2023 UT App 116
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MANUEL ANDRES SAMUDIO,
Appellant.
Opinion
No. 20220280-CA
Filed September 28, 20233
Seventh District Court, Price Department
The Honorable Don M. Torgerson
No. 201700147
Benjamin Miller and Debra M. Nelson,
Attorneys for Appellant
Sean D. Reyes and Christopher A. Bates,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
MORTENSEN, Judge:
¶1 Manuel Andres Samudio’s long history of legal troubles
led to extensive contact with Judge Don Torgerson while the nowjudge was still a defense attorney. When Samudio violated the
probation requirements that had been imposed after he was
convicted in two criminal cases, he appeared before Judge
Torgerson, who had, by then, been appointed to the bench. The
judge revoked Samudio’s probation and imposed the original
sentence. Alleging that Judge Torgerson should have recused
himself for reasons of impartiality, Samudio appeals the
revocation of his probation and imposition of the original
sentences. While we agree that Judge Torgerson should have
State v. Samudio
recused himself as his impartiality could reasonably be
questioned and because of his personal knowledge of matters
outside the record, we nevertheless affirm because Samudio has
not shown prejudice.
BACKGROUND
Underlying Convictions
¶2 Samudio pled guilty in two separate cases involving drug
offenses.
¶3 In the first case, Samudio was charged in November 2019
with two counts of possession of a controlled substance (heroin
and methamphetamine) and possession of drug paraphernalia. In
September 2020, Samudio appeared before Judge Torgerson and
pled guilty to the heroin charge, and the other two charges were
dismissed. On the joint recommendation of the State and defense
counsel, Samudio received a sentence of 364 days in jail, which
was stayed, and twenty-four months’ probation.
¶4 In the second case, Samudio was charged in March 2020
with one count of distribution of a controlled substance (heroin).
In July 2021, he appeared before Judge George Harmond and pled
guilty. In the plea agreement with Samudio, the State agreed to
dismiss a pending charge for distribution of a controlled
substance in a third case. Adult Probation and Parole (AP&P)
recommended that Samudio serve a jail term of 150 days, but
Judge Harmond rejected that recommendation because Samudio
was undergoing medical treatment. Instead, the judge sentenced
Samudio to a stayed prison term of five years to life and thirty-six
months’ probation.
Alleged Probation Violations
¶5 As it turned out, Samudio had several encounters with the
legal system in the form of probation violations. In January 2022,
20220280-CA 2 2023 UT App 116
State v. Samudio
the State moved for an order to show cause as to why Samudio’s
probation should not be revoked owing to three violations.
¶6 First, when police attempted a search of Samudio’s car in
January 2022, he had “a pit bull dog that [was] known to be
vicious to male officers” in the back seat. The dog lunged at an
officer during the search. Under the conditions of his probation,
Samudio was “not allowed to have vicious dogs that hinder
AP&P from conducting proper supervision.”
¶7 Second, AP&P had “not been able to locate” Samudio “at
his listed residence” for over three months. When this issue was
raised with Samudio, he claimed that he had been staying at his
parents’ house because he was sick and his oxygen was there.
When AP&P visited his parents’ house, his mother informed the
agents that he was not there and that he stayed there only “every
once in a while”—about once a week. When agents inspected the
room he used at his parents’ house, none of Samudio’s “personal
items” or his oxygen machine were found.
¶8 In the “progress/violation report” accompanying the order
to show cause, Samudio’s probation agent noted,
[Samudio] was diagnosed with stomach cancer in
the spring of 2021 and appears to be using his
diagnosis and medical appointments as an excuse to
circumvent probation. He continually messages
[his] agent regarding his scheduled office
appointments and changes them to when it is
convenient to him. He continuously states he has
doctor’s appointments up north and treatment
which is why he is not able to be located [at] home
or able to make AP&P appointments and his
treatment sessions. He also continues to change his
story as to what he is suffering from and what
organs are not functioning properly.
