State v. Legg , 417 P.3d 592 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 12
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
JOHN L. LEGG, JR.,
Petitioner.
No. 20160810
Filed March 27, 2018
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Ann Boyden
No. 101900677
Attorneys:
Sean D. Reyes, Att’y Gen., Jeanne B. Inouye, Asst. Solic. Gen., Salt
Lake City, for respondent
Diana Pierson, Salt Lake City, for petitioner
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUDGE JOHNSON joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
DISTRICT COURT JUDGE CHRISTINE JOHNSON sat.
JUSTICE PETERSEN became a member of the Court on November 17,
2017, after oral argument in this matter and accordingly did not
participate.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 While Mr. Legg’s appeal of the revocation of his probation
was in process, he completed the sentence the revocation required
and was released from prison. Despite the presence of two of its
STATE v. LEGG
Opinion of the Court
prior decisions with contradictory holdings, the court of appeals
then dismissed Mr. Legg’s case as moot because of his release. This
case presents two issues for our review. First, we must determine
whether the court of appeals acted appropriately when it overturned
these prior decisions. Second, we must decide whether collateral
legal consequences are presumed when an appeal from a probation
revocation has otherwise become moot or whether a defendant will
be required to show actual collateral legal consequences.
¶2 We conclude that the court of appeals has the same
authority to overturn its own precedent as this court and, moreover,
acted appropriately in overturning its prior precedent in this case.
Additionally, in a well-reasoned and thoughtful opinion, the court of
appeals concluded that collateral legal consequences won’t be
presumed when an appeal from a probation revocation has
otherwise become moot. State v. Legg (Legg II), 2016 UT App 168,
¶ 25, 380 P.3d 360. We agree with the court of appeals on both issues
and therefore affirm their decision to dismiss Mr. Legg’s appeal as
moot.
BACKGROUND
¶3 Mr. Legg pled guilty in two separate cases 1 to one count
each of possession of a dangerous weapon by a restricted person and
aggravated assault with a deadly weapon, both third-degree
felonies. The district court sentenced Mr. Legg in both cases to the
Utah State Prison for the indeterminate term of zero to five years.
The court then suspended the prison sentences and placed Mr. Legg
on probation for a period of twenty-four months. The court ordered
the prison commitments and the periods of probation to run
concurrently to one another. Shortly thereafter, Mr. Legg’s probation
was revoked in both cases for three probation violations, requiring
him to serve out his prison sentences. Mr. Legg appealed the district
court’s decision to revoke his probation in both cases. 2 The court of
appeals upheld the district court’s findings on one of the probation
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1 These guilty pleas occurred in case numbers 101900677
(aggravated assault with a deadly weapon) and 101901007
(possession of a dangerous weapon by a restricted person).
2 The cases were consolidated for the purposes of the appeal.
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violations but found that the district court had insufficient evidence
in the record to support the other two findings of probation
violations. The court of appeals then remanded the cases to the
district court to determine if there was sufficient evidence to support
the other two probation violations and to “reassess whether, under
all of the circumstances, [Mr.] Legg’s probation should be revoked.”
¶4 On remand, the state dropped the two probation violations
that the court of appeals said were not yet supported by sufficient
evidence. The district court determined that the single probation
violation upheld by the court of appeals was sufficient to warrant
revoking Mr. Legg’s probation. The district court therefore upheld
the probation revocations in both of Mr. Legg’s cases. Mr. Legg then
filed an appeal in one case 3 arguing that the district court erred by
not making evidentiary determinations on the two probation
revocations, as mandated by the court of appeals. During the
pendency of the second appeal, Mr. Legg completed his sentence
and was released from prison.
¶5 The court of appeals determined that Mr. Legg’s appeal was
moot and dismissed his case. Legg II, 2016 UT App 168, ¶ 46, 380
P.3d 360. To reach this conclusion, the court of appeals overturned
two of its prior cases (State v. Warner, 2015 UT App 81, 347 P.3d 846,
and State v. Allen, 2015 UT App 163, 353 P.3d 1266), and concluded
that adverse legal consequences aren’t presumed in probation
revocation cases. Legg II, 2016 UT App 168, ¶¶ 41–42. Additionally,
the court of appeals found that Mr. Legg had been unable to set forth
any actual adverse legal consequences he suffers as a result of his
probation revocation. Id. ¶ 46.
