State v. Legg

2016 UT App 168THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOHN L. LEGG JR.,
Appellant.
Opinion
No. 20140716-CA
Filed August 4, 2016
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 101900677
Joanna E. Landau and Deborah Kreeck Mendez,
Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH
concurred.1
ROTH, Judge:
¶1 John L. Legg Jr. appeals the district court’s determination
to revoke his probation. We dismiss the case as moot.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Legg
BACKGROUND
¶2 In August 2011, Legg pleaded guilty in two separate cases
to one count of possession of a dangerous weapon by a restricted
person and one count of aggravated assault with a deadly
weapon, both third degree felonies. The district court sentenced
Legg to concurrent prison terms of zero to five years on each
count and suspended the prison terms in favor of probation.
Legg’s twenty-four-month probation was to be supervised by
Adult Probation and Parole (AP&P), and the court required him
to serve 180 days in jail as a condition of probation.
¶3 Legg was released from jail on January 5, 2012, and eight
days later AP&P filed an affidavit with the district court,
alleging several probation violations. At a subsequent hearing,
the court found that Legg had committed three violations of his
probation: (1) knowing possession of a controlled substance;
(2) ‚fail[ing] to establish a residence of record‛; and (3) failing to
be ‚cooperative, compliant and truthful in all dealings with
[AP&P].‛ The court revoked Legg’s probation and committed
him to prison to serve the sentences that had originally been
suspended. Legg appealed the district court’s decision.
¶4 On appeal, we affirmed the district court’s determination
regarding Legg’s failure to be ‚cooperative, compliant, and
truthful‛ in his dealings with AP&P but remanded the court’s
other two findings of probation violation for further
consideration. State v. Legg (Legg I), 2014 UT App 80, ¶¶ 19, 21,
23, 25, 324 P.3d 656. With regard to the allegation that Legg had
possessed a controlled substance, we concluded that ‚we *could
not] determine from the record what evidence, if any, the trial
court relied on in finding that Legg had knowledge of the
narcotic character‛ of the substance found in his possession, and
we remanded for the court ‚to identify the evidence it relied on
and its reason for moving so quickly . . . to a finding of
knowledge that the substance was cocaine.‛ Id. ¶ 19. As to the
allegation that Legg had failed to establish a residence of record,
20140716-CA 2 2016 UT App 168State v. Legg
we concluded that the district court’s findings did not provide
us with an adequate basis for review. Id. ¶ 23. Accordingly,
because we were ‚not confident that, standing on its own, the
single violation that we affirm[ed] would have resulted in a
revocation of probation,‛ we remanded ‚on the issues of
possession of a controlled substance and failure to establish a
residence of record for further consideration and explanation by
the trial court.‛ Id. ¶ 25. In particular, we stated that ‚*o+n
remand, the trial court must reassess whether, under all the
circumstances, Legg’s probation should *still+ be revoked.‛ Id.
¶5 On remand, the State dropped its allegations of controlled
substance and residence violations, choosing instead to move
forward on the single violation of failure to be cooperative,
compliant, and truthful with AP&P, which we had affirmed on
appeal. The district court, through a judge who had succeeded
the prior judge who conducted Legg’s initial probation
revocation hearing, then determined that the single violation
was sufficient to justify revocation of Legg’s probation. In
reaching its decision, the district court concluded that our
decision in Legg I, though in part a remand ‚for another
evidentiary hearing . . . for findings as to whether or not there
was a willful violation‛ of Legg’s drug possession and residence
requirements, also contemplated that the district court could
determine whether the single ‚willful violation of probation‛—
the failure to be cooperative, compliant and truthful—‚would
. . . have been sufficient‛ to justify revocation of Legg’s
probation. In that regard, the district court found that ‚*t+here is
no question that had [it] found a violation, looking at his history,
looking at the *prosecution’s sentencing+ recommendation,
looking at the opportunity for probation that he had received,
[the court] would have imposed the original sentence.‛ It
concluded that the single probation violation affirmed on appeal
‚was properly a basis for revoking probation, looking at the
entire history of both cases.‛ Legg appeals this decision. During
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the course of briefing on appeal, Legg was released from prison,
having served his sentences.
ISSUES ON APPEAL
¶6 Legg argues that the district court abused its discretion
when it affirmed the decision to revoke his probation, because its
decision did not follow the mandate of our decision in Legg I.
‚The mandate rule . . . binds both the district court and the
parties to honor the mandate of the appellate court.‛ IHC Health
Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 28, 196 P.3d 588.
¶7 The State contends, however, that because Legg was
released from prison on July 15, 2015, and has served the
sentence that was reinstated when the district court revoked his
probation, his case is moot. Before we reach the merits of Legg’s
appeal, we ‚must be satisfied that the issue[] raised [is] not
moot.‛ Barnett v. Adams, 2012 UT App 6, ¶ 4, 273 P.3d 378.
‚Where the issues that were before the trial court no longer exist,
the appellate court will not review the case.‛ In re Adoption of
L.O., 2012 UT 23, ¶ 8, 282 P.3d 977 (citation and internal
quotation marks omitted). Because we conclude that Legg’s case
is moot, we dismiss this case without reaching the merits of his
appeal.
ANALYSIS
I. Mootness and Its Exceptions
¶8 The State contends that Legg’s appeal is moot because
Legg has now served the prison sentences that were reinstated
when his probation was revoked and the sentences have now
expired.
¶9 Mootness is a jurisdictional issue. See Carlton v. Brown,
2014 UT 6, ¶¶ 29–30, 323 P.3d 571 (characterizing mootness as
20140716-CA 4 2016 UT App 168State v. Legg
one component of ‚justiciability,‛ and stating that ‚[i]n the
absence of any justiciable controversy between adverse parties,
the courts are without jurisdiction‛ (alteration in original)
(citation and internal quotation marks omitted)). ‚The burden of
persuading the court that an issue is moot lies with the party
asserting mootness.‛ Salt Lake County v. Holliday Water Co., 2010
UT 45, ¶ 21, 234 P.3d 1105 (citation and internal quotation marks
omitted). ‚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 and internal
quotation marks omitted), or, in other words, when the
requested relief appears to be ‚impossible or of no legal effect,‛
State v. McClellan, 2014 UT App 271, ¶ 3, 339 P.3d 942 (citation
and internal quotation marks omitted). And appellate ‚*c+ourts
generally will not resolve an issue that becomes moot‛ while the
appeal is pending, where ‚circumstances change so that the
controversy is eliminated.‛ State v. Black, 2015 UT 54, ¶ 10, 355
P.3d 981 (citation and internal quotation marks omitted). Thus, if
it is demonstrated that a case is moot, it ‚must be
dismissed . . . 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).