20220280-CA 3 2023 UT App 116
State v. Samudio
On January 10, 2022, [Samudio] told [me] he
was going in for kidney surgery on January 11, 2022
and would be required to stay in the hospital for
multiple days. He was instructed to notify me when
he was released from the hospital which he has still
failed to do so. When this surgery was addressed
with his mother at her residence that day, she did
not know anything regarding the procedure. It
should be noted that she is his primary driver to
doctor’s appointments and cancer treatment which
she also verified that day.
Mr. Samudio appears to be manipulating his
probation so it fits his lifestyle and needs.
¶9 The third violation occurred when Samudio was arrested
on a civil warrant in January 2022. When Samudio “was notified
of the warrant he became belligerent with police and attempted
to resist arrest by turning on the arresting officer.” And when the
officers tried to handcuff him, they had to pin Samudio “against
the car in order to place him in handcuffs.”
Revocation of Probation
¶10 The court issued orders to show cause in both possession
cases for which Samudio had received probation. Samudio
appeared before Judge Torgerson in March 2022 and admitted to
the conduct alleged in each of the three probation violations.
Based on this admitted conduct, Judge Torgerson found Samudio
in willful violation of his probation in both cases.
¶11 The State noted that AP&P had recommended that
Samudio receive 120 days of house arrest, be placed on a GPS
monitor at his own expense, provide documentation of all
medical appointments, and be released from house arrest only for
verified appointments and employment. But the State expressed
that it was “extremely reluctant to concur” with AP&P’s
20220280-CA 4 2023 UT App 116
State v. Samudio
recommendation, saying that “Samudio has been manipulating
the process, using his diagnosis as a crutch and absconding [from]
and not working with AP&P.” The State further pointed out that
Samudio’s presentence investigation report (PSI), completed for
the underlying offense, scored him “in the imprisonment
category,” and the State noted the following:
[Samudio] has an extensive criminal history,
including prior convictions for distribution and
possession with intent. . . . He was given a chance to
complete probation and this is where we’re at now.
He hasn’t . . . been successful. He hasn’t engaged
with probation. He hasn’t let [AP&P] into his
residence. It’s extremely concerning that an
individual with his history is released into the
community and not doing what he needs to do. In
the State’s opinion, he is an extreme public safety
risk and his probation should be revoked.
¶12 In response, Samudio’s counsel was “a little surprised” at
the State’s adamant opposition to AP&P’s recommendation,
noting that this was only the “first time” Samudio had been before
the court on an order to show cause for a probation violation and
that Samudio had largely been successful on probation. His
counsel also argued that Samudio understood that he needed to
be more proactive in reporting his residences to AP&P. Samudio,
speaking for himself, said he had been successful on probation
apart from the “miscommunications” with his probation officer
about his place of residence.
¶13 Judge Torgerson agreed with the State:
I am not surprised by the recommendation from the
State. The Court has seen Mr. Samudio in more than
one jurisdiction, and . . . the Court’s consistent
experience with Mr. Samudio is that he has a
moving target of medical conditions that arise at
20220280-CA 5 2023 UT App 116
State v. Samudio
convenient times . . . when either a warrant has been
issued or something is required of him.
This [probation report 1] shows that Mr.
Samudio’s not being truthful with AP&P about
where he’s living. He maintains an aggressive
animal that AP&P’s told him that he can’t maintain
at that location when they visit. . . . [T]hese aren’t
miscommunications; these are non-compliance.
And the Court agrees with the State in this
case and believes that Mr. Samudio has been
manipulating his probation and has been successful
to a large degree. And so based on all that, the Court
revokes the probation in both cases and imposes the
original sentences.
Samudio’s Experience with Judge Torgerson
¶14 As is evident from the court’s comments, Samudio and
Judge Torgerson have a history, a circumstance about which there
is no dispute. In fact, Judge Torgerson represented Samudio as an
attorney four times before becoming a judge.
¶15 In the first instance, Samudio pled guilty to a criminal
charge in November 2009 and received a fine and probation.
When he fell behind on his payments, then-attorney Torgerson
was appointed to represent him. After Torgerson withdrew as
counsel, Samudio then appeared without counsel numerous
times on this matter over the next several years, at which point
then-attorney Torgerson was again appointed to represent him.
