State v. Pacheco

2016 UT App 19

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TIMOTHY PACHECO,
Appellant.

Memorandum Decision
No. 20140537-CA
Filed January 28, 2016

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111908850

David M. Corbett and Craig L. Pankratz, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL W.
BENCH concurred. 1

ROTH, Judge:

¶1 Timothy Pacheco appeals the revocation of his probation
and the imposition of prison sentences for burglary, a second
degree felony, and aggravated assault, a third degree felony.
Pacheco argues the district court failed to adequately determine
that his admissions to the alleged probation violations were
knowing and voluntary. We affirm.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 State v. Pacheco

¶2 “In reviewing a revocation of probation, we recite the
facts in the ‘light most favorable to the trial court’s findings.’”
State v. Legg, 2014 UT App 80, ¶ 2, 324 P.3d 656 (quoting State v.
Jameson, 800 P.2d 798, 804 (Utah 1990)). On the evening of
November 19, 2011, Pacheco broke a glass window in his ex-
wife’s house and entered the house despite an active protective
order served on him nearly two months before. Upon hearing
the window break, Pacheco’s ex-wife took one of her children
and fled to a neighbor’s house to call the police. After entering
the house, Pacheco went to the bedroom of his ex-wife’s sixteen-
year-old daughter and asked her where her mother was. When
the daughter stated that she did not know, Pacheco physically
assaulted her. The daughter escaped. By this time, the neighbor
(Neighbor) was headed to the house of Pacheco’s ex-wife to
check on the other children. Before arriving at the house,
Neighbor saw the sixteen-year-old daughter running toward
him, closely followed by Pacheco. Neighbor told Pacheco his ex-
wife had contacted the police, who were on their way. Pacheco
then fled the scene. Neighbor cooperated with law enforcement
in the ensuing criminal proceedings. 2

¶3 Pacheco was charged with attempted murder and
aggravated burglary, both first degree felonies, along with six
counts of commission of domestic violence in the presence of a
child and violation of a protective order, all third degree
felonies. Prior to trial, the State “became aware that the alleged
victims were no longer cooperative and received information
that [Pacheco] may have tampered with [them].” The State then
filed witness-tampering charges against Pacheco in a separate
case. Pacheco eventually pleaded guilty to burglary and

2. At Pacheco’s Order to Show Cause hearing, the State
characterized Neighbor as “[t]he only person that was
cooperative [as a witness] . . . other than the law enforcement
officers who responded [to the 911 call].”

20140537-CA 2 2016 UT App 19
 State v. Pacheco

aggravated assault in exchange for the State’s dismissal of all
other charges and a favorable sentencing recommendation,
which included suspension of prison sentences, credit for time
served in jail awaiting trial, and probation. The district court
accepted Pacheco’s plea and followed the State’s sentencing
recommendation, suspending consecutive prison terms, with
credit for time served, and imposing three years’ supervised
probation.

¶4 While on probation, Pacheco saw Neighbor at a gas
station. Pacheco approached Neighbor and “threaten[ed] him,”
stating, “It’s coming” and “You’re dead.” Pacheco also
“push[ed] and shov[ed] [Neighbor] . . . in an attempt to get a
reaction.” Police were called to the gas station, but Pacheco fled
the scene before they arrived. Based on this incident, Adult
Probation & Parole (AP&P) filed a progress/violation report
alleging, among other things, that Pacheco had violated the
terms of his probation by assaulting Neighbor and by “fail[ing]
to be cooperative, compliant and truthful in all dealings” with
his probation officer when he neglected to inform his probation
officer of the incident. AP&P concluded that Pacheco “does not
deserve the privilege of probation” and recommended
revocation of his probation and “a lengthy period of
incarceration.”

¶5 The district court issued an order to show cause (OSC)
why Pacheco’s probation should not be revoked, and through
counsel Pacheco denied the OSC’s allegations and requested an
evidentiary hearing. At the hearing, Pacheco’s counsel advised
the court that Pacheco had reached an agreement with the State
and that instead of proceeding with the evidentiary hearing,
Pacheco was prepared to admit to the assault on Neighbor and
failure to report the incident to his probation officer in exchange
for the State’s agreement not to prosecute him for any crimes
related to the assault. Before accepting Pacheco’s admissions, the
district court conducted the following colloquy:

20140537-CA 3 2016 UT App 19
 State v. Pacheco

THE COURT: And so Mr. Pacheco, are you willing
to admit that you weren’t truthful or compliant
with your probation officer?

