State v. Hegbloom

362 P.3d 921

STATE of Utah, Plaintiff and Appellee,

v.Karl Martin HEGBLOOM, Defendant and Appellant.

No. 20120264–CA.

Court of Appeals of Utah.

Sept. 11, 2014.

Rehearing Denied Nov. 6, 2014.

Peter A. Daines, Isaac E. McDougall, and John B. Plimpton, for Appellant.

Sean D. Reyes and John J. Nielsen, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judge JOHN A. PEARCE and Senior Judge JUDITH M. BILLINGS concurred.¹

Opinion

VOROS, Judge:

¶ 1 Karl Martin Hegbloom appeals from his conviction after entering a conditional guilty plea to two counts of attempted violation of a protective order. He contends on appeal that the protective order he disobeyed was issued in violation of his due process rights and thus void. And because it was void, he argues, he may challenge it collaterally in this criminal proceeding. We affirm.

BACKGROUND

¶ 2 Hegbloom and K.M. shared custody of their child, but custody exchanges proved difficult for both parents. K.M. eventually obtained an ex parte civil protective order against Hegbloom.

¶ 3 Before the hearing on the protective order, Hegbloom filed a written response. Both parents appeared pro se at the hearing. Hegbloom brought evidence, some of it unknown to K.M., to present at the hearing. Rather than receive the evidence, the commissioner proceeded by proffer. Hegbloom then orally requested a "formal evidentiary hearing." The commissioner responded, "Once I make my ruling, if there's an objection you ... can object and take it before the judge ... [who] can decide whether there [will] be a full formal evidentiary hearing." Insisting that without the rejected evidence he "ha[d] no case," Hegbloom again requested a formal evidentiary hearing; the commissioner again denied the request.

¶ 4 At the conclusion of the hearing, the commissioner asked Hegbloom if he agreed to the terms the guardian ad litem had proposed for his protective order. He replied, "I ... agree to those terms." (Omission in original.) The commissioner then stated that she would recommend an extension of the protective order against Hegbloom on those terms. However, Hegbloom again requested an evidentiary hearing. The commissioner responded, "You can object to my recommendations if you believe that they were inappropriate. That will go to the judge and you can make that request...." Hegbloom specifically asked if his objection needed to be in writing, to which the commissioner replied that it did. Hegbloom then told the commissioner that his written submissions included a request for a formal evidentiary hearing. The commissioner responded that she had already denied that, adding, "You may now object and we'll make that request," but that his objection "need[ed] to be in writing."

¶ 5 Hegbloom did not file a written objection to the commissioner's recommendation. Without holding an evidentiary hearing, the district court followed the recommendation and entered a permanent protective order against Hegbloom. Hegbloom did not appeal.

¶ 6 A few months later, K.M. reported Hegbloom to the police for multiple violations of the order. She alleged that he had sent her multiple text messages and had come to her apartment "dressed as a clown." He was charged with nine violations of the protective order, all third degree felonies.

¶ 7 In the criminal court, Hegbloom contended that the protective order had been entered in violation of his due process rights, rendering it void. The court ruled that Hegbloom's oral objection to the commissioner's recommendation was not a valid objection and that the entry of the order did not violate his due process rights. The court stated, "The problem here is that Mr. Hegbloom did not follow the statutory requirements ... even though the commissioner repeatedly gave him that information." The criminal court concluded that the commissioner had explained to Hegbloom how to object to the commissioner's recommendation but that Hegbloom had failed to do so.

¶ 8 Hegbloom entered conditional guilty pleas to two counts of attempted violation of a protective order, class A misdemeanors, reserving the right to appeal the district court's ruling denying his motion to declare the protective order void.

ISSUE AND STANDARD OF REVIEW

¶ 9 Hegbloom challenges his conviction on the ground that the protective order was void. It was void, he argues, because it was entered in violation of his due process rights, specifically, his right to an evidentiary hearing. And because the order was void, he argues, he may challenge it collaterally in this criminal proceeding. "Constitutional issues, including questions regarding due process, are questions of law that we review for correctness." State v. Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54 (citation and internal quotation marks omitted). Similarly, "[w]hether a judgment is void or voidable is a question of law." Nebeker v. Summit County, 2014 UT App 137, ¶ 9.