¶6 Mr. Legg appeals this decision, arguing that the court of
appeals erred in two respects. First, Mr. Legg contends that the court
of appeals was incorrect in overturning its prior precedent under
horizontal stare decisis. Second, Mr. Legg asserts that the court of
appeals was incorrect in dismissing his case as moot because he was
able to assert both presumed and actual collateral legal
consequences. We have jurisdiction under Utah Code section
78A-3-102(5).
_____________________________________________________________
3 Mr. Legg only filed his appeal in case 101900677.
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STANDARD OF REVIEW
¶7 “On certiorari, we review the decision of the court of
appeals for correctness, giving no deference to its conclusions of
law.” State v. White, 2011 UT 21, ¶ 14, 251 P.3d 820. “[A]ppellate
courts review the issue of mootness de novo.” Cedar Mountain Envtl.,
Inc. v. Tooele Cty. ex rel. Tooele Cty. Comm’n, 2009 UT 48, ¶ 7, 214 P.3d
95 (alteration in original) (citation omitted).
ANALYSIS
I. THE COURT OF APPEALS CAN OVERTURN ITS PRIOR
DECISIONS USING THE ELDRIDGE FACTORS
¶8 In Legg II, 2016 UT App 168, 380 P.3d 360, the court of
appeals overruled two of its prior decisions: State v. Warner, 2015 UT
App 81, 347 P.3d 846, and State v. Allen, 2015 UT App 163, 353 P.3d
1266. Mr. Legg argues that the decision to overrule these cases
should be reversed because it violated horizontal stare decisis.
¶9 “Stare decisis is a cornerstone of Anglo-American
jurisprudence because it is crucial to the predictability of the law and
the fairness of adjudication.” Eldridge v. Johndrow, 2015 UT 21, ¶ 21,
345 P.3d 553 (citation omitted) (internal quotation marks omitted).
Under the doctrine of horizontal stare decisis, “the first decision by a
court on a particular question of law governs later decisions by the
same court.” State v. Menzies, 889 P.2d 393, 399 (Utah 1994) (citation
omitted), superseded on other grounds by constitutional amendment,
UTAH CONST. art. I, § 12, as recognized in State v. Goins, 2017 UT 61,
___P.3d ___. “Although the doctrine is typically thought of when a
single-panel appellate court is faced with a prior decision from the
same court, stare decisis has equal application when one panel of a
multi-panel appellate court is faced with a prior decision of a
different panel.” State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993).
Therefore, one panel on the court of appeals owes great deference to
the precedent established by a different panel on the court of
appeals. The doctrine of horizontal stare decisis “applies as between
different panels of the court of appeals.” Menzies, 889 P.2d at 399.
¶10 In Eldridge, we recognized that “our presumption against
overruling precedent is not equally strong in all cases.” 2015 UT 21,
¶ 22. Where horizontal stare decisis is concerned, Eldridge established
“two broad factors” that appellate courts must use to “distinguish
between weighty precedents and less weighty ones: (1) the
persuasiveness of the authority and reasoning on which the
precedent was originally based, and (2) how firmly the precedent
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has become established in the law since it was handed down.” Id.
“The second factor encompasses a variety of considerations,
including the age of the precedent, how well it has worked in
practice, its consistency with other legal principles, and the extent to
which people’s reliance on the precedent would create injustice or
hardship if it were overturned.” Id. We’ve since summarized the
Eldridge test as prohibiting us from “overrul[ing] our precedents
unless they’ve proven to be unpersuasive and unworkable, create
more harm than good, and haven’t created reliance interests.” Neese
v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 57, ___P.3d ___ (citing
Eldridge, 2015 UT 21, ¶ 22, and Utah Dep’t of Transp. v. Admiral
Beverage Corp., 2011 UT 62, ¶¶ 16–17, 275 P.3d 208).
¶11 The court of appeals correctly relied on the Eldridge factors
when deciding to overrule Warner and Allen. Stare decisis mandates
that one panel of the court of appeals defer to the decision of a prior
panel. Thurman, 846 P.2d at 1269. But a panel still retains the right to
overrule another panel’s decision if the appropriate standard is met.
Menzies, 889 P.2d at 399 n.3. Here, the court of appeals did an
excellent job of setting forth its basis for reversing Warner and Allen.
