State v. Fanton

2016 UT App 239

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
VICTORIA ELIZABETH FANTON,
Appellant.

Memorandum Decision
No. 20150300-CA
Filed December 8, 2016

Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 141500783

Matthew D. Carling, Attorney for Appellant
Sean D. Reyes, Laura B. Dupaix, and Thomas B.
Brunker, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.

ROTH, Judge:

¶1 Victoria Elizabeth Fanton was convicted of second degree
felony robbery and third degree felony possession of a
controlled substance. She appeals the district court’s imposition
of a jail term as a condition of her probation. We affirm.

¶2 On December 26, 2014, Fanton and two friends robbed a
Cedar City gas station at knife-point. After absconding with
nearly $200, their truck broke down. Fanton and her two friends
were located on December 27 and taken into custody. When
Fanton was booked into the Iron County Jail, the police found
syringes, a plastic pipe “used to smoke heroin,” and a “black
State v. Fanton

scale” in her purse. Fanton admitted she used the scale “to
weigh certain drug product.”

¶3 Fanton was charged in two separate cases—one
addressing the robbery-related charges and the other addressing
the drug-related charges. She ultimately pled guilty to robbery
and possession or use of a controlled substance. The district
court ordered a presentence investigation report (PSI) from
Adult Probation and Parole (AP&P), which was completed and
submitted prior to the sentencing hearing.

¶4 In the PSI, AP&P recommended that the court sentence
Fanton to the statutory prison terms for each conviction and
assess substantial fines. However, AP&P further recommended
that the prison sentences be stayed and that Fanton be placed on
thirty-six months of supervised probation, which would include
certain conditions. Among the conditions was a requirement that
Fanton “[s]erve 270 days in the Iron County Jail with credit for
time served.” The PSI also included substantial information
about Fanton’s background, including her criminal history,
employment and educational history, financial situation,
accommodations, and family/marital status. It noted concerns
associated with several of these categories, including Fanton’s
mental health. In particular, the PSI indicated that Fanton
suffered from mental health issues and that she had in the past
received treatment for them.

¶5 At the sentencing hearing, the State informed the court
that it found “the recommendations made by AP&P [to be]
appropriate.” Fanton’s counsel stated that Fanton “ha[d] no
major qualms with anything contained [in the PSI],” except that
she requested “that she be given credit for the time she has
served [in jail].” Fanton’s counsel acknowledged that Fanton
would be required to serve “an additional amount of jail time,”
but requested that she be allowed to serve it in “three or four
day weekend blocks” so that she could take care of her children
and also more effectively resolve “a few other cases [against her]

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State v. Fanton

in Washington County.” Counsel also informed the court that
Fanton “ultimately . . . want[ed] to compact to the State of
Michigan” to serve her jail time, because she “has family ties and
essentially is from there.” The State objected, stating that the
weekend blocks would be “such a hassle for the Court” and that
due to “the seriousness” of her crimes, “straight time should be
done.”

¶6 After hearing from both parties, the court stated that it
“certainly agree[d] with the State . . . [about] the seriousness of
this charge” and that the 270-day jail recommendation seemed to
be “on the light side.” Nonetheless, the court accepted AP&P’s
recommendations, suspending the statutory prison sentences for
each offense and placing Fanton on supervised probation for
thirty-six months, with several conditions. The condition at the
heart of this appeal was that Fanton serve 270 days in jail, with
credit for time served. The court stated that it was “not inclined”
to allow Fanton to serve her jail sentence solely on weekends. It
also informed her that there would be “zero tolerance for any
violations of the terms of [her] probation.”

¶7 Fanton appealed, challenging the district court’s decision
to require her to serve a 270-day jail sentence and, in the
alternative, the court’s rejection of her request that she be
allowed to serve the time on weekends. Fanton completed her
jail term on August 5, 2015, two months before the opening brief
in this appeal was filed. Within a month of her release, AP&P
filed an affidavit with the district court alleging that Fanton had
violated her probation. After finding her in violation, the court
revoked Fanton’s probation and required her to serve the
suspended prison sentences. Fanton has not appealed the court’s
decision to revoke her probation and impose the original prison
sentences.

