State v. Smith

2018 UT App 28

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JONATHAN DENARD SMITH,
Appellant.

Opinion
No. 20151033-CA
Filed February 15, 2018

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151900912

Amy N. Fowler, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Jonathan Denard Smith appeals the sentences resulting
from his guilty pleas for one count of damage to jail property, a
third degree felony, and one count of attempted damage to jail
property, a class A misdemeanor. He was sentenced on these
two offenses without his counsel present because the district
court determined that, for purposes of sentencing, Smith had
voluntarily and knowingly waived his right to counsel. Smith
argues that the court erred in that determination. We agree and
therefore vacate Smith’s sentences and remand for further
proceedings.
 State v. Smith

BACKGROUND

¶2 While Smith was in custody, two charges relevant to this
appeal were filed against him—one for propelling a substance at
an officer in January 2015, a class A misdemeanor (Case One),
and one for damaging jail property in April 2015, a third degree
felony (Case Two) (collectively, the Cases). After an attorney
from Salt Lake Legal Defender Association (LDA) withdrew on
the basis of a conflict, a second attorney was appointed as
Smith’s attorney for the Cases.

¶3 The second attorney negotiated a plea deal in which
Smith would plead guilty as charged on Case Two, and the
charge underlying Case One would be amended to attempted
damage to jail property, a class A misdemeanor. In exchange, the
State promised to dismiss another charge that it had filed against
Smith and agreed to release him from custody. Smith pleaded as
negotiated, and during the May 2015 plea hearing, the court
accepted his plea and ordered his pre-trial release.

¶4 Smith was rearrested and placed in custody on other
charges in mid-August 2015. 1 Another LDA attorney—Smith’s
third—was appointed to represent him on the new charges, but
that attorney also withdrew. In late September 2015, the court
arranged for conflict counsel (Attorney) to be appointed on all of
Smith’s cases.

¶5 In late October 2015, Smith, through Attorney, moved to
withdraw his guilty pleas in the Cases, and the court set the
matter for a hearing on November 10, 2015. The court noted that,

1. The charges that led to Smith’s initial custody before the
Cases, and the charges filed subsequent to those cases, are not
the subject of this appeal. We refer to them only for clarity in the
narrative.

20151033-CA 2 2018 UT App 28
 State v. Smith

in the event Smith’s motion to withdraw his pleas was denied,
“sentencing may be addressed” at the November hearing.

¶6 One week before the November hearing, Attorney sought
to withdraw as Smith’s appointed counsel on the ground that a
conflict existed. Attorney asserted that during a visit to Smith at
the correctional facility, Smith became “hostile and
argumentative” and threatened him with physical harm. On
November 5, 2015, the court granted Attorney’s motion to
withdraw and ordered LDA to appoint new conflict counsel.
However, as of the November 10, 2015 hearing, LDA had yet to
assign new counsel, and no counsel appeared on Smith’s behalf.
Nonetheless, the hearing proceeded.

¶7 The court began the hearing by explaining that, although
five total cases were pending against Smith, the hearing’s
primary purpose was to address Smith’s motion to withdraw his
pleas in the Cases and, depending on the outcome of that
motion, to potentially sentence him for those cases. After the
court stated for the record that Attorney had withdrawn and
that it had ordered LDA to appoint new counsel for Smith, the
State requested that the court determine that Smith had forfeited
his right to counsel for the Cases. According to the State, Smith
had fired “every attorney who gives him advice he doesn’t like,
culminating [in] threatening physical violence against
[Attorney].” In the alternative, the State requested at minimum
that the court warn Smith “of the dangers of representing
himself and of the behaviors that are inappropriate in interacting
with future counsel” so that if Smith “continue[d] in this line of
behavior, he will recognize that he is by his actions waiving his
right to have an attorney going forward.”

¶8 The court did not determine that Smith had forfeited his
right to counsel for the Cases. Instead, the court outlined for the
record Smith’s history with counsel across the “various cases”
pending against him and then attempted to have a discussion

20151033-CA 3 2018 UT App 28
 State v. Smith

with Smith regarding his understanding about what it would
mean to represent himself. The court took a comprehensive
approach. It explained to Smith that if he were sentenced to the
maximum punishment for all the charges filed against him in all
of his five pending cases, he could be “potentially ordered to
serve 162 years in prison” and “face tens of thousands of dollars
in monetary penalties.”

