State v. Terrazas , 2014 Utah App. LEXIS 229 ( 2014 )

2014 UT App 229_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ROBERT TERRAZAS,
Defendant and Appellant.
Opinion
No. 20130100-CA
Filed September 25, 2014
Second District Court, Ogden Department
The Honorable W. Brent West
Nos. 111901370, 111901701, 111901702, 111901703, 111902690
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
ROTH, Judge:
¶1 Robert Terrazas appeals from the district court’s decision
to impose ten previously stayed prison sentences after the court
determined that he had not complied with the terms of a
cooperation agreement. Terrazas asserts that the court erred in
treating a violation of the cooperation agreement like a breach of
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).
State v. Terrazas
a plea agreement, which merely requires noncompliance, instead
of like a violation of probation, which requires specific sorts of
notice and a finding of willful noncompliance prior to
revocation. Terrazas also asserts that the court erred in finding
him in breach of the cooperation agreement. He argues that the
agreement either was unenforceable or, alternatively, was
satisfied through his good faith efforts to comply. We affirm.
BACKGROUND
¶2 In 2011, the State charged Terrazas with a variety of
offenses in five separate cases, including multiple felony and
misdemeanor drug offenses, a felony weapons-restriction
violation, a felony resisting arrest offense, and several
misdemeanor driving violations. In March 2012, Terrazas
entered guilty pleas to four counts charged in one of the cases.
The State then began plea negotiations with Terrazas on the four
other cases because it believed that Terrazas, as a founding
member of the Ogden Trece gang, could help prosecutors
develop cases against the gang’s leadership. As a result of the
negotiations, Terrazas agreed to plead guilty to six felonies and
enter a cooperation agreement with the State in exchange for the
State dismissing the remaining misdemeanor counts and
recommending a suspension of Terrazas’s prison sentences in
favor of probation if he complied with the cooperation
agreement.
¶3 The cooperation agreement required Terrazas to lead the
State to information that would allow it to prosecute three
identified high-ranking members of the Ogden Trece gang who
were involved in drug and firearms trafficking. Terrazas’s
primary task was to arrange meetings to buy controlled
substances from each of these three individuals under
circumstances monitored and controlled by the Ogden Metro
Gang Unit. During the course of his performance under the
agreement, he was required to maintain daily contact with the
gang unit. The bulk of Terrazas’s cooperation was to occur
before June 11, 2012; however, the agreement provided for an
20130100-CA 2 2014 UT App 229State v. Terrazas
extension of the time for Terrazas to comply so long as ‚a good
faith effort ha[d] been made.‛ If Terrazas successfully
performed, the State would recommend that his prison terms be
converted to probation and, for his protection, would arrange for
Terrazas to serve that probation in another state. If Terrazas
‚fail*ed+ to complete the terms of this agreement,‛ the agreement
would ‚become null and void‛ and the State would ‚proceed
[with] the pending charges for sentencing.‛
¶4 In May 2012, attorneys for the State and for Terrazas
informed the district court that they had entered into a plea
agreement that included a cooperation component. In order to
ensure that the stated goals could be met, the terms of the
cooperation agreement were to be kept strictly confidential, even
from the court; only the prosecutor, the Ogden Metro Gang Unit
detective assigned to Terrazas (the Detective), and Terrazas and
his attorney were privy to the agreement. The district court
accepted the plea agreement on the ‚good faith‛ of the parties
that ‚*Terrazas+ would go out and comply with the terms of the
*plea+ agreement.‛2 In accordance with the agreement, the court
accepted Terrazas’s guilty pleas to six felonies and sentenced
him to the statutory indeterminate prison terms for each offense
to run concurrently. The court also sentenced Terrazas on the
four offenses he had previously pleaded to and ran those
sentences concurrently with the sentences imposed on the six
felonies. The court then stayed execution of the prison sentences
for a period of three months to allow the parties to perform the
activities contemplated by the cooperation agreement. The court
scheduled a hearing for August 8, 2012, to review Terrazas’s
performance under the agreement. Terrazas was then released
from custody.
2. The district court was aware that in a separate case Terrazas
had ‚agreed to help law enforcement in the investigation of
other individuals‛ by wearing a wire in return for being released
from custody and that after his release, Terrazas failed to contact
law enforcement officers and simply disappeared.
20130100-CA 3 2014 UT App 229State v. Terrazas
¶5 For the first month after his release, Terrazas complied
with the terms of the cooperation agreement. He maintained
daily contact with the Detective and attempted to set up
controlled buys. Then, he started ‚missing one day here, two
days, and it finally got to three days, then actually there was one
point, where there was a week he didn’t call.‛ Terrazas also
failed to follow through with the promised controlled buys: he
either set up drug buys with individuals who were not targets
identified in the agreement or set up buys with legitimate targets
without providing the police with enough lead time or
information to monitor the transactions. The Detective also
began to receive calls from officers in other jurisdictions who
had observed Terrazas selling drugs outside the controlled buys
that he was to set up under the agreement. Most of the time, the
Detective intervened to prevent Terrazas’s arrest in order to
allow him to continue working with the gang unit. But in late
July 2012, the Detective did not intervene, and an agent with the
Weber Morgan Narcotics Strike Force arrested Terrazas for
selling methamphetamine.