¶10 Here, the State has met its initial burden to show that
Legg’s case is moot. Legg has requested relief from the
revocation of his probation and the resulting reinstatement of his
suspended prison sentences, and the State has shown that he has
now been released from prison and his sentences have been
served. As a consequence, providing Legg with relief from his
probation revocation would be ‚of no legal effect.‛ See Black,
2015 UT 54, ¶ 10 (citation and internal quotation marks omitted).
As the State points out, ‚[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.‛ Thus, in order for Legg’s appeal to
20140716-CA 5 2016 UT App 168State v. Legg
survive dismissal, his case must fit within a recognized
exception to mootness.
A. Exceptions to Mootness
¶11 The recognized exceptions to mootness in Utah involve
cases that affect public interest, are likely to recur, and are
capable of evading review, see Utah Transit Auth. v. Local 382 of
the Amalgamated Transit Union, 2012 UT 75, ¶ 32, 289 P.3d 582,
and in the criminal realm, cases in which ‚‘collateral legal
consequences[2] will be imposed on the basis of the challenged
conviction,’‛ Duran, 635 P.2d at 45 (quoting Sibron v. New York,
392 U.S. 40, 57 (1968)).
¶12 The parties disagree over whether the collateral
consequences exception applies. The State argues that Legg’s
appeal does not fall within the collateral consequences exception
and that we must dismiss. In particular, the State argues that
‚under both Utah and federal law, the courts presume that a
conviction will result in . . . negative collateral legal
consequences‛ but that courts do not presume ‚that a challenge
to a parole revocation or any other sentence (such as probation)
will result in negative collateral legal consequences.‛ (Emphasis
in original.) The State contends that our precedent has
distinguished between those collateral consequences that are
imposed as a matter of law and those that merely come about
through discretionary decisions by others, such as future courts
and employers, and that while convictions carry actual legal
consequences, probation revocations do not necessarily do so,
2. While the collateral consequences exception is usually applied
in criminal cases, it has also been applied (albeit, more rarely) in
civil cases. See, e.g., Towner v. Ridgway, 2012 UT App 35, ¶¶ 7–11,
272 P.3d 765 (applying the collateral consequences doctrine to
dismiss as moot a challenge to an expired civil stalking
injunction).
20140716-CA 6 2016 UT App 168State v. Legg
apart from the specific consequences imposed by the revoking
court. As a result, the State asserts that ‚when a Defendant
challenges his sentence or probation or parole revocation, the
case will be moot if his sentence has expired unless the
Defendant can show a concrete injury-in-fact.‛ And in this case,
the State contends that we must dismiss because we cannot
presume that Legg will suffer collateral legal consequences from
his probation revocation and Legg has not otherwise
demonstrated that he has suffered, or will suffer, a concrete
injury-in-fact if the probation revocation stands.
¶13 In this regard, the State argues that two of our recent
decisions involving probation revocation challenges and
collateral consequences—State v. Allen, 2015 UT App 163, 353
P.3d 1266, and State v. Warner, 2015 UT App 81, 347 P.3d 846—
should not govern our decision in the present case because they
are ‚anomalous‛ and controvert established Utah and federal
case law. The appellants in Allen and Warner each challenged the
validity of his probation revocation, not his underlying
conviction, but by the time their cases were submitted on appeal,
each appellant had served his respective jail sentence and been
released. See Allen, 2015 UT App 163, ¶¶ 1, 4; Warner, 2015 UT
App 81, ¶ 1. Thus, both cases seemed to request relief—reversal
of their respective probation revocations and, hence, of their jail
sentences—that would be ‚of no legal effect.‛ See Black, 2015 UT
54, ¶ 10 (citation and internal quotation marks omitted).
Consequently, both cases seemed to present moot controversies
on appeal that would require the demonstration of an applicable
mootness exception to avoid dismissal; indeed, in both cases, the
State argued that the controversies were moot and that the cases
should be dismissed. However, in both cases, rather than
dismiss, we concluded that each defendant would suffer
collateral legal consequences from his probation revocation and
proceeded to decide each case on its merits.
20140716-CA 7 2016 UT App 168State v. Legg
¶14 Prior to these two cases, it does not appear that we
considered the question of whether we may presume collateral
consequences in the exact context of a probation revocation
challenge. Nonetheless, the State argues that we ‚misread
relevant precedent‛ when we rejected the mootness arguments
in each case and, as a consequence, failed to appropriately take
into account the major qualitative difference that prior case law
had recognized between the collateral consequences resulting
from a criminal conviction and those resulting from a probation
revocation—namely, that while convictions ‚almost always
result[] in legally-imposed collateral consequences,‛ probation
revocations do not. Consequently, the State urges that we ‚apply
the collateral legal consequences exception as set forth in Utah
Supreme Court case law and in this Court’s own pre-2015 case
law, not as set forth in Warner and Allen.‛
¶15 In contrast, Legg contends that his case does fall within
the collateral consequences exception and is not moot. He asserts
that he faces ‚very real‛ collateral consequences because the
probation revocation constitutes a ‚blemish‛ on his record that
could affect the disposition of any ‚future difficulties with the
law‛ that he may encounter and that even without the ‚real
consequences‛ he asserts, mootness is ‚a matter of judicial
policy‛ and we should address his claim to ‚eliminate the source
of a potential legal liability.‛ He also asserts that Allen and
Warner were correctly decided and that, in any event, the State
‚has not carried its burden to show why either case should be
overruled.‛
¶16 We agree with the State that Allen and Warner depart from
the path of prior precedent and conclude that Legg’s case does
not fit within a recognized exception to mootness. In so doing,
we necessarily conclude that the mootness holdings in Allen and
Warner, that suggest collateral legal consequences may be
presumed in the context of probation revocation decisions, were
erroneously decided. Thus, we first address the collateral
20140716-CA 8 2016 UT App 168State v. Legg
consequences exception, and we then address the continuing
viability of Allen and Warner and whether to dismiss this case.
1. The Law Regarding the Collateral Consequences
Exception
¶17 In its simplest form, the collateral consequences exception
permits an appeal to survive dismissal on mootness grounds if,
notwithstanding the fact that the direct and immediate
consequences of a lower court decision have already occurred
and cannot be directly remedied by an appellate decision, there
are adverse ‚collateral legal consequences *that+ will be imposed
on the basis of the challenged‛ issue on appeal. See Duran v.
Morris, 635 P.2d 43, 45 (Utah 1981) (citation and internal
quotation marks omitted); see also Spencer v. Kemna, 523 U.S. 1, 7–
8 (1998) (stating that, to survive a mootness dismissal, ‚some
concrete and continuing injury other than the now-ended
incarceration or parole—some ‘collateral consequence’ of the
conviction—must exist if the suit is to be maintained‛); In re
Giles, 657 P.2d 285, 286 (Utah 1982) (‚Where collateral legal
consequences may result from an adverse decision, courts have
generally held an issue not moot and rendered a decision on the
merits.‛); Towner v. Ridgway, 2012 UT App 35, ¶ 6, 272 P.3d 765(same, in the context of a civil stalking injunction).