¶9 The court also attempted to ask Smith questions relevant
to his understanding of the risks associated with generally
representing himself in all of his cases. For example, the court
asked Smith about his legal knowledge, whether he had ever
represented himself in a criminal proceeding, whether he
realized he would not receive any help “in terms of how the
cases would be tried,” whether he understood that he would be
expected to follow the rules of procedure, and whether he
understood the difficulties inherent in representing himself in
front of a jury. Smith refused to provide responsive answers to
these questions, and, in large part, remained silent; indeed, the
court stated for the record, “Whether you understand it or not,
you are refusing to answer my question,” and thereafter noted
each instance Smith refused to answer. In conclusion, the court
advised Smith to “be represented by an attorney,” stating that it
“strongly urge[d] [Smith] to accept representation from the next
lawyer who’s going to be appointed to represent” him.

¶10 At the conclusion of the court’s attempted colloquy with
Smith, the State again asked the court to warn Smith “about
what behaviors are inappropriate and would result in a waiver
of his right to counsel.” The court began to do so, explaining to
Smith that he had gone through “four excellent lawyers” by
interfering with their ability to represent him, but Smith
interrupted the court and proposed,

All right. Since today is sentencing on the other
two cases, how about this? I don’t need no lawyer

20151033-CA 4 2018 UT App 28
 State v. Smith

for that. Sentence me. Send me to the Utah State
Prison. Let me get comfortable. And I’ll fight those
cases from there. Do you agree? That way I don’t
have to deal with getting no more charges or no
more none of that. I can do my time the way I do
my time and you ain’t got to worry about that.

¶11 In response, the district court attempted to verify that
Smith indeed wished to represent himself for sentencing
purposes in the Cases; the court asked Smith several times
whether he wanted to be sentenced that day, whether he wanted
to represent himself for sentencing in the Cases, and whether he
had “heard everything” the court told him about representing
himself. Each time, Smith demanded that the court sentence him.

¶12 The court ultimately denied Smith’s motion to withdraw
his pleas, found that Smith had chosen to represent himself and
to be sentenced in the Cases, and then proceeded to sentencing.
The court asked the State for its input, and the State
recommended that Smith be committed to prison, noting that
while the sentencing “matrix would not usually recommend
prison[,] . . . [Smith’s] behavior precludes an option of
probation.” The court then asked Smith if he had “anything else
[he] want[ed] to say,” and Smith responded, “No, I don’t.”

¶13 The court sentenced Smith to prison for zero to one year
for Case One, and zero to five years for Case Two. It ordered the
sentences to run consecutively and recommended that Smith not
receive credit for time served. Smith appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Smith argues that the district court erred by concluding
that he voluntarily, knowingly, and intelligently waived his right
to counsel. Whether Smith “voluntarily, knowingly, and
intelligently waived his right to counsel is a mixed question of

20151033-CA 5 2018 UT App 28
 State v. Smith

law and fact.” State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716.
We will review the court’s conclusions of law for correctness and
will reverse the court’s factual findings only if they are clearly
erroneous. Id.

¶15 Smith also argues that the district court abused its
discretion by sentencing him to prison instead of probation.
While we ordinarily review sentencing decisions for abuse of
discretion, see State v. Karren, 2017 UT App 163, ¶ 2, 405 P.3d 825
(per curiam), we do not reach Smith’s arguments regarding the
propriety of his sentences here because we vacate those
sentences on other grounds as explained below.