As the court of appeals noted, the panels in Warner and Allen simply
presumed that collateral legal consequences existed in probation
revocation cases without analyzing whether such an extension of the
law would be appropriate and despite prior contrary authority.
Legg II, 2016 UT App 168, ¶¶ 28, 31, 35. Additionally, the court of
appeals found that the cases (both barely one year old at the time)
had yet to be cited by another appellate court and were not firmly
established in the law. Id. ¶ 41.
¶12 We see no fault in the court of appeals’ thorough and
thoughtful analysis on this issue. However, unlike the court of
appeals, as a court of last resort we’re not bound by the precedent of
the court of appeals. Therefore, it’s not necessary for us to engage in
an in-depth analysis to determine whether the court of appeals
correctly applied the Eldridge factors when it overturned those
decisions because it has no bearing on the outcome of our holding
regarding the mootness question. Instead, we review the court of
appeals’ decision on mootness de novo. See Cedar Mountain Envtl.,
Inc. v. Tooele Cty. ex rel. Tooele Cty. Comm’n, 2009 UT 48, ¶ 7, 214 P.3d
95. And we agree with the court of appeals that collateral legal
consequences aren’t presumed for probation revocation cases.
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II. MR. LEGG’S APPEAL IS MOOT
¶13 Our courts don’t possess an unrestricted ability to hear and
decide all issues that a party wishes to put before us. Mootness, for
example, presents one of the several bases that may prevent a court
from reaching the merits of a case. See Carlton v. Brown, 2014 UT 6,
¶ 30, 323 P.3d 571. “An issue on appeal is considered moot when the
requested judicial relief cannot affect the rights of the litigants.” State
v. Sims, 881 P.2d 840, 841 (Utah 1994) (citation omitted) (internal
quotation marks omitted). We generally won’t decide an issue that
becomes moot while on appeal. State v. Black, 2015 UT 54, ¶ 10, 355
P.3d 981 (“An issue becomes moot if during the pendency of the
appeal circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” (citation omitted) (internal quotation marks omitted)). “The
burden of persuading the court that an issue is moot lies with the
party asserting mootness.” Salt Lake Cty. v. Holliday Water Co., 2010
UT 45, ¶ 21, 234 P.3d 1105 (citation omitted) (internal quotation
marks omitted). If the party asserting mootness meets its burden, the
“appeal must be dismissed as moot unless it can be shown to fit
within a recognized exception to the mootness principle.” Duran v.
Morris, 635 P.2d 43, 45 (Utah 1981).
¶14 There are two generally recognized exceptions to mootness.
The first exception is the public interest exception. Under the public
interest exception, a court may consider a matter that appears moot
“if it (1) presents an issue that affects the public interest, (2) is likely
to recur, and (3) because of the brief time that any one litigant is
affected, evades review.” Black, 2015 UT 54, ¶ 12 (citation omitted).
The second exception exists when collateral legal consequences will
result from the case. In certain cases, such as the appeal of a criminal
conviction, collateral legal consequences are presumed. Duran, 635
P.2d at 45. When collateral legal consequences are presumed, the
case isn’t moot unless “it can be shown that no adverse collateral
consequences” will result. Id. (citing North Carolina v. Rice, 404 U.S.
244 (1971)). When collateral legal consequences aren’t presumed, a
case is moot unless the party opposing mootness can establish actual
collateral legal consequences. See Spencer v. Kemna, 523 U.S. 1, 14
(1998).
¶15 Here, the state has met its burden of establishing mootness.
Mr. Legg is challenging his probation revocation and the
reinstatement of his prison sentences. During the pendency of this
appeal, Mr. Legg served his sentences and has been released from
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prison. As the court of appeals noted, “[a] new revocation hearing
will not allow the district court to reinstate his probation and give
him another opportunity to avoid the prison term ordered as a result
of his probation revocation.” Legg II, 2016 UT App 168, ¶ 10, 380 P.3d
360 (alteration in original). “As a consequence, providing [Mr.] Legg
with relief from his probation revocation would be ‘of no legal
effect.’” Id. (quoting Black, 2015 UT 54, ¶ 10).
¶16 Nonetheless, Mr. Legg asserts that his appeal isn’t moot
because (1) there are presumed collateral legal consequences in
probation revocation cases, or (2) Mr. Legg will suffer actual
collateral legal consequences. We disagree with Mr. Legg and
consequently conclude that his appeal is moot.
