2013 UT App 67
_________________________________________________________
THE UTAH COURT OF APPEALS
LAYTON CITY,
Plaintiff and Appellant,
v.
BRENT SORENSON STEVENSON,
Defendant and Appellee.
Opinion
No. 20110840‐CA
Filed March 14, 2013
Second District, Layton Department
The Honorable David R. Hamilton
No. 091600208
Gary R. Crane and Steven L Garside, Attorneys for Appellant
Glen W. Neeley, Attorney for Appellee
JUDGE WILLIAM A. THORNE JR. authored this Opinion,
in which JUDGES GREGORY K. ORME
and STEPHEN L. ROTH concurred.
THORNE, Judge:
¶1 Layton City appeals from the district court’s final order
dismissing, with prejudice, one count of patronizing a prostitute
against Brent Sorenson Stevenson. See generally Utah Code Ann.
§ 76‐10‐1303 (LexisNexis 2012). We reverse and remand.
Layton v. Stevenson
BACKGROUND
¶2 Defendant was arrested in Layton City and charged in
second district court with patronizing a prostitute. On April 14,
2009, Defendant entered into a plea in abeyance agreement with
Layton City. Under the terms of the agreement, Defendant pleaded
no contest to the patronizing a prostitute charge; in return, Layton
City agreed to have the plea held in abeyance for eighteen months.
As a condition of the agreement, Defendant was instructed that he
was to commit “[n]o violations of law except for minor traffic
offenses.”
¶3 On October 18, 2009, the day of the offense, Defendant was
charged with sexual solicitation in Sunset City. On April 15, 2010,
Defendant entered into a diversion agreement in the Sunset City
Justice Court. Then, on October 8, 2010, Layton City filed a motion
for an order to show cause in the district court alleging that
Defendant had violated the terms and conditions of the plea in
abeyance agreement based on his sexual solicitation charge in
Sunset City. Defendant denied violating the agreement, arguing
that no conviction had been entered against him in the Sunset City
case because he had entered into a diversion agreement. The
district court held an evidentiary hearing on Layton City’s order to
show cause motion.
¶4 The district court determined that “a ‘violation of law,’
under the terms of the parties’ 2009 Plea in Abeyance Agreement,
must necessarily be a conviction and not merely an allegation of
misconduct.” Thereafter, the district court determined that because
Defendant’s diversion agreement with Sunset City is not such a
conviction it was therefore not a violation of law as contemplated
by the plea in abeyance agreement. The court concluded that
Defendant had not violated the terms of the plea in abeyance
agreement. As a result, the court denied Layton City’s motion to
reinstate the no contest plea and dismissed with prejudice the
patronizing a prostitute charge against Defendant pursuant to the
plea in abeyance agreement. Layton City appeals.
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ISSUE AND STANDARDS OF REVIEW
¶5 Layton City argues that the district court erred in dismissing
with prejudice the charge against Defendant after determining,
based on its interpretation of the Defendant’s plea in abeyance
agreement, that Defendant had not violated the terms of the
agreement. “We review the district court’s dismissal of a criminal
case for abuse of discretion.” State v. White, 2011 UT App 155, ¶ 7,
256 P.3d 255; see also Utah R. Crim. P. 25(a) (“In its discretion, for
substantial cause and in furtherance of justice, the court may, either
on its own initiative or upon application of either party, order an
information or indictment dismissed.”). We review “the district
court’s legal conclusions for correctness.” State v. Baker, 2010 UT 18,
¶ 7, 229 P.3d 650.
ANALYSIS
¶6 Layton City argues that the district court erred in requiring
a criminal conviction to support a violation of the plea in abeyance
agreement.1 The relevant plea in abeyance term at issue in this case
1
Defendant argues that the State has no right to appeal a
dismissal of Defendant’s case following the successful comple‐
tion of a plea in abeyance agreement after full performance of
the contractual terms. Indeed, the State’s ability to appeal is
limited by Utah Code section 77‐18a‐1(3). See Utah Code Ann. §
77‐18a‐1(3) (LexisNexis 2012). However, the State may, as a
matter of right, appeal from “a final judgment of dismissal.” Id. §
77‐18a‐1(3)(a). This court has held that the phrase “a final judg‐
ment of dismissal” “refers to dismissals where the court con‐
strued the applicable law before ruling on the sufficiency of the
evidence to convict and before a final judgment.” State v.
Amador, 804 P.2d 1233, 1235 (Utah Ct. App. 1990) (applying Utah
Code section 77‐35‐26(3)(a), a previous version of the current
(continued...)
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Layton v. Stevenson
required that Defendant commit “[n]o violations of law except
minor traffic offenses.”
¶7 Utah Code section 77‐2a‐4 sets forth the procedural
requirements regarding plea in abeyance violations. This section
provides,
(1) If, at any time during the term of the plea
in abeyance agreement, information comes to the
attention of the prosecuting attorney or the court that
the defendant has violated any condition of the
agreement, the court, at the request of the
prosecuting attorney, . . . may issue an order
requiring the defendant to appear before the court
. . . 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. If,
following 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 . . . .
(2) The termination of a plea in abeyance
agreement and subsequent entry of judgment of conviction
1
(...continued)
statute); see also State v. Musselman, 667 P.2d 1061, 1064–65 (Utah
1983) (discussing appeals from dismissals and concluding that a
dismissal based on the court’s construction of the applicable law
before the court ruled on the sufficiency of the evidence to
convict was, in effect, a final judgment of dismissal and therefore
appealable). Here, the district court’s reasons for dismissing
Defendant’s case are based on its legal interpretation of a
particular condition of Defendant’s plea in abeyance agreement
before ruling on the merits of the case. Thus, the State has a right
to appeal.
