2012 revocation of
Love’s probationary status in the two original cases. Love argues
that such revocation was in error because his probationary term
had not yet commenced when he spat at the officer and the
evidence was not sufficient to support revocation.
¶3 “Generally, in order to preserve an issue for appeal the issue
must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.” Pratt v. Nelson,
2007 UT 41, ¶ 15, 164 P.3d 366 (citation and internal quotation
marks omitted). The Utah Supreme Court has set forth three factors
to use in assessing whether the trial court had such an opportunity:
“(1) the issue must be raised in a timely fashion; (2) the issue must
be specifically raised; and (3) a party must introduce supporting
evidence or relevant legal authority.” Id. (citation and internal
quotation marks omitted). “Where there is no clear or specific
objection and the specific ground for objection is not clear from the
context[,] the theory cannot be raised on appeal.” State v. Low, 2008
UT 58, ¶ 17, 192 P.3d 867 (alteration in original) (citation and
internal quotation marks omitted).
¶4 Although Love’s counsel argued against the revocation of
probation, he made no argument that Love had not yet technically
been on probation. Love relies on select language in asserting that

State v. Love
20130027-CA 3 2014 UT App 175
such an argument was made. But when those statements are read
in context, it appears that counsel’s argument was simply a plea to
give Love a chance to try probation again:
Essentially the only thing that’s really
happened since the time that he was sentenced in this
case is that he had this incident in the jail where he,
he spat. He was sentenced on the—March 13 to both
of those two felony matters. His release date would
have been January of this, this coming year. He’s,
he’s not been out on the streets. He’s been in the jail.
. . . .
So essentially what we have here is we, we
have poor behavior at the jail around that June time
that—at least that we’ve got reports of. And we’ve
got no time out on the streets to know really how
he’s gonna act or how he’s gonna behave on
probation.
These are his first felonies as an adult. And
essentially he’s not really been on a true probation
where he’s been out and been checking in and doing
what he’s required to do as a term of his probation.
Essentially he had this incident at the jail, and he’s
being deemed a risk, and therefore let’s send him to
prison.
He’s simply asking for the opportunity to be
out on the probation. He, he did have this incident,
but since then there’s been zero incidents. He’s
asking your Honor to revoke and restart his probation
to give him the opportunity on the outs to have his
probation officer see his performance.

State v. Love
20130027-CA 4 2014 UT App 175
And if the Court wants to put him on an
extremely tight leash, so be it. But essentially he has
—he’s not really been permitted to perform on
probation other than his behavior at the jail. And for
that he certainly is [regretful] of what, what
happened.
So essentially that’s what we’re asking for is
an opportunity to be on the outs and, and have his
probation be supervised. Actually be supervised and
actually be on the outs.
(Emphasis added.) Counsel made no mention of Love’s due
process rights, nor did he specifically state that probation had not
yet commenced. Indeed, earlier in the hearing, the district court
asked, “And [Love] was placed on probation, let’s see, in—was it
March?” and counsel replied in the affirmative. When considering
the argument as a whole, there is simply no indication that counsel
believed that probation had not yet commenced, let alone any
argument advanced to raise that issue to the attention of the district
court. Counsel was simply asking the district court to restart
probation and give Love another chance to prove himself; counsel
made no suggestion that the court would be violating Love’s due
process rights by choosing to revoke probation. Likewise, counsel
made no reference to probation revocation being inappropriate due
to a lack of evidence to show a willful violation. Thus, these
arguments are not preserved for appellate review.
¶5 Love argues that even if his claims are not preserved we
should nevertheless consider them.
When a party fails to preserve an issue for appeal, we
will address the issue only if (1) the appellant
establishes that the district court committed plain
error, (2) exceptional circumstances exist, or (3) in
some situations, if the appellant raises a claim of

