State v. Meronk , 2016 UT App 27 ( 2016 )

2016 UT App 27THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MITCHALL ADAM MERONK,
Appellant.
Opinion
No. 20140816-CA
Filed February 11, 2016
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 101900746
Nathalie S. Skibine and Deborah Kreeck Mendez,
Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUSTICE JOHN A. PEARCE authored this Opinion, in which JUDGE
KATE A. TOOMEY and SENIOR JUDGE RUSSELL W. BENCH
concurred. 1
PEARCE, Justice:
¶1 Mitchall Adam Meronk appeals from the district court’s
order revoking his probation and imposing his previously
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3). Senior Judge Russell W.
Bench sat by special assignment as authorized by law. See
generally id. R. 11-201(6).
State v. Meronk
suspended prison sentence for his convictions of two counts of
sexual exploitation of a minor, each a second degree felony. We
affirm.
BACKGROUND 2
¶2 In January 2010, the State charged Meronk with ten
counts of sexual exploitation of a minor after authorities
discovered child pornography on his home computer and on an
external hard drive. Meronk pled guilty to two counts. A
presentence report indicated that Meronk had been victimized as
a child and that he was remorseful for his actions. The report
also noted that Meronk suffered from Asperger’s syndrome and
attention deficit hyperactivity disorder. The district court
sentenced Meronk to two concurrent prison terms of one to
fifteen years, suspended that sentence, and ordered him to serve
180 days in jail with credit for time already served. The district
court also placed him on probation for thirty-six months. The
initial conditions of Meronk’s probation required him to perform
150 hours of community service within one year, pay a $350
recoupment fee, obtain a psychosexual evaluation, and follow
any recommended treatment. Meronk was also required to have
no internet access and to comply with Sex Offender Group A
conditions, which included no possession of materials depicting
human nudity or sex acts. Meronk entered into a probation
agreement with Adult Probation and Parole (AP&P) that
incorporated these and other provisions.
¶3 In February 2012, AP&P filed a violation report, alleging,
among other things, Meronk’s failure to be cooperative and
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 (citation and internal
quotation marks omitted).
20140816-CA 2 2016 UT App 27State v. Meronk
truthful with AP&P, his failure to complete his community
service hours, and his possession of materials depicting human
nudity. The violation report also alleged that Meronk had failed
to pay his recoupment and supervision fees. Meronk admitted to
the first three allegations. As a result, the district court revoked
his probation and reinstated it for a new thirty-six month period.
The district court also ordered Meronk to serve sixty days in jail.
In May 2012, Meronk entered into a new probation agreement
with AP&P that, among other things, required him to complete
150 hours of community service within one year and to continue
to have no access to the internet.
¶4 In June 2013, AP&P filed another violation report,
alleging that Meronk had yet to complete any of his community
service hours or pay any of his recoupment fee. This report
resulted in a number of hearings before the district court. At the
first hearing, held in July, Meronk admitted the alleged
violations but proposed paying the $350 recoupment fee that
day. Meronk also offered a plan to complete his community
service hours. Meronk told the court that a recent promotion at
work would require him to use the internet. Meronk requested
that he be allowed to take his laptop computer to work, access
the internet while there, and take the laptop home at night, all
subject to search by AP&P. The district court continued the
hearing, reserving its ruling on Meronk’s request in order to,
among other things, give AP&P time to coordinate with his
employer.
¶5 At a second hearing, held in August, the district court
began by observing that Meronk had completed no community
service since the last hearing and had not been actively engaged
in his sex offender therapy. The district court ordered Meronk to
make a “very dramatic improvement” in these areas. Meronk
repeated his request to take a computer back and forth between
his home and work, which AP&P opposed. The district court
ordered that any computer Meronk used at work had to stay
there. Meronk’s counsel volunteered that AP&P was concerned
20140816-CA 3 2016 UT App 27State v. Meronk
about computer parts at Meronk’s home. Meronk’s counsel
assured the district court that Meronk would get rid of them.
The district court continued the hearing.