¶18 Generally, once mootness has been demonstrated, the
party seeking to survive dismissal bears the burden of
demonstrating that collateral legal consequences will flow from
the challenged issue. In other words, under most circumstances,
we will not presume that collateral consequences exist. See
Barnett v. Adams, 2012 UT App 6, ¶ 9, 273 P.3d 378 (‚When a
party has not shown the existence of actual, adverse, collateral
consequences[,] . . . we will not presume that such collateral
consequences exist.‛ (alteration and omission in original)
(citation and internal quotation marks omitted)); see also State v.
Hooker, 2013 UT App 91, ¶ 3, 300 P.3d 1292 (dismissing appeal
from a probation revocation where the appellant ‚has not
20140716-CA 9 2016 UT App 168State v. Legg
alleged, much less demonstrated, that any such exception is
applicable‛); State v. Peterson, 2012 UT App 363, ¶ 3, 293 P.3d
1103 (dismissing an appellant’s challenge to his sentence after he
had been released from jail where, among other things, he
‚advances no argument that the appeal is not moot‛).
¶19 But not every asserted collateral consequence will prevent
dismissal. Utah precedent, as well as precedent of the Supreme
Court of the United States, has established that the demonstrated
consequences must be actual and adverse, not speculative or
hypothetical, for the case to fit within this exception. See Towner,
2012 UT App 35, ¶¶ 7–9 (concluding that the case was moot
where the appellant pointed ‚to no actual, adverse legal
consequences of denying his motion to vacate the underlying
proceeding‛); Barnett, 2012 UT App 6, ¶ 8 (‚*A+ litigant must
show that the collateral consequences complained of are not
merely hypothetical or possible but that they are probable and
represent actual and adverse consequences.‛ (citations omitted)).
In this regard, we have repeatedly dismissed cases as moot
where the appellant was unable to show that the asserted
consequences would be ‚imposed by law.‛ See State v. McClellan,
2014 UT App 271, ¶ 5, 339 P.3d 942 (dismissing case as moot
where appellant’s asserted consequences of ‚prevent*ing+ him
from improv[ing] his living situation and support network in the
community and from [being] a better father to his children‛ did
‚not qualify as collateral legal consequences‛ where they were
‚not imposed by law‛ (second alteration in original) (internal
quotation marks omitted)); Towner, 2012 UT App 35, ¶ 9
(dismissing appeal as moot where appellant asserted only
potential consequences, such as ‚harm to his reputation, family
relationships, and employment prospects‛ that ‚are not
‘imposed by law’‛ and did ‚not identify any legal harms‛ he
would suffer if the expired injunction against him was not
vacated (citation omitted)); State v. Moore, 2009 UT App 128,
¶ 17, 210 P.3d 967 (determining that appellant had not shown
that he would suffer ‚actual, adverse collateral consequences‛
20140716-CA 10 2016 UT App 168State v. Legg
from his disciplinary segregation in prison where ‚Utah law
provides no requirement that the parole board deny parole
because of a prison disciplinary record‛); see also Spencer, 523
U.S. at 14–16 (noting that the petitioner had failed to
demonstrate that the ‚concrete injuries-in-fact‛ he asserted
would follow from the revocation of his parole were more than
speculative where it was unclear whether any legal consequence
would follow). And an appellant cannot prevent dismissal by
‚simply list*ing] potential legal impairments that generally
impact a person‛ in the same or similar situations. See Barnett,
2012 UT App 6, ¶ 9. Rather, the consequences must be actual,
adverse consequences specifically applicable to the appellant. See
id. (concluding that the appellant had alleged collateral
consequences that were ‚merely speculative‛ where she did not
assert ‚injuries that she has actually suffered or [would] even
likely suffer‛ in the future); Moore, 2009 UT App 128, ¶¶ 13–14
(noting that the administrative action against defendant
‚entailed no collateral legal consequences of the kind that result
from a criminal conviction‛ where, for example, the decision ‚to
place [the defendant] in solitary confinement will have no
bearing on his ability to vote, engage in certain businesses, or
serve on a jury‛ and where failure to expunge the disciplinary
action could have only a ‚hypothetical impact . . . on a future
parole hearing‛ he may have (citations and internal quotation
marks omitted)).
¶20 Along these lines, we have also followed the reasoning of
the Supreme Court of the United States in dismissing cases as
moot where the asserted collateral consequences are dependent
on the discretion of potential future decision makers, such as
whether the challenged action will affect a future case,
employment prospects, or the appellant’s reputation. See
McClellan, 2014 UT App 271, ¶ 5 (dismissing case as moot where
the asserted consequences related to the appellant’s ability to
improve his ‚living situation and support network in the
community,‛ and citing Spencer, 523 U.S. at 16 note 8, for the
20140716-CA 11 2016 UT App 168State v. Legg
proposition that ‚an injury to reputation or stigma resulting
from a criminal conviction is not adequate alone to overcome
mootness‛); Moore, 2009 UT App 128, ¶ 14 (‚*T+he hypothetical
impact of the disciplinary record on a future parole hearing does
not create a collateral legal consequence that prevents the
conclusion that Moore’s claim is moot.‛). Indeed, in Spencer, the
Supreme Court dismissed a challenge to a parole revocation in
part because
[t]he parole violations that remain a part of
respondents’ records cannot affect a subsequent
parole determination unless respondents again
violate state law, are returned to prison, and
become eligible for parole. Respondents
themselves are able—and indeed required by
law—to prevent such a possibility from occurring.
In addition, we rejected as collateral consequences
sufficient to keep the controversy alive the
possibility that the parole revocations would affect
the individuals’ employment prospects, or the
sentence imposed [upon them] in a future criminal
proceeding. These nonstatutory consequences were
dependent upon [t]he discretionary decisions . . .
made by an employer or a sentencing judge, which
are not governed by the mere presence or absence
of a recorded violation of parole, but can take into
consideration, and are more directly influenced by,
the underlying conduct that formed the basis for
the parole violation.