[PACHECO’S COUNSEL]: May I advise my client
on that, your Honor? Your Honor, actually in
speaking with Mr. Pacheco, he would admit
Allegations 2 [the assault] and 4 [the failure to
report it], since four is tied to No. 2.

THE COURT: Okay.

[PACHECO’S COUNSEL]: And, you know, we can
certainly offer reasons for that if the Court is
willing to hear those momentarily.

THE COURT: Uh-huh. So there are two allegations
you are willing to admit, Mr. Pacheco. Is that true?

[PACHECO]: Yes.

....

THE COURT: So, Mr. Pacheco, you would admit
Allegation No. 2, that you committed the offense of
assault on or about December the 7th of 2013, and
No. 4, that you failed to be cooperative, compliant
and truthful in all dealings with your probation
officer. You are willing to admit those two things?

[PACHECO]: Yes.

....

THE COURT: You are making the admissions
voluntarily?

[PACHECO]: Yeah.

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 State v. Pacheco

THE COURT: And you understand that you have a
right to a hearing?

[PACHECO]: Yeah.

THE COURT: And in fact, that hearing . . . could go
forward today. Do you understand that?

[PACHECO]: Yeah.

THE COURT: And if you admit these allegations,
you are giving up the right to have that hearing.
Do you understand that?

[PACHECO]: Yes.

THE COURT: Okay. . . . [A]nd are you doing all of
this voluntarily?

[PACHECO]: Yes, sir.

THE COURT: Okay. I’ll find that Mr. Pacheco has
willfully violated his probation, . . . at least in terms
of Allegations 2 and 4, and strike the other
allegations and just note that the recommendation
for AP&P is that Mr. Pacheco[’s] . . . probation be
revoked and he be committed to prison. Is that
AP&P’s recommendation still?

PROBATION OFFICER: It is, your Honor.

THE COURT: Okay.

Having found that Pacheco “willfully violated his probation,”
the district court revoked his probation and imposed the original
prison sentences, ordering them to run concurrently rather than
consecutively.

20140537-CA 5 2016 UT App 19
 State v. Pacheco

¶6 Pacheco now appeals, arguing that the district court did
not adequately determine whether his waiver of an evidentiary
hearing was knowing and voluntary before accepting his
admissions and revoking his probation. Because Pacheco did not
preserve this issue below, he seeks review under the plain error
doctrine.

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) [a]n error exists; (ii)
the error should have been obvious to the trial
court; and (iii) the error is harmful . . . . If any one
of these requirements is not met, plain error is not
established.

State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993) (footnote and
citations omitted); accord State v. King, 2006 UT 3, ¶ 21, 131 P.3d
202. “To establish that the error should have been obvious to the
trial court, [the defendant] 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; see also State v. Alzaga, 2015
UT App 133, ¶ 23, 352 P.3d 107. And “Utah courts have
repeatedly held that a trial court’s error is not plain where there
is no settled appellate law to guide the trial court.” State v. Ross,
951 P.2d 236, 239 (Utah Ct. App. 1997). Pacheco has not
demonstrated that the district court committed plain error.

¶7 We first consider whether Pacheco has demonstrated that
the district court failed to adequately ensure he understood his
right to an evidentiary hearing prior to revoking his probation.
Pacheco contends that his waiver was neither knowing nor
voluntary because the district court’s colloquy failed to establish
that he understood the consequences of his agreement to admit
probation violations and to forgo an evidentiary hearing. We
disagree.