¶8 Fanton challenges the court’s imposition of jail time as a
condition of her original probation. Specifically, Fanton argues
on appeal that her trial counsel provided ineffective assistance

20150300-CA 3 2016 UT App 239
State v. Fanton

by failing to request a mental health assessment based upon the
PSI’s information about her mental illness or, alternatively, that
the district court committed plain error by not ordering a mental
health assessment sua sponte. 1 She claims that based on the
mental health information in the PSI, Utah Code section 77-18-
1.1(2) required that she undergo a mental health screening and
assessment. 2 She also argues that, had either her counsel or the
court requested or ordered the mental health assessment, it was
“quite possible that the results of the assessment would have
found [her] eligible for release into either drug or mental health

1. Fanton raises two other issues in her opening brief. First, she
argues that the district court abused its discretion when it denied
her request to serve her remaining jail time in three-to-four-day
blocks on weekends. However, in her reply brief, she concedes
that this issue is “likely moot given that her trial counsel did not
re-raise the issue at her probation revocation hearing” and “no
appeal was taken from her revocation determination.” Second,
she argues that her trial counsel was ineffective for failing to
request that she be transferred to Michigan to serve her sentence
there so that her family, who apparently resided in Michigan,
could help with her children. Fanton has withdrawn the second
issue based upon information she obtained after her opening
brief had been filed indicating that Michigan did not participate
in programs involving interstate transfer of inmates.
Accordingly, we do not address the merits of either argument.

2. Although we do not reach the merits of Fanton’s argument on
mootness grounds, see infra ¶¶ 9–16, we note that section 77-18-
1.1(2) of the Utah Code does not appear to apply to mental
health issues. Rather, it mandates screening and appropriate
follow-up for substance abuse issues. See Utah Code Ann. § 77-
18-1.1 (LexisNexis 2012); id. § 41-6a-501(1)(a) (LexisNexis 2014)
(providing the definition of “assessment” for purposes of section
77-18-1.1).

20150300-CA 4 2016 UT App 239
State v. Fanton

treatment or community based supervision” as alternatives to
jail. In response, the State argues that Fanton’s challenge to the
jail condition of her probation is moot. It contends that this court
“cannot grant [Fanton] any relief” because she has completed
her jail sentence. We agree with the State.

¶9 Mootness is a jurisdictional issue. Utah Transit Auth. v.
Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶¶ 19–20, 27,
289 P.3d 582. Our supreme court has stated that the mootness
doctrine is “an element of the principles defining the scope of the
‘judicial power,’ vested in the courts by the Utah Constitution,”
and “is not a simple matter of judicial convenience or [an] ascetic
act of discretion,” because “courts are not a forum for hearing
academic contentions or rendering advisory opinions” when
there is not a “controversy directly involving rights.” Id. ¶¶ 18,
19, 27 (citations and internal quotation marks omitted). In the
“absence of a justiciable controversy . . . the court can go no
further, and its immediate duty is to dismiss the action.” Id. ¶ 19
(citation and internal quotation marks omitted); see also State v.
Hooker, 2013 UT App 91, ¶ 3, 300 P.3d 1292 (explaining that a
moot appeal “must be dismissed . . . unless it can be shown to fit
within a recognized exception to the mootness principle”
(omission in original) (citation and internal quotation marks
omitted)).

¶10 An issue is moot if the requested relief—in this case, relief
from the jail component of Fanton’s probation—has been
rendered “impossible or of no legal effect” due to changed
circumstances or intervening events that have effectively
eliminated the controversy. State v. Peterson, 2012 UT App 363,
¶¶ 4–5, 293 P.3d 1103 (citation and internal quotation marks
omitted); see also Local 382, 2012 UT 75, ¶ 19 (explaining that
“[t]he defining feature of a moot controversy is the lack of
capacity for the court to order a remedy that will have a
meaningful impact on the practical positions of the parties”);
State v. Sims, 881 P.2d 840, 841 (Utah 1994) (“An issue on appeal

20150300-CA 5 2016 UT App 239
State v. Fanton

is considered moot when the requested judicial relief cannot
affect the rights of the litigants.” (citation and internal quotation
marks omitted)).

¶11 We are not persuaded that it is possible to grant Fanton
the relief she requests or that, assuming we could, it would affect
her rights. Essentially, Fanton requests relief from the jail
condition of her probation on the basis of mental health issues
that she contends were inadequately considered at sentencing.
She argues that, had she received a proper mental health
evaluation, she probably would not have been required to serve
time in jail. But even if there is a reasonable likelihood that the
judge would not have imposed a jail term as a condition of her
probation had he been provided with an in-depth mental health
assessment, the fact remains that Fanton is challenging a
condition of her probation that she has already completed. No
relief we could grant can undo Fanton’s period of incarceration
on probation.