ANALYSIS

¶ 10 The threshold question here is whether Hegbloom may, in this criminal proceeding, collaterally attack the protective order entered in the prior civil proceeding. Collateral attacks are disfavored. "With rare exception, when a court with proper jurisdiction enters a final judgment ... that judgment can only be attacked on direct appeal." State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111. An attack "is regarded as collateral if made when the judgment is offered as the basis of a claim in a subsequent proceeding." Olsen v. Board of Educ., 571 P.2d 1336, 1338 (Utah 1977).

¶ 11 A void judgment "is open to collateral attack." Farley v. Farley, 19 Utah 2d 301, 431 P.2d 133, 137 (1967) ; 46 Am.Jur.2d Judgments § 29 (2006). But "[t]he concept of a void judgment is narrowly construed in the interest of finality." Brimhall v. Mecham, 27 Utah 2d 222, 494 P.2d 525, 526 (1972). Two circumstances may render a judgment void. First, a "judgment [is] void on its face for lack of jurisdiction in the court." Bowen v. Olson, 122 Utah 66, 246 P.2d 602, 605 (1952). Second, a judgment is void when the court entering the judgment "acted in a manner inconsistent with due process of law." Brimhall, 494 P.2d at 526. Hegbloom relies on the second basis.²

¶ 12 " ‘The purpose of due process is to prevent fundamental unfairness.’ " State v. Parker, 872 P.2d 1041, 1048 (Utah Ct.App.1994) (quoting State v. Maestas, 815 P.2d 1319, 1325 (Utah Ct.App.1991) ); see also Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (stating that the aim of due process is " ‘to prevent fundamental unfairness' " (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941) )). Due process cannot be confined to a specific formula but rather is " ‘flexible and calls for such procedural protections as the particular situation demands.’ " Mathews v. Eldridge, 424 U.S. 319, 321, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ).

¶ 13 At a minimum, due process requires "[t]imely and adequate notice and an opportunity to be heard in a meaningful way." Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 50, 299 P.3d 990 (alteration in original) (citation and internal quotation marks omitted). The opportunity to be heard in a meaningful way includes the "opportunity to present evidence and argument on that issue before decision." Plumb v. State, 809 P.2d 734, 743 (Utah 1990).

¶ 14 Hegbloom does not claim that he lacked actual notice of the protective-order proceeding. Rather, he contends that he was denied the opportunity to be heard. This denial, he reasons, took the form of a requirement that he file a written objection to the commissioner's recommendation after the conclusion of the hearing before the commissioner. And because the district court entered the protective order in violation of his due process rights, Hegbloom may, he asserts, collaterally attack it.³

¶ 15 We do not agree that the civil protective order is subject to collateral attack. To begin with, the case law does not support Hegbloom on this point. Hegbloom cites many Utah cases stating in the abstract the rule that a denial of due process renders a judgment void and hence subject to collateral attack. But none of these cases address the situation before us here: the wrongful denial of an evidentiary hearing.⁴

¶ 16 Indeed, Hegbloom cites no Utah case upholding a collateral attack. He does cite a Utah case allowing a challenge to a void judgment under rule 60(b)(5) of the Utah Rules of Civil Procedure, but that case involved lack of service, not lack of an evidentiary hearing. See Garcia v. Garcia, 712 P.2d 288, 291 & n. 5 (Utah 1986) (holding that a divorce decree entered without effective service on the respondent should be set aside under rule 60(b)(5) ). Hegbloom cites one non-Utah case permitting collateral attack on due process grounds, but its rationale relies on lack of notice, not lack of an evidentiary hearing. See Olson v. State, 77 P.3d 15, 16–18 (Alaska Ct.App.2003) (holding that a defendant who had "never received notice of the hearing" on a petition for a long-term protective order could not be convicted for violating it).

¶ 17 Hegbloom attempts to frame his denial of an evidentiary hearing as a denial of notice. But he received notice of both the ex parte order and the extension of that order. He attended the hearing and even challenged the grounds for the order to the extent possible without calling witnesses. But he did not seek an evidentiary hearing in district court as instructed by the commissioner. Hegbloom now contends that the commissioner's instructions were erroneous under rule 7 of the Utah Rules of Civil Procedure and section 78B–7–107(1)(f) of the Utah Code. But even if Hegbloom is correct, we cannot agree that the error denied him notice. We thus reject his argument that "the fact that he was deprived of an opportunity to be meaningfully heard meant that he never received sufficient notice and the issuing court...