523 U.S. at 13 (alterations in original) (citations and internal
quotation marks omitted). The Court had earlier expressed a
similar concern in Lane v. Williams, 455 U.S. 624 (1982). There, the
defendants challenged the parole components of their completed
sentences, not their convictions, based on the failure of the trial
courts to inform them before accepting their guilty pleas that
20140716-CA 12 2016 UT App 168State v. Legg
their ‚negotiated sentence*s+ included a mandatory parole
term.‛ Id. at 626, 630. The Supreme Court held that the
defendants had failed to demonstrate the kind of concrete
collateral ‚civil disabilities‛ necessary to avoid dismissal for
mootness, such as the inability to vote in an election or engage in
certain businesses. Id. at 632–34. Rather, the defendants faced
‚[a]t most, certain non-statutory consequences,‛ such as
potential negative effects on future ‚discretionary decisions‛
related to ‚employment prospects‛ or a ‚sentence imposed in a
future criminal proceeding,‛ that ‚are more directly influenced
by[] the underlying conduct that formed the basis for the parole
violation‛ than the fact of the parole violation itself, id. at 632–33.
¶21 However, while we ordinarily will not presume the
existence of collateral consequences where the direct
consequences of a judicial decision have already played
themselves out, we have consistently held that collateral
consequences will be presumed in the narrow context of
challenges to a criminal conviction. That is, where an appellant’s
challenge to his underlying conviction is otherwise moot because
his sentence has been served or his probation completed, we will
presume that his case fits within the exception. This is because
convictions nearly always carry continuing consequences that
are imposed as a matter of either state or federal law, such as
limits on a person’s ability to vote, ‚engage in certain businesses,
or serve on a jury.‛ Duran v. Morris, 635 P.2d 43, 45 (Utah 1981);
see also Spencer, 523 U.S. at 12 (‚In the context of *a+ criminal
conviction, the presumption of significant collateral
consequences is likely to comport with reality . . . . [I]t is an
‘obvious fact of life that most criminal convictions do in fact
entail adverse collateral legal consequences.’‛ (quoting Sibron v.
New York, 392 U.S. 40, 55 (1968))); North Carolina v. Rice, 404 U.S.
244, 247 & n.1 (1971) (noting the disabilities that various states
‚may attach to a convicted defendant even after he has left
prison,‛ which may include being ‚disenfranchised,‛ ‚los*ing+
the right to hold federal or state office,‛ ‚be*ing+ barred from
20140716-CA 13 2016 UT App 168State v. Legg
entering certain professions,‛ ‚be*ing+ subject to impeachment
when testifying as a witness,‛ and ‚be*ing+ disqualified from
serving as a juror‛); Sibron, 392 U.S. at 55–56 (noting that New
York law ‚expressly provides by statute that *a defendant’s+
conviction may be used to impeach his character should he
choose to put it in issue at any future criminal trial, . . . and that
it must be submitted to a trial judge for his consideration in
sentencing‛ (citation omitted)).
¶22 Indeed, in Duran v. Morris, 635 P.2d 43 (Utah 1981), the
oft-quoted Utah collateral consequences case, our supreme court
adopted and applied the mootness holding from Sibron v. New
York, 392 U.S. 40 (1968), stating that ‚it 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.’‛ Duran, 635 P.2d at 45
(quoting Sibron, 392 U.S. at 57). In Duran, a prison inmate
petitioned for a writ of habeas corpus, alleging that ‚prison
officials violated his constitutional rights by temporarily placing
him in administrative segregation.‛ Id. at 44. Because the
appellant was not challenging his criminal conviction, however,
the court dismissed the case as moot. Id. at 46. The petitioner had
been released from administrative segregation during the course
of the appeal, and the court determined, based on Sibron’s
reasoning, that ‚*i+ntraprison administrative decisions . . . entail
no collateral legal consequences of the kind that result from a
criminal conviction.‛ Id. at 45. We have since applied the holding
of Duran to dismiss similarly postured criminal cases as moot.
See, e.g., Hooker, 2013 UT App 91, ¶ 3 (dismissing appellant’s
challenge to his probation revocation and the reinstatement of
his jail sentence which had already been served); Peterson, 2012
UT App 363, ¶ 5 (dismissing appellant’s challenge to the legality
of his completed jail sentence); Moore, 2009 UT App 128, ¶¶ 6, 9–
14 (dismissing appellant’s challenge to his temporary
administrative segregation in jail); State v. Martinez, 925 P.2d 176,
177 (Utah Ct. App. 1996) (dismissing appellant’s request to be
20140716-CA 14 2016 UT App 168State v. Legg
resentenced, even though she had been unrepresented at a
hearing prior to sentencing, where she had ‚already completed
the 60-day evaluation [that had been] ordered by the court‛ at
that hearing and where she ‚had an opportunity to be
represented by counsel at the . . . sentencing hearing‛).
¶23 Thus, when a party challenges the validity of his
conviction in an otherwise moot appeal, unless the party seeking
dismissal shows that ‚there is no possibility that any collateral
legal consequences will be imposed,‛ Duran, 635 P.2d at 45
(emphasis added) (citation and internal quotation marks
omitted), we retain jurisdiction to consider the appellant’s
appeal on its merits. But where decisions from other kinds of
proceedings are challenged, there is no such presumption; rather
the burden is on the opponent of dismissal to demonstrate that
actual, non-speculative consequences will flow from the decision
despite the direct consequences having already played out. See,
e.g., Moore, 2009 UT App 128, ¶ 17 (dismissing appeal of
temporary administrative segregation in jail as moot where the
defendant had ‚shown no actual, adverse, collateral
consequences that have arisen from the failure to expunge his
administrative record‛). This is because the nature of the
consequences flowing from a particular result or decision in a
proceeding determines whether a case fits within the collateral
consequences exception.
¶24 Viewed in this light, we presume that there will be legally
cognizable collateral effects only in the context of criminal
convictions or the equivalent. There are inescapable, long-term,
legally-imposed consequences that will follow ‚a convicted
defendant even after he has [served his sentence and] left
prison.‛ See Rice, 404 U.S. at 247. In contrast, while a probation
revocation may attract immediate consequences (such as the
reinstatement of a prison sentence), it generally does not result
in concrete, ongoing legal disabilities or barriers to certain rights
or activities beyond that. Rather, the consequences that may
20140716-CA 15 2016 UT App 168State v. Legg
follow, such as the revocation being used as a factor in any
future plea negotiation or sentencing decision or even an
employment decision, are often wholly contingent upon the
future decisions of the defendant himself and the discretion of a
particular decision-maker. See Spencer v. Kemna, 523 U.S. 1, 13
(1998). In other words, the continuing legal effect of something
like a probation revocation is in no way certain or even probable.
At most, the effects are legally inchoate and dependent on future
circumstances that may or may not arise. Cf. Sibron, 392 U.S. at57–58 (suggesting that it is the judgment of conviction, not the
satisfied sentence itself, which survives). Consequently, in
contexts other than a criminal conviction, it makes sense that we
require the appellant seeking relief to demonstrate the existence
of actual, adverse collateral legal consequences in order to avoid
dismissal when a case has otherwise become moot.
