State v. Robinson

2014 UT App 114
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ROBERT DOUGLAS ROBINSON,
Defendant and Appellant.
Opinion
No. 20120403-CA
Filed May 22, 2014
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 101903560
Joel J. Kittrell, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.
VOROS, Judge:
¶1 After convicted sex offender Robert Douglas Robinson
admitted to multiple probation violations, the trial court revoked
his probation and imposed his original sentence. Robinson
contends that the trial court abused its discretion by revoking
probation without holding an evidentiary hearing or finding that
his violations were willful. We affirm.
BACKGROUND
¶2 The State of Utah originally charged Robinson with forcible
sexual abuse, two counts of sexual battery, making a terroristic

State v. Robinson
1. The State dismissed one count of sexual battery.
20120403-CA 2 2014 UT App 114
threat, and disorderly conduct. After he pleaded no contest to all1
charges, the trial court sentenced Robinson to an indeterminate
prison term not exceeding five years on the conviction for forcible
sexual abuse, one year on the conviction for sexual battery, 180
days on the conviction for making a terroristic threat, and 90 days
on the conviction for disorderly conduct. The court suspended
Robinson’s sentence and placed him on probation for 36 months.
¶3 Three months later, the State alleged that Robinson had
committed five probation violations, including not fully complying
with sex-offender- and DNA-registration requirements and not
reporting as directed. The trial court issued a warrant for
Robinson’s arrest. He was apprehended, but because his probation
officer failed to appear at the scheduled evidentiary hearing the
court struck the order to show cause. Five months later, the State
alleged that Robinson had committed seven probation violations,
again including not complying with sex-offender- and DNA-
registration requirements and not reporting as directed. The trial
court again issued a warrant for Robinson’s arrest. Two months
later Adult Probation and Parole (AP&P) filed a progress report
stating that Robinson had not made contact with AP&P for eight
months and that his whereabouts were unknown.
¶4 Robinson was apprehended, and the trial court held a
revocation hearing. Robinson waived an evidentiary hearing and
admitted to three allegations. His counsel explained that
predecessor counsel had led Robinson to believe that he was no
longer on probation but that Robinson now knew that he needed
to “strictly comply with every condition of probation.” The
prosecution challenged the credibility of Robinson’s explanation.
The trial court found a willful violation and expressed skepticism
“that there would be this much confusion.” Nevertheless, the court
revoked and reinstated probation, adding that “any further failure
to completely follow the requirements will result in the original
sentence.” Because Robinson told the court that he lived in Cedar
City, the court instructed him to report to the Cedar City AP&P
office upon his release.

State v. Robinson
20120403-CA 3 2014 UT App 114
¶5 Robinson reported, but to the Salt Lake City AP&P office
rather than to the Cedar City AP&P office. AP&P filed a progress
report alleging, among other violations, that Robinson had not
reported to the Cedar City office as required, that he had not fully
complied with the registration requirements, and that his
whereabouts were again unknown.
¶6 Robinson was located, and the trial court held another
revocation hearing. Appearing with the same counsel who had
represented him in the earlier revocation hearing, Robinson
admitted the allegations in the violation report. He did not request
an evidentiary hearing or expressly deny that his violations were
willful. However, his counsel explained that Robinson “was under
the belief that with his appeal going forward with the Court of
Appeals, that the sentence essentially was stayed,” but asserted,
“Mr. Robinson now knows today that that’s not the case.”
Robinson added, “It was my understanding it was under appeal,
and it was just a big misunderstanding. My apologies.”
ISSUE AND STANDARD OF REVIEW
¶7 Robinson contends that the trial court abused its discretion
by revoking his probation without holding an evidentiary hearing
or entering a finding that his violations were willful. “The decision
to grant, modify, or revoke probation is in the discretion of the trial
court.” State v. Jameson, 800 P.2d 798, 804 (Utah 1990). “Therefore,
we view the evidence of a probation violation in a light most
favorable to the trial court’s findings and substitute our own
judgment only if the evidence is so deficient as to render the court’s
action an abuse of discretion.” State v. Maestas, 2000 UT App 22,
¶ 12, 997 P.2d 314.
ANALYSIS
¶8 Robinson contends that the trial court abused its discretion
by revoking his probation without holding an evidentiary hearing
or finding that his violations were willful. The State responds that

