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1995

State of Utah v. Thomas Byington : Brief ofAppellantUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.David M. Perry; Attorney for Appellant.Christine Soltis; Assistant Attorney General; Attorney for Appellee.

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Recommended CitationBrief of Appellant, State of Utah v. Thomas Byington, No. 950803 (Utah Court of Appeals, 1995).https://digitalcommons.law.byu.edu/byu_ca1/7029

UTAH COURT Of ^ BRIEF

UTAH DOCUMENT K F U 50 A JO ^ ,-^ DOCKET NO .Il2r.fi,

t I

IN THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

vs.

THOMAS BYINGTON,

Defendant and Appellant,

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BRIEF OF APPELLANT DEFENDANT'S APPEAL OF JUDGMENT ENTERF,D TW M'lIE FIRST DISTRICT COURT OF CACHE COUNTY, UTAH, THE HONORABL GORDON J. LOW PRESIDING.

DAVID M. PERRY BAR NO. 5410 14 WEST 100 NORTH LOGAN, UTAH 84321 ATTORNEY FOR APPELLANT

CHRISTINE SOLTIS ASSISTANT ATTORNEY GENKRAL 124 STATE CAPITOL SALT LAKE CITY, UTAH 84114 ATTORNEY FOR APPELLEE

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n/burilyp w? n. Clark * •

'([lliiffili!

IN THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

vs.

THOMAS BYINGTON,

Defendant and Appellant.

CASE NO. 95083-CA

PRIORITY NO. 2

BRIEF OF APPELLANT DEFENDANT'S APPEAL OF JUDGMENT ENTERED BY THE FIRST DISTRICT COURT OF CACHE COUNTY, UTAH, THE HONORABLE GORDON J. LOW PRESIDING.

DAVID M. PERRY BAR NO. 5410 14 WEST 100 NORTH LOGAN, UTAH 84321 ATTORNEY FOR APPELLANT

CHRISTINE SOLTIS ASSISTANT ATTORNEY GENERAL 124 STATE CAPITOL SALT LAKE CITY, UTAH 84114 ATTORNEY FOR APPELLEE

TABLE OF CONTENTS

TABLE OF AUTHORITIES 3

JURISDICTION AND NATURE OF PROCEEDINGS 4

ISSUES PRESENTED ON APPEAL AND STANDARDS OF APPELLATE REVIEW 5

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES 5

STATEMENT OF THE CASE 8

STATEMENT OF THE FACTS 8

ARGUMENT 9

POINT ONE: THE TRIAL COURT ERRED BY NOT SUFFICIENTLY INQUIRING INTO THE DEFENDANT'S MENTAL STATE AND ABILITIES AND DANGERS OF SELF-REPRESENTATION 9

POINT TWO: THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY NOT ALLOWING HIM AMPLE OPPORTUNITY TO READ THE PROGRESS VIOLATION REPORT AND ADDRESS INACCURACIES CONTAINED THEREIN 11

POINT THREE: THE TRIAL COURT ERRED BY IMPOSING A CRUEL AND UNUSUAL PUNISHMENT AGAINST THE DEFENDANT WITHOUT PROVIDING COUNSEL WHICH WOULD PROTECT HIS RIGHTS EQUAL PROTECTION AND DUE PROCESS 12

CONCLUSION 13

EXHIBITS 16

TABLE OF AUTHORITIES

CASE CITED

Faretta v. California, 422 U.S. 806, 95 S.Ct 2525, 45 L. Ed 2d. 652 (1975).

State v. Anderson, 632 P.2d 877 (Utah 1981)

State v. Bakalov, 849 P.2d 629 (Utah App. 1993)

State v. Lipsky, 608 P.2d 1241 (Utah 1980)

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

United States Constitution, Amendment VI

United States Constitution, Amendment VII

United States Constitution, Amendment XIV

Utah Constitution, Article I Section 9

Utah Constitution, Article I Section 12

Utah Constitution, Article I Section 24

Utah Code Annotated Section 77-18-1 (6)(a)

3

IN THE UTAH COURT OF APPEALS

STATE OF UTAH, )

Plaintiff and Appellee, ]

vs.