¶25 In sum, it is evident that our cases before Allen and
Warner had established three principles pertinent to the case
before us. First, mootness does not provide the court with a
choice of whether to proceed with an appeal or not; it is
jurisdictional. See Utah Transit Auth. v. Local 382 of the
Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582(explaining that mootness is jurisdictional and directly ‚parallel‛
to the prohibition against issuing advisory opinions that are
merely academic in nature). Second, to overcome the
jurisdictional bar, the party seeking relief must demonstrate that
a recognized exception applies. See, e.g., State v. Hooker, 2013 UT
App 91, ¶ 3, 300 P.3d 1292 (dismissing appeal from a probation
revocation where the appellant ‚has not alleged, much less
demonstrated, that any [mootness] exception is applicable‛).
Third, if the party relies on the collateral consequences
exception, we will not presume that there are actual and adverse
collateral consequences unless the party is challenging the
validity of his or her criminal conviction. See, e.g., State v.
Peterson, 2012 UT App 363, ¶¶ 3–5, 293 P.3d 1103 (explaining
that an appellant ‚does not have a right to an advisory opinion‛
20140716-CA 16 2016 UT App 168State v. Legg
and that because the appellant ‚does not challenge his
conviction . . . the collateral consequences attendant to an
unlawful conviction are not at issue‛); Towner v. Ridgway, 2012
UT App 35, ¶ 7, 272 P.3d 765 (‚Unless a party is challenging a
criminal conviction, we will not presume that such collateral
consequences exist.‛ (citation and internal quotation marks
omitted)). Seen against this backdrop, the holdings of Allen and
Warner indeed are anomalous.
II. The Mootness Analyses of Allen and Warner
¶26 Generally, as a matter 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. Tenorio, 2007 UT App 92,
¶ 9, 156 P.3d 854 (citation and internal quotation marks omitted);
see also State v. Menzies, 889 P.2d 393, 399 (Utah 1994) (stating
that a court ‚will follow the rule of law which it has established
in earlier cases‛ (citation and internal quotation marks omitted)).
This is so because stare decisis is ‚crucial to the predictability of
the law and the fairness of adjudication.‛ State v. Thurman, 846
P.2d 1256, 1269 (Utah 1993). As a consequence, ‚once a point of
law has been decided, we will not overturn it lightly.‛ Kuhn v.
Retirement Board, 2015 UT App 18, ¶ 15, 343 P.3d 316. Rather, to
overturn our own precedent, we must be ‚convinced that there
has been a change in the controlling authority, or that our prior
decision was clearly erroneous.‛ State v. Ingleby, 2004 UT App
447, ¶ 7, 104 P.3d 657 (citing Menzies, 889 P.2d at 399 n.3); see also
Menzies, 889 P.2d at 399 (stating that a court may ‚overrule prior
precedent‛ only if it becomes ‚clearly convinced that the rule
was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by
departing from precedent‛ (citation and internal quotation
marks omitted)).
¶27 In this regard, our supreme court has recently noted that
‚our presumption against overruling precedent is not equally
strong in all cases.‛ Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345
20140716-CA 17 2016 UT App 168State v. Legg
P.3d 553 (citing Menzies, 889 P.2d at 399). The court identified
‚two broad factors that 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 has become established in the law
since it was handed down.‛ Id. It also noted that ‚[t]he 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. Based on an analysis of these
factors, we are compelled to conclude that Allen and Warner
ought not to govern our decision in this case.
A. The Authority and Reasoning of Allen and Warner
¶28 As discussed above, although we had not considered the
precise question of whether collateral consequences could be
presumed in the specific context of a probation revocation
challenge before we decided Allen and Warner, we had
repeatedly declined to presume collateral consequences in
similarly-postured cases where the challenge was to some result
or decision other than a conviction. See supra ¶¶ 19–25. The Utah
Supreme Court had similarly declined to presume collateral
consequences in a context other than a challenge to a conviction.
See, e.g., In re C.D., 2010 UT 66, ¶¶ 17–18, 245 P.3d 724(dismissing a challenge to custody determinations as moot
where the issue did not fit into the public interest mootness
exception, and where ‚neither party ha[d] presented any
evidence that the lower court’s decisions . . . will have any
collateral legal consequences on the parties‛); Cullimore v.
Schwendiman, 652 P.2d 915, 916 (Utah 1982) (dismissing a
challenge to a driver license revocation as moot where the
revocation time period had passed and the court had ‚not been
made aware of any collateral legal consequences‛ (citation and
internal quotation marks omitted)); Duran v. Morris, 635 P.2d 43,
20140716-CA 18 2016 UT App 168State v. Legg
45–46 (Utah 1981) (dismissing challenge to administrative
segregation decision). And the Supreme Court of the United
States has declined to presume collateral consequences in similar
contexts as well. See, e.g., Spencer, 523 U.S. at 8–16 (declining to
presume collateral consequences in a parole revocation
challenge); Lane v. Williams, 455 U.S. 624, 631–34 (1982)
(declining to presume collateral consequences in the context of
challenges to petitioners’ sentences, not underlying convictions).
¶29 In Allen and Warner, however, neither appellant
challenged his underlying conviction; instead both challenged
the legality of their probation revocations and resulting
incarcerations. Both defendants had been released from jail,
having served their sentences, by the time their appeals were
submitted for decision. Thus, both cases presented classic
iterations of mootness that would seem to require the affirmative
demonstration of a mootness exception to avoid dismissal.
Nevertheless, we appear to have simply presumed the existence
of collateral legal consequences and proceeded to consider the
merits of each case.
1. State v. Allen
¶30 In Allen, the defendant pleaded guilty and was placed on
probation. However, the defendant’s probation was revoked for
failure to comply with probation conditions. State v. Allen, 2015
UT App 163, ¶¶ 2–4, 353 P.3d 1266. As a sanction, the district
court imposed a jail sentence and terminated probation as
unsuccessful. Id. ¶ 4. On appeal, the defendant challenged the
district court’s decision to revoke his probation, claiming
ineffective assistance of counsel. Id. ¶ 1. But by the time his
appeal was heard, he had served his jail sentence completely and
had been released. Id. ¶ 4.
¶31 We resolved the issue of mootness in a footnote. We noted
that despite the State’s arguments, the defendant contended that
‚his appeal [was] not moot because his conviction still affect[ed]
20140716-CA 19 2016 UT App 168State v. Legg
his rights‛ despite the fact that the conviction itself was not the
decision the defendant appealed. Id. ¶ 4 n.2 (emphasis added).