20140537-CA 6 2016 UT App 19
 State v. Pacheco

¶8 Pacheco states that the district court “only asked him
whether he was willing to make the admissions, whether he
understood that he had the right to a hearing, and whether he
entered the admissions voluntarily.” He contends that the
court’s colloquy failed to “demonstrate that he was fully aware
of his rights and the consequences of his waiver and
admissions,” because “[t]he court only queried whether he
understood a portion of his rights” but did not provide him with
sufficient information to determine whether or not he should
forgo the evidentiary hearing that had been scheduled for that
very day. Specifically, Pacheco argues that the district court did
not inform him the State “had the burden to prove the truth of
its allegations by a preponderance of the evidence”; or that he
“had the right to the assistance of counsel at the hearing”; “to
cross-examine witnesses”; “to call witnesses on his own behalf”;
“to present evidence relevant to . . . both the alleg[ed] violations
and mitigation”; and, further, that the court failed to ascertain
whether he “knew the consequences and sentencing options
available to the judge as a result of his admissions.”

¶9 But in arguing that the district court failed to adequately
advise him of his rights in this case, Pacheco acknowledges
“there is no rule mandating the form of a colloquy during a
probation revocation hearing.” Essentially, Pacheco urges this
court to conclude that a waiver of a hearing prior to revoking
probation is “knowing” only if the district court describes in
detail each and every aspect of the evidentiary hearing process
and the range of potential sentencing consequences. We
conclude that Pacheco has not shouldered his burden of showing
that the district court plainly erred in accepting his admissions
and revoking his probation. See State v. Kerr, 2010 UT App 50,
¶ 7, 228 P.3d 1255 (concluding that “[the defendant’s] plain error
claim fails because he cannot demonstrate that any error in
sentencing should have been obvious to the trial court”).

20140537-CA 7 2016 UT App 19
 State v. Pacheco

¶10 The level of awareness sufficient to knowingly waive a
right depends on the circumstances. A guilty plea, for instance,
“is more than a confession which admits that the accused did
various acts; it is itself a conviction; nothing remains but to give
judgment and determine punishment.” Boykin v. Alabama, 395
U.S. 238, 242 (1969). Thus, in order to ensure that a defendant is
knowingly and voluntarily pleading guilty to a crime, the court
must advise the defendant in some detail of the rights he will be
forgoing. See, e.g., State v. Candland, 2013 UT 55, ¶ 11, 309 P.3d
230 (requiring that “defendants receive constitutionally adequate
notice of the nature of the charges, the constitutional rights being
waived, and the likely consequences of the plea” in order for the
plea to be both knowing and voluntary). In this regard, “rule 11
of the Utah Rules of Criminal Procedure . . . provides a
roadmap” to assist the district court in “ensuring that
defendants receive adequate notice of their rights . . . .” Id. ¶ 14;
see also Utah R. Crim. P. 11(e); State v. Beckstead, 2006 UT 42, ¶ 10,
140 P.3d 1288 (noting that rule 11 has a “detailed inventory of
rights” and that “a sentencing judge must communicate to a
defendant the full complement of information” found in the
rule). But even in the context of a guilty plea, strict adherence to
rule 11 guidelines is not required, so long as constitutional
requirements are otherwise met. See Candland, 2013 UT 55, ¶ 14
(“Although district courts are not constitutionally obligated to
follow rule 11, we strongly encourage them to do so to ensure
that they address each due process requirement and create a
record of their inquiry.”).

¶11 “[A] probation revocation proceeding,” on the other
hand, “involves an individual who has already pled guilty to a
crime or been found guilty beyond a reasonable doubt” and “has
subsequently entered into a probation agreement that is
essentially a contract with the court: the court agrees to stay part
or all of the statutory sentence, and the probationer in turn
agrees to perform or abstain from performing certain acts.” State
v. Hodges, 798 P.2d 270, 278 (Utah Ct. App. 1990). While Pacheco

20140537-CA 8 2016 UT App 19
 State v. Pacheco

acknowledges that “the colloquy associated with the waiver of
rights in probation violation proceedings may be something less
than the colloquy required for criminal pleas,” he nevertheless
contends that “the colloquy must be something greater than [he]
received.” But he does not provide any authority establishing
that the colloquy for the waiver of a probation revocation
evidentiary hearing and the entry of admissions must be more
detailed than what occurred in his case. And there does not
appear to be any.