THOMAS BYINGTON, )

Defendant and Appellant.

| CASE NO. 95083-CA

1 PRIORITY NO.

BRIEF OF APPELLANT

JURISDICTION AND NATURE OF PROCEEDINGS

This is an appeal from a judgment of the First District

Court of the State of Utah in and for the County of Cache,

Honorable Gordon J. Low, presiding, dated October 25, 1995

finding the defendant had violated the terms of his

probation and subsequently revoked his probation. The Utah

Court of Appeals has jurisdiction in this matter pursuant to

Section 78-2a-3(2) (d) and (f) Utah Code Ann- 1953 as

amended. This appeal is taken under Article I, Section 12

of the Utah Constitutions, Section 77-1-6(g) and Section 78-

4-11, Utah Code Ann. as amended, and under rule 26(2) (a) of

the Utah Rules of Criminal Procedure.

4

ISSUES PRESENTED ON APPEAL

AND STANDARDS OF APPELLATE REVIEW

1. The trial court erred by not sufficiently

inquiring into the defendant's mental state and abilities

and dangers of self-representation. The issue is a question

of law and the Standard of Review is a "correction of error"

standard. [ see State v. Johnson, 111 P. 2d 326 (Utah App.

1989)

2. The Trial Court denied the defendant's right to

effective assistance of counsel by not allowing him ample

opportunity to read the progress violation report and

address inaccuracies contained therein. The issue is a

question of law and the Standard of Review is a "correction

of error" standard. [ see State v. Johnson, 771 P. 2d 326

(Utah App. 1989)]

3. The trial court erred by imposing a cruel and

unusual punishment against the defendant without providing

counsel which would protect his rights of equal protection

and due process. This issue is a question of law and the

standard of review is, "correction of error" standard. [ see

State v. Johnson, 771 P. 2d 326 (Utah App. 1989)]

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

Issue No. 1:

Amendment VI of the United States Constitution reads

as follows:

5

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Issue No, 2:

Utah Code Ann. section 77-18-1(6)(a): The department shall provide the presentence

investigation report to the defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review, three working days prior to sentencing, Any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department. If after ten working days the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record.

Issue No. 3

a. Amendment XIV of the United States Constitution

reads in part as follows: . . . nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws:

b. Article I, Sections 7 and 24 of the Utah Constitution read as follows:

No person shall be deprived of life, liberty or property without due process of law.

c. Article I, Section 9 reads as follows:

6

Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.

7

STATEMENT OF THE CASE

On July 8, 1994 the defendant was sentenced to serve on

to fifteen years in the Utah State Prison for his conviction

of a second degree felony, Sexual Abuse of a Child. The

execution of the sentence was stayed and the defendant

placed on probation under the supervision of the Utah

Department of Corrections. One of the conditions of the

defendant's probation was the completion of the Fremont

Community Correctional Center.

On September 27, 1995 the an affidavit in support of an

order to show cause was filed, alleging the defendant had

violated his probation by consuming marijuana and failing to

complete the Fremont Community Correction Center.

On October 23, 1995 an arraignment hearing was held on

the order to show cause and the defendant admitted the

probation violation without the assistance of counsel. His

probation was revoked and the original sentence imposed. It

is from the revocation of the defendant's probation that

this appeal is filed.

STATEMENT OF FACTS

On October 25th, 1995 the defendant appeared before the

court for a probation violation hearing. The defendant had

been diagnosed with a mild depression and was experiencing

weight fluctuations as a result thereof (see exhibit 2 p.2).

The defendant was very apathetic at the hearing and as a

result of this depressed and apathetic state waived his

8

right to counsel and proceeded to represent himself. The

defendant had been represented by counsel at all previous

hearings.