¶6 After several continuances, Terrazas ultimately appeared
before the district court for the contemplated sentence review
hearing in January 2013. The State produced an unsigned copy
of the cooperation agreement as evidence of its terms. The
prosecutor who negotiated the cooperation agreement3 and the
Detective each testified about the terms of the agreement and
about what they saw as Terrazas’s noncompliance. Terrazas also
testified in his own behalf. Terrazas testified that he had signed a
cooperation agreement with terms similar to those in the copy
the State produced but that in the original, signed agreement, the
signatures were on a separate, unproduced addendum that also
listed the names of the three targeted individuals and contained
a stipulation that the State would consider the agreement
fulfilled if Terrazas, with the State’s consent, attained
3. By the time of the review hearing, a new prosecutor had been
assigned to the case.
20130100-CA 4 2014 UT App 229State v. Terrazas
prosecutable information against acceptable substitutes. Terrazas
explained that he attempted to set up several controlled buys
with the target individuals but that the police changed the
appointments ‚*t+wo or three times‛ because ‚the officers
couldn’t be there.‛ He testified that he had also helped the
officers to arrest two fugitives (though not the target
individuals) in late June, and that he had been told that this
assistance would at least buy him some extra time to comply.
¶7 After considering the evidence at the hearing, the district
court found that although Terrazas had made some minimal
effort, Terrazas did not fulfill his commitment to help the police
obtain information against three identified leaders of the Ogden
Trece gang. The court therefore found Terrazas to be ‚in
violation of this agreement.‛ As a consequence, the court lifted
the stay and imposed the prison sentences.4 Terrazas now
appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Terrazas asserts that the district court lifted the stay and
imposed the sentences without providing him with the
‚*m+inimum *g+uarantees of Due Process.‛ The district court’s
handling of ‚*c+onstitutional issues, including questions
4. The district court also determined that Terrazas was in breach
of the cooperation agreement because he was ‚still out there
selling drugs.‛ Terrazas argues that the court could not fault him
for engaging in this conduct because the circumstances of the
cooperation agreement required him to keep up a facade that he
was still in the business in order to access the targeted
individuals and because the Detective had encouraged him to do
what he needed to do to get to the targets. We need not reach
this contention because we conclude that Terrazas’s failure to
obtain prosecutable information against the targeted individuals
independently violated the cooperation agreement.
20130100-CA 5 2014 UT App 229State v. Terrazas
regarding due process, are questions of law that we review for
correctness.‛ State v. Turner, 2012 UT App 189, ¶ 15, 283 P.3d 527(citation and internal quotation marks omitted). Specifically,
Terrazas argues that the court ought to have treated the
cooperation agreement like a probation agreement, which would
permit the court to revoke the cooperation agreement and
impose the prison sentences only if it followed the notice and
procedural requirements of Utah Code section 77-18-1 and found
any violation of the terms of the agreement to be willful. 5 See
Utah Code Ann. § 77-18-1(12) (LexisNexis 2012) (explaining the
requirements for revoking probation);6 see also State v. Hodges,
798 P.2d 270, 277 (Utah Ct. App. 1990). The State counters that
the cooperation agreement should be treated like a plea
agreement, which requires only that the court look at the
agreement’s material terms to determine whether Terrazas had
complied. The court’s decision to treat the cooperation
agreement like a plea agreement rather than probation presents
an issue of law, which we review for correctness. See Turner,
2012 UT App 189, ¶ 15 (explaining that we review issues
regarding due process as questions of law); State v. Masciantonio,
850 P.2d 492, 493 (Utah Ct. App. 1993) (explaining that we
review a district court’s statutory interpretation for correctness).
¶9 Terrazas also asserts that the district court erred in
finding him in breach of the cooperation agreement because the
agreement is ambiguous and amounts to a contract of adhesion
that should be interpreted against the State, its drafter. Whether
5. Terrazas also cites the alternative finding that can support a
revocation of probation—‚if not willful, *the violation+ must
presently threaten the safety of society.‛ See State v. Hodges, 798
P.2d 270, 277 (Utah Ct. App. 1990). All of his arguments,
however, relate to willfulness.
6. The applicable statutory provisions have not been
substantively amended, and we therefore cite the current version
of the Utah Code for the convenience of the reader.
20130100-CA 6 2014 UT App 229State v. Terrazas
a contract is ambiguous is a question of law. State v. Patience, 944
P.2d 381, 387 (Utah Ct. App. 1997) (noting that contract
principles of interpretation are useful frameworks for analyzing
plea agreements); see also WebBank v. American Gen. Annuity Serv.
Corp., 2002 UT 88, ¶ 22, 54 P.3d 1159 (explaining that whether an
ambiguity exists in a contract is a question of law). Absent
ambiguity, the interpretation of a contract is also a question of
law. Meadow Valley Contractors, Inc. v. State Dep’t of Transp., 2011
UT 35, ¶ 13, 266 P.3d 671 (explaining that the interpretation of an
unambiguous contract presents a question of law). We therefore
review the district court’s interpretation of the agreement for
correctness.
