State v. Wimberly

2013 UT App 160
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ELBERT CLINT WIMBERLY,
Defendant and Appellant.

Opinion
No. 20110946‐CA
Filed June 27, 2013

Third District, Salt Lake Department
The Honorable Denise P. Lindberg
No. 081904216

Patrick W. Corum and Peter A. Daines, Attorneys
for Appellant
John E. Swallow and Kris C. Leonard, 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 Elbert Clint Wimberly entered a plea in abeyance to one
count of aggravated assault. See Utah Code Ann. § 76‐5‐103
(LexisNexis 2012).1 After determining that Wimberly had violated
the terms of the plea in abeyance agreement, the trial court
terminated the agreement, entered the guilty plea previously held

1. We cite the current version of the Utah Code because no changes
have been made to the relevant statutory provisions that would
affect the resolution of the issues presented on appeal.
 State v. Wimberly

in abeyance, and sentenced him to prison. Wimberly appeals both
the entry of the guilty plea and the sentence. We affirm.

BACKGROUND

¶2 On March 6, 2009, Wimberly pleaded guilty to one count of
aggravated assault. Pursuant to a plea in abeyance agreement, the
trial court held his plea in abeyance for twenty‐four months, and
placed Wimberly under the supervision of Adult Probation and
Parole (AP&P) subject to specified conditions. In October of 2010,
Wimberly was arrested on another charge of aggravated assault.

¶3 AP&P submitted a Progress/Violation Report (the Report).
In addition to the new aggravated assault charge, the Report
asserted that Wimberly had failed to contact his AP&P officer
within forty‐eight hours of his October arrest and failed to
“participate in the dual diagnosis treatment, for Cognitive
Restructuring and Domestic Violence classes.” The Report also
indicated that Wimberly had previously appeared before a
different trial court on a plea agreement violation for failing to
obtain employment within one year of entering the plea in
abeyance agreement. Finally, the Report recommended that
Wimberly “be incarcerated and hopefully he can acquire the skills
necessary to adhere to the Court’s order.” The trial court issued an
Order to Show Cause (the OSC) why Wimberly should not be
found in violation of the conditions of his plea in abeyance.

¶4 Wimberly sought to delay the hearing on the OSC until after
the disposition of the new aggravated assault charge. After
granting two continuances, the trial court proceeded with an
evidentiary hearing limited to the violation allegations that were
not directly related to the October 2010 aggravated assault charges.
At the evidentiary hearing Wimberly’s AP&P officer and Wimberly
both testified. At the conclusion of the hearing, the trial court found
that Wimberly was in “violation of the terms of his plea in
abeyance” and set the case for sentencing. After receiving an

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updated presentence report, the trial court sentenced Wimberly to
serve zero to five years in prison.

ISSUES AND STANDARDS OF REVIEW

¶5 First, Wimberly contends that the trial court erred when it
revoked his plea in abeyance agreement “because there was
insufficient evidence to support a finding that Wimberly’s
violations were willful.” We review a trial court’s decision to
terminate a plea in abeyance agreement for an abuse of discretion.
See State v. Martin, 2012 UT App 208, ¶ 10, 283 P.3d 1066 (mem.); see
also Utah Code Ann. § 77‐2a‐4(1) (LexisNexis 2012) (providing that
a trial court “may terminate” a plea in abeyance agreement upon
a finding that the defendant “failed to substantially comply with
any term or condition” of the agreement). And we review factual
findings entered by a trial court for clear error. See State v. Tripp,
2010 UT 9, ¶ 23, 227 P.3d 1251.

¶6 Second, Wimberly contends that the trial court abused its
discretion by sentencing him to prison rather than granting him
probation. We review the trial court’s imposition of sentence for an
abuse of discretion. State v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17
(explaining that an appellate court “will overturn a sentencing
decision only if it is clear that the actions of the trial judge were so
inherently unfair as to constitute an abuse of discretion.” (brackets,
emphasis, citation, and internal quotation marks omitted)).

ANALYSIS

I. Termination of the Plea in Abeyance Agreement

¶7 Wimberly contends that the trial court “erred when it
revoked Wimberly’s probation because there is insufficient
evidence to support a finding that Wimberly’s violations were
willful.” This framing of the issue assumes that Wimberly was

20110946‐CA 3 2013 UT App 160
 State v. Wimberly

placed on probation, that his probation was revoked, and
consequently that the State was required to show that his violations
were willful. We do not share these assumptions.