We then simply quoted Barnett and Duran for the general
proposition that collateral legal consequences, particularly those
related to a criminal case in which the conviction creates
continuing legal consequences, permits us to find an ‚issue not
moot and render[] a decision on the merits.‛ Id. (citation and
internal quotation marks omitted). In this respect, our reasoning
seemed to conflate the consequences of Allen’s probation
violations with those stemming from his conviction in order to
reach the conclusion that his case was not moot: ‚We are not
convinced that Allen faces no collateral legal consequences as a
result of his felony conviction and revoked probation terms.‛ Id.(emphasis added). But the defendant did not appeal his
conviction, only the revocation of his probation and the resulting
incarceration pursuant to his original sentence. See id. ¶ 1 (‚Allen
appeals his sentence . . . .‛).
¶32 Further, we did not analyze any secondary consequences
that the defendant contended he may have faced as a result of
the probation revocation.3 Rather, it appears that we simply
presumed such consequences would ensue. In this regard, we
3. We note that the terms of Allen’s plea agreement included an
agreement by the State that it would recommend reduction of
Allen’s felony conviction to a misdemeanor conviction upon
successful completion of his probation. State v. Allen, 2015 UT
App 163, ¶ 2, 353 P.3d 1266. But although we noted that Allen
asserted that ‚his appeal *was+ not moot because his conviction
still affects his rights,‛ id. ¶ 4 n.2, we did not address whether
the loss of the State’s recommendation amounted to a legally
cognizable collateral consequence. Instead, we seemed to
presume without explanation that the loss of the promised
recommendation was a collateral consequence. We express no
opinion on that question here.
20140716-CA 20 2016 UT App 168State v. Legg
made no attempt to differentiate between those continuing legal
consequences he may have suffered as a result of his probation
revocation (the subject of his appeal) and those he may have
been subject to as a result of his underlying conviction (not the
subject of his appeal). Cf. Sibron v. New York, 392 U.S. 40, 58
(1968) (noting that the appellant ‚has a substantial stake in the
judgment of conviction which survives the satisfaction of the
sentence imposed on him‛ (emphasis added) (citation and internal
quotation marks omitted)). As a result, we failed to limit our
mootness inquiry to the actual controversy and the relief that
was requested on appeal—relief from the defendant’s revoked
probation, not his underlying conviction.
2. State v. Warner
¶33 In Warner, we dealt more directly with the nature of the
consequences that an appellant must show in order to trigger a
mootness exception. The trial court had suspended the
defendant’s jail sentences in two consolidated domestic violence
cases and placed him on probation. State v. Warner, 2015 UT App
81, ¶¶ 1, 5–7, 347 P.3d 846. At a subsequent order to show cause
hearing, the trial court revoked the defendant’s probation and
reinstated his original jail sentences. Id. The defendant appealed,
but just as in Allen, by the time his appeal was submitted, he had
completed his sentences and been released from jail. Id. ¶ 1.
¶34 As in Allen, the State contended that Warner’s challenge
was moot because he had served the reinstated jail sentences. Id.
The State argued that the collateral consequences Warner could
suffer as a result of his revoked probation were ‚merely
hypothetical or possible,‛ rather than actual, arguing implicitly
that collateral consequences could not be presumed. Id. ¶ 3.
However, we reasoned that the State’s ‚argument *was+ based
on the standard applicable to civil cases, not criminal cases,‛ and
we ‚decline*d+ to extend the civil approach to collateral
consequences to this criminal appeal.‛ Id. We also pointed out
that ‚the potentially hypothetical nature of the collateral
20140716-CA 21 2016 UT App 168State v. Legg
consequences facing a criminal defendant has not prevented
Utah courts from reaching the merits of an otherwise-moot
criminal appeal.‛ Id. We then concluded in a single sentence, as
we did in Allen, ‚*W+e are not convinced that Warner faces no
possible collateral consequences as a result of his revoked
probation terms,‛ and we suggested that mootness is merely ‚‘a
matter of judicial policy’‛ that ‚‘technically . . . rests in the
discretion of this court.’‛ Id. (quoting Ellis v. Swensen, 2000 UT
101, ¶ 26, 16 P.3d 1233). We then proceeded to ‚reach the issues
underlying Warner’s appeal.‛ Id.a. Collateral Consequences in Warner
¶35 As with Allen, our mootness holding in Warner seems
unpersuasive. First, even though the defendant challenged his
probation revocation, not his underlying conviction, we simply
stated that we were ‚not convinced‛ that no collateral
consequences would attach to the defendant’s probation
revocation, without providing any analysis of specific adverse
consequences that the defendant himself might suffer. Indeed, it
is unclear from the decision what legal consequences, if any, the
defendant claimed he would suffer if the merits of his appeal
were not addressed. Instead, the only collateral consequences
referenced in the decision were noted in passing and,
significantly, were identified as ‚the effects *of+ a conviction,‛
not a probation revocation. Id. ¶ 2 (‚In criminal cases, collateral
legal consequences include the effects a conviction has on ‘the
petitioner’s *+ability to vote, engage in certain businesses, or
serve on a jury. . . .’‛ (alteration in original) (emphasis added)
(quoting Duran v. Morris, 635 P.2d 43, 45 (Utah 1981))). Thus, our
analysis seemed to presume that the defendant would face
collateral consequences ‚as a result of his revoked probation
terms,‛ without making an attempt to identify, analyze, or
resolve the qualitative divide between the potential
consequences of the defendant’s revoked probation and those
typical of a criminal conviction. In other words, the Warner
20140716-CA 22 2016 UT App 168State v. Legg
decision failed to explain why it equated the legal consequences
of a criminal conviction with those of a probation revocation.
¶36 This analytical approach is of particular concern because
every Utah case cited in Warner regarding collateral
consequences suggests that only in the context of criminal
convictions may collateral consequences be presumed. See
Warner, 2015 UT App 81, ¶¶ 2–3 (citing In re Giles, 657 P.2d 285(Utah 1982); Duran, 635 P.2d 43; Towner v. Ridgway, 2012 UT App
35, 272 P.3d 765; Barnett v. Adams, 2012 UT App 6, 273 P.3d 378;
Gardiner v. York, 2010 UT App 108, 233 P.3d 500; State v. C.H.,
2008 UT App 404U). For example, the case Warner relies on to
suggest that there is a separate ‚civil standard‛ for collateral
consequences in the mootness context expressly states that
collateral legal consequences may be presumed only in the
context of a challenge to a criminal conviction. See Towner, 2012
UT App 35, ¶ 7 (‚Unless a party is challenging a criminal
conviction, we will not presume that such collateral
consequences exist.‛ (citation and internal quotation marks
omitted)). Further, our statement that ‚the potentially
hypothetical nature of the collateral consequences facing a
criminal defendant has not prevented Utah courts from reaching
the merits of an otherwise-moot criminal appeal‛ is supported
by two cases involving convictions. See Warner, 2015 UT App 81,
¶ 3 (citing In re Giles, 657 P.2d at 287; C.H., 2008 UT App 404U,
para. 2). In In re Giles, for example, the supreme court applied a
mootness exception by likening the appellant’s involuntary
commitment to a mental institution to a conviction. 657 P.2d at
286–87 (‚The doctrine of collateral legal consequences is chiefly
applied in criminal cases . . . . However, the doctrine is equally
applicable to patients of mental hospitals who face similar
deprivations of liberty and whose commitment and
hospitalization must stand scrutiny on the merits when
challenged.‛ (citations omitted)). And in State v. C.H., a mother
was appealing a criminal contempt ruling. 2008 UT App 404U,
para. 2 (‚*W+here Mother is still a resident of Utah, a record that
20140716-CA 23 2016 UT App 168State v. Legg
includes her conviction of criminal contempt may negatively impact
future decisions of DCFS with respect to Mother’s rights to
parent her children. Thus, we hold that the issues raised by
Mother are not moot.‛ (emphasis added)).