State v. Robinson
2. “Probation may not be revoked except upon a hearing in court
and a finding that the conditions of probation have been violated.”
Utah Code Ann. § 77-18-1 (12)(a)(ii) (LexisNexis Supp. 2011). “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
(continued...)
20120403-CA 4 2014 UT App 114
this court should not review Robinson’s claims, because he failed
to preserve them in the trial court. The State also maintains that
even had Robinson preserved his claims, the trial court held “a
hearing that presented [Robinson] with an opportunity to deny the
allegations” and made an “implied finding of willfulness.” Thus,
the State concludes, the trial court did not abuse its discretion in
revoking Robinson’s probation.
I. Evidentiary Hearing
¶9 To preserve an issue for appeal, a party must present it “to
the trial court in such a way that the trial court has an opportunity
to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted).
¶10 In Robinson’s opening brief, he argues that he preserved his
claims by reciting them in his docketing statement. However,
merely identifying a claim in a docketing statement does not
preserve it for appeal. The appellant files the docketing statement
in the appellate court. See Utah R. App. P. 9. The docketing
statement therefore does not present the issue “to the trial court in
such a way that the trial court has an opportunity to rule on that
issue.” 438 Main St., 2004 UT 72, ¶ 51 (citation and internal
quotation marks omitted) (emphasis added). Faced with a
preservation challenge in the State’s brief, Robinson argued in his
reply brief that he did preserve his claims in the trial court and that
in any event we should review his claims under the plain error
doctrine.
¶11 We do not agree that Robinson preserved his challenge to
the lack of an evidentiary hearing. Robinson argues that while2

State v. Robinson
2. (...continued)
evidence on the allegations.” Id. § 77-18-1(12)(d)(ii). If an
evidentiary hearing is held, “[t]he defendant may call witnesses,
appear and speak in the defendant’s own behalf, and present
evidence.” Id. § 77-18-1(12)(d)(iv). Thus, “probationers may elect
either to have a hearing complete with all of the statutory
protections” or “may waive the right to a hearing, thereby
foregoing the procedural safeguards guaranteed in the statute.”
State v. Martin, 1999 UT App 62, ¶ 9, 976 P.2d 1224.
Robinson appeared at the revocation hearing with counsel.
His counsel stated that Robinson “intends to admit the allegations
in the order to show cause affidavit, and would like to give an
explanation to the Court.” The trial court then asked whether
Robinson admitted each of the probation violations. Robinson
stated that he did.
The statute requires the prosecutor to present evidence of
the allegations “[i]f the defendant denies the allegations in the
affidavit.” Utah Code Ann. § 77-18-1(12)(d)(ii). By admitting the
allegations, Robinson obviated the need for the prosecutor to
present evidence of the alleged violations. Accordingly, even had
Robinson preserved his challenge to the lack of an evidentiary
hearing, the trial court did not exceed its discretion by not putting
the State to its proof.
20120403-CA 5 2014 UT App 114
neither he nor his counsel “explicitly requested an evidentiary
hearing on the allegations,” Robinson asked the trial court “if he
could give an explanation as to the ‘misunderstandings’ that led to
his technical probation violations.” The court granted the request.
An appellant who “‘has received what he asked for’” from the trial
court “‘cannot be heard to complain on appeal.’” See State v.
Larrabee, 2013 UT 70, ¶ 26 n.25, 321 P.3d 1126 (quoting Robert J.
Martineau et al., Appellate Practice & Procedure, Cases & Materials 101
(2d ed. 2005)) Accordingly, this request in the revocation hearing
did not preserve Robinson’s claims. Neither Robinson nor his
counsel sought anything from the trial court that it did not grant
except reinstatement of probation.
¶12 Robinson’s plain error claim comes too late. If an appellant
fails to preserve an issue in the trial court, the plain error exception

State v. Robinson
20120403-CA 6 2014 UT App 114
allows “the appellate court to balance the need for procedural
regularity with the demands of fairness.” State v. Holgate, 2000 UT
74, ¶ 13, 10 P.3d 346 (citation and internal quotation marks
omitted). “To demonstrate plain error, a defendant must establish
that (i) [a]n error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful . . . .” Id. (alteration in
original) (citation and internal quotation marks omitted). However,
”[w]e will not consider matters raised for the first time in the reply
brief.” Schefski ex rel. Coleman v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d
1122. This rule applies to claims of plain error. Id. Therefore, a party
seeking appellate review of an unpreserved issue must “articulate
the justification for review in the party’s opening brief.” State v.
Weaver, 2005 UT 49, ¶ 19, 122 P.3d 566. Thus, a plain error
argument presented for the first time in a reply brief is beyond our
reach.
II. Willfulness
¶13 Robinson next contends that the trial court abused its
discretion by revoking probation without first finding that his
violation was willful. The State again argues that Robinson failed
to preserve this claim.
¶14 Robinson preserved his willfulness claim for review. The
State asks that we accept the trial court’s colloquy with Robinson
as an “implied finding of willfulness,” see supra ¶ 8, yet seeks to
cordon off Robinson’s willfulness claim from our review on the
ground that Robinson failed to identify his claim with precision.
Our case law does allow us to consider an implicit finding of
willfulness by the trial court. See, e.g., State v. Brady, 2013 UT App
102, ¶ 7, 300 P.3d 778. We grant Robinson similar leeway in
preserving his claim that his violations were not willful. Robinson’s
preservation of this claim does not “turn on the use of magic words
or phrases.” See In re Baby Girl T., 2012 UT 78, ¶ 38, 298 P.3d 1251.
As explained above, so long as he presented the issue “in such a
way that the trial court ha[d] an opportunity to rule on that issue,”
he preserved the issue for appellate review. See 438 Main St., 2004
UT 72, ¶ 51. We conclude that the trial court both had an
opportunity to rule on the issue and did so.