A. The Statutory “Substantial Compliance” Standard Governs
the Termination of Plea in Abeyance Agreements.

¶8 The record leaves no doubt that Wimberly entered a plea in
abeyance. A plea in abeyance is a court order “accepting a plea of
guilty or of no contest from the defendant but not, at that time,
entering judgment of conviction against him nor imposing sentence
upon him on condition that he comply with specific conditions as
set forth in a plea in abeyance agreement.” Utah Code Ann. § 77‐
2a‐1(1) (LexisNexis 2012). A plea in abeyance agreement is “an
agreement entered into between the prosecution and the defendant
setting forth the specific terms and conditions upon which,
following acceptance of the agreement by the court, a plea may be
held in abeyance.” Id. § 77‐2a‐1(2). Thus, “[w]hen a plea in
abeyance agreement is approved, the trial court agrees to accept a
guilty plea but not, at that time, enter a conviction nor impose a
sentence on the condition that the defendant comply with the
conditions set forth in the agreement.” State v. Turnbow, 2001 UT
App 59, ¶ 10, 21 P.3d 249 (citing Utah Code Ann. § 77‐2a‐1(1)).
After successful completion of those conditions, a trial court may
dismiss the charge and no conviction will remain on the
defendant’s record. “A court may not hold a plea in abeyance
without the consent of both the prosecuting attorney and the
defendant.” Utah Code Ann. § 77‐2a‐3(6) (LexisNexis 2012).

¶9 While a plea in abeyance agreement is not probation, “[t]he
court may require the Department of Corrections to assist in the
administration of the plea in abeyance agreement as if the defendant
were on probation to the court under Section 77‐18‐1.” Id. § 77‐2a‐3(4)
(emphasis added).

¶10 If the court learns from AP&P or otherwise that the
defendant may have violated the terms of the plea in abeyance

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agreement, the court “may issue an order requiring the defendant
to appear before the court at a designated time and place to show
cause why the court should not find the terms of the agreement to
have been violated and why the agreement should not be
terminated.” Id. § 77‐2a‐4(1) (LexisNexis 2012). If after an
evidentiary hearing “the court finds that the defendant has failed
to substantially comply with any term or condition of the plea in
abeyance agreement, it may terminate the agreement and enter
judgment of conviction and impose sentence against the defendant
for the offense to which the original plea was entered.” Id.
(emphasis added).

¶11 A plea in abeyance is thus analytically distinct from
probation. “Probation has two roles under Utah law. It is both a
sentence and an alternative sanction to be imposed after the
suspension of a harsher sentence.” State v. Anderson, 2009 UT 13,
¶ 15, 203 P.3d 990. “On a plea of guilty, guilty with a mental illness,
no contest, or conviction of any crime or offense, the court may,
after imposing sentence, suspend the execution of the sentence and
place the defendant on probation.” Utah Code Ann. § 77‐18‐1(2)(a)
(LexisNexis 2012). “If a violation of the probationary conditions
occurs, the court ‘may order the probation revoked, modified,
continued, or that the entire probation term commence anew.’”
Anderson, 2009 UT 13, ¶ 15 (quoting Utah Code Ann. § 77‐18‐
1(12)(e)(ii)). Before a court may revoke probation based on a
probation violation, “‘the court must determine by a
preponderance of the evidence that the violation was willful.’”2

2. The willfulness requirement in probation revocation cases is a
judicial creation rather than a statutory one and is necessary for
the statute to comply with the Fourteenth Amendment. Compare
Utah Code Ann. § 77‐18‐1(12)(a)(i) (LexisNexis 2012) (“Probation
may not be revoked except upon a hearing in court and a finding
that the conditions of probation have been violated.” (emphasis added)),
with Bearden v. Georgia, 461 U.S. 660, 672 (1983) (holding that
(continued...)

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 State v. Wimberly

State v. Maestas, 2000 UT App 22, ¶ 24, 997 P.2d 314 (quoting State
v. Peterson, 869 P.2d 989, 991 (Utah Ct. App. 1994)).

¶12 Although at various times the trial court, AP&P, and counsel
all referred to the plea in abeyance agreement as “probation,”
Wimberly was in fact never placed on probation. Rather, the trial
court directed AP&P “to assist in the administration of the plea in
abeyance agreement as if [Wimberly] were on probation.” See Utah
Code Ann. § 77‐2a‐3(4). We detect no fundamental confusion on
the trial court’s part. It issued an order to show cause and
scheduled an evidentiary hearing. At the conclusion of the hearing
it found that Wimberly was “in violation of the terms of his plea
[in] abeyance” and accordingly “enter[ed] the plea,” with the result
that “he now has a third degree felony on his record.” The trial
court then scheduled the matter for sentencing. All this was in
keeping with Utah Code section 77‐2a‐4(1).