A. There Are No Presumed Collateral Legal Consequences in Probation
Revocation Cases
¶17 It’s well settled that we presume collateral legal
consequences follow criminal convictions. See Duran, 635 P.2d at 45.
This presumption recognizes that the law mandates numerous legal
consequences follow a criminal conviction to such an extent that the
existence of at least one collateral legal consequence for an
individual defendant is effectively inevitable. See Spencer, 523 U.S. at
12 (“[T]he presumption of significant collateral consequences is
likely to comport with reality.”); Sibron v. New York, 392 U.S. 40, 55
(1968) (“[T]he obvious fact of life [is] that most criminal convictions
do in fact entail adverse legal consequences.”). While the application
of any individual collateral legal consequence to a particular
defendant may remain hypothetical, the ultimate existence of such a
consequence, and the resulting exception to mootness, is anything
but. Therefore, we’ve adopted a presumption of collateral legal
consequences for challenges to criminal convictions, shifting the
burden to the state to disprove the existence of any collateral legal
consequence to render the case moot. Duran, 635 P.2d at 45.
¶18 The presumption of collateral legal consequences does not
come lightly. We will only presume collateral legal consequences
when the challenged action carries extensive collateral consequences
imposed by law. These consequences must be sufficient to mandate
the same undeniable conclusion as criminal convictions, i.e., the
existence of a collateral legal consequence is virtually inescapable.
¶19 Historically, collateral legal consequences of a criminal
conviction were sufficient to ameliorate mootness concerns only if
the defendant could establish “concrete disadvantages or disabilities
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that had in fact occurred, that were imminently threatened, or that
were imposed as a matter of law.” Spencer, 523 U.S. at 8. Over time,
courts have moved away from this steadfast requirement.
¶20 By 1968, the United States Supreme Court recognized that it
had “abandoned all inquiry into the actual existence of specific
collateral consequences and in effect presumed that they existed.”
Sibron, 392 U.S. at 55. Since that time, the United States Supreme
Court has “proceeded to accept the most generalized and
hypothetical of consequences as sufficient to avoid mootness in
challenges to conviction.” Spencer, 523 U.S. at 10; see also Evitts v.
Lucey, 469 U.S. 387, 391 n.4 (1985) (finding collateral legal
consequences even when the defendant’s “civil rights, including
suffrage and the right to hold public office” were restored because
the defendant is still subject to “the possibility that the conviction
would be used to impeach testimony he might give in a future
proceeding and the possibility that it would be used to subject him
to persistent felony offender prosecution if he should go to trial on
any other felony charges in the future”); Pennsylvania v. Mimms, 434
U.S. 106, 108 n.3 (1977) (rejecting the defendant’s argument that the
state’s appeal from a reversal of his conviction was moot because
“[i]f the prospect of the State’s visiting such collateral consequences
on a criminal defendant who has served his sentence is a sufficient
burden as to enable him to seek reversal of a decision affirming his
conviction, the prospect of the State’s inability to impose such a
burden following a reversal of the conviction of a criminal defendant
in its own courts must likewise be sufficient to enable the State to
obtain review of its claims on the merits”); Benton v. Maryland, 395
U.S. 784, 790 (1969) (acknowledging the “possible adverse collateral
effects of criminal convictions” outlined in prior cases, such as
consideration of a felony conviction “for the purpose of enhancing
sentence[s] under habitual criminal statutes,” and concluding that
“[i]t is enough to say that there are such possibilities in this case”);
Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (noting collateral legal
consequences of a criminal conviction include the ability to “engage
in certain businesses; . . . serve as an official of a labor union for a
specified period of time; . . . vote in any [state] election . . . [; or] serve
as a juror” (footnotes omitted)).
¶21 Today, when a criminal defendant appeals his or her
conviction, collateral legal consequences are presumed. The
evolution in the law is largely based on the recognition that criminal
convictions carry a unique set of consequences that are legally
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imposed. Duran, 635 P.2d at 45 (“[I]t is now clearly established that a
criminal case is moot only if it is shown that there is no possibility
that any collateral legal consequences will be imposed on the basis of
the challenged conviction.” (citation omitted) (internal quotation
marks omitted)); see also Spencer, 523 U.S. at 8 (“In recent decades, we
have been willing to presume that a wrongful criminal conviction
has continuing collateral consequences (or, what is effectively the
same, to count collateral consequences that are remote and unlikely
to occur.)”).