1. Judge Torgerson said “presentence report” at this point. The
context makes it obvious that he misspoke and was referring to
the probation agent’s progress/violation report. See supra ¶ 8.
20220280-CA 6 2023 UT App 116
State v. Samudio
Eventually, multiple orders to show cause were filed, Samudio’s
probation was revoked, and his original sentence was imposed.
¶16 Second, Samudio was again charged with a crime in
December 2009. Then-attorney Torgerson represented him, but he
eventually filed a motion to withdraw as counsel after Samudio
failed to appear, which was granted.
¶17 Third, Samudio was represented by then-attorney
Torgerson in another case in 2010 where the State dismissed two
charges against Samudio.
¶18 Fourth, Samudio faced additional charges in March 2010.
Samudio was again represented by then-attorney Torgerson. He
subsequently pled guilty to the charges and was fined, but he fell
behind on paying the fines, and an order to show cause was
issued.
¶19 While Samudio did not express any concerns about Judge
Torgerson’s impartiality when his probation was revoked in the
present case—perhaps having expected that his former attorney
would view him more sympathetically than would another
judge—he does so now, arguing that the judge should have
recused himself based on this past representation. Samudio thus
appeals.
ISSUE AND STANDARD OF REVIEW
¶20 The sole issue is whether Judge Torgerson plainly erred in
not recusing himself from Samudio’s proceedings based on his
prior representation of and experience with Samudio. Because
this issue was not raised below, it is addressed under the rubric of
plain error. “For plain error,” an appellant “must demonstrate
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable outcome for the
20220280-CA 7 2023 UT App 116
State v. Samudio
appellant.” State v. Bond, 2015 UT 88, ¶ 15,
361 P.3d 104 (cleaned
up).
ANALYSIS
¶21 Samudio argues that Judge Torgerson’s failure to recuse
himself violated the Utah Code of Judicial Conduct and
Samudio’s due process rights: “[The] Utah Code of Judicial
[Conduct] and the Due Process Clause required that Judge
Torgerson recuse himself from presiding over Mr. Samudio’s
revocation proceeding due to the appearance of []partiality that
flowed from his considerable prior history with Mr. Samudio. His
failure to do so was plain error.”
¶22 The Utah Code of Judicial Conduct provides that a “judge
shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned.” Utah Code
Jud. Conduct R. 2.11(A). Included in this rule are circumstances
where a judge has “a personal bias or prejudice concerning a party
or a party’s lawyer, or personal knowledge of facts that are in
dispute in the proceeding,” id. R. 2.11(A)(1), or where a judge has
“served as a lawyer in the matter in controversy,”
id. R.
2.11(A)(6)(a); see also State v. Elkface,
2023 UT App 24, ¶ 9,
527 P.3d
820, cert. denied,
2023 WL 5673137 (Utah 2023). Impartiality is
defined as the “absence of bias or prejudice in favor of, or against,
particular parties or classes of parties, as well as presence of an
objective and open mind in considering matters that come before
a judge.” Utah Code Jud. Conduct, Terminology. “Bias and
prejudice are only improper when they are personal. A feeling of
ill will or, conversely, favoritism toward one of the parties . . . are
what constitute disqualifying bias or prejudice.” In re Young,
1999
UT 81, ¶ 35,
984 P.2d 997 (cleaned up). Disqualification is
appropriate “where, for instance, a judge has prior knowledge of
evidentiary facts,” “has a close social or professional relationship
20220280-CA 8
2023 UT App 116
State v. Samudio
with a party or an attorney,” or “was involved in the case at hand
before becoming a judge.” Id. 2
¶23 Additionally, the United States Supreme Court has
explicitly stated that “due process guarantees an absence of actual
bias on the part of a judge.” Williams v. Pennsylvania,
579 U.S. 1, 8
(2016) (cleaned up). To make a bias determination, an appellate
court does not ask “whether a judge harbors an actual, subjective
bias, but instead whether, as an objective matter, the average
judge in [the same] position is likely to be neutral, or whether
there is an unconstitutional potential for bias.”
Id. (cleaned up).