ANALYSIS
I. The Cooperation Agreement Was Not a Form of Probation.
¶10 Terrazas contends that the district court erred in lifting
the stay on his prison sentences because he was not given
‚specific notice of the allegations against him prior to‛ the
review hearing and because the district court did not enter a
finding that Terrazas’s noncompliance was willful. In making
these arguments, Terrazas takes the position that the review
hearing to determine whether to lift the stay of sentence imposed
as part of his cooperation agreement was the equivalent of a
probation revocation proceeding. The State counters that
because Terrazas was ‚never placed on probation‛ and ‚a
cooperation agreement is analytically distinct from probation,‛
‚application of probation law‛ is not justified. Rather, the State
contends, ‚cooperation agreements are contractual and are
generally reviewed using the same analysis applicable to plea
agreements.‛
¶11 Utah courts have not yet considered whether cooperation
agreements are more analogous to probation or to plea
agreements. However, in resolving this question, we are guided
by the definitions and procedures provided by the probation
statute. The Utah Code defines ‚‘*p+robation’‛ as ‚an act of grace
20130100-CA 7 2014 UT App 229State v. Terrazas
by the court‛ that involves ‚suspending the imposition or
execution of a convicted offender’s sentence‛ and placing the
defendant on probation with ‚prescribed conditions.‛ Utah
Code Ann. § 77-27-1(14) (LexisNexis Supp. 2013); see also id. § 77-
18-1(2)(a) (LexisNexis 2012) (‚On a plea of guilty . . . , the court
may, after imposing sentence, suspend the execution of the
sentence and place the defendant on probation.‛). Suspension of
the sentence in favor of probation results in an agreement
between the convicted defendant and the sentencing court in
which the defendant agrees ‚to comply with the conditions of
probation as established by that court in exchange for not having
to serve a prison sentence.‛ Rawlings v. Holden, 869 P.2d 958, 961
(Utah Ct. App. 1994).
¶12 Terrazas argues that this is what happened here—the
district court suspended the execution of his prison sentences in
return for his agreement to fulfill certain conditions set out in the
cooperation agreement, in effect a form of probation. But in this
case, the district court engaged in none of the formalities
necessary to change Terrazas’s status from a defendant
sentenced to prison to that of a probationer. After Terrazas
entered his guilty pleas, the court imposed the sentences but
then stayed execution of those sentences for a period of time in
which Terrazas could work to comply with the cooperation
agreement so that he could earn the opportunity to be placed on
probation. The court did not suspend the sentences as it must
when it places a defendant on probation but, in essence, made
compliance with the cooperation agreement a condition
precedent to probation and not a term of a probationary period
already imposed. See Utah Code Ann. § 77-18-1(2)(a); cf.
McArthur v. State Farm Auto. Ins. Co., 2012 UT 22, ¶ 29, 274 P.3d
981 (explaining that ‚conditions precedent‛ are ‚event[s], not
certain to occur, which must occur . . . before performance of a
contract becomes due‛ (omission in original) (citation and
internal quotation marks omitted)). Moreover, the district court
did not accept compliance with the terms of the cooperation
20130100-CA 8 2014 UT App 229State v. Terrazas
agreement as a substitute for serving the prison sentences, which
is the essence of a probation determination.7 See Rawlings, 869
P.2d at 961. Rather, it set the case for review, at which time it
would consider whether to suspend the prison sentences
previously imposed in favor of probation or to simply lift the
stay so as to begin the running of those prison sentences. In
other words, at the time the court accepted Terrazas’s pleas, it
sentenced him to prison; the cooperation agreement gave
Terrazas a way to change those sentences to probation by
complying with its terms, and the court stayed execution of the
prison sentences to allow Terrazas an opportunity to perform.
¶13 Thus, by releasing Terrazas from custody so he could
undertake his obligations under the cooperation agreement, the
court did nothing that appears to equate to probation as
contemplated by the probation statute; rather, the court’s actions
seem much more consistent with facilitating the implementation
of a plea agreement. A plea agreement is ‚an agreement entered
between the prosecution and defendant setting forth the special
terms and conditions and criminal charges upon which the
defendant will enter a plea of guilty or no contest.‛ Utah Code
Ann. § 77-38a-102.
¶14 Appellate courts in several federal jurisdictions and at
least one other state have treated cooperation agreements like
plea agreements, not as a kind of probation. See, e.g., United
States v. Tarbell, 728 F.3d 122, 127 (2d Cir. 2013) (interpreting
‚plain terms of the confidential cooperation agreement‛ in the
same manner as it would a plea agreement); United States v.
Carrillo, 709 F.2d 35, 36 (9th Cir. 1994) (‚A cooperation
agreement is analogous to a plea bargain agreement.‛); United
7. The district court itself was not even aware of the terms of the
cooperation agreement. Thus, the court did not set forth any
‚prescribed conditions‛ of ‚probation‛ as is typically the case.
See Utah Code Ann. § 77-27-1(14) (LexisNexis Supp. 2013);
Rawlings v. Holden, 869 P.2d 958, 961 (Utah Ct. App. 1994).
20130100-CA 9 2014 UT App 229State v. Terrazas
States v. Pinter, 971 F.2d 554, 557 (10th Cir. 1992) (per curiam)
(same as Carrillo); United States v. Johnson, 861 F.2d 510, 512 (8th
Cir. 1988) (‚A cooperation agreement is somewhat analogous to
a plea agreement . . . .‛); State v. Bergmann, 600 N.W.2d 311, 314
(Iowa 1999) (explaining that when a defendant complies with a
cooperation agreement, he is entitled to have it enforced ‚in the
same manner as a plea agreement‛).8 The Tenth Circuit Court of
Appeals has explained the basis for this approach:
Cooperation agreements, like plea agreements,
function as an essential part of the criminal justice
process and are highly desirable as a means to
assist law enforcement investigative efforts. Many
plea agreements require some cooperation by
defendants in ongoing investigations.