¶22 In line with the United States Supreme Court precedent,
we’ve similarly recognized several collateral legal consequences that
may result from a criminal conviction, such as “the use of the
conviction to impeach the petitioner’s character or as a factor in
determining a sentence in a future trial, as well as the petitioner’s
inability to vote, engage in certain businesses, or serve on a jury.”
Duran, 635 P.2d at 45.
¶23 Importantly, while these collateral legal consequences are
presumed, they’re not unlikely or highly speculative. In fact, most of
these consequences are “imposed by law.” State v. McClellan, 2014
UT App 271, ¶ 5, 339 P.3d 942 (Consequences that “are not imposed
by law . . . do not qualify as collateral consequences.”). A witness’s
prior criminal convictions must be admitted, subject to certain
limitations, to attack the “witness’s character for truthfulness.” UTAH
R. EVID. 609. Additionally, previous criminal convictions are used as
mandatory charge enhancements. See, e.g., UTAH CODE § 41-6a-503
(A person’s first or second DUI may be a class B or class A
misdemeanor, but a third DUI within ten years must be a third-
degree felony.); id. § 58-37-8 (increasing the level of offense for
subsequent convictions of violating the Utah Controlled Substances
Act); id. § 77-36-1.1 (increasing the level of offense for domestic
violence if the defendant was convicted of a previous instance of
domestic violence). Similarly, a person convicted of particular crimes
is statutorily ineligible for certain employment positions and
licenses. See, e.g., id. § 11-10-2 (precluding “anyone who has been
convicted of a felony or misdemeanor involving moral turpitude”
from receiving a liquor license); id. § 17-30-7 (disqualifying a person
who “[h]as been convicted of a criminal offense inimical to the
public service, or involving moral turpitude” from taking a deputy
sheriff examination); id. § 26-39-404(3) (prohibiting those with felony
or misdemeanor convictions from providing child care at a licensed
child care facility); id. § 53-6-302 (preventing anyone who has “been
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convicted of a crime for which [he or she] could have been punished
by imprisonment in a federal penitentiary or by imprisonment in the
penitentiary of [Utah] or another state” from obtaining a dispatcher
certification). The presumption of collateral legal consequences is
merely an “acknowledge[ment of] the obvious fact of life that most
criminal convictions do in fact entail adverse collateral legal
consequences.” Sibron, 392 U.S. at 55 (emphasis added).
¶24 Presumed collateral legal consequences aren’t inherently
limited to the realm of criminal convictions. See In re Giles, 657 P.2d
285, 286–87 (Utah 1982) (presuming collateral legal consequences in a
civil commitment case). Nor are collateral legal consequences
presumed in all cases involving criminal penalties. See Duran, 635
P.2d at 45 (finding that an administrative segregation decision
“entail[s] no collateral legal consequences of the kind that result
from a criminal conviction”).
¶25 Mr. Legg asks us to presume collateral legal consequences
when a criminal defendant is appealing his or her probation
revocation. After careful consideration of the reasoning underlying
the decision to presume collateral legal consequences in appeals
from criminal convictions, we decline to extend this presumption to
appeals of probation revocations.
¶26 As discussed above, criminal convictions subject a
defendant to unquestionable, concrete consequences imposed by
law. Supra ¶ 21. The question of mootness doesn’t turn on which
collateral legal consequences the defendant will suffer, but on
whether “the requested judicial relief can[] affect the rights of the
litigants.” Sims, 881 P.2d at 841 (citation omitted). Rather than force a
defendant to establish which of the myriad legal consequences he or
she is actually faced with, we presume that such consequences exist
for the purposes of satisfying our mootness concerns. Moreover, we
still leave open the ability for the state to show that the case is moot
by establishing that “no adverse collateral consequences will follow”
the criminal conviction. Duran, 635 P.2d at 45.
¶27 Presumed exceptions to mootness shouldn’t be found
lightly. It would be improper for us to create exemptions from our
jurisdictional requirements based on nothing more than contingent
and speculative collateral consequences with no legal basis. We’ve
not overstepped these boundaries in presuming collateral legal
consequences arising from criminal convictions because, “[i]n the
context of criminal conviction[s], the presumption of significant
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collateral consequences is likely to comport with reality.” Spencer,
523 U.S. at 12.
¶28 “The same cannot be said of [probation or] parole
revocation.” Id. Mr. Legg raises four potential collateral legal
consequences to support his argument that we should presume
collateral legal consequences in all cases of probation revocation.