The Court conducted only a superfluous inquiry into the

dangers and disadvantages of self-representation. It failed

to follow Federal Court guidelines such as: whether the

defendant has studied law; defendant's experience at self-

representation; a recommendation against self

representation etc. The defendant with the assistance of

counsel admitted the allegation and the court revoked his

probation.

The office of Adult Parole and Probation prepared two

progress violation reports, one dated September 20, 1995

(see exhibit 1) and one dated October 12, 1995 (see exhibit

2) and the court allowed the defendant to momentarily review

the October 12th report while the defendant was in Court.

(T-7) The Court did not allow the defendant to review the

September 20, 1995 report. The defendant indicated to the

court that there inaccuracies in the report (T-8,9). The

Court proceeded with the disposition hearing and revoked his

probation. The Court did not inform the defendant of his

right to address the inaccuracies in the report.

ARGUMENT

POINT ONE: THE TRIAL COURT ERRED BY NOT SUFFICIENTLY

INQUIRING INTO THE DEFENDANT'S MENTAL STATE AND ABILITIES

AND DANGERS OF SELF REPRESENTATION.

9

The right to defend oneself in a criminal prosecution

is well established under the Sixth Amendment to the United

States Constitution. See Faretta v. California, 422 U.S.

806, 95 S. Ct. 2525, 45 L.Ed 2d 652 (1975). In Faretta, the

United States held that the Sixth Amendment implicitly

guarantees the right of competent defendant to represent

herself or himself in state criminal actions. The keyword

in this case is competent. To be competent the defendant

must not only be in a state of mind to request or waive

counsel but must also be informed of the dangers of self

representation.

The defendant in this action was depressed and

apathetic at this probation hearing. This state of mind

coupled with the fact the trial judge did not engage the

defendant in a discussion of the dangers of self

representation denied the defendant of his sixth amendment

right. In State v. Bakalov, 849 P.2d 629 (Utah App. 1993)

the court discussed the Federal Court guide to determining a

knowing and volunteer waiver. The Federal guide addresses

whether the defendant has studied law; defendant's

experience at self-representation; the charges and possible

penalties faced; familiarity with, and the expectation of

adherence to, procedural and evidentiary rules; a warning

that the trial court will not direct or advise the defense;

a recommendation against self representation; and whether

the choice of self-representation is voluntary. In reviewing

10

the transcript and video of the hearing it is clear that the

court did not delve into this line of questioning.

If the court would have inquired of the defendant they

would have learned that at all prior hearings the defendant

had been represented by counsel. They would have learned

that the defendant had never studied law, never before

represented himself and had no familiarity with procedures

of evidence i.e probation violation reports.

POINT TWO: THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL BY NOT ALLOWING HIM AMPLE

OPPORTUNITY TO READ THE PROGRESS VIOLATION REPORT AND

ADDRESS INACCURACIES CONTAINED THEREIN.

In State v. Anderson, 632 P.2d 877 (Utah 1981) the

court cited, State v. Lipsky, 608 P. 2d at 1249 for the

proposition that pre-sentence reports be disclosed to the

defendant to provide some basic due process protections to a

defendant against having his fate determined on the basis of

unreliable information. The defendant has a right to have

ample opportunity to review a copy of all reports prepared

and used against him at sentencing. The defendant received

a copy of the October 12, 1995 progress violation report in

court and was given only a few minutes to review it prior to

sentencing. He was not however, given an opportunity to

review the September 20th, 1995 progress violation report.

The defendant indicated to the judge that there were

inaccuracies in the report he reviewed. (T-8,9) In the

11

hearing the defendant stated that," It stated that I was

found on several-- several occasions unaccountable, and, in

fact, it was only on one account that I was found

unaccountable."

Section 77-18-1 (6)(a) of the Utah Code annotated

provides that a copy of the report should be provided to the

defendant three (3) days prior to sentencing and that he be

given a chance to address the inaccuracies of the report.