ANALYSIS

I. The Law of Waiver

¶16 Smith challenges the court’s determination that he waived
his right to counsel for purposes of sentencing in the Cases.
“Under both the United States and Utah Constitutions, a
criminal defendant has the right to assistance of counsel,” State v.
Hall, 2013 UT App 4, ¶ 25, 294 P.3d 632, which includes the right
to effective counsel for sentencing proceedings, State v. Casarez,
656 P.2d 1005, 1007 (Utah 1982). “Concomitant with that right is
the criminal defendant’s guaranteed right to elect to present his
own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695; see
also State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (“Defendants
also have the right to waive their right to counsel.”). Because the
right to counsel and the right to waive counsel are mutually
exclusive, “a trial court must be vigilant to assure that the choice
[to waive counsel] is freely and expressly made ‘with eyes
open.’” State v. Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799 (quoting
Faretta v. California, 422 U.S. 806, 835 (1975)). “Before permitting
a defendant to [waive the right to counsel], . . . a trial court
should ensure that the waiver is voluntary, knowing, and
intelligent.” Pedockie, 2006 UT 28, ¶ 26. If there are any doubts

20151033-CA 6 2018 UT App 28
 State v. Smith

regarding the defendant’s understanding of the consequences of
waiver, those doubts “must be resolved in favor of the
defendant.” Id. ¶ 45.

¶17 There are three methods through which a defendant may
validly waive his right to counsel—true waiver, implied waiver,
and forfeiture. See id. ¶ 27. Here, the dispute centers on true
waiver. Smith contends that he did not provide a true waiver of
counsel for sentencing in the Cases, while the State contends that
he did.

¶18 A true waiver is one in which the defendant affirmatively
represents that he wishes to proceed without counsel. Id. ¶ 28.
First, for such waiver to be valid, the district court “must be
assured that a defendant has clearly and unequivocally
requested the right to proceed pro se.” Hassan, 2004 UT 99, ¶ 22
(brackets, citation, and internal quotation marks omitted); see also
Bakalov, 1999 UT 45, ¶ 16 (stating that “[t]o invoke the right of
self-representation, a defendant must in a timely manner ‘clearly
and unequivocally’ request it” (quoting United States v. McKinley,
58 F.3d 1475, 1480 (10th Cir. 1995))).

¶19 Second, the court must be assured that the defendant’s
choice is knowingly and intelligently made, meaning that the
defendant has “actual awareness of the risks of proceeding pro
se” under the particular facts and circumstances at hand. See
Hassan, 2004 UT 99, ¶ 22 (citation and internal quotation marks
omitted); see also State v. Frampton, 737 P.2d 183, 188 (Utah 1987)
(stating that, for the waiver to be knowing and intelligently
made, a defendant must understand “the relative advantages
and disadvantages of self-representation in a particular
situation” (citation and internal quotation marks omitted)). Our
supreme court has instructed that the “most reliable way for a
trial court to determine whether a defendant is aware of the
dangers and disadvantages of self-representation is to engage in
a colloquy on the record.” Pedockie, 2006 UT 28, ¶ 29; see also

20151033-CA 7 2018 UT App 28
 State v. Smith

Frampton, 737 P.2d at 187 (explaining that determining whether a
defendant’s waiver is knowing and intelligent can generally
“only be elicited after penetrating questioning by the trial court”
and that “a colloquy on the record between the court and the
accused is the preferred method of ascertaining the validity of a
waiver”). For example, in Frampton, the court set out a sixteen-
point inquiry to assist and guide courts in their determinations
of whether a defendant’s waiver is knowing and intelligent, see
737 P.2d at 187 n.12, and since then it has encouraged district
courts to conduct an inquiry based on the Frampton factors, see,
e.g., Pedockie, 2006 UT 28, ¶¶ 42, 45; Bakalov, 1999 UT 45, ¶¶ 23–25.

¶20 Nonetheless, “the validity of a waiver [does not] turn . . .
on whether the trial judge actually conducted the colloquy, but
rather ‘upon the particular facts and circumstances surrounding
each case.’” Hassan, 2004 UT 99, ¶ 22 (quoting Frampton, 737 P.2d
at 188); see also id. (“Beyond the colloquy, we will look at any
evidence in the record which shows a defendant’s actual
awareness of the risks of proceeding pro se.” (citation and
internal quotation marks omitted)); State v. Drobel, 815 P.2d 724,
733 (Utah Ct. App. 1991) (explaining that “the Frampton colloquy
alone cannot form the basis for granting a self-representation
request when other information available to the trial court
suggests that the request may not be knowingly and intelligently
made”). Ultimately, the crucial determination that must be made
is “whether the defendant understood the consequences of
waiver,” regardless of whether a district court conducts the
colloquy. See Pedockie, 2006 UT 28, ¶ 45. But see id. (anticipating
“that reviewing courts will rarely find a valid waiver of the right
to counsel absent a colloquy” conducted by the district court).