First, Mr. Legg argues that “potential collateral legal consequences
from a probation revocation may include use of the revocation as
‘prior history’ in future contact with the legal system.” (Emphases
added). Second, Mr. Legg notes that the Adult Probation & Parole
Office (AP&P) uses probation revocations as an “aggravating factor”
in the sentencing recommendation matrix. Third, Mr. Legg contends
that “the state regularly refuses plea offers or offers of probation to
defendants with probation revocations.” Finally, Mr. Legg asserts
that a defendant whose probation has been revoked is unable to
qualify for a reduction of the degree of his or her offense under Utah
Code section 76-3-402.
¶29 These potential collateral consequences aren’t sufficient to
warrant presuming collateral legal consequences in all probation
revocation cases. Mr. Legg has simply alleged that “certain non-
statutory consequences may occur.” Lane v. Williams, 455 U.S. 624,
632 (1982). These types of “discretionary decisions . . . are not
governed by the mere presence or absence of a recorded violation of
[probation]; these decisions may take into consideration, and are
more directly influenced by, the underlying conduct that formed the
basis for the [probation] violation.” Id. at 632–33. The mere existence
of a probation revocation “does not render an individual ineligible
for” probation under Utah law. Id. at 632 n.13. “It is simply one
factor, among many, that may be considered by the [appropriate]
authority in determining whether there is a substantial risk that the
[defendant] will not conform to reasonable conditions of
[probation].” Id. 4
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4 In re Giles, 657 P.2d 285, doesn’t require us to come to the
opposite result. In In re Giles, we concluded that an appeal of a civil
commitment was not moot because there were “collateral
consequences that may be imposed upon appellant [that] might arise
(continued . . .)
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¶30 Moreover, the first three potential collateral legal
consequences are contingent upon Mr. Legg again violating state
law. Mr. Legg himself is “able—and indeed required by law—to
prevent such a possibility from occurring.” Id. at 632 n.13.
¶31 We acknowledge that the potential legal consequence of a
defendant becoming ineligible for a discretionary 402 reduction of
the degree of his or her offense is statutorily mandated and cannot
be avoided by conforming with the law. See UTAH CODE § 76-3-402.
But not every successful probationer is eligible for a 402 reduction.
Nor will every eligible probationer receive a reduction. The ultimate
decision to grant a 402 reduction lies within the discretion of the
judge. See id. § 76-3-402(2). For most probationers, the potential of a
402 reduction is, at most, highly speculative and nothing more than a
(continued . . .)
were he to face future confrontations with the legal system.” Id. at
287.
But civil commitments share many similarities with criminal
convictions. “[P]atients of mental hospitals . . . face similar
deprivations of liberty” as criminals. Id. at 287. Additionally, at the
time In re Giles was decided, being labeled “mentally incompetent”
carried collateral legal consequences comparable to criminal
convictions. See In re Ballay, 482 F.2d 648, 651–52 (D.C. Cir. 1973)
(“[W]hile [a civil] commitment stands on the record, the party may
face state constitutional and statutory restrictions on his voting
rights; restrictions on his right to serve on a federal jury; restrictions
on his ability to obtain a drivers license; and limitations on his access
to a gun license.” (footnotes omitted)).
Civil commitments do not share the same similarities with
probation revocations. Moreover, unlike the use of previous
commitment in future civil commitment hearings, a defendant is
able to completely avoid the use of a probation revocation in a future
sentencing decision by not committing a future violation of the law.
Additionally, since In re Giles was decided in 1982, there has been
evolution in the federal case law about presuming collateral
consequences in parole revocations that we find persuasive. See
generally Spencer, 523 U.S. 1. As discussed herein, we adopt this
reasoning and reject presumed collateral consequences in probation
revocation cases.
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mere possibility. Therefore, ineligibility for a 402 reduction isn’t
sufficient to presume collateral legal consequences in all cases of
probation revocation. This conclusion doesn’t foreclose the potential
for loss of a 402 reduction to serve as an actual legal consequence
that is sufficient to render a case not moot. Instead, a defendant will
bear the burden of showing that his or her loss of a potential 402
reduction is sufficient to establish an actual adverse legal
consequence.