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and imposition of sentence shall not bar any independent
prosecution arising from any offense that constituted a
violation of any term or condition of an agreement
whereby the original plea was placed in abeyance.
Utah Code Ann. § 77‐2a‐4 (LexisNexis 2012) (emphasis added).
¶8 Here, the district court looked to the plain language of the
agreement to determine the meaning of the phrase “violations of
law.” The court then cited Black’s Law Dictionary defining
“violation” as “[a]n infraction or breach of law or [t]he act of
breaking or dishonoring the law.” (Alterations in original and
internal quotation marks omitted.) Thereafter the court reasoned
that “an individual accused of breaking the law is presumed
innocent until proven guilty” and “[i]f an individual is ultimately
adjudged or pleads guilty to a crime, he is found to have violated
the law and is convicted of the underlying crime.” The district
court then found that a “‘violation of law,’ under the terms of the
parties’ 2009 Plea in Abeyance agreement, must necessarily be a
conviction and not merely an allegation of misconduct.” The court
concluded that Defendant’s diversion agreement with Sunset City
is not a conviction and determined that Defendant had not violated
the terms of the plea in abeyance agreement.
¶9 Layton City contends that the plain meaning of the phrase
“violation of law,” as used in the plea in abeyance agreement and
as contemplated in Utah Code section 77‐2a‐4, does not require a
conviction to support a violation of a plea in abeyance agreement.
We agree with the City that the plain meaning of the phrase
“violation of law” does not, as the district court found, necessarily
require a conviction. Rather, under the terms of the parties’ plea in
abeyance agreement and as contemplated in the statute, a
“violation of law” may be supported by evidence of misconduct
other than a conviction. The phrase “violation of law” is not limited
to proof solely by means of a conviction.
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¶10 The plea in abeyance agreement does not specify the exact
evidentiary requirement associated with the condition “[n]o
violations of law except for minor traffic offenses.” Nonetheless,
the plain meaning of the term “violation” as utilized in the statute
governing pleas in abeyance provides support for the notion that
a conviction is not necessarily required to establish a violation of a
term or condition of an agreement. The plea in abeyance statute
specifically provides that a prosecution and conviction for an
offense that constitutes a violation of the plea in abeyance
agreement may occur after a violation and the termination of the
plea in abeyance. See Utah Code Ann. § 77‐2a‐4(2). Section 77‐2a‐
4(2) states that “[t]he termination of a plea in abeyance agreement and
subsequent entry of judgment of conviction and imposition of
sentence shall not bar any independent prosecution arising from any
offense that constituted a violation of any term or condition of an
agreement whereby the original plea was placed in abeyance.” Id.
(emphasis added). Because the statute contemplates later
prosecution for conduct that constitutes a violation of the
conditions of the plea in abeyance agreement, it follows that a
conviction is not a prerequisite to a finding that a defendant has
violated the law in contravention of a condition in a plea in
abeyance agreement.
¶11 It is possible for a court to determine that admissions of
certain facts by a defendant, or other evidence presented at the
requisite evidentiary hearing, are sufficient to establish that the
defendant’s conduct constituted a violation of the law, and thereby
a violation of the plea in abeyance agreement. For instance, a
defendant may admit to violating a term or condition of a plea in
abeyance agreement, e.g., not submitting to the drug testing
required under defendant’s plea in abeyance agreement. Such an
admission would be sufficient in and of itself to prove a violation
of an agreement requiring drug testing. Likewise, the prosecution
could present evidence that a defendant tested positive for drugs,
when required under an agreement to commit no violations of law
except minor traffic offenses. The plea in abeyance statute makes
it clear that in a case where the court determines that a defendant
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violated a term or condition of a plea in abeyance agreement, such
as testing positive for drugs in the second example, a criminal
charge arising from that offense may be prosecuted independent
of the plea in abeyance matter.
¶12 Based on the statutory usage of the term “violation” in the
plea in abeyance statute, we determine that a conviction is not the
sole means of proving a plea in abeyance violation.2 As a result, the
district court erred in concluding that under the terms of the
parties’ plea in abeyance agreement a violation of law may only be
demonstrated by a conviction. Thus, we reverse the court’s
dismissal of Defendant’s patronizing a prostitute charge and
remand the case for further proceedings consistent with this
opinion.3
CONCLUSION
¶13 The language of the parties’ plea in abeyance agreement,
conditioned upon the requirement that Defendant was to commit
2
“Conviction” is such a settled term of legal art that if the
legislature meant that only a conviction would be deemed to
breach a plea in abeyance agreement, it would have been easy
enough to have said so.
3
Because we reverse on Layton City’s first argument that
the district court erred in requiring a conviction for a plea in
abeyance agreement violation, we need not address the City’s
secondary argument that in so doing the court implicitly
employed an incorrect burden of proof in the evidentiary
hearing. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (“[An
appellate c]ourt need not analyze and address in writing each
and every argument, issue, or claim raised and properly before
[it] on appeal.”), overruled on other grounds as recognized by
Archuleta v. Galetka, 2011 UT 73, ¶ 29, 267 P.3d 232.
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“[n]o violations of law except for minor traffic offenses,” does not
require a conviction to support a violation of the agreement. We
reverse the district court’s dismissal of Defendant’s patronizing a
prostitute charge and remand for an evidentiary hearing to
determine if Defendant violated the law before his plea in abeyance
agreement was completed.
¶14 Reversed and remanded.
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