Although there is no authority from the Utah courts on this question, other jurisdictions have held that dispositions similar to a plea in abeyance preclude malicious prosecution claims since such dispositions are not "in plaintiff's favor." See Swanson v. Fields, 814 F. Supp. 1007 (D. Kan. 1993), aff'd 13 F.3d 407 (10th Cir. 1993) (plea diversion agreement similar to plea in abeyance precludes plaintiff's subsequent claims for civil damages for malicious prosecution and false arrest); Land v. Hill, 644 P.2d 43, 45 (Colo.App. 1984) (guilty plea similar to plea in abeyance will not support malicious prosecution claim since such a plea agreement did not establish termination in favor of plaintiff). The conclusions in Swanson and Hill are sound: a plea in abeyance is not meant to indicate that the accused is innocent; rather the plea agreement is an attempt to provide some leniency in certain situations.

See, e.g., Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). See also Land v. Hill, 644 P.2d 43 (Colo.Ct.App. 1981). The New York procedure, pursuant to N YCrim. Proc. Law § 170.55 (1977), leaves open the question of the accused's guilt.

A criminal proceeding has not terminated in the plaintiff's favor if the plaintiff has pleaded guilty to the underlying criminal charge. See, e.g., Land v. Hill, 644 P.2d 43, 45 (Colo.Ct.App.1981); Rabalais v. Blanche, 524 So.2d 772, 773 (La.Ct.App.1988); Bartone v. County of Nassau, 286 A.D.2d 354, 729 N.Y.S.2d 171, 173 (2001). [¶ 9] It does not matter that the charge of violating a disorderly conduct restraining order was dismissed as part of Holkesvig's plea agreement with the State, because a malicious prosecution action may not be founded on charges that were dismissed as part of a plea bargain.

A criminal proceeding has not terminated in the plaintiffs favor if the plaintiff has pleaded guilty to the underlying criminal charge. See, e.g., Land v. Hill, 644 P.2d 43, 45 (Colo.Ct.App. 1981); Rabalais v. Blanche, 524 So.2d 772, 773 (La.Ct.App. 1988); Bartone v. County of Nassau, 286 A.D.2d 354, 729 N.Y.S.2d 171, 173 (2001). [¶ 9] It does not matter that the charge of violating a disorderly conduct restraining order was dismissed as part of Holkesvig's plea agreement with the State, because a malicious prosecution action may not be founded on charges that were dismissed as part of a plea bargain.

The completion of his deferred judgment and sentence, with a resulting dismissal, though evading the Heck bar, does not meet this standard. See Land v. Hill, 644 P.2d 43, 45 (Colo. App. 1981) (holding that vacation of judgment and dismissal of criminal action after guilty plea under Colorado's deferred-judgment procedure did not constitute a "favorable termination" for purposes of malicious prosecution action). Mr. Lessard's decision to plead guilty in exchange for a deferred judgment may have robbed him of his malicious prosecution claim, but "such trade-offs are a standard feature of malicious prosecution law."

As noted by Magistrate Judge Watanabe, Plaintiff's guilty plea does not act as a favorable termination of the prosecution for the Plaintiff. Ortega v. City & Cnty. of Denver, No. 11-cv-02394-WJM-CBS, 2013 WL 359934, at *7 & n.5 (D. Colo. Jan. 30, 2013); see also Land v. Hill, 644 P.2d 43, 45 (Colo. App. 1981). Thus, Magistrate Judge Watanabe recommended the dismissal of Plaintiff's malicious prosecution claims based on the simple fact that Plaintiff cannot establish that the prosecution in question terminated in his favor. (Doc. # 156 at 23.)

Additionally, the Prosecutor Defendants contend that "a claim for malicious prosecution, false arrest or false imprisonment is not available to a defendant [who] successfully completes the deferred judgment." Prosecutors' Motion [#273] at 7 (citing Land v. Hill, 644 P.2d 43, 45-46 (Colo. App. 1981)). It is true that "the favorable termination of some but not all individual charges does not necessarily establish the favorable termination of the criminal proceeding as a whole."

52 AM.JUR.2d, Malicious Prosecution, § 28. Second, while malicious prosecution actions generally will not lie unless the underlying criminal action was terminated in the plaintiff's favor, see Land v. Hill, 644 P.2d 43, 45 (Colo.App. 1981), the rule must be set aside where a defendant in a malicious prosecution action was so successful in his artifice that the plaintiff was actually wrongfully convicted. See generally 52 AM.JUR.2d, Malicious Prosecution, § 29 (observing that prior verdict against plaintiff in malicious prosecution action is conclusive of probable cause for prosecution, "unless it is shown to have been procured by fraud"); RESTATEMENT, SECOND, TORTS, § 667 (same).

The cases in Colorado that have addressed the issue of whether a settlement should be construed as a favorable termination have held that the termination of a criminal matter resulting from negotiation, compromise, settlement, or agreement is not considered a favorable termination. Schenck v. Minolta Office Sys., Inc., 802 P.2d 1131 (Colo.App. 1990); Land v. Hill, 644 P.2d 43 (Colo.App. 1981); see also Bell Lumber Co. v. Graham, 74 Colo. 149, 219 P. 777 (1923). Hewitt and VPA argue that the policy reasons for barring a malicious prosecution claim where the underlying criminal action was terminated by settlement do not apply where the prior action was civil.

People v. Wilson, supra. Cf. Land v. Hill, 644 P.2d 43 (Colo.App. 1981) (defendant who successfully completes deferred judgment may not file malicious prosecution action). See generally Annot., 76 A.L.R.3d 1028 (1977).