The defendant's right to effective assistance of counsel and

due process has been denied because:

1. The report was not provided to the defendant

three(3) days prior to sentencing.

2. The defendant did not have ample opportunity to

review the reports. He did not even see one of the reports,

(see exhibit 1)

3. The defendant was not given ample opportunity to

address the inaccuracies in the report he was allowed to

read.

4. The defendant was not informed that he had the

right to request additional time to address the inaccuracies

in the report.

POINT THREE: THE TRIAL COURT ERRED BY IMPOSING A CRUEL AND

UNUSUAL PUNISHMENT AGAINST THE DEFENDANT WITHOUT PROVIDING

COUNSEL WHICH WOULD PROTECT HIS RIGHTS OF EQUAL PROTECTION

AND DUE PROCESS.

As a result of the defendant proceeding without the

assistance of counsel he was never afforded the opportunity

12

to consult with counsel as to whether or not he should admit

or deny the probation violations. If counsel were retained

or appointed the defendant would have had the opportunity to

evaluate his case with a trained legal professional and make

a rational decision as to what course he should pursue.

As a result of his decision to proceed without the aid

of counsel the defendant's due process and equal protection

rights were violated and he received a harsh punishment, to

wit his probation was revoked.

His due process rights were violated because he did not

have the probation violation report presented to him three

days prior to the disposition hearing. He was not provided

one of the reports.

His equal protection rights were violated because the

first progress violation report was sent to Judge Gordon Low

prior to the filing and arraignment on the order to show

cause. It appears the report was faxed to the Court on

September 22, 1995 and the Order to Show Cause is dated

September 27, 1995.

CONCLUSION

It is the duty of the court to ensure that before an

individual who has either been charged with a crime or a

probation violation has the opportunity to retain or receive

legal counsel appointed to him. If the individual indicates

that he desires to waive his right to counsel the court must

make sure the he has done it knowingly, freely and

13

voluntarily and that he is competent to represent himself.

There are guidelines that the Utah Courts have adopted. If

the Court fails to make sufficient inquiry then the

defendant's Sixth Amendment rights have been violated.

Furthermore, if the court allows the defendant to

represent himself then they should at least instruct the

defendant as to what his rights are regarding inaccuracies

in probation reports and time frames to object. The Court

should also allow access to the defendant of all the

information that his attorney would have access to in the

court's file. The Court failed to provide the defendant

with a copy of the September 20th, 1995 progress violation

report.

As a result of the violation of the defendant's due

process and equal protection rights his probation was

revoked and the original sentence of one to fifteen years at

the Utah State Prison was imposed. The defendant has

suffered a cruel and unduly harsh punishment that would have

been avoided if his rights had been protected.

Wherefore the defendant requests that he be released

from the Utah State Prison and his probation be reinstated.

RESPECTFULLY SUBMITTED this [̂ day of July, 1996

ISL David M. Perry Attorney for Defendant and Appellant

14

CERTIFICATE OF SERVICE

I, David M. Perry, certify that on July 1^ , 1996 I

served two copies of the attached appellant's brief upon the

Attorney General, counsel for the appellee in this matter,

by mailing two copies to her by first class mail with

sufficent postage prepaid to the following address:

Attorney General 124 State Capitol Salt Lake City, Utah 84114

M Attorney of Record

15

Exhibit 1

16

UTAH DEPARTMENT OF CORRECTIONS FIELD OPERATIONS, CENTERS REGION

FREMONT COMMUNITY CORRECTIONS CENTER

PROGRESS/WOLA TION REPORT

DATE: September 20, 1995

TO: First Judicial District Court REGARDING: BYINGTON, Thomas

Salt Lake County, Utah

ATTN: judge Gordon Low CASE NO. : 931000152

FKOMJ Glenn Hiatt, Agent OFFENSE: Sexual Abuse of a Child,

Field Operations, Centers Region Second Degree Felony

PROBATION DATE: July 4, 1994 0B8CIS NO. : 00070340

EMPLOYMENT: Quality Inn ADDRESS: Fremont CCC

DEFENSE ATTORNEY: Blaine Zollinger COMMENT: The defendant was placed on probation for a period of 36 months on July 4, 1994, He was ordered to abide by all of the standard conditions of probation, plus the following special conditions:

2. Serve an indeterminate amount of time in the Cache County Jail, until bed space is available in the Fremont CCC Sex Offender Program;

2. Successfully complete the Fremont CCC Sex Offender Program and any follow up program deemed necessary by Fremont or Adult Probation and Parole;

3. Have no contact with children under age eighteen; 4. Pay all costs of counseling for the victim which is a result of

this offense; 5* Pay fine and surcharge totalling $4,625.00 - fine will be waived

upon successful completion of the Fremont Program.

The defendant entered the Fremont CCC Sex Offender Program on February 28, 1995. He has been involved in the Sex Offender Program for approximately seven months and has made little progress. Due to his covert/deviant behaviors he has failed to gain the support necessary for advancement and remains on Level one.

During his residency, the defendant has engaged In unauthorized contact with his ex-wife, has been unaccountable on several occasions and has admitted to u&ing marijuana. He has received several disciplinary violations, and on 09/06/95 was referred for on Administrative Hearing to address his behaviors. In this hearing it was alleged that the defendant was in violation of his probation because his negative behaviors resulted in hi is lack of progress in the Fremont program.

Progress / Violation Report BYINGTON, Thomas page Two

gOMMENT CONT'D; The defendant admitted to the allegation, his behaviors were addressed and he committed to doing whatever was necessary' to successfully complete the program. He was allowed to remain in the Fremont program with the following special conditions; (1) his progress was to jbe reviewed in 45 days, (2) he was to obtain support of the Fremont Treatment Team for advancement to Level Two of the program by 09/27/95 and (3) he was to obtain a mental health evaluation. As of this date, the defendant has not met these conditions.

On 09/Id/'95 the defendant admitted to this agent that he has smoked marijuana on a daily basis since approximately July of 1995. A urinalysis test, which produced positive results, confirmed this admission. It is reported, by staff member Joe England, the defendant admitted to using the resident phones at Fremont to contact his supplier. The defendant reportedly told officer England that he has been spending between twenty and forty dollars per week purchasing marijuana and has been keeping it in his locker at work. Officer England reported when he confronted the defendant about his behaviors, he took a victim stance, blaming Fremont staff for his poor performance in the program. He claims staff ignore him and do little to help him succeed.

It is apparent though the defendants covert/deviant behaviors, and his attitude that it is the responsibility of Fremont staff to assure he successfully completed the Fremont program, that he is not committed to treatment, au this time. He has been afforded several opportunities to change his behaviors; however, he has not taken these opportunities seriously, and continues engaging in the same type of cyclic behaviors which resulted in his current offense. These behaviors have resulted in his lack of progress in the program and failure to meet the conditions of his Administrative Hearing.

IMMEDIATE ACTION TAKEN: NOTIFY SUPERVISOR AND THE COURT

RECOMMENDATION: It is respectfully reconmended that a No-Bail Warrant be issues and a date be set for and Order to Show Cause Hearing.

Glenn Hiatt, Probation Officer Rob)m Williams, Supervisor Centers Region, Fremont CCC Fremont Community Correctional Center

Approved:

Denied:

<*£.

E x h i b i t 2

F I R S T D!S i ' -" ." ' n \ • • • • -

STATE OF UTAL , !/.)( 'IT PROBATION AND PAROl F

FREMONT COMA/UNITY ( 'ORRECTK n > • FN^FR

— — Fiw/i mw * £/>#* r " — — —

[This report is provided as an update to the attached presentence, which has been completed within the previous IS months. This report does not constitute a complete report without the attached presentence/.

