State v. Johnson

IN THE UTAH COURT OF APPEALS
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State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100734‐CA
)
v. ) FILED
) (April 19, 2012)
Jamis M. Johnson, )
) 2012 UT App 118Defendant and Appellant. )
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Fourth District, Fillmore Department, 051700056
The Honorable Donald J. Eyre Jr.
Attorneys: Tate W. Bennett, Fillmore, for Appellant
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee
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Before Judges Orme, Davis, and Roth.
DAVIS, Judge:
¶1 Jamis M. Johnson appeals the trial court’s order revoking and reinstating the
terms of his probation. See generally Utah Code Ann. § 77‐18‐1 (Supp. 2011). We affirm.
¶2 “The decision to grant, modify, or revoke probation is in the discretion of the trial
court.” State v. Jameson, 800 P.2d 798, 804 (Utah 1990). “[A] trial 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. Peterson, 869 P.2d 989, 991 (Utah Ct.
App. 1994); see also State v. Maestas, 2000 UT App 22, ¶ 12, 997 P.2d 314 (“The trial
court’s determinations underlying its conclusion that defendant violated his probation
are findings of fact we will not disturb unless clearly erroneous, i.e., against the clear
weight of the evidence.”). In challenging the trial court’s decision to revoke and
reinstate his probation, Johnson “must show that the evidence of a probation violation,
viewed in a light most favorable to the trial court’s findings, is so deficient that the trial
court abused its discretion in revoking [his] probation.” See Jameson, 800 P.2d at 804
(footnote omitted).
¶3 Johnson was required to maintain verifiable full‐time employment as a condition
of his probation for a March 2007 conviction of securities fraud. In an October 2008
Order of Clarification, the trial court approved Johnson’s employment as a part‐time
legal assistant with attorney Joseph R. Goodman as being in compliance with the terms
of his probation. The court based its determination primarily on an affidavit from
Goodman (the verification affidavit), which described Johnson as “a 1099 employee”
that is paid “on a contract basis” at a rate of “$15 per hour” for “approximately 20‐30
hours per week.” In the Order of Clarification, the trial court also noted that “Goodman
(or any other attorney for whom Mr. Johnson finds employment) shall verify Mr.
Johnson’s work as [Adult Probation and Parole (AP&P)] periodically inquires.”
Dissatisfied with the employment verification Johnson provided, AP&P filed several
probation progress/verification reports, one of which resulted in an order to show cause
hearing held on August 30, 2010 (the August 2010 hearing). During the August 2010
hearing, the trial court determined that Johnson was “in violation of the terms of his
probation” for failing “to provide verifi[cation of] full‐time employment.” This
determination was based on the testimony of three witnesses—an agent from AP&P
(the agent), a volunteer with the Utah State Bar’s Unauthorized Practice of Law
Committee (the volunteer), and Johnson himself.
¶4 The agent testified that he repeatedly requested that Johnson provide
documentation to verify his employment status and that Johnson was consistently
unable to provide the agent with a paycheck stub, a 1099 tax form, an employment
contract, or any other similar documentation. The agent testified that he “even
brainstormed with Mr. Johnson on thing[s] that [Johnson] could provide” to help AP&P
verify his employment, but ultimately “Johnson felt that the only way to verify
employment for him was by an affidavit.” Additionally, the agent testified that Johnson
had fallen behind on his restitution payments, also a violation of the terms of his
probation, which prompted the agent to send “a request to the court for a writ of
garnishment, and [that,] as part of that writ of garnishment[,] . . . interrogatories . . .
were sent to Mr. Goodman.” Goodman’s answers indicated that he was not “indebted
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to” Johnson; that Johnson had no interest in “any property or money” in Goodman’s
“possession,” “charge,” or “control”; and that Goodman knew of no debts that might be
owed to Johnson or property owned or controlled by Johnson. The agent testified that
Goodman’s answers to the interrogatories implied that “there was really no nexus . . .
between [Goodman] and Mr. Johnson.”
¶5 Next, the volunteer testified that in May 2010, he investigated Johnson for the
unauthorized practice of law in conjunction with a business called Homeowners Legal
Defense. The volunteer discovered that Goodman was listed as the agent for
Homeowners Legal Defense. The volunteer contacted Goodman to ask if he “was
aware or familiar with” Johnson; Goodman responded that “he was not involved at all
with . . . Johnson . . . , and he only agreed to be the[] agent for this company.”
¶6 Johnson then testified, contending that the agent never asked him for a pay stub
and explaining that his “2009 tax information [had] not [been] prepared yet,” so he
could not provide it to the agent to verify his employment. Johnson testified that he
“consistently . . . work[s] with” Goodman, that Goodman submitted the verification
affidavit in 2008 upon which the court approved Johnson’s work arrangement with
Goodman as in compliance with the terms of his probation, see supra ¶ 3, and that
Goodman filed another affidavit with the trial court in May 2010 to verify that “Johnson
continue[d] to work with [him] on law matters per the Court’s authorization” in its
October 2008 Order of Clarification. Johnson further testified that “the cases that [he]
worked on [were] contingency cases . . . and [he] didn’t have income most of 2008.”
Noting a disparity between Johnson’s testimony that he worked on a contingency basis
and Goodman’s verification affidavit, which stated that Johnson was paid $15 an hour,
the trial court asked Johnson for clarification. Johnson responded,
Mr. Goodman did not say he was going to hire me full time
at $15 an hour. What happens is—if someone comes in on a
case, I am attributed $15 an hour.