¶24 Samudio asserts that under either rubric (the Utah Code of
Judicial Conduct or the Due Process Clause), Judge Torgerson’s
failure to recuse “was plain error.”
¶25 As an initial matter, we share Samudio’s concerns about
the appearance of bias owing to Judge Torgerson’s past
involvement in Samudio’s legal affairs. Indeed, it seems obvious
that it would have been prudent for Judge Torgerson to recuse
himself based on his past representation of Samudio. At a
minimum, even absent actual bias or prejudice, 3 Judge Torgerson
should have disclosed his prior association with Samudio and
allowed Samudio—outside the presence of the judge or any court
personnel—to discuss with counsel whether to waive
2. We are aware that this case presents a slightly different scenario
because the cases where then-attorney Torgerson was involved
are not “the matter in controversy” or the “case at hand” insofar
as the probation revocation is concerned. But these principles are
nevertheless illuminating since it is likely that Judge Torgerson
was informed by his past involvement in Samudio’s cases in
making the decision to revoke probation.
3. In the case of actual bias or prejudice, the conflict is nonwaivable, and a judge must recuse. See Utah Code Jud. Conduct
R. 2.11(A)(1), (D).
20220280-CA 9
2023 UT App 116
State v. Samudio
disqualification. See Utah Code Jud. Conduct R. 2.11(D). The fact
that Samudio appears to have been a difficult client and that Judge
Torgerson repeatedly withdrew as counsel suggests that the two
did not share an altogether happy relationship. This history alone
suggests that recusal would have been appropriate. But in
addition, we are troubled by Judge Torgerson’s comments about
his “consistent experience” with Samudio “in more than one
jurisdiction.” The only reasonable inference from this comment is
that the judge was referring to his experience and knowledge of
facts outside the record (as both the cases before the court were
from the same jurisdiction) and likely was referring to his
experience with Samudio while acting as his attorney.
¶26 Anyone hearing the judge’s comments would likely
conclude that Judge Torgerson did not hold Samudio’s reliability
in high regard. Obviously, a judge may appropriately develop a
dim view of the conduct and attitude of a party who repeatedly
appears before the judge or establishes a poor track record in
courts throughout the state. The trouble here is that Judge
Torgerson’s knowledge of facts and his past interactions with
Samudio appear to come from circumstances disconnected from
Judge Torgerson acting in his judicial capacity. We thus agree that
it appears that violations of the Rules of Judicial Conduct and
Samudio’s due process rights likely occurred, and out of an
abundance of caution, Judge Torgerson should have recused
himself even though Samudio did not object to Judge Torgerson
presiding over this probation revocation proceeding.
¶27 Even assuming these violations occurred, Samudio is not
automatically entitled to relief where he made no objection to
Judge Torgerson’s involvement below. To obtain relief under a
plain error analysis pursuant to either the Due Process Clause or
the Utah Code of Judicial Conduct, Samudio must also
demonstrate that these violations caused him harm. And here, we
are not convinced that Samudio suffered harm as a result of Judge
Torgerson not recusing himself.
20220280-CA 10 2023 UT App 116
State v. Samudio
¶28 In contrast, Samudio argues that he “need not prove harm
to warrant reversal and remand for the violation of the due
process clause.” This is simply incorrect. As outlined above, to
obtain relief under a plain error analysis, a party must prove harm,
or, in other words, that absent the error, there is a reasonable
likelihood of a more favorable outcome. Our supreme court took
up this issue in State v. Bond, 2015 UT 88,
361 P.3d 104, where it
addressed “the proper review standard for an unpreserved
federal constitutional claim.” Id. ¶ 41. The Bond court
acknowledged that the United States Supreme Court “held that
when a defendant raises an unpreserved constitutional claim—
even one serious enough to constitute structural error—the claim
is subject to plain error review under which the defendant bears
the burden to show harm.” Id. ¶ 42. After reviewing several other
high court cases, our supreme court concluded, “Based upon
these federal pronouncements, we hold that unpreserved federal
constitutional claims are not subject to a heightened review
standard but are to be reviewed under our plain error doctrine,”
including the burden to “demonstrate prejudice.” Id. ¶¶ 44, 46.