NAME: BVL\L,^,r DATE; 0aober I2i /^95 COURT: First Distru t < •„-' DATE OF CUSTODY: 09-28-95 PROBATION DATE: Pl^ACE OF CUSTODY: Cache County Jail OFFENSE: Sexual Abuse of a Child, PRERKVOCA TION HEARING DA TE: 09/2 7/95

Second Degree 'Felony EXP IRA TION/TERMINA TION DA TE: 07*04-9'?

L ORIGINAL ORDER OF PROBATION: Thomas Byington was placed an probation by Judge Gordon Low on July 3, 1994. lie was ordered to abide b ] > all a t the standard conditions of probation plus the following special conditions:

1. Serve and indeterminate period of lime in the (-ache County Jail, until bed space is available in the Fremont Community Correctional Center Sex Offender Program,

2. Fay fine and surcharge totalling $4,625.00, fine will he waived upon successful completion of the Fremont program:

3. Successfully complete the Fremont Community Correctional Center Program and any follow up program deemed necessary by Fremont or Adult Probation and Parole:

4. Have no contact wit h children under the age of eighteen, 5. Pay all costs of counseling for the victim which is a resit i t oj this offense,

IL ALLEOA TIONS: The allegations in this matter are that (he defendant violated the conditions of his pro bat in n in the following particulars, to wit:

p jjy }lavj?}g illegally used a controlled substance, to wit. marijuana, on or about July 1995 through September 1995, in violation oj condition number five of his probation agreement:

2. By having failed to successfully complete the -"v.', - ., t . , .<.^tt^a,:> t. , -a-. Offender Program, in violation of condition ramiht-r • '-•; •••,.'? •^'•••h<;Onrt agreenu^i

The defendant entered B 'remoni Community Correctional Center on February 28, 1995, and was a resident for approximately seven months prior to his removal on September 28, 1995 During this tin re the defendant was found io have violated center/program rules by having had unauthorized contact with his ex-wife, and by having been discovered unaccountable on several occasions. In addition, he admitted to the use of marijuana, in violation of his probation, over a period of approximately two months, from July to September 1995.

PROBATION VIOLATION REPORT BYINGTONt Thomas Page Two

III ADJL STMENTS:

A. EMl'LOYMENT: Prior to his removal from Fremont, the defendant was employed with the Quality Inn Diner in Salt Lake City, He reportedly earned $4.25/hour plus tips working as a husser and worked an average of 40 hours per week There were no negative reports received from this employer regarding the defendants attitude » >r work performance,

Prior to the defendant's employment with Quality Inn, he wot ked at If usatch Cabinets in If est Jordan. lie worked there as a saw operator earning $4.50/hour. He worked there for only one month prior to accepting employment with Qualii) ' Inn.

5. M/1RITAL INFORMA TIQN: The defendant is currently single, having received a divorce from his second wife, Christine Quieterrez, on October 22, 1993, Two children were born from that union; James who is approximately three years old, and Sarah, who is approximately two years old. Roth children currently reside with their mother in Hyrum, Utah

C* EDUCATION: The defendant reports that he completed the !Oth grade at Bora High School in Raise, Idaho, He reports attending the MTA. truck driving school in Denver, Colorado for approximately two and one-half months and received a certificate. He also reports having obtained his GEO in 1989,

"I he dej end* i *i? t i: at Hcipate '• i in t :J fo i 7. '" ; • :lu :ati ; •) ; ii" ;"."" O) 0 a/,, 7 y ' lu? ing t !//'v net ic >d i > ? pi ob< iti. : n.

D HEALTH: Mr Byingtmt did not complain of menial or physical health problems during this period of probation; however, during his residency at Fremont, staff noticed fluctuation in his weight on several occasions. Within his first four months in the Fremont program, Mr, Bylngton lost an unusual amount of weight, He then gained some of this weight back, and approximately 2 months prior to his removal, again lost a noticeable amount of weight, Mr. Dyington explained (he weight fluctuation was a result of mild depression; however, given his admission to the amount of drugs used prior to his removal, it is likely drugs contributed significantly to his weight fluctuate w.