¶32 Mr. Legg has failed to point us to numerous consequences
imposed by law that would command the conclusion that some
collateral legal consequence is inevitable for every defendant with a
probation revocation. Based on the inapplicability of the underlying
rationale for presuming collateral legal consequences in the case of
criminal convictions, we decline to presume collateral legal
consequences for probation revocations. Instead, a defendant
wishing to challenge his or her probation revocation after the case
has become moot must establish actual collateral legal consequences.
B. Mr. Legg Failed to Demonstrate Any Actual Collateral Legal
Consequences
¶33 Since we won’t presume collateral legal consequences stem
from a probation revocation, Mr. Legg must demonstrate actual
collateral legal consequences to prevent his case from becoming
moot. “[A] possibility rather than a certainty or even a probability”
isn’t enough to survive a mootness challenge. Spencer, 523 U.S. at 14-
15. Rather, a defendant must show collateral legal consequences that
“are not merely hypothetical or possible but that . . . are probable
and represent actual and adverse consequences.” Barnett v. Adams,
2012 UT App 6, ¶ 8, 273 P.3d 378. Additionally, these consequences
must be imposed by law. Phillips v. Schwendiman, 802 P.2d 108, 110
(Utah Ct. App. 1990) (“A general averment . . . that appellants may
suffer economic inconvenience or expenses resulting from the
suspensions of their driver’s licenses does not demonstrate a
collateral consequence that is imposed by law because of the
administrative action.”); see also Spencer, 523 U.S. at 16 n.8 (rejecting
harm to reputation as a sufficient collateral legal consequence).
¶34 Mr. Legg asserts three actual adverse consequences that he
has suffered as a result of his probation revocation. First, Mr. Legg
argues that his probation revocation will be used by AP&P as an
aggravating factor in his pre-sentence investigation report (PSR) and
can be used to enhance his sentence in a future criminal case. But this
isn’t an actual adverse harm that Mr. Legg will suffer. It’s merely
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Opinion of the Court
speculative and a potential future possibility. Mr. Legg hasn’t
argued that he’s again violated the law and will have his probation
revocation used against him. And even if he had again violated the
law, the potential use of his probation revocation against him in that
case would still not be enough to overcome mootness. 5 Moreover, as
the court of appeals noted, the district court isn’t required to follow
the sentencing recommendations in the PSR. Legg II, 2016 UT App
168, ¶ 44. The district court has “wide latitude and discretion in
sentencing” that will only be overturned in very narrow
circumstances. State v. Killpack, 2008 UT 49, ¶¶ 58–59, 191 P.3d 17
(citation omitted). Additionally, “the decision of whether to grant
probation must of necessity rest within the discretion of the judge
who hears the case.” Id. ¶ 58 (citation omitted) (internal quotation
marks omitted). Mr. Legg’s probation revocation is simply a factor
used in a decision that is made with the vast discretion of the district
court. Thus, the potential future use of Mr. Legg’s probation
revocation in a future sentencing decision isn’t a consequence
imposed by law. Instead, it’s hypothetical and speculative, which is
insufficient to establish an actual adverse consequence to survive
mootness.
¶35 Second, Mr. Legg asserts that prosecutors will be unwilling
to provide Mr. Legg favorable offers or probation offers in future
criminal cases. This too is dependent on Mr. Legg again violating
state law. Even if Mr. Legg does violate the law, a prosecutor’s
decision not to offer Mr. Legg a favorable offer isn’t imposed by law.
“[T]raditional prosecutor discretion . . . . allows prosecutors to plea-
bargain with offenders in some cases, saving the public the expense
of criminal prosecutions.” State v. Martinez, 2013 UT 23, ¶ 16, 304
P.3d 54 (citation omitted). A prosecutor’s use of that discretion,
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5 Even where the defendant had already again violated the law,
the United States Supreme Court found that the use of a parole
revocation in a future parole decision was still a mere possibility that
couldn’t overcome mootness. See Spencer, 523 U.S. at 14. The court
reasoned that a prior parole revocation doesn’t render a defendant
ineligible for parole and is simply a factor considered by the parole
board, which has “almost unlimited discretion.” Id. (citation
omitted).
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Opinion of the Court
much like a district court’s use of discretion in sentencing, isn’t
imposed by law and renders this potential consequence nothing
more than speculative and hypothetical. 6
¶36 Mr. Legg contends that our conclusion on the first two
alleged consequences “does not consider the reality of recidivism.”