State v. Robinson
20120403-CA 7 2014 UT App 114
¶15 Robinson arrived at his final revocation hearing with two
goals: he sought “to admit the allegations in the order to show
cause affidavit” and “to give an explanation [for his violations] to
the Court.” Robinson admitted that he had failed to establish a
residence of record, failed to report to the Cedar City AP&P, failed
to abide by the terms of his zero-tolerance probation program, and
failed to fully comply with the sex-offender- and DNA-registration
requirements. Robinson then explained that he misunderstood the
terms of his probation and that he had been unable to travel to
Cedar City to report. Though he never explicitly stated that his
probation violations were not willful, his explanation implied that
his violations stemmed from confusion and from financial
limitations, not from willfulness. In his view, his failure to report
upon release “was just a big misunderstanding.” This explanation
offered the trial court an “opportunity to rule” on the question of
willfulness. Id. Accordingly, Robinson preserved this claim.
¶16 We thus consider whether the trial court abused its
discretion in revoking Robinson’s probation without first finding
that he had willfully violated the terms of his probation. “[F]or a
trial court to revoke probation based on a probation violation, the
court must determine by a preponderance of the evidence that the
violation was willful.” State v. Peterson, 869 P.2d 989, 991 (Utah Ct.
App. 1994). “[A] finding of willfulness merely requires a finding
that the probationer did not make bona fide efforts to meet the
conditions of his probation.” Id. (citation and internal quotation
marks omitted) Furthermore, the trial court’s finding of willfulness
may be implicit rather than explicit. Brady, 2013 UT App 102, ¶ 7.
¶17 Robinson argues that the explanations he offered to the trial
court demonstrate that his violations were not willful. He claimed
that he “was informed by private counsel that his sentence was
essentially stayed until the Court of Appeals addressed his appeal”
and that he “believed that it was not necessary to continue
checking in with AP&P.”
¶18 The trial court did not credit Robinson’s explanations.
Robinson had claimed confusion before. At his first order to show
cause hearing, Robinson, represented by the same counsel, claimed

State v. Robinson
3. Robinson’s aunt, who lived near Cedar City, reported that he
came to her house to pick up a van, then drove it back to Salt Lake
City. Robinson denied going to her house and argued that his aunt
was out “to get him in trouble.”
20120403-CA 8 2014 UT App 114
that “he was under the impression that the terms of probation were
not yet to be applied.” Although dubious, the judge in that hearing
reinstated probation, warning, “Mr. Robinson will have another 30
days in jail; and upon his release he is to report to AP&P within 48
hours. If that does not occur, we’re going to be back in court. . . .
[And] any further failure to completely follow the requirements
will result in the original sentence.” Robinson responded,
“Absolutely, ma’am.” Furthermore, Robinson’s claims of confusion
contradicted record statements of his aunt, and the judge was
“more inclined to believe what she ha[d] to say” than to believe
Robinson.3
¶19 Having discussed the matter at some length with Robinson,
the judge concluded, “It seems like you report when you want to,
not when you’re told to.” The trial court thus implicitly yet
unmistakably found that Robinson’s violations were willful. See
Peterson, 869 P.2d at 991. We “view the evidence of a probation
violation in a light most favorable to the trial court’s findings” and
will “substitute our own judgment only if the evidence is so
deficient as to render the court’s action an abuse of discretion.”
State v. Maestas, 2000 UT App 22, ¶ 12, 997 P.2d 314. The record
evidence here, viewed in the light most favorable to the trial court’s
findings, supports the trial court’s implicit finding of willfulness.
CONCLUSION
¶20 Robinson has not demonstrated that the trial court abused
its discretion in revoking his probation. The order of the trial court
is accordingly affirmed.