State v. Love
20130027-CA 5 2014 UT App 175
ineffective assistance of counsel in failing to preserve
the issue.
Low, 2008 UT 58, ¶ 19 (citation and internal quotation marks
omitted).
¶6 Love argues that we may review his claims under the
theories of plain error and ineffective assistance of counsel. “In
general, to establish the existence of plain error and to obtain
appellate relief from an alleged error that was not properly
objected to, the appellant must show the following: (i) An error
exists; (ii) the error should have been obvious to the trial court; and
(iii) the error is harmful . . . .” State v. Dunn, 850 P.2d 1201,1208
(Utah 1993). “To show ineffective assistance of counsel, a defendant
must (i) identify specific acts or omissions by counsel that fall
below the standard of reasonable professional assistance when
considered at the time of the act or omission and under all the
attendant circumstances, and (ii) demonstrate that counsel’s error
prejudiced the defendant . . . .” Id. at 1225 (citing Strickland v.
Washington, 466 U.S. 668, 690–91, 694 (1984)).
¶7 “To establish that the error should have been obvious to the
trial court, [an appellant] must show that the law governing the
error was clear at the time the alleged error was made.” State v.
Dean, 2004 UT 63, ¶ 16, 95 P.3d 276. Similarly, “[c]ounsel cannot be
faulted for failing to advance a novel legal theory which has never
been accepted by the pertinent courts.” Commonwealth v. Jones, 811
A.2d 994, 1005 (Pa. 2002). Love recognizes that “the question of
when a probation period commences may have yet to be
determined by this Court or the Utah Supreme Court.” However,
he argues plain error and ineffective assistance of counsel because
the law “is well-settled with regard to the notification required to
be given to [him] with regard to his probationary period and the
conditions placed upon him.” See generally State v. Ruesga, 851 P.2d
1229, 1231 (Utah Ct. App. 1993) (“[D]ue process certainly requires
conditions of probation to be clear enough so that defendant has
notice as to what constitutes a probation violation . . . .”). That is,

State v. Love
20130027-CA 6 2014 UT App 175
Love argues that the underlying judgments were not sufficiently
clear as to when probation would commence, which would also
make any violation of probationary terms while in jail not a willful
violation of probation conditions. We disagree.
¶8 As Love has argued, “‘[t]he controlling consideration in
interpreting when a probation period commences is the intention
of the Court imposing the sentence, to be found in the language
employed to create the probationary status.’” (Alteration in
original) (quoting United States v. McElroy, 52 F. App’x 110, 112
(10th Cir. 2002).) By their plain language, the judgments of which
Love complains both stay his sentences that include incarceration
in the Utah State Prison and commence probationary periods that
include jail time:
SENTENCE
IT IS HEREBY ORDERED . . . that the
Defendant, CEAZAR CEDRIC LOVE, and pursuant
to his conviction . . . , shall serve a term of
imprisonment . . . in the Utah State Prison . . . .
. . . .
STAY OF EXECUTION OF SENTENCE
IT IS HEREBY ORDERED that the execution
of the terms of incarceration imposed and the fines
imposed in this case are hereby stayed, pending the
Defendant’s strict adherence to and compliance with
the following terms and conditions of probation.
ORDER OF PROBATION . . .
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the Defendant, CEAZAR CEDRIC

State v. Love
20130027-CA 7 2014 UT App 175
LOVE, is hereby placed on probation . . . strictly within
the following terms, provisions, and conditions:
. . . .
3. The Defendant shall commit no law
violations during the period of this probation.
4. The Defendant shall serve a term of
incarceration in the Iron County Jail . . . .
(Emphasis added.) The judgments adequately indicated that
probation was commencing at the time of the judgments and that
the enumerated elements, including the jail time, were conditions
of probation. This is entirely consistent with Utah Code provisions
regarding probation: “While on probation, and as a condition of
probation, the court may require that the defendant . . . serve a
period of time, not to exceed one year, in a county jail . . . .” Utah
Code Ann. § 77-18-1(8) (LexisNexis 2012) (emphasis added). Love
points us to no authority that would support his suggestion that
when jail time is a condition of probation, the probationary period
does not commence until that condition has been satisfied.
¶9 Because the judgments were clear as to when probation
started and that the jail time was considered a condition of
probation, we cannot say that Love was inadequately notified of
the commencement of his probationary term or the probationary
requirements that he was under. We therefore do not see that trial
counsel was ineffective in not pursuing an argument to the
contrary or that the district court plainly erred.
¶10 We affirm.