¶12 Further, Fanton has not shown that her jail sentence gave
rise to the sort of long-term effects that would bring her situation
within the collateral consequences exception to the mootness
doctrine. See Hooker, 2013 UT App 91, ¶ 3 (explaining that this
court will reach the merits of a moot appeal only if a recognized
exception to the mootness doctrine, such as collateral legal
consequences, applies). While Fanton raises the collateral
consequences exception, she does so only briefly, in one
sentence, simply contending that the State “has failed to show
that there is no possibility that any collateral legal consequences
can be imposed on the basis of the challenged sentence.”
However, we have consistently held that we will not presume
the existence of collateral legal consequences in criminal cases
unless the appellant is challenging the validity of her underlying
conviction. See, e.g., Duran v. Morris, 635 P.2d 43, 45–46 (Utah
1981); State v. Legg, 2016 UT App 168, ¶¶ 17–25, 380 P.3d 360,
petition for cert. filed, Sept. 30, 2016 (No. 20160810); State v. Moore,

20150300-CA 6 2016 UT App 239
State v. Fanton

2009 UT App 128, ¶¶ 9–17, 210 P.3d 967; cf. Sibron v. New York,
392 U.S. 40, 58 (1968) (explaining that a defendant “has a
substantial stake in the judgment of conviction which survives
the satisfaction of the sentence imposed on him” (citation and
internal quotation marks omitted)). Here, Fanton is challenging
only her jail sentence, not the validity of her criminal
convictions. As a result, she bears the burden to demonstrate
that she will suffer collateral legal consequences as a result of her
jail sentence. See Legg, 2016 UT App 168, ¶ 18 (noting that in
cases where we will not presume that collateral legal
consequences exist, the “party seeking to survive dismissal bears
the burden” to demonstrate the applicability of the exception).
She has not done so. Accordingly, we conclude that the collateral
consequences exception does not apply here.

¶13 Finally, Fanton contends that, because she remains
incarcerated under the original sentences, her challenge remains
“viable.” She argues that she is “serving prison sentences based
upon the lack of mental health assessment in the PSI for
sentencing.” But Fanton is not serving prison sentences because
she did not have a mental health assessment in connection with
her original sentencing. Her current incarceration, while
certainly flowing from the original judgment, which sentenced
her to suspended prison terms, is the result of choices and legal
determinations made apart from, and subsequent to, the
imposition and completion of her jail time. Fanton served her jail
sentence successfully, as ordered. Shortly afterward, however,
she violated other terms of her probation. It was that violation
that led the court to revoke her probation and execute her
original suspended prison terms.

¶14 And the contention Fanton seems to make on appeal—
that she is now in prison because she did not receive the
treatment or tools she needed for success in the first instance—is
a matter that might have been appropriately raised in the
probation revocation proceedings as a reason for the court to

20150300-CA 7 2016 UT App 239
State v. Fanton

forbear from executing the original prison sentences in favor of
further probation and treatment. But that matter is not an
appropriate subject for this appeal. We cannot reach potential
errors in the district court’s decision to revoke Fanton’s
probation and execute her prison sentences through a challenge
to the conditions of probation imposed in the original sentencing
proceeding. The court’s subsequent decision to revoke her
probation was based on considerations pertinent to the
circumstances at that later time and thus was independent of
those in play during the original proceeding. Indeed, the posture
of this appeal makes it impossible for us to know what the court
did and did not consider in the revocation proceeding. On this
record, the connection between the lack of a mental health
assessment and the events that led to the revocation of her
probation is no more than a matter of speculation.

¶15 More significantly, we cannot remedy the district court’s
decision to revoke Fanton’s probation by tracing back, even if
that were possible here, the sort of indeterminate effects that
might have flowed from any failure to request or have a mental
health assessment completed in connection with the original
sentencing. At the time of the district court’s ultimate decision to
revoke her probation, the effects of any alleged error involving
Fanton’s mental health on the district court’s determination of
her original probation terms had run their course and cannot be
undone by any decision we might make here. See State v.
Peterson, 2012 UT App 363, ¶ 4, 293 P.3d 1103 (discussing how an
issue becomes moot). And “[w]here the issues that were before
the [district] court no longer exist, the appellate court will not
review the case.” Id. (first alteration in original) (citation and
internal quotation marks omitted).

¶16 Accordingly, we conclude that Fanton’s appeal is moot,
and we dismiss it for lack of jurisdiction.

20150300-CA 8 2016 UT App 239