¶37 Finally, the Utah case Warner primarily relied on for the
principle that collateral consequences could be presumed from
Warner’s probation revocations, Duran, states that we will
dismiss a criminal appeal as moot only if there is no possibility
of collateral legal consequences being imposed ‚on the basis of
the challenged conviction.‛ See Warner, 2015 UT App 81, ¶¶ 2–3
(emphasis added) (internal quotation marks omitted) (citing
Duran, 635 P.2d at 45). Duran then declined to presume collateral
consequences arising from an administrative segregation in jail
that had ended. The other cases we cited in Warner to support
the presumption of collateral consequences from a probation
revocation are from other jurisdictions. But these few cases
demonstrate no discernible pattern among other jurisdictions
and weigh little against the long and uninterrupted line of Utah
cases holding that collateral legal consequences are to be
presumed only in the context of a moot challenge to a conviction
and that for any other challenge, the party seeking to survive
dismissal must demonstrate the existence of actual, adverse legal
consequences.4 See supra ¶¶ 19–25.
4. We also note that much of the reasoning leading to our
conclusion that Warner would suffer collateral legal
consequences from his probation revocation was premised on a
distinction between the application of the collateral
consequences standard in civil cases as opposed to criminal
cases. But we have found no case—civil or criminal—that
differentiates between a ‚civil‛ and a ‚criminal‛ standard for
presuming collateral consequences; indeed, even the case cited
in Warner to support the proposition, Towner v. Ridgway, 2012 UT
(continued<)
20140716-CA 24 2016 UT App 168State v. Legg
b. Mootness in Warner
¶38 Warner’s suggestion that mootness is discretionary and a
matter of ‚judicial policy‛ also seems to be a departure from
precedent, given recent Utah Supreme Court statements on the
subject. See State v. Warner, 2015 UT App 81, ¶ 3, 347 P.3d 846(citing Sibron v. New York, 392 U.S. 40 (1968), and Ellis v. Swensen,
2000 UT 101, 16 P.3d 1233, as suggesting that we may
‚entertain[] moot controversies,‛ particularly where ‚mootness
is a matter of judicial policy . . . [that] rests in the discretion of
this court‛ (first alteration in original) (citation and internal
quotation marks omitted)). Our supreme court has
unequivocally held that mootness, like standing, is not
discretionary. Utah Transit Auth. v. Local 382 of the Amalgamated
Transit Union, 2012 UT 75, ¶ 18, 289 P.3d 582 (‚This *mootness+
doctrine is an element of the principles defining the scope of the
‘judicial power’ vested in the courts by the Utah Constitution. It
is not a simple matter of judicial convenience or ascetic act of
(272 P.3d 765, expressly adopts a universal standard for
proof of collateral consequences. In Towner, we dismissed as
moot an appeal from an expired civil stalking injunction. 2012
UT App 35, ¶ 11. In so doing, we applied the collateral
consequences exception even though ‚*t+he doctrine of collateral
legal consequences is chiefly applied in criminal cases.‛ Id. ¶ 7
(citation and internal quotation marks omitted). And we went on
to acknowledge that the only situation in which collateral
consequences may be presumed is when ‚a party is challenging
a criminal conviction‛ and that in all other cases ‚a litigant must
show that the collateral consequences complained of are not
merely hypothetical or possible but that they are probable and
represent actual and adverse consequences.‛ Id. (citations and
internal quotation marks omitted).
20140716-CA 25 2016 UT App 168State v. Legg
discretion.‛).5 On the contrary, our supreme court has held that
the mootness doctrine directly implicates our constitutionally
vested ‚judicial power,‛ and ‚when a court ascertain*s+ that
there is no jurisdiction in the court because of the absence of a
justiciable controversy, then the court can go no further, and its
immediate duty is to dismiss the action.‛ Id. ¶¶ 18–19 (alteration
in original) (citation and internal quotation marks omitted);
accord State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547. Simply put, a
court does not have jurisdiction to consider a moot case, unless
some recognized exception is established by the party seeking to
avoid dismissal. Local 382, 2012 UT 75, ¶¶ 17–28. And as
discussed above, once mootness has been shown, the burden to
demonstrate that an exception applies falls on the party seeking
to avoid dismissal, except in the case of a challenge to a criminal
conviction where adverse collateral consequences are readily
presumed.
¶39 In this regard, by the time Warner reached our court, the
controversy presented for resolution—the challenge to the
legality of Warner’s probation revocation and consequent
imposition of his suspended sentences—had, as a practical
matter, been resolved because he had already been released from
jail. Thus, granting Warner his requested relief of reversing his
probation revocations could not have addressed or resolved the
direct legal consequence of the district court’s revocation
5. We note that in Utah Transit Authority v. Local 382 of the
Amalgamated Transit Union, 2012 UT 75, 289 P.3d 582, the Utah
Supreme Court characterized the language in prior decisions,
such as Ellis v. Swensen, 2000 UT 101, ¶ 26, 16 P.3d 1233, that
suggested mootness was a discretionary matter of ‚judicial
policy‛ as dicta. The ‚discretion and policy at stake . . . are not a
matter for standardless, case-by-case resolution, but instead are
informed by the doctrine of mootness and its exceptions.‛ Local
382, 2012 UT 75, ¶ 19 n.3.
20140716-CA 26 2016 UT App 168State v. Legg
decision—i.e., his incarceration. Yet our analysis in Warner seems
to treat the mootness doctrine not as the jurisdictional fence that
it is, but instead as simply another discretionary consideration
that the judiciary may or may not employ to resolve a particular
appeal. But this is precisely how our supreme court has declared
the doctrine may not be treated. See id.¶40 In sum, Allen and Warner failed to analyze and apply the
collateral consequences exception to the mootness doctrine
according to precedent. Both cases seem to have presumed the
existence of collateral consequences related to the probation
revocation challenges without analyzing whether or why that
presumption was appropriate, given our precedent. Indeed,
neither case acknowledged the distinction prior cases have made
between collateral consequences in the context of convictions
and in all other mootness challenges.