Daring his * esidi 11 : JI * H" I* 'remant, A h B) 'ington took n0 anti-ps ycho 1 ic or anti-depressive medications,

E, FINANCIAL STATUS: During this probation, there were no expenses incurred by the victim for counseling, therefore, no restitution was owed/paid. Because the court ordered his fine waived if he successfully competed the Fremont program, the defendant did not pay on this obligation during his residency at Fremont,

At the lime of his removal from the Fremont program, the. defendant was current with In, • therapy fees to the Center for Family Development; however, he owed service fees to Frumont in the amount of SI 56.00. This amount was deducted from his resident account of $787.1 y and u oon his removal from Fremont the defendant left with $631.13.

PROBA TION VIOLA TION REPORT BYINGTON, Thomas Page Two

F. ALCOHOL AND DRUGS; There was no indication thai the defendant engaged in the use of alcohol during (his period of probation; however, he admitted to having used marijuana on a daily ban's for approximately two month between July and September 199 J. On September IS\ 1995, the defendant submitted to chemical testing which produced positive results for marijuana

Following the defendant's positive chemical test and admission to the use of marij'nana, he disclosed that he had been spending between twenty mid forty dollars per week purchasing marijuana, and arranging the purchase(s) using the center' s resident phones, He admitted to having kept the drug(s) in his locker at work,

^ VICTIM'S STATEMENT; Due to the victim's age at the time of the offense, no interview was conducted. Contact has been made with the victim's mother, Chritine Byington. This agent spoke with Ms. Byington in efforts to determine restitution owed in this case. She reported that Tina has been involved in some coimseling through the counseling center ai the school she attends, and reports no expenses hm!e been incurred to date for therapy/counseling,,

H. VIC'IIM'S INFORM/1 TION; The victim in this offense is the defendant's daughter, Tina B y i n g i o n , "' 1 ' h o w a y t w c y e a r s old .it the time of the offense. Contact with her mother, Chritine Byington reveals that iina has heet\ mvn\\ *,/ /'<? counseling through the school she is attending and appears to be doing wed

I PROBATION ADJUSTMENT: The defendant did not adjust well to probation. He engage in behaviors which parallel those that lead him to commit his present offense. Wlxen caught engaging in these behaviors, he admitted having chosen to act in such a manner, verbalized that he knew these were cyclic behaviors tind would address them in treatment. He would then apologize for his actions and within a short period of time act in similar fashion He did not appear to desire to learn from his mistakes, hut rather hoped that an apology after the fact would suffice. His behaviors were addressed in informal meetingfs) with his agent, disciplinarily and in and administrative hearing, Despite all efforts on the part of Fremont staff and therapists to help Mr. Byington be successful in treatment, he acted in such a manner which suggested that he deliberately sabotaged his status on probation and in the Fremont program,

IV SUM[MARY A^jy EyALUAfjQtf. jrfrm Bylmgton spent approximately seven month in the Fremont Sex Offender Program. It was apparent through his behaviors that he placed the responsibility of his success upon Fremont staff and his therapists. He was afforded several opportimities to commit himself to therapy and deal with his behenhors appropriately; however, he chose to ignore the help being offered him by Fremont staff and his therapists. As a result, Mr, Byington 's risk to the community remains high and his prognosis for successfully completing therapy is poor.

PROBATION VIOLA!h , i "" tf r

BYINGTON, Thomas Page Two

V. RKCOMMENDA TION: rl is ihe reeomn lendaium of « idult Probation and Pot ok that the defendant's probation he revoked and that he he committed u J the L 'tah State Prison to serve hix original sentence.

Respectfully. Submitted,

^Imy&i^tl Agent C&UerfKegten, Fremont CCCC

AC^um^ ^

Robyn Williams, Supervisor Fremont Community Correctional Center