Additionally, cooperation agreements . . . often
result in the surrender of valuable constitutional
rights.
8. In his reply brief, Terrazas cites State v. Schwab, 404 N.W.2d
284 (Minn. Ct. App. 1987), in support of his contention that
‚courts frequently treat a probation revocation hearing and a
violation of conditions as part of a stay as synonymous.‛ In
Schwab, however, the sentencing court stayed the imposition of
sentence because it put the defendant on probation. Id. at 284–85.
Although we have noted that, in Utah, courts suspend sentences
in favor of probation, we do not believe the semantics of the
Minnesota case suffice to make out Terrazas’s claim. The Schwab
case clearly indicates that the sentencing court formally placed
the defendant on probation and that the probation revocation
proceeding took place because the defendant was on probation,
not because the sentences were stayed for a non-probationary
purpose. Id. Thus, Schwab does not support Terrazas’s claim that
a cooperation agreement is analogous to probation. And our
own research has not revealed any cases that have treated
cooperation agreements as anything other than analogous to a
plea agreement or as a species of a plea bargain.
20130100-CA 10 2014 UT App 229State v. Terrazas
In light of these considerations, we hold that [a]
cooperation agreement is analogous to a plea
bargain[,] and therefore that the same analysis
applies to both types of agreements. Thus,
promises in cooperation agreements, whether
directly or indirectly made, must be fulfilled to
their fullest extent in furtherance of fair and proper
administration of justice.
Pinter, 971 F.2d at 557 (alterations in original) (citations and
internal quotation marks omitted).
¶15 We agree with the Tenth Circuit’s reasoning. Cooperation
by a defendant is a common component of a particular kind of
plea bargain (like this one), in which the State makes promises,
such as to reduce the charges (either in severity or number),
decline prosecution on a particular charge, or recommend
leniency in sentencing, if the defendant cooperates with a law
enforcement investigation. Like a pure plea agreement,
cooperation agreements provide benefits to both the State and
the defendant: the government avoids the expenses associated
with proving each charge while still securing convictions against
this particular defendant and possibly obtaining information to
aid it in prosecuting others; the defendant avoids the burdens of
trial and has more control over the outcome of the charges.
Because the purposes of a plea agreement and a cooperation
agreement often overlap in significant ways, it stands to reason
that they should be treated analogously when a dispute arises
about what is required or whether the defendant has fulfilled his
end of the agreement. For these reasons, we reject Terrazas’s
claim that the district court placed him on probation when it
stayed the sentences while he performed on the cooperation
agreement. We now address Terrazas’s contention that the
statutory provisions for revoking probation nonetheless govern
the review hearing.
20130100-CA 11 2014 UT App 229State v. Terrazas
II. The Statutory Requirements for Probation Revocation Do Not
Apply Here.
¶16 Terrazas contends that procedural and substantive due
process require district courts to follow the process specified in
the probation statute and then to apply a standard of willfulness
when determining whether a defendant violated a cooperation
agreement. See Utah Code Ann. § 77-18-1(12)(b)(ii), (c)(i), (c)(iii)–
(iv), (d) (LexisNexis 2012) (requiring a probationer to be served
at least five days before the revocation hearing with an order to
show cause informing him of the alleged violations and
providing the probationer with the right to counsel, the right to
present evidence, and an opportunity to confront the state’s
witnesses at the hearing); State v. Peterson, 869 P.2d 989, 991
(Utah Ct. App. 1994) (requiring a court to ‚determine by a
preponderance of the evidence that the violation was willful‛
before revoking probation). Because we have concluded that the
stay of sentence in connection with the cooperation agreement
was not equivalent to putting Terrazas on probation, we
conclude that he was not entitled to the benefit of the statutory
process or the willfulness standard applicable to probation
revocation proceedings.
A. Due Process
¶17 Even though we have concluded that the probation
statute is inapplicable, Terrazas is still entitled to due process
protection. See U.S. Const. amend. XIV, § 1 (prohibiting the
‚depriv*ation of] any person of life, liberty, or property, without
due process of law‛); Utah Const. art. 1, § 7 (same). ‚Due process
is flexible and calls for the procedural protections that the given
situation demands.‛ Labrum v. Utah State Bd. of Pardons, 870 P.2d
902, 911 (Utah 1993) (citation and internal quotation marks
omitted); see also State v. Orr, 2005 UT 92, ¶ 11, 127 P.3d 1213(‚What constitutes due process, however, depends upon the
type of proceeding and, more specifically, ‘the nature of the
individual interest affected, the extent to which it is affected, . . .
[and] the existence of alternative means for effectuating the
purpose.’‛ (alteration in original) (quoting Bearden v. Georgia, 461
20130100-CA 12 2014 UT App 229State v. Terrazas
U.S. 660, 666–67 (1983))). ‚Procedural due process requires, [a]t a
minimum, timely and adequate notice and an opportunity to be
heard in a meaningful way.‛ State v. Ferretti, 2011 UT App 321,
¶ 12, 263 P.3d 553 (alteration in original) (citation and internal
quotation marks omitted). If a defendant has an ‚opportunity to
present evidence and argument on *an+ issue before decision,‛
then he has had an opportunity to be heard in a meaningful way.
Id. (alteration in original) (citation and internal quotation marks
omitted).