B. The Establishment of the Mootness Holdings in Allen and
Warner
¶41 We also conclude that neither case is firmly established.
See Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553(explaining that the considerations for whether precedent is
firmly established include ‚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‛). To begin with, both cases are of recent vintage.
Warner was issued on April 2, 2015, and Allen on June 25, 2015.
Further, it appears that neither case has yet been cited or relied
upon in subsequent appellate court decisions. In addition, as we
have discussed, both cases appear to depart sharply from a long
line of precedent. And we do not think that disavowing the
anomalous mootness holdings of Allen and Warner portends any
significant hardship to parties. Given the abundant precedent
that suggests we presume collateral consequences only in the
very narrow case of a challenge to a conviction, an appellant
20140716-CA 27 2016 UT App 168State v. Legg
seeking to survive a mootness challenge should be well-advised
that in the ordinary case he or she bears the burden of
demonstrating that an exception applies and that we will not
lightly presume one. In this regard, it is significant that neither
Allen nor Warner discussed or even acknowledged the litany of
cases that we have dismissed for that very reason.
¶42 As a consequence, we conclude that it would be
problematic to allow the mootness holdings of Allen and Warner
to stand; rather, it seems prudent to take this early opportunity
to straighten the path of precedent from which those cases
departed. As the State points out, these two cases seem to have
unintentionally put in doubt a principle that has otherwise been
plainly stated and applied time and again. See Eldridge, 2015 UT
21, ¶ 22 (explaining pertinent considerations for overruling
precedent). Accordingly, for the reasons stated above, we
conclude that the mootness holdings in Allen and Warner were
‚originally erroneous‛ when they were decided and that ‚more
good than harm will come by departing from [the] precedent‛
they set. See State v. Bennett, 2000 UT 34, ¶ 8, 999 P.2d 1 (citation
and internal quotation marks omitted). Thus, we disavow the
mootness holdings in Allen and Warner and proceed to consider
Legg’s appeal in light of established prior precedent.
III. Legg’s Appeal
¶43 Legg has challenged the district court’s decision to revoke
his probation and reinstate his prison sentence. Legg was
released from prison, and his sentence expired as of July 15,
2015. Thus, because the relief he requests—reinstatement of his
probation—is ‚impossible or of no legal effect,‛ State v.
McClellan, 2014 UT App 271, ¶ 4, 339 P.3d 942 (citation and
internal quotation marks omitted), he must demonstrate that an
exception to the mootness doctrine applies to survive dismissal,
see Duran v. Morris, 635 P.2d 43, 45–46 (Utah 1981). Legg asserts
that he will suffer collateral legal consequences if his challenge is
not addressed. Because he has not challenged his underlying
20140716-CA 28 2016 UT App 168State v. Legg
conviction, however, ‚we will not presume that such collateral
consequences exist.‛ State v. Moore, 2009 UT App 128, ¶ 17, 210
P.3d 967. Rather, he must demonstrate the existence of ‚actual,
adverse collateral consequences that have arisen from the failure
to expunge his . . . record‛ of the probation revocation. See id.; see
also State v. Hooker, 2013 UT App 91, ¶¶ 2–3, 300 P.3d 1292(dismissing a challenge to a probation revocation where
appellant did not attempt to demonstrate that his appeal ‚fit
within a recognized exception to the mootness principle‛
(citation and internal quotation marks omitted)).
¶44 Legg asserts that having the probation revocation on his
record could affect a sentencing recommendation that AP&P
would provide the court in a future criminal case against him.
He contends this is because AP&P details ‚every single instance
of a defendant’s prior probation revocations‛ in the pre-sentence
investigation reports (PSR) they prepare, and a prior revocation
is an ‚aggravating factor on a defendant’s criminal history
assessment‛ detailed in the report. But while a district court may
decide to follow the sentencing recommendation in a PSR, it is
not bound to do so. Rather, ‚the recommendations of the
prosecutor or any other party are not binding upon the court.‛
State v. Moreau, 2011 UT App 109, ¶ 11, 255 P.3d 689 (citation and
internal quotation marks omitted). Thus, this sort of potential
effect is not a disability imposed by law. Indeed, a decision
whether to follow the recommendation of AP&P is not even a
basis on which we may reverse a sentence for abuse of
discretion. See id. ¶ 6 (‚[A]n abuse of discretion will only be
found if the district court fails to consider all legally relevant
factors or if the sentence is clearly excessive, inherently unfair, or
exceeds statutory or constitutional limits.‛). Instead, it is clear
that this consequence is merely possible and therefore
speculative, because a probation revocation is only one among
many factors that could affect a court’s discretionary sentencing
decision, and that it is only a consequence if Legg again commits
20140716-CA 29 2016 UT App 168State v. Legg
a crime—itself a contingent event. See Spencer v. Kemna, 523 U.S.
1, 13–14 (1998).
¶45 Legg also asserts that prosecutors regularly refuse
favorable offers of probation to those with prior probation
revocations on their criminal records. Again, this is not a
disability imposed by law. Instead, the decisions to negotiate the
terms of a voluntary plea with a defendant and offer probation
falls within ‚traditional prosecutor discretion,‛ which ‚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 (emphasis added)
(citation and internal quotation marks omitted). That a prior
probation revocation is a disadvantage that generally follows
those persons charged with crimes does not make it a legal
consequence of the sort pertinent to the collateral consequence
exception; rather, it is contingent and speculative. See Barnett v.
Adams, 2012 UT App 6, ¶ 9, 273 P.3d 378 (declining to consider
‚potential legal impairments that generally impact a person‛ in
like circumstances where no injury ‚actually suffered‛ or ‚even
likely [to be] suffered‛ was demonstrated by appellant).
¶46 Thus, because Legg has not demonstrated the sort of
collateral legal consequences related to this probation revocation
that are necessary to invoke the collateral consequences
exception to the mootness doctrine, he has not met the standard
necessary to avoid dismissal. Accordingly, we dismiss his appeal
as moot.
CONCLUSION
¶47 We disavow that the mootness holdings regarding
collateral consequences in the context of probation revocations
from two of our prior cases, State v. Allen, 2015 UT App 163, 353
P.3d 1266, and State v. Warner, 2015 UT App 81, 347 P.3d 846. As
a consequence, we follow precedent that preceded those two
20140716-CA 30 2016 UT App 168State v. Legg
cases in concluding that Legg’s appeal is moot and that he has
failed to demonstrate that his case fits within a recognized
mootness exception. Accordingly, because mootness is a
jurisdictional bar, we have no alternative but to dismiss this
appeal.
20140716-CA 31 2016 UT App 168