¶6 The next hearing occurred in mid-September. Meronk’s
therapist had written a letter stating that Meronk’s sex offender
therapy was progressing, albeit slowly. The district court
ordered Meronk to increase his rate of progress. Meronk’s
counsel reported that, contrary to what Meronk had said at the
prior hearing, Meronk’s employer had indicated to AP&P that
he did not need internet access at work. Counsel for the State
also reported that roughly two weeks earlier, AP&P had found
computer parts at Meronk’s home and that Meronk had told an
AP&P officer that the district court had not ordered him to
remove them. In addition, Meronk was again behind on the
payment of his supervision fees. The district court ordered
Meronk not to have a computer outside of his work. The district
court elaborated, “You may not have any computer
components. Period. You may not parse every single little issue
to your benefit. Whatever the strictest reading of the terms of
probation, the strictest reading of the Court’s orders, that’s
what you are bound by. You may not interpret it to your
benefit.” The court set a disposition hearing for the end of
September.
¶7 At the disposition hearing, the district court revoked and
reinstated Meronk’s probation for an additional three-year
period. The court also ordered Meronk to spend three weekend
days in jail and fifty-seven days in home confinement. The
district court emphasized that Meronk should make “steady
progress” with his treatment and not return with “more issues
about a computer or internet access.” In October, Meronk
entered into another probation agreement with AP&P, which
this time included the express provision that he not have a
laptop at home.
20140816-CA 4 2016 UT App 27State v. Meronk
¶8 Two months later, in December 2013, AP&P filed a
request for a review hearing, alleging that Meronk still had
computers and computer parts in his room. The request stated
that after the last hearing, Meronk had asked his probation
officer whether he needed to comply with the court’s oral
statement regarding computers because the court docket did not
reflect that condition. The officer told Meronk that AP&P could
only enforce terms that were part of his probation conditions but
that Meronk should “probably follow what the judge told him.”
When AP&P visited Meronk’s home in mid-December, they
found several computers and video gaming systems in Meronk’s
room. When asked why he had the computers in his room,
Meronk responded that “he didn’t think that [the district court]
meant for him not to have the computers.” AP&P requested that
the district court clarify whether Meronk was allowed to have
computers and, if not, to add such a restriction to his probation
conditions.
¶9 The district court held a review hearing in January 2014.
Meronk’s counsel argued that due to his mental condition,
Meronk had difficulty understanding any direction that was not
presented in literal terms. The district court responded that it
had been “pretty darn direct” about the computer restriction and
that Meronk had affirmatively indicated that he had understood
the court’s condition. The district court requested that AP&P file
an order to show cause. Several days later, AP&P did so,
alleging that Meronk had violated the terms of his probation by
possessing a “travelling laptop” in August 2013; by possessing
computers and computer components in December 2013; and, as
of January 2014, by failing to be truthful with AP&P about the
computers and failing to show steady and verifiable progress in
sex offender therapy.
¶10 The district court conducted an evidentiary hearing in
May 2014, at which an AP&P agent testified that AP&P had
found Meronk in possession of a laptop and computer parts in
August 2013. The agent also described the computers and parts
20140816-CA 5 2016 UT App 27State v. Meronk
he found in Meronk’s home in December 2013. The agent
testified that Meronk had represented that he needed internet
access at work, which his employer had subsequently denied,
and described Meronk’s statement that the district court “had
not really ordered him not to have [the computer] components.”
Finally, the agent testified about Meronk’s failure to progress in
sex offender therapy. According to the agent, offenders
ordinarily completed the four-level program in twelve to
eighteen months, while Meronk was still on level one after three
years. At an early-June continuation hearing, Meronk presented
testimony from three witnesses, including his therapist.
¶11 The district court conducted a final disposition hearing on
June 30, 2014. At that hearing, the district court found that
Meronk had possessed the laptop and other computers as
alleged, that he had been untruthful with AP&P, and that he had
failed to make adequate progress in his sex offender treatment.
The court rejected Meronk’s argument that his actions resulted
from his mental condition, observing that Meronk had been able
to maintain employment and that there was no specific evidence
that Meronk’s condition prevented him from understanding or
complying with his probation conditions. The district court
found that Meronk had willfully violated the terms of his
probation, revoked probation, and imposed Meronk’s
suspended sentence of two concurrent one-to-fifteen-year terms
of imprisonment. Meronk appeals.