¶18 We conclude that Terrazas received due process under
the circumstances. The district court informed Terrazas in May
2012 that it was ‚imposing sentence‛ but would stay execution
of that sentence until a review hearing in August 2012. At that
point, if ‚things go successful[ly],‛ the court would ‚consider
converting [the sentence] to probation.‛ Terrazas was informed
that he would have to come before the court at that hearing to
‚see where we are‛ on compliance with the cooperation
agreement and whether a recommendation for probation would
be made. Terrazas was therefore notified months in advance of
the eventual review hearing, at which he appeared and was
represented by counsel and had an opportunity to cross-examine
the State’s five witnesses—including the prosecutor with whom
Terrazas negotiated the plea agreement and the Detective who
monitored his cooperation. Terrazas also testified in his own
behalf, presenting his theory of the cooperation agreement’s
terms and describing his efforts to comply. Thus, because
Terrazas had adequate notice and a meaningful opportunity to
be heard, there was no violation of due process in connection
with the district court’s decision to lift the stay on execution of
the prison sentences after the review hearing.
B. The Willfulness Standard
¶19 Further, because the cooperation agreement is not
equivalent to a term of probation, the willfulness standard’s
requirement of an absence of bona fide efforts to comply does
not apply to a determination of whether Terrazas complied with
the agreement’s terms. See generally Peterson, 869 P.2d at 991
20130100-CA 13 2014 UT App 229State v. Terrazas
(‚*F+or a trial court to revoke probation based on a probation
violation, the court must determine by a preponderance of the
evidence that the violation was willful,‛ meaning ‚the
probationer did not make bona fide efforts to meet the
conditions of his probation.‛ (citation and internal quotation
marks omitted)). Rather, the question of whether Terrazas
complied with the cooperation agreement must be considered
using the standards of compliance contemplated by the terms of
the agreement itself. Cf. State v. Davis, 2011 UT App 74, ¶ 3 & n.2,
272 P.3d 745 (interpreting a plea agreement according to its plain
terms). We will address that question as part of our examination
of the district court’s decision that Terrazas failed to perform
under the cooperation agreement.
III. The District Court’s Decision that Terrazas Failed To Perform
Under the Cooperation Agreement Is Supported by the
Agreement’s Terms and the Evidence.
¶20 Terrazas makes two alternative arguments to support his
position that the district court erred in finding that he breached
the cooperation agreement. First, he argues that the agreement
itself was unenforceable because (1) the State failed to produce a
complete and signed copy of the cooperation agreement at the
review hearing; (2) the agreement contained ambiguous and
sometimes contradictory terms; and (3) the agreement
conditioned his compliance on the State’s performance of its
own obligations, which Terrazas asserts the State failed to fulfill.
Alternatively, he asserts that the agreement requires only good
faith efforts to comply, efforts which the district court found that
he had made.
¶21 We conclude that the cooperation agreement was
enforceable despite the State’s failure to produce a complete,
signed copy of the agreement. We also conclude that the district
court did not err in determining that the cooperation agreement
unambiguously required Terrazas to fulfill the contract, not
simply to make good faith efforts. Finally, we reject Terrazas’s
contention that the State substantially hindered his performance.
20130100-CA 14 2014 UT App 229State v. Terrazas
Accordingly, we affirm the district court’s decision that Terrazas
failed to fulfill his obligations under the agreement.
A. The Unsigned, Incomplete Copy of the Cooperation
Agreement
¶22 Terrazas first claims that there was inadequate evidence
of a cooperation agreement enforceable against him because the
State only produced an unsigned, incomplete copy of a
purported cooperation agreement to the district court. Terrazas
argues that the State’s failure to produce the signed cooperation
agreement ‚was important because the parties did not agree that
the unsigned copy accurately reflected the signed agreement.‛
Although this argument seems to implicate the best evidence
rule,9 Terrazas has only addressed it as a denial of due process.
Specifically, he asserts that through the State’s failure to produce
a complete copy of the agreement, he was not afforded the
opportunity to ‚claim *that+ he fully complied with *the+
agreement.‛
9. For example, Terrazas asserts that ‚the unsigned agreement
the State proffered‛ at the review hearing was ‚never clarified
on the record‛ as ‚a copy of the agreement the parties entered
into,‛ and in support, he cites a portion of the review hearing
transcript that contains what appears to be a best evidence-type
argument regarding the State’s failure to produce the
addendum. His trial counsel argued,
First of all, your honor, [the prosecutor
handling the review hearing, is] in no position to
testify about what was in or not in the contract. We
had witnesses for that and we don’t have the
contract. We have an unsigned document that
purports to be the contract. We don’t have the
addendum at all and *the prosecutor+, I don’t
think, has ever seen it. I haven’t.
20130100-CA 15 2014 UT App 229State v. Terrazas
¶23 At the review hearing, Terrazas notified the district court
that the original cooperation agreement had an addendum that
was not part of the copy of the agreement that the State
produced in court. Terrazas argued that the missing addendum
contained his signature and the names of the targeted
individuals as well as a provision that, with the State’s consent,
Terrazas could fulfill the agreement by providing information to
prosecute persons other than the targeted individuals. The State
acknowledged that the one-page addendum was not produced
for the court’s review and explained that it decided not to
include the addendum out of an abundance of caution because it
was no longer in a position to protect Terrazas from potential
gang retaliation stemming from his cooperation, such as it was,
with the Ogden Metro Gang Unit. According to the State, the
addendum contained only the targeted individuals’ names and
the parties’ signatures. The State agreed with Terrazas that the
cooperation agreement allowed for substitution of the targeted
individuals in certain circumstances, but it pointed out that the
substitution provision was already included in the terms set out
in the partial copy of the agreement before the court and
presented testimony that the substitution provision was not in
the addendum itself.