II. The Arguments on Appeal

¶21 Smith contends that he did not provide a true waiver for
two reasons. First, he asserts that he “did not make an
unequivocal request to represent himself.” Second, he asserts

20151033-CA 8 2018 UT App 28
 State v. Smith

that any alleged waiver was not “knowingly and intelligently”
made.

¶22 First, we disagree with Smith’s assertion that he did not
unequivocally request to represent himself for sentencing
purposes in the Cases. Smith exhibited awareness that he stood
to be potentially sentenced that day for the Cases and that,
though no counsel was present to represent him, he had the
right to be represented for the sentencing. Indeed, Smith himself
proposed to forgo counsel for sentencing in the Cases,
requesting instead that the district court sentence him that day.
Thereafter, Smith repeatedly demanded to be sentenced in
response to the court’s admonition that he wait for counsel and
its multiple inquiries regarding whether he wanted to be
sentenced that day, whether he wanted to represent himself for
sentencing in the Cases, and whether he had heard “everything”
the court told him about representing himself. Smith’s repeated
demands in response to the court’s questions left little room for
interpretation about his desire to be sentenced at the hearing
without the benefit of counsel. See generally State v. Bakalov, 1999
UT 45, ¶ 16, 979 P.2d 799 (explaining that the request for self-
representation must be clear and unequivocal, and describing
what is to be guarded against by requiring that the request for
self-representation be explicit).

¶23 Nevertheless, although we conclude that Smith’s waiver
was voluntary, we cannot conclude that it was knowing and
intelligent. In particular, the record leaves us with doubts about
whether Smith understood the risks he faced proceeding pro se
for sentencing, and given “the strong presumption against
waiver and the fundamental nature of the right to counsel,”
these doubts must be resolved in Smith’s favor. See State v.
Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716.

¶24 To begin with, even though the court attempted to
conduct a Frampton colloquy with Smith, the outcome was

20151033-CA 9 2018 UT App 28
 State v. Smith

unsuccessful. Smith refused to engage with the court and
responsively answer the court’s questions. For most of the
colloquy, Smith was silent, and the court itself acknowledged
that Smith’s refusal to respond left uncertainty about his
understanding of the risks he would face representing himself.
And when Smith did respond, his answers were largely
nonresponsive to the questions posed. For example, when the
court asked Smith to talk about his legal knowledge, he
responded that it “doesn’t matter,” and when the court asked
whether he had ever represented himself in a criminal action,
Smith asked, “What is this relevant to?” and thereafter rebuffed
the court’s attempts to redirect the question.

¶25 Further, and more importantly, even had Smith engaged
with the court’s attempted colloquy, we cannot discern from the
court’s interaction with him whether he understood the risks he
undertook in choosing to represent himself at sentencing for the
Cases. There is no evidence that Smith was informed of the risks
associated with representing himself for sentencing purposes.
The court did not ask questions aimed specifically toward
determining Smith’s understanding of what it would mean to
waive counsel for sentencing in the Cases. See State v. Frampton,
737 P.2d 183, 188 (Utah 1987) (explaining that a defendant must
understand “the relative advantages and disadvantages of self-
representation in a particular situation” (emphasis added)
(citation and internal quotation marks omitted)); see also State v.
Hassan, 2004 UT 99, ¶ 22, 108 P.3d 695 (emphasizing that the
“validity of a waiver would turn not on whether the trial judge
actually conducted the colloquy,” but whether “the particular
facts and circumstances surrounding [the] case” demonstrated
“a defendant’s actual awareness of the risks of proceeding pro
se” (citations and internal quotation marks omitted)); cf. State v.
Cabrera, 2007 UT App 194, ¶ 11, 163 P.3d 707 (stating that
sentencing is considered a “critical stage of criminal proceedings
at which a defendant is entitled to the effective assistance of
counsel” (citation and internal quotation marks omitted)).