2. (...continued)
revocation of probation for failure to pay a fine or restitution was,
absent a finding of willfulness, “contrary to the fundamental
fairness required by the Fourteenth Amendment”). However,
Wimberly has not argued for the extension of Bearden’s reasoning
to the substantial compliance requirement in plea in abeyance
cases. “Like the Utah Supreme Court, ‘we are resolute in our
refusal to take up constitutional issues which have not been
properly preserved, framed and briefed . . . .’” Salt Lake County v.
Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 32, 297 P.3d
38 (quoting Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506,
rev’d on other grounds, 547 U.S. 398 (2006)). Accordingly, we express
no opinion on whether a finding that a defendant willfully failed
to substantially comply with the terms of a plea in abeyance
agreement is constitutionally required before the agreement may
be terminated. Nevertheless, even if that were the test, we would
conclude that the trial court did not abuse its discretion in
terminating Wimberly’s plea in abeyance agreement.

20110946‐CA 6 2013 UT App 160
 State v. Wimberly

¶13 Wimberly contends that the trial court erred by terminating
the plea in abeyance agreement without evidence that his
violations were willful. Thus, in effect, Wimberly “argues that the
reasoning of the probation statute cases should be applied to plea
in abeyance proceedings.” See State v. Turnbow, 2001 UT App 59,
¶ 14, 21 P.3d 249. We have rejected this contention in a related
context, holding that “a plea in abeyance differs from probation in
both its statutory provisions and function. Thus, cases decided
under the probation statutes are not directly applicable to pleas in
abeyance.” Id. (referring to defendant’s argument “that
proceedings to determine whether a defendant has violated the
terms of an abeyance agreement must be initiated prior to
expiration of the term of the agreement”). No Utah case has ever
held or implied that a finding of willfulness is required before a
trial court may terminate a plea in abeyance agreement, enter a
conviction, and impose a sentence, including incarceration. The
standard specified by the controlling statute, and uniformly
applied by our case law, is substantial compliance.

¶14 Wimberly argues that the probation revocation standard
controls the termination of a plea in abeyance agreement. He seeks
inferential support from State v. Martin, where we reviewed a trial
court’s revocation of a defendant’s plea in abeyance agreement
after the defendant failed to comply with the conditions of the
agreement. See 2012 UT App 208, 283 P.3d 1066. In a “see
also” parenthetical, Martin quotes a probation revocation case for
the proposition that “‘the decision to . . . revoke probation is in the
discretion of the trial court.’” Id. ¶ 10 (quoting State v. Peterson, 869
P.2d 989, 991 (Utah Ct. App. 1994)). But nothing in Martin remotely
suggests that a determination of whether a defendant has violated
a plea in abeyance agreement should be governed by any standard
other than substantial compliance. On the contrary, Martin
repeatedly cites and ultimately applies the substantial compliance
standard. We noted in Martin that the defendant’s conduct “[did]
not substantially comply” with the principal purposes of the plea
in abeyance agreement, determined that defendant “failed to
substantially comply with [a] condition of the plea agreement,” and

20110946‐CA 7 2013 UT App 160
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concluded that because the defendant “did not substantially
comply with the plea agreement, . . . the district court acted within
its discretion in revoking [his] plea in abeyance.” Id. ¶¶ 15–16.
Finally, Martin never mentions the willfulness standard.
Accordingly, far from supporting Wimberly’s position on appeal,
we conclude that Martin supports our determination that the
applicable standard is substantial compliance, not willfulness.

¶15 Wimberly also draws support from United States v. Gorman,
for the proposition that “Utah’s plea in abeyance . . . includes
probation‐like components.” 312 F.3d 1159, 1166 (10th Cir. 2002).
The question before the Tenth Circuit in Gorman was whether a
plea in abeyance under Utah law constitutes a criminal justice
sentence for purposes of “the United States Sentencing Guidelines’
expressed purpose of increasing sentences for repeat offenders.” Id.
at 1167. The court held that, having entered a plea in abeyance, the
defendant was subject to a “supervisory component” at the time he
committed the second crime, a fact sufficient to support a harsher
penalty for the second offense. Id. Gorman is, of course, not
controlling here. But even if it were, nothing in the rule or rationale
of Gorman suggests that a Utah court, in determining whether a
plea in abeyance agreement has been violated, should apply the
probation revocation standard in lieu of or in addition to the
statutory standard for determining whether a plea in abeyance
agreement has been violated.3

3. Wimberly also directs us to West Valley City v. Walljasper, 2012
UT App 252, 286 P.3d 948, and State v. Gibson, 2009 UT App 108,
208 P.3d 543. While these cases loosely refer to a plea in abeyance
agreement as “probation,” neither considered the standard for
determining whether to terminate a plea in abeyance agreement.
And neither suggests that, in determining whether a defendant has
violated a plea in abeyance agreement, a court should apply any
standard other than the one specified in the controlling statute.