¶29 To show harm in this context, Samudio must demonstrate
a “reasonable likelihood” that he would have received a “more
favorable outcome” if Judge Torgerson had recused himself. See
State v. Holgate,
2000 UT 74, ¶ 13,
10 P.3d 346 (cleaned up); see also
State v. Alonzo,
973 P.2d 975, 979 (Utah 1998) (“A trial judge’s
failure to recuse based on the appearance of bias may be grounds
for reversal if actual prejudice is shown. Actual prejudice can be
shown when there exists a reasonable likelihood that the result
would have been more favorable for the defendants absent the
trial judge’s appearance of bias.” (cleaned up)). Given this
standard, we are not convinced that Samudio suffered any harm
owing to Judge Torgerson’s involvement in this case for the
following reasons.
¶30 First, there is no indication that Judge Torgerson’s decision
to revoke Samudio’s probation was based on his past experience
with him. Rather, Samudio’s probation was revoked because of
20220280-CA 11
2023 UT App 116
State v. Samudio
Samudio’s various probation violations. He impeded officers
from searching his vehicle by having an aggressive dog. He, at the
very least, was disingenuous about his place of residence in
failing to notify AP&P of changes to his living situation. And to
top it off, Samudio resisted arrest when served a civil arrest
warrant. All this leads to the inevitable conclusion that Samudio’s
probation was not revoked because Judge Torgerson held a longstanding grudge against him but because Samudio made some
very poor choices while skating on the thin ice that probation
affords a convicted felon.
¶31 Second, the probation agent reported that she perceived
Samudio was using his medical conditions and doctor
appointments as an excuse to avoid his probation obligations. See
supra ¶ 8. Judge Torgerson echoed this perception in his
comments when he said that his “consistent experience” was that
Samudio was “a moving target of medical conditions” arising at
“convenient times.” While Judge Torgerson’s comment implies
that he might have based his conclusions on his past legal
advocacy of Samudio, there was plenty of evidence in the
probation report, standing alone, for any judge to reach the same
conclusion.
¶32 Then there is the State’s stance on AP&P’s
recommendation. To say the least, the State was adamantly
opposed to AP&P’s plan, stating that it was “extremely reluctant”
to go along because Samudio was “manipulating the process,”
“using his diagnosis as a crutch,” and “absconding and not
working with AP&P”; had “an extensive criminal history”; and
constituted “an extreme public safety risk.” Samudio makes no
effort to explain why Judge Torgerson was not persuaded that the
litany of concerns enumerated by the State justified revoking
probation.
¶33 Finally, the State’s observation that Samudio has “an
extensive criminal history” is an understatement. While we are
not able to discuss his juvenile record in any detail, suffice it to
20220280-CA 12 2023 UT App 116
State v. Samudio
say that it was fulsome. And his adult criminal history records no
fewer than thirty-six separate offenses, ranging from
misdemeanors to felonies. Of course, Judge Torgerson had access
to all this information because Samudio’s PSI was before him. We
have little trouble concluding that any judge would have likely
revoked Samudio’s probation when faced with his criminal
record.
¶34 In sum, the recusal of Judge Torgerson, while it plainly
should have happened, would not have created a reasonable
likelihood of a more favorable result for Samudio for the reasons
just identified: (1) Samudio had multiple probation violations,
(2) the probation report supported the conclusion that Samudio
actively engaged in avoiding his probation obligations, (3) the
State offered ample reason to revoke his probation, and
(4) Samudio had an extensive criminal history. These
circumstances—especially their aggregate impact—would have
given any judge serious reason to pause at the prospect of the
rather lenient approach advocated by AP&P. Accordingly,
Samudio has failed to demonstrate that he was harmed by Judge
Torgerson remaining on his case.
CONCLUSION
¶35 While Judge Torgerson’s experience with representing
Samudio suggests that recusal would have been prudent or even
required, we conclude that Samudio’s claim on appeal comes up
short because he has failed to demonstrate prejudice.
¶36 Affirmed.
20220280-CA 13 2023 UT App 116