¶12 For example, while there is no dispute that waivers of
rights must meet the general standard that they be knowing and
voluntary, there is no rule 11 equivalent to guide the district
court in ensuring that a defendant’s waiver of an evidentiary
hearing and entry of an admission to probation violations is
appropriate. Indeed, we are aware of no Utah case that requires
the level of detail Pacheco asks this court to require from a
district court who is asked to accept admissions of a probation
violation. Rather, Utah cases addressing probation revocation
suggest that mere knowledge of the right to a hearing may
suffice. For example, in State v. Call, 1999 UT 42, 980 P.2d 201, the
defendant appealed a district court order revoking his probation
and imposing his prison sentence. Id. ¶ 1. Among other
arguments, the defendant contended that “he did not
knowingly, intelligently and voluntarily waive his right to
counsel, notice and a hearing.” Id. ¶ 13 (internal quotation marks
omitted). In rejecting this contention, the Utah Supreme Court
reasoned that the probationer’s due process rights were satisfied
because he had signed a probation extension agreement with his
probation officer that said little more than that he was “willing
to accept the extension of his probation without a hearing and
acknowledged his right to be present at a hearing and to be
represented by counsel.” Id. ¶¶ 14–15. And this court has
concluded that a probationer’s hearing waiver was knowing and
voluntary where the district court simply advised the defendant
“of her right to have a hearing on the issue of probation

20140537-CA 9 2016 UT App 19
 State v. Pacheco

violation.” State v. Jackson, 2000 UT App 306U, paras. 3, 4 (per
curiam); see also State v. Hall, 2000 UT App 384U, para. 2 (per
curiam); Wayne R. LaFave et al., Criminal Procedure § 26.10(c),
at 891 (3d ed. 2007) (“A finding of a probation violation is also
permissible where at the hearing the probationer voluntarily and
intelligently admitted the violation, even absent the detailed
procedures ordinarily required for the receipt of a plea of guilty
in a criminal case.”).

¶13 Pacheco fails to demonstrate that the district court erred
or, even if it did err, that any error would have been obvious to
the court. See, e.g., State v. Hassan, 2004 UT 99, ¶ 17, 108 P.3d 695
(rejecting a plain error-claim of a jury trial waiver where
“[n]othing in [Utah] case law should have alerted [the district
court] that accepting [the defendant’s] waiver would be a clear
error, or even an error at all”); State v. Smit, 2004 UT App 222,
¶ 30, 95 P.3d 1203 (holding that the trial court’s “failure to
inform [the defendant] of the possibility of jail time as a
condition of probation” was not plain error, because “the law
[was] unclear” on that issue, and thus “would not have been
obvious”); Larsen v. Johnson, 958 P.2d 953, 956 (Utah Ct. App.
1998) (holding “[a]ny error [by the trial court] was not obvious
because the law in Utah and in other jurisdictions [was]
unsettled”). Here, the district court’s colloquy ensured that
Pacheco—who was represented by counsel and who conferred
with his counsel during the colloquy (and apparently before, in
the course of making a deal with the State)—knew that he had a
right to a hearing and that he was voluntarily waiving that right.
After consultation with counsel, he indicated to the district court
that he was prepared to admit to the assault and his failure to
report the assault to his probation officer in exchange for the
State’s agreement not to prosecute him for other violations of his
probation. And Pacheco agreed he was “doing all of this
voluntarily.” In addition, at the end of the colloquy, the district
court explicitly referred to AP&P’s recommendation that

20140537-CA 10 2016 UT App 19
 State v. Pacheco

Pacheco’s probation be revoked and that he be sent to prison as a
consequence of his probation violations.

¶14 Because no case law, rule, or statute requires the district
court to provide the colloquy that Pacheco now argues he should
have received, we conclude that Pacheco has not shown that
there was error here, let alone obvious error. See State v. Dean,
2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should
have been obvious to the trial court, [a defendant] must show
that the law governing the error was clear at the time the alleged
error was made.” (citing State v. Eldredge, 773 P.2d 29, 25–36
(Utah 1989))). Accordingly, we conclude that Pacheco has not
demonstrated that the district court plainly erred in accepting
his admissions and revoking his probation.

¶15 Affirmed.

20140537-CA 11 2016 UT App 19