But this assertion does nothing to render the potential application of
these consequences to Mr. Legg non-speculative or non-hypothetical.
Nor does it make a district court’s or prosecutor’s use of their broad
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6 Although not dispositive to our holding, we note that
Mr. Legg’s arguments regarding potential use of his probation
revocation in future sentencing decisions or favorable prosecutorial
offers are even weaker given the procedural posture of this case. On
this appeal, Mr. Legg is challenging the decision to revoke his
probation in one of his cases. However, in Mr. Legg’s first appeal,
the court of appeals affirmed the district court’s finding that
Mr. Legg had committed one probation violation in both cases. State
v. Legg, 2014 UT App 80, ¶ 21, 324 P.3d 656. That probation violation
finding will remain in Mr. Legg’s record in both cases regardless of
the outcome of this appeal.
Additionally, Mr. Legg’s probation was revoked in both his
“aggravated assault with a deadly weapon” case and in his
“possession of a dangerous weapon by a restricted person” case.
However, Mr. Legg has only appealed the probation revocation in
his aggravated assault case. Therefore, if we were to decide the
merits of this case in Mr. Legg’s favor, and it was ultimately
determined that Mr. Legg’s probation revocation shouldn’t stand in
the aggravated assault case, the probation revocation would still
stand in the possession of a dangerous weapon case.
Of course, this isn’t to say that the existence of one probation
revocation could never cause actual collateral legal consequences
merely because another probation revocation already exists on the
defendant’s record. But, in a situation such as this, where it’s a
probation revocation on the exact same probation violation, which
occurred in two cases that were sentenced concurrently, we see even
less potential for the challenged probation revocation to impact
discretionary decisions.
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STATE v. LEGG
Opinion of the Court
discretion “imposed by law.” 7 Moreover, “[w]e assume that
[Mr. Legg] will conduct [his] activities within the law and so avoid
prosecution and conviction.” Spencer, 523 U.S. at 15 (citation
omitted).
¶37 Finally, Mr. Legg argues that his probation revocation
rendered him ineligible for a 402 reduction. Mr. Legg is correct that
his probation revocation makes him ineligible for a 402 reduction.
See UTAH CODE § 76-3-402(2)(a)(i) (requiring the defendant to be
“successfully discharged from probation” to be eligible for a
reduction). However, Mr. Legg hasn’t presented us with any
argument that he either (1) had an agreement with the prosecutors
that they would recommend a 402 reduction if Mr. Legg successfully
completed probation or (2) would have been a good candidate for a
402 reduction. Although we note that a judge still retains discretion
as to whether or not to grant a 402 reduction, id. § 76-3-402(2)(a), we
may consider whether a particular defendant’s loss of a possible 402
reduction is sufficient to overcome mootness, specifically in
circumstances where a 402 reduction isn’t merely hypothetical or
possible but significantly likely to occur. Unlike other discretionary
decisions where a probation revocation simply operates as a factor to
be considered, a probation revocation removes any discretion from
the district court to grant a 402 reduction. Id. § 76-3-402(2)(a)(i).
Because Mr. Legg hasn’t made such a showing here, we don’t find
his ineligibility for a 402 reduction to be an actual collateral legal
consequence in this case.
¶38 Overall, Mr. Legg has been unable to assert an actual
collateral legal consequence he faces from his probation revocation.
Therefore, his appeal is moot and we lack jurisdiction to consider the
merits of his case.
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7Mr. Legg’s recidivism would certainly not be imposed by law.
As we’ve noted, “Mr. Legg himself is able—and indeed required by
law—to prevent such a possibility from occurring.” Supra ¶ 30
(quoting Lane, 455 U.S. at 632 n.13) (internal quotation marks
omitted).
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Opinion of the Court
CONCLUSION
¶39 When a defendant challenging his or her probation
revocation serves out his or her sentence, the appeal becomes moot.
Although we presume collateral legal consequences to avoid
mootness in appeals of criminal convictions, we won’t do so for
appeals of probation revocations. Therefore, any defendant wishing
to continue a moot appeal of a probation revocation must establish
actual collateral legal consequences. Mr. Legg has failed to do so
here. Thus, we conclude that his appeal is moot and affirm the court
of appeals’ decision to dismiss his appeal for mootness.
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