ISSUE AND STANDARD OF REVIEW
¶12 Meronk argues that the district court erred in finding that
he willfully violated the terms of his probation. The district
court’s “finding of a probation violation is a factual one and
therefore must be given deference on appeal unless the finding is
clearly erroneous.” State v. Johnson, 2012 UT App 118, ¶ 2, 276
P.3d 1254 (citation and internal quotation marks omitted). We
review the district court’s ultimate decision to revoke probation
20140816-CA 6 2016 UT App 27State v. Meronk
“for abuse of discretion.” State v. Brooks, 2012 UT App 34, ¶ 8,
271 P.3d 831.
ANALYSIS
¶13 Meronk argues that the district court erred in finding that
he willfully violated the terms of his probation. We conclude
that the district court’s findings are not clearly erroneous and
that its decision to revoke Meronk’s probation was within the
bounds of its discretion.
¶14 We begin by observing that testimony before the district
court supported its findings that Meronk possessed computers
and computer parts, made certain statements to AP&P regarding
computers and internet access, and performed as documented in
his sex offender therapy. Meronk’s arguments on appeal are not
that these acts did not occur. Rather, Meronk contends that
under the circumstances, the acts cannot be properly
characterized as willful violations of his probation.
¶15 Meronk first argues that he did not willfully violate his
treatment obligations, because he was performing to the best of
his abilities and was on track to complete treatment by the end
of his probation period. 3 We cannot say that the district court
3. Meronk failed to preserve a number of the other arguments he
raises on appeal. See State v. Diaz-Arevalo, 2008 UT App 219, ¶ 10,
189 P.3d 85 (“In order to preserve an issue for appeal, a
defendant must raise the issue before the district court in such a
way that the court is placed on notice of potential error and then
has the opportunity to correct or avoid the error.”). For example,
Meronk argues that the district court violated his constitutional
double-jeopardy rights by relying, in part, on Meronk’s August
2013 possession of a laptop to revoke his probation. In
September 2013, the district court revoked and reinstated
(continued…)
20140816-CA 7 2016 UT App 27State v. Meronk
clearly erred when it found that Meronk’s treatment progress
did not satisfy the requirements of his probation. The district
court heard testimony that, after three years, Meronk was still on
the first level of a four-level program that most offenders
complete within eighteen months. The district court found that
Meronk’s slow progress reflected “malingering” and that his
(…continued)
Meronk’s probation. At that time, the district court was aware of
the allegation that Meronk had a laptop, but the court did not
revoke and reinstate probation on that basis. In June 2014,
Meronk argued to the district court that when he signed a
new probation agreement after the September 2013 disposition,
“[a]nything before that was already dealt with”; that they
“started over”; and that “bringing that issue up now when it
was talked about, it was dealt with, but not in a formal
manner, to bring it up now, is a problem.” In that argument,
Meronk did not expressly invoke double jeopardy before the
district court, much less lay out the nuanced double-jeopardy
argument that he now presents. Although a defendant is not
required to use “magic words or phrases” to preserve an
argument, In re Baby Girl T., 2012 UT 78, ¶ 38, 298 P.3d 1251,
Meronk’s objection was not sufficient to place the district court
on notice of his current argument that relying on the August
2013 laptop violation would implicate his constitutional right to
be free from double jeopardy.
Similarly, Meronk did not even suggest to the district
court that he lacked notice that his slow progress in sex
offender therapy could be deemed a probation violation. That
argument is therefore also unpreserved. We also decline to
address Meronk’s arguments regarding an alleged finding by
the district court that Meronk violated his probation by
possessing the laptop in December 2013, because the district
court’s June 30, 2014 revocation of his probation and imposition
of his originally suspended sentence contains no such finding.
20140816-CA 8 2016 UT App 27State v. Meronk
“comments like, I can’t work on that and won’t work on that, on
my autobiography[ 4] until I get my computer back, again speak
to manipulative conduct that . . . reflects unwillfulness.” The
court also specifically considered Meronk’s mental disabilities
but stated, “I don’t believe that his limitations are as disabling as
counsel has argued them to be.”5 Under these circumstances, we
cannot say that the district court’s finding that Meronk willfully
failed to make the required progress in his treatment was clearly
erroneous.