¶24 Significantly, other than the missing addendum, Terrazas
does not assert that the unsigned copy of the cooperation
agreement differs from the agreement he signed. And regarding
the missing addendum, Terrazas’s only claim is that it contained
a substitution provision, an assertion the State denied. 10 But even
10. Both Terrazas and the State agree that the addendum
contained the signatures of the parties and the names of the
targeted individuals. There is no dispute that Terrazas signed
the original cooperation agreement, and although Terrazas has
asserted that the identities of the targeted individuals were never
disclosed, his testimony at the review hearing revealed that he
was aware of who the three target individuals were. Moreover,
the agreement itself provides that the names of the targeted
(continued...)
20130100-CA 16 2014 UT App 229State v. Terrazas
if Terrazas is correct, Terrazas did not claim that the substitution
provision in the addendum was materially different from the
one included in the body of the State’s copy of the cooperation
agreement. Cf. Utah R. Evid. 1004(d) (explaining that an original
is not required to prove the contents of a writing if the writing
‚is not closely related to the controlling issue‛). Indeed, his
testimony about the contents of the substitution provision
supports a conclusion either that Terrazas failed to recall the
substitution provision’s placement in the agreement or that the
addendum simply repeated the same substitution language
already set out in the cooperation agreement itself. We conclude
that, under these circumstances, the admission of the
cooperation agreement without the addendum, but with
consideration of testimony about the addendum’s contents, was
within the district court’s discretion. Furthermore, its admission
did not prejudice Terrazas because there was no material
disagreement about the agreement’s pertinent terms. See Utah R.
Crim. P. 30(a) (‚Any error . . . which does not affect the
substantial rights of a party shall be disregarded.‛).
B. The Cooperation Agreement’s Compliance Standards
¶25 Terrazas next contends that the cooperation agreement
did not spell out his responsibilities clearly enough to inform
him what he must do to comply with it and thus, notions of
fairness and due process preclude the use of his purported
individuals would be identified only in a ‚separate confidential
target list.‛ This language lends support to the State’s position
that the addendum was a document that the parties had
intended to protect as confidential, an intention that the State
advanced as the reason for not introducing the addendum into
the public record at the review hearing. See generally United States
v. Rodriguez, 725 F.3d 271, 278 (2d Cir. 2013) (acknowledging
‚the significant public safety risks to cooperating defendants . . .
that exposing even the fact of cooperation may pose‛ and noting
that courts frequently employ measures to reduce that risk).
20130100-CA 17 2014 UT App 229State v. Terrazas
noncompliance as the basis for lifting the stay and imposing the
sentences. In particular, he asserts that the agreement contains
ambiguous and contradictory measures of compliance. For
example, he contends that one section of the cooperation
agreement requires ‚best efforts‛ while another requires him to
‚secure evidence to build prosecutable cases‛ against the
targeted individuals. We conclude that the agreement
sufficiently advised Terrazas of the standards by which his
compliance is to be determined.
¶26 Earlier, we concluded that a cooperation agreement is
analogous to a plea agreement. See supra ¶ 15. We therefore turn
to our precedent on interpreting plea agreements as guidance for
interpreting a cooperation agreement. Utah appellate courts
have long held that that ‚*p+rinciples of contract law provide a
useful analytic framework‛ in cases involving plea agreements.
State v. Patience, 944 P.2d 381, 386–87 (Utah Ct. App. 1997)
(‚Many courts, including the Utah Supreme Court and the
United States Supreme Court, have referred to plea agreements
as contracts and have applied principles derived from contract
law to plea agreements.‛); see also State v. Davis, 2011 UT App 74,
¶ 3 & n.2, 272 P.3d 745 (‚We apply contract principles to
interpret Defendant’s plea agreement.‛ (citing Patience, 944 P.2d
at 386)). Accordingly, we will ‚apply contract principles to
interpret‛ the cooperation agreement. See Davis, 2011 UT App 74,
¶ 3 & n.2.
¶27 The underlying purpose in construing a contract is ‚to
ascertain the intentions of the parties,‛ WebBank v. American Gen.
Annuity Serv. Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139, and to
identify ‚what the parties reasonably understood to be the terms
of the agreement,‛ United States v. Gregory, 245 F.3d 160, 165 (2d
Cir. 2001) (considering whether the government breached a
cooperation agreement when it revoked the agreement after the
defendant was arrested for another crime); accord United States v.
Pinter, 971 F.2d 554, 557 (10th Cir. 1992) (per curiam) (explaining
that a court construing a cooperation agreement should ensure
that the ‚promises in cooperation agreements . . . be fulfilled to
their fullest extent‛ by ‚determining what the defendant
20130100-CA 18 2014 UT App 229State v. Terrazas
reasonably understood when the agreement was executed‛
(citation and internal quotation marks omitted)). Generally, we
begin this inquiry by ‚look*ing+ first to the plain language of a
contract.‛ See Davis, 2011 UT App 74, ¶ 3 & n.2 (applying a
contract-related plain language approach to interpret a plea
agreement). However, in criminal cases, we do not strictly
adhere to the plain meaning rule to interpret the agreement. See
id. ¶ 4 n.3. Rather, ‚courts are particularly willing to identify
ambiguities in plea agreements because of the significant
constitutional rights the defendant waives by entering a guilty
plea.‛ Id. (citation and internal quotation marks omitted). If,
however, after ‚consider*ing+ each contract provision . . . in
relation to all of the others, with a view toward giving effect to
all and ignoring none,‛ we determine that the language of the
contract is unambiguous, we may interpret its terms based on
the plain language. WebBank, 2002 UT 88, ¶¶ 18–19 (omission in
original) (citation and internal quotation marks omitted).