...
[H]e doesn’t pay me unless money comes in from clients and
then hopefully we get more than that if I get bonused as a
staff member from a contingency, but he doesn’t pay me $15
an hour for work I do automatically. We’ve got to get
payment in on his cases, and then I get paid at the rate of $15
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an hour. . . . [I]f we are victorious, I get $15 an hour for
everything I did on a case plus if he’s successful he will
bonus me more than that amount . . . .
¶7 At the conclusion of the hearing, the trial court determined that Johnson’s
description of his employment did not constitute “full‐time employment,” and that the
terms of his probation require that he both retain full‐time employment and provide
verification of that employment. Consequently, the trial court “revoke[d Johnson’s]
probation” and “reinstate[d] it under the same terms and conditions as previously
ordered with the additional provision that [Johnson] serve 60 days in . . . jail.”
¶8 We conclude that the trial court’s determination was not “clearly erroneous” or
“against the clear weight of the evidence,” State v. Maestas, 2000 UT App 22, ¶ 12, 997
P.2d 314. In this case, the trial court’s determination boiled down to a matter of
credibility, pitting the testimony of the agent and the volunteer against that of Johnson;
such credibility determinations are distinctly within the province of the trial court, see
State v. Pena, 869 P.2d 932, 936 (Utah 1994) (noting that the trial court is “in the best
position to assess the credibility of witnesses”). Here, the agent testified that he
repeatedly asked Johnson for documentation to verify his employment and that
Johnson insisted that an affidavit from Goodman was the only verification he could
provide. Although Goodman submitted a subsequent affidavit verifying Johnson’s
ongoing employment in May 2010, Goodman’s responses to the interrogatories and the
volunteer’s testimony raise doubts as to whether Johnson remained employed with
Goodman and whether one or both of Goodman’s affidavits were legitimate. Johnson
pointed out during the hearing that the agent could have spoken with Goodman to
confirm Johnson’s status as his employee; however, the agent’s failure to do so does not
render the trial court’s determination clearly erroneous. Johnson testified that he was
not paid in a traditional manner, implying that he did not receive pay stubs or sign an
employment contract, and that his tax documents were not yet ready because he was
still working on filing them. However, as the trial court aptly observed, Johnson’s
“problems personally filing his own income tax return” should “not prevent Mr.
Goodman from issuing a 1099 to” Johnson that Johnson could then show the agent to
verify his employment.
¶9 Johnson also argues that the trial court’s revocation and reinstatement of his
probation was arbitrary and capricious because Johnson’s violation was not willful, nor
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did it threaten the safety of society. We agree that “as a general rule, in order to revoke
probation for the violation of a condition of probation not involving the payment of
money, the violation must be willful or, if not willful, must presently threaten the safety
of society.” State v. Hodges, 798 P.2d 270, 277 (Utah Ct. App. 1990). The court must
determine willfulness “by a preponderance of the evidence.” State v. Peterson, 869 P.2d
989, 991 (Utah Ct. App. 1994). Assuming, without deciding, that a willfulness
determination is necessary here where probation was revoked and reinstated rather
than just revoked, cf. State v. Orr, 2005 UT 92, ¶ 35, 127 P.3d 1213 (“It is not clear
whether the willfulness requirement applies to the mere extension of probation for
failure to pay restitution.”), “a finding of willfulness ‘merely requires a finding that the
probationer did not make bona fide efforts to meet the conditions of his probation,’”
Peterson, 869 P.2d at 991 (emphasis omitted) (quoting State v. Archuleta, 812 P.2d 80, 84
(Utah Ct. App. 1991)). Additionally, “the word ‘willful’ should not be equated with the
word ‘intentional.’” Id.¶10 Johnson argues that the trial court could not conclude that he willfully violated a
term of his probation because he “was reasonable in his reliance on the November 12,
2008 Order [of Clarification,] which outlined the manner in which [his] employment
was to be verified, wherein it stated that ‘Attorney Goodman (or any other attorney for
whom Mr. Johnson finds employment) shall verify Mr. Johnson’s work as AP&P
periodically inquires.’” This argument is unavailing. Although Johnson was permitted
to rely on the November 2008 order as confirmation that the employment arrangement
with Goodman, as it was described in Goodman’s verification affidavit, satisfied the
terms of his probation, the order did not permit Johnson to duck the probation agent’s
requests that Johnson verify his employment status himself. Assuming Johnson truly
believed that the November 2008 Order of Clarification placed the employment
verification responsibility entirely on Goodman, then the agent’s repeated requests of
Johnson to verify his employment surely should have prompted Johnson to seek
clarification from the agent or trial court in light of this otherwise obvious
misunderstanding. There is no evidence that Johnson did any such thing. Moreover,
Johnson failed to present this argument during the August 2010 hearing from which he
appeals, lending weight to the inference that Johnson was not confused about his
responsibilities under the November 2008 Order of Clarification but that he was simply
avoiding the agent’s requests. Such behavior does not demonstrate “bona fide efforts to
meet the conditions of his probation.” Peterson, 869 P.2d at 991 (emphasis omitted).
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¶11 Accordingly, the trial court’s determination that Johnson violated a term of his
probation was not clearly erroneous, and its decision to revoke and reinstate his
probation was not an abuse of discretion. Affirmed.
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James Z. Davis, Judge
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¶12 WE CONCUR:
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Gregory K. Orme, Judge
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Stephen L. Roth, Judge
20100734‐CA 6