20151033-CA 10 2018 UT App 28
 State v. Smith

Instead, the court’s attempted colloquy comprehensively
addressed all five of the cases then pending against Smith. For
example, the court informed Smith that he was facing twenty-
four charges of varying degree across those five cases, and it
explained to him that if he received the maximum punishment
for each, he could potentially be ordered “to serve 162 years in
prison” and could face “tens of thousands of dollars in monetary
penalties.” The court also asked several questions related to
what it would mean for Smith to defend himself at trial in his
cases—questions obviously aimed at the pending charges to
which he had not yet pleaded guilty rather than questions
relevant to self-representation at his sentencing in the Cases.

¶26 Moreover, the record does not resolve the doubts
regarding Smith’s understanding about the consequences of
waiving his right to counsel at sentencing. See Pedockie, 2006 UT
28, ¶¶ 42, 45. There is no evidence in the record suggesting that
Smith otherwise understood the value imparted by
representation during sentencing or what he would risk by
proceeding without it. See generally Cabrera, 2007 UT App 194,
¶¶ 11, 18. Smith told the court that he did not need a lawyer for
sentencing, repeatedly demanded to be sentenced at the hearing,
and seemed to appreciate both that he was proceeding pro se
only as to sentencing in the Cases and that he faced a potential
prison sentence. But his various statements suggest that he
simply presumed he was going to be sentenced to prison and
that an attorney would therefore be of no help to him. Similarly,
there is no evidence from which we could conclude that Smith
understood the various matters germane to a sentencing
proceeding, such as whether certain evidence militated against
imposing the maximum available penalty for the convictions. See
generally State v. Johnston, 2009 UT App 136, ¶ 13, 210 P.3d 973
(“Assistance of counsel at sentencing is necessary so that there is
a real opportunity to present evidence of mitigating
circumstances.”). Indeed, this lack of comprehension is evident
in Smith’s response to the court’s question of whether he had

20151033-CA 11 2018 UT App 28
 State v. Smith

“anything else [he] want[ed] to say” before the court
pronounced the sentences. Rather than offer the court mitigating
evidence in response to the State’s argument that probation
would not be appropriate, for example, see generally id., Smith
tersely told the court that he did not have anything more to add.

¶27 For these reasons, we cannot conclude that Smith’s waiver
of counsel for sentencing in the Cases was knowingly and
intelligently made. We therefore vacate Smith’s sentences and
remand for resentencing. 2

CONCLUSION

¶28 We conclude that, although Smith clearly expressed a
desire to be sentenced without the benefit of counsel, his waiver

2. At oral argument before this court, Smith contended that it
was error as a threshold matter for the district court to proceed
with the November 2015 hearing given that Smith, although
waiting for the appointment of new counsel, was still a
represented party. Smith argued that the court should not have
engaged with him and instead should have continued the
proceeding until after new counsel was appointed. Because this
issue was not briefed, we do not address it on its merits. See State
v. Ojeda, 2015 UT App 124, ¶ 11 n.5, 350 P.3d 640 (“We will not
reverse based on an unbriefed argument raised for the first time
at oral argument.” (citation and internal quotation marks
omitted)). Nevertheless, we are troubled that the State invited
the court to address—and that the court did ultimately
address—substantive issues with Smith without counsel being
present and before Smith had suggested that he wanted to
proceed pro se. At the very least, the better course of action
would have been to continue the hearing until the assigned
attorney had entered his or her appearance and was prepared to
proceed.

20151033-CA 12 2018 UT App 28
 State v. Smith

was not sufficiently knowing and intelligent to be valid. We
vacate Smith’s sentences and remand for further proceedings
consistent with this opinion.

¶29 Further, because we are vacating his sentences and
remanding this case, we have no occasion to address Smith’s
argument that the court exceeded its discretion in sentencing
Smith to prison rather than placing him on probation.

20151033-CA 13 2018 UT App 28