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 State v. Wimberly

¶16 In sum, we are not persuaded that in determining whether
a defendant has violated a plea in abeyance agreement a trial court
should apply any standard other than that prescribed by the
controlling statute—substantial compliance.

B. Wimberly Does Not Claim to Have Substantially Complied
with the Plea in Abeyance Agreement.

¶17 Wimberly did not contend below, nor does he contend on
appeal, that the evidence was insufficient to demonstrate that he
“failed to substantially comply with any term or condition of the
plea in abeyance agreement.” Utah Code Ann. § 77‐2a‐4(1)
(LexisNexis 2012). Because he has not shown, or indeed undertaken
to show, that the trial court violated the applicable standard in
ruling that he violated the plea in abeyance agreement, Wimberly’s
challenge to the trial court’s entry of his guilty plea fails. See Allen
v. Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (noting an appellant’s
obligation to challenge the basis of the trial court’s decision and
burden to demonstrate error in that decision); see also Duchesne
Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257
P.3d 441 (mem.) (rejecting appellant’s claim on the ground that it
did not address the actual basis for the trial court’s ruling).

II. Sentencing

¶18 Wimberly next contends that, in any event, the trial court
abused its discretion by imposing a prison sentence rather than
placing him on probation. Wimberly argues that at the time of
sentencing (1) most of the allegations listed in the OSC had either
been dropped or satisfied, (2) he had completed the court‐ordered
domestic violence program, and (3) the only remaining
requirement was the payment of the recoupment and supervision
fees.

¶19 “A defendant is not entitled to probation, but rather the
[trial] court is empowered to place the defendant on probation if it
thinks that will best serve the ends of justice and is compatible with

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the public interest.” State v. Valdovinos, 2003 UT App 432, ¶ 23, 82
P.3d 1167 (alteration in original) (citation and internal quotation
marks omitted). Accordingly, “[w]e have traditionally afforded
trial courts wide latitude and discretion in sentencing, recognizing
that they are best situated to weigh the many intangibles of
character, personality and attitude, of which the cold record gives
little inkling.” State v. Killpack, 2008 UT 49, ¶ 58, 191 P.3d 17
(citations and internal quotation marks omitted). “Consequently,
the decision of whether to grant probation must of necessity rest
within the discretion of the judge who hears the case.” Id. (citation
and internal quotation marks omitted). “In general, a trial court’s
sentencing decision will not be overturned unless it exceeds
statutory or constitutional limits, the judge failed to consider all the
legally relevant factors, or the actions of the judge were so
inherently unfair as to constitute abuse of discretion.” Id. ¶ 59
(citation and internal quotation marks omitted).

¶20 Here, the trial court found that Wimberly violated the terms
of his plea in abeyance agreement. At sentencing, the court stated,
“whether they are technical violations or not, they are violations.
[Wimberly] knew. He’s been in the system long enough that he
knew what was expected of him.” The court expressed concern
over what it viewed as “fairly explosive conduct and not really
following through,” noting that Wimberly had “done things when
[he] had to do them at the last minute.” The court further expressed
discomfort with “how much or how little [Wimberly had] grown
over the past.”

¶21 Although AP&P recommended thirty‐six months of
probation, the AP&P investigator “lean[ed] towards incarceration
of this defendant simply to stop his criminal activities and protect
the general public.” He referred to Wimberly’s anger management
and other problems, describing them as potentially “a very
dangerous combination.” The investigator also expressed concern
for Wimberly’s “total disregard for the law in the matter for which
the defendant is currently on probation,” as the investigator
inaccurately characterized it, and that Wimberly “is simply not

20110946‐CA 10 2013 UT App 160
 State v. Wimberly

abiding by the rules of supervision, nor is he learning to obey the
law.”

¶22 On this record, we conclude that the trial court acted within
its “wide latitude and discretion” in sentencing Wimberly to prison
rather than suspending the prison sentence and placing him on
probation. See Killpack, 2008 UT 49, ¶ 58 (citation and internal
quotation marks omitted).

CONCLUSION

¶23 If after an evidentiary hearing the trial court finds that a
defendant “has failed to substantially comply with any term or
condition of the plea in abeyance agreement, it may terminate the
agreement and enter judgment of conviction and impose sentence
against the defendant for the offense to which the original plea was
entered.” Utah Code Ann. § 77‐2a‐4(1) (LexisNexis 2012). Neither
the controlling statute nor our case law requires in addition a
showing of willfulness. Because Wimberly does not claim to have
substantially complied with the terms of his plea in abeyance
agreement, his challenge to the entry of his guilty plea fails. In
addition, the trial court acted within its discretion in sentencing
Wimberly to prison. The judgment of the trial court is accordingly
affirmed.

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