¶28 The written cooperation agreement set out the terms of
Terrazas’s cooperation with the State. Paragraph 3 stated that
Terrazas was to ‚cooperate fully with the State of Utah and the
agents of the Gang Unit to secure evidence to build prosecutable
cases against at least three individual[s] who are currently
selling illegal controlled substances and illegally possessing or
dealing in firearms.‛ Those ‚three individuals will be listed on a
separate confidential target list that will be incorporated into this
agreement.‛ Paragraph 4 then set forth the ‚services and
conduct‛ that Terrazas was to provide in order to ‚cooperate
fully‛ in ‚secur*ing+ evidence to build prosecutable cases‛:
A. Making a controlled purchase or purchases
from the [target] individual[s] . . . and/or
acceptable substitutes.
B. Making the necessary introductions between a
police agent and the [target] individuals . . .
and/or her associates, and/or an acceptable
substitute.
20130100-CA 19 2014 UT App 229State v. Terrazas
C. Wearing electronic monitoring equipment, upon
request, for the purpose of monitoring
conversations and interactions with the above
referenced individuals and associates.
....
E. Any other reasonable requests of . . . agents of
the Gang Unit in regard to any of the
individuals referenced . . . above . . . .
F. Defendant agrees to maintain constant and
consistent telephonic, electronic, and personal
contact with [the] Detective . . . or other
members of the Gang Unit to verify his
whereabouts and activities. This shall include
daily contact with the Gang Unit by one of
these methods to insure the Defendant is
cooperating and accountable. Defendant
understands that his failure to maintain this
constant contact with the Gang Unit officers
will result in the cancellation of this agreement
and the resumption of the court proceedings
against him.
¶29 The cooperation agreement also described the level of
effort expected from Terrazas. It is in these paragraphs that the
heart of the dispute on appeal lies. In paragraph 6, the
cooperation agreement stated that Terrazas ‚will make his best
efforts to complete the previously mentioned work by June 11,
2012.‛ Paragraph 7 provided that Terrazas’s progress would be
reviewed on June 10 and that an extension may be granted ‚if
additional time is needed and if it is determined a good-faith
effort is being made.‛ Paragraph 8 informed Terrazas, however,
that ‚a good faith effort alone, unaccompanied by prosecutable
cases against but not limited to subjects [described] in paragraph
three, will not be considered as compliance with the terms of this
agreement.‛ (Emphasis added.) Finally, paragraph 9 provided
that Terrazas’s ‚failure to complete the terms of this agreement
20130100-CA 20 2014 UT App 229State v. Terrazas
as outlined . . . shall render this agreement null and void. In
addition [Terrazas] understands that should the agreement
become null and void, the State of Utah will proceed [with] the
pending charges for sentencing.‛
¶30 Contrary to Terrazas’s contention, paragraphs 6 through 9
did not impose contradictory measures of performance. Rather,
the language could not be plainer, even under the more liberal
standards for ambiguity applicable to plea agreements. See
Davis, 2011 UT App 74, ¶ 4 n.3. Paragraphs 8 and 9
unambiguously inform Terrazas that, ‚a good faith effort‛ was
not enough on its own; in order to fulfill his obligations under
the agreement, he had to actually provide information to build
prosecutable cases against the targeted individuals (or
acceptable substitutes) by engaging in the activities described in
paragraph 3. The references in paragraphs 6 and 7 to ‚best
efforts‛ and ‚good-faith,‛ which Terrazas argues are confusing
alternative standards for compliance generally, are plainly
confined to the requirements for extending the time for him to
fulfill the agreement and do not extend to the standards by
which his performance was ultimately to be measured. Rather,
Terrazas was to use his ‚best efforts‛ to obtain information to
build prosecutable cases against the three targets by June 11,
2012; however, if Terrazas failed to make that deadline, but was
making ‚a good-faith effort,‛ then the prosecutor could grant an
extension of time to comply. This provision for an extension did
not obviate the agreement’s overarching requirement that
Terrazas obtain information to build prosecutable cases against
the targeted individuals to fulfill its terms, which was clearly
reiterated in paragraph 8: ‚a good faith effort alone,
unaccompanied by prosecutable cases against but not limited to
subjects [described] in paragraph three, will not be considered as
compliance with the terms of this agreement.‛ And this makes
sense under the circumstances. Terrazas was an integral member
of a criminal gang that he had co-founded. He had a long
criminal history, with little progress having ever been made
when previously on parole. And he apparently had simply
blown off a prior cooperation agreement by absconding. His best
efforts were therefore of little interest to law enforcement, who
20130100-CA 21 2014 UT App 229State v. Terrazas
could reasonably calculate that the only benefit that could
override the risk of putting Terrazas on probation for a number
of serious crimes would come from Terrazas actually ‚secur*ing+
evidence to build prosecutable cases‛ against several other gang
leaders. The cooperation agreement therefore was unambiguous
about the terms of Terrazas’s cooperation.11
C. The State’s Good Faith
¶31 Terrazas’s claim that he complied with the cooperation
agreement depends on an interpretation that the agreement
required just his good faith efforts. He does not dispute that his
efforts fell short of fulfillment of the agreement’s specific terms.