¶16 Meronk next argues that he did not willfully violate his
probation by possessing computer parts, because he made bona
fide efforts to meet this condition of his probation. See State v.
Peterson, 869 P.2d 989, 991 (Utah Ct. App. 1994). Meronk
correctly asserts that the district court could not revoke his
probation for violating this condition unless the violation was
willful or presently threatened public safety. See State v. Hodges,
798 P.2d 270, 277 (Utah Ct. App. 1990).
¶17 Meronk’s argument hinges on whether he actually
entertained a good faith belief that he could possess computers
and computer parts without violating his probation. The district
court found that he did not, stating,
[Meronk] was specifically told not to have laptops.
He continued to have those. He had other
component parts. I even went to the extent, I
4. Meronk was required to complete a ten-page autobiographical
essay as part of his treatment program.
5. The district court clarified that it was making this assessment
based on Meronk’s employment and the lack of evidence that
the demands of his employment were not comparable to the
demands of his probation conditions, including those of his
treatment.
20140816-CA 9 2016 UT App 27State v. Meronk
underscored, you cannot have game boards. You
cannot have laptops. You cannot have towers. You
cannot have any parts. And yet Mr. Meronk
attempts to draw lines to excuse himself to do what
he wants.
The district court rejected, as a factual matter, Meronk’s
argument that he did not understand that he was forbidden
from possessing computers and component parts. The district
court observed that Meronk had been able to maintain stable
employment. The district court further noted that there was no
specific evidence in front of it demonstrating that Meronk’s
mental condition prevented him from complying with his
probation conditions. Meronk has not established that the
district court’s findings were clearly erroneous. 6 In light of this,
the district court did not abuse its discretion by concluding that
Meronk willfully violated his probation when, in spite of the
district court’s commands, he nevertheless possessed the
computers and parts.
¶18 Meronk also argues that the district court erred in finding
that he was willfully untruthful with AP&P. The district court
found that he “made representations to AP&P that clearly were
not correct, attempting to justify his access to and control over
computer components and computer parts and laptops that he
had been told he could not have.” Meronk argues that he
initially truthfully told AP&P that the district court had ordered
him “to get rid of all computer related items” and that it was
only after AP&P told him that it could only enforce his formal
probation conditions that Meronk told AP&P that “he didn’t
6. Meronk’s own brief acknowledges that he had previously
received a “forceful in-court order regarding computer parts,”
presumably referring to the district court’s September 2013
command that Meronk “not have any computer components.
Period.”
20140816-CA 10 2016 UT App 27State v. Meronk
think [the district court] meant for him not to have the
computers.” On appeal, Meronk claims that his
misrepresentation about the district court’s clearly expressed
intentions “reflected disordered thinking” but was not a willful
lie. However, the district court found to the contrary, and
despite his disagreement with the court’s finding, Meronk has
not established that the finding was clearly erroneous.
¶19 Meronk does not expressly argue that the district court’s
findings did not justify its discretionary decision to revoke
probation. See State v. Brooks, 2012 UT App 34, ¶ 8, 271 P.3d 831(stating that we review a district court’s ultimate probation-
revocation decision for abuse of discretion). However, we briefly
respond to an overall theme of Meronk’s brief—the suggestion
that Meronk’s actions reflected his mental disabilities and should
therefore not have resulted in revocation. The district court was
aware of those difficulties and took them into account in its
decision-making. We also note that the district court revoked
Meronk’s probation and imposed his original sentence only after
twice revoking and reinstating probation with jail time. We
affirm the district court’s decision as falling within its
discretion. 7
CONCLUSION
¶20 Meronk has not established that the district court erred in
finding that he willfully violated the terms of his probation. We
therefore affirm the district court’s revocation of Meronk’s
probation and its imposition of his suspended sentence.
7. Meronk also argues that we should remand this matter for
further consideration if we find any of the district court’s
findings to be made in error. Because we do not disturb any
of the court’s findings, we need not address this argument.
20140816-CA 11 2016 UT App 27