Nevertheless, he argues that a finding of breach was
unwarranted because his compliance with the cooperation
agreement unreasonably hinged upon the good faith of the State,
rather than on his own actions. Terrazas’s arguments seem to
follow two paths: (1) the agreement itself was structured in such
a way that he cannot comply without the good faith efforts of the
State, and (2) the State actually impeded his ability to comply.
¶32 According to Terrazas, the agreement put his ability to
successfully perform at the mercy of the State. He argues, for
example, that the agreement required him to obtain enough
evidence against at least three individuals to allow them to be
prosecuted, yet he could not control whether the State would
prosecute. He also argues that the State agreed to allow him to
gather evidence against substitute individuals, but the
agreement did not provide a ‚process for how substitutes were
to be arranged or negotiated‛ and ‚the State specifically faulted
him for non-performance against *the+ three *targets+‛ when he
had assisted in the arrest of two other individuals. In addition,
11. Because we have determined the cooperation agreement was
unambiguous, we need not address Terrazas’s contention that
the agreement amounted to an adhesion contract, ‚*t+he
*ambiguous+ terms of *which+ are construed against the drafter.‛
20130100-CA 22 2014 UT App 229State v. Terrazas
he makes a corollary claim that the cooperation agreement stated
that compliance required ‚prosecutable cases against but not
limited to subjects *described+ in paragraph three,‛ indicating
that even if he had secured information against the three target
individuals, the State could still assert that he had not complied.
As support for his contention that the agreement depended too
heavily on the State’s good faith, Terrazas points to the
Detective’s acknowledgment that Terrazas’s ‚success pretty
much depends upon‛ the Ogden Metro Gang Unit.
¶33 Terrazas’s approach, however, fails to acknowledge the
implied covenant of good faith and fair dealing, which inheres in
all contracts. See Prince v. Bear River Mut. Ins. Co., 2002 UT 68,
¶ 27, 56 P.3d 524. That covenant includes a promise by each
party ‚not to intentionally or purposely do anything *that+ will
destroy or injure the other party’s right to receive the fruits of
the contract.‛ Id. (alteration in original) (citation and internal
quotation marks omitted). To fulfill that promise, ‚a party must
act consistently with the agreed common purpose and the
justified expectations of the other party.‛ Id. (citation and
internal quotation marks omitted). Thus, to the extent that
Terrazas’s performance was dependent upon the State’s, the
State had an inherent obligation to act in a manner that would
allow Terrazas to cooperate. Consequently, the agreement did
not provide the State with the kind of arbitrary power to impede
his performance that he claims it did.
¶34 Terrazas next contends that the State actually impeded his
ability to perform on the agreement, or in other words, that the
State violated the implied covenant of good faith and fair
dealing. To support this contention, Terrazas argues that he set
up drug buys with the targeted individuals but the State failed
to follow through with its own control arrangements, resulting
in failed attempts to secure information that could have built
prosecutable cases.
¶35 On this issue, however, the State testified that it was
Terrazas who was at fault because he was notifying the gang
unit about controlled buys too close in time to the transaction he
20130100-CA 23 2014 UT App 229State v. Terrazas
had scheduled when he knew that the police needed more lead
time to set up the necessary controls. The district court believed
the State on this point, and because there is evidence to support
its decision, we will not disturb the court’s credibility
determination. See State v. Carlsen, 638 P.2d 512, 515 (Utah 1981)
(‚*T+he court, acting as the trier of fact . . . , was authorized to
determine the credibility of the witnesses and to believe or
disbelieve any witness.‛).
¶36 We will not disturb the district court’s decision that
Terrazas failed to fulfill his obligations under the cooperation
agreement. Although the State failed to produce a complete,
signed copy of the agreement, Terrazas has not demonstrated
that the missing addendum contained any information that
would have affected the district court’s interpretation of the
agreement’s terms or its evaluation of his compliance. The court
correctly interpreted the cooperation agreement as requiring
Terrazas to fulfill the contract—a level of performance he did not
attain—as opposed to requiring him simply to make good faith
efforts to comply. Finally, Terrazas’s contention that the State
precluded him from complying with the cooperation agreement
involved a credibility determination, and we defer to the district
court.
CONCLUSION
¶37 The cooperation agreement is not the equivalent of
probation, and thus, Terrazas was not entitled to either the
notice or the willfulness finding required to revoke probation.
The district court afforded Terrazas due process when it
considered his compliance with a cooperation agreement at a
review hearing, even though the court considered an unsigned
copy of the original agreement. The cooperation agreement
unambiguously informed Terrazas of the terms of his
cooperation, and the court properly interpreted it to require
Terrazas to succeed in his cooperation, not merely to make good
faith efforts to comply. Furthermore, Terrazas has not
demonstrated that the State actually hindered his performance.
20130100-CA 24 2014 UT App 229State v. Terrazas
We therefore affirm the district court’s determination that
Terrazas was in breach of the cooperation agreement and its
resulting decision to lift the stay on the prison sentences
previously imposed.
_______________
20130100-CA 25 2014 UT App 229