State v. Bozarth , 2021 UT App 117 ( 2021 )

2021 UT App 117THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
EDDIE RAY BOZARTH,
Appellant.
Opinion
No. 20190397-CA
Filed November 4, 2021
Fifth District Court, Beaver Department
The Honorable Keith C. Barnes
No. 171500096
Leah Jordana Aston, Attorney for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 The police responded to a report that parolee Eddie Ray
Bozarth was acting erratically and might be using drugs.
Bozarth’s parole officer (the parole officer) directed police to
search Bozarth’s bedroom, where they discovered drugs and
associated paraphernalia. Bozarth was charged with multiple
crimes, and the district court appointed counsel (counsel) to aid
his defense. Unhappy with counsel’s representation, Bozarth
elected to represent himself, assisted by a new attorney (standby
counsel). With the help of standby counsel, Bozarth
unsuccessfully sought to suppress the evidence police had
seized during the search of his bedroom. Subsequently, Bozarth
pled guilty to misdemeanor drug possession. Bozarth now
appeals with the assistance of appellate counsel, arguing that the
State v. Bozarth
district court improperly denied his motion to suppress, that
standby counsel was constitutionally ineffective, and that the
court failed to ensure that Bozarth knowingly and intelligently
waived his right to counsel. We affirm.
BACKGROUND
¶2 One evening, dispatch received a call from Bozarth’s
mother (mother) who claimed Bozarth “was acting strangely and
crazy out in his yard.” Bozarth had been residing with mother
and she indicated that, due to Bozarth’s behavior over the prior
week, she suspected he had reverted to using drugs. Dispatch
relayed the information to a police deputy (the deputy) who was
familiar with Bozarth. The deputy immediately called the parole
officer.
¶3 The parole officer asked the deputy and the
accompanying corporal (the corporal) to check on Bozarth and
“make sure [mother] was okay.” In his almost eight years
working as Bozarth’s parole officer, the parole officer had never
received a call from mother, and he found it “very concerning.”
Because the parole officer “ha[d] concerns that there may be
drug use going on,” he also asked the deputy to contact him
again after assessing the situation to determine whether to
search Bozarth’s bedroom. The parole officer informed the
deputy that Bozarth’s parole agreement contained a search
clause, which reads,
Pursuant to state law . . . , while I am on parole I
am [s]ubject to search and seizure of my person,
property, place of temporary or permanent
residence, vehicle, personal effects by any parole
officer or by any other law enforcement officer at
any time (with or without a search warrant, and
with or without cause)[]; however a law
enforcement officer who is not my parole officer
20190397-CA 2 2021 UT App 117State v. Bozarth
must either have prior approval from a parole
officer or have a warrant for a search of, or seizure
from, my residence.
¶4 Upon arriving at mother’s residence, the police found
Bozarth in the driveway acting in a way they described as
excited, aggressive, and confrontational. The police exited their
vehicles and informed Bozarth they were “just there to check on
him and make sure everything was okay.” Bozarth proceeded to
rush quickly toward the corporal, “getting in his face,” and the
corporal ordered Bozarth to stop. Due to Bozarth’s agitated state
and their knowledge of his history of fighting with officers, the
police proceeded to handcuff him. The corporal suspected
Bozarth was acting under the influence of drugs, so the corporal
shined a flashlight in Bozarth’s eyes and observed that his pupils
reacted only slightly to the light, an indication that he might be
“using some type of stimulant.” When the corporal headed
inside to check on mother, the deputy remained outside with
Bozarth, as he struggled and yelled continuously.
¶5 Mother invited the corporal into her home. According to
the corporal, although mother was “obviously upset,” she
confirmed that she was safe and unharmed. Mother then
reiterated her concerns that Bozarth had relapsed and that she
feared his increasingly aggressive behavior. At that point, the
corporal contacted the parole officer and apprised him that
Bozarth appeared to be on drugs. The parole officer asked the
corporal to search Bozarth’s room. Mother likewise authorized
the corporal to “check anywhere and anything that [he]
wanted.”
¶6 When the corporal entered Bozarth’s bedroom, he saw
“tinfoil, a glass pipe with burnt residue in it, and a straw that
had a crystalline substance inside it” sitting on top of a rolltop
desk. Based on the corporal’s training and experience, he
surmised that the items were drug paraphernalia and that the
20190397-CA 3 2021 UT App 117State v. Bozarth
substance inside the pipe was methamphetamine. Bozarth was
booked into jail on possession of a controlled substance with
priors, a third-degree felony; possession of drug paraphernalia, a
class B misdemeanor; and disorderly conduct, a class C
misdemeanor.
¶7 At the initial hearing, the district court informed Bozarth
of his charges and the associated maximum and minimum
sentences. Because Bozarth had applied for a public defender,
the court appointed counsel to assist with Bozarth’s defense.
Bozarth, however, told the court: “[I] reserve the right to retake
the helm and control my own destiny if I need to if [counsel]
does not assert my will upon my defense.”
¶8 At the pretrial conference, counsel indicated that Bozarth
wanted the case to go in a direction that counsel believed was
not in Bozarth’s best interest. Counsel petitioned the court “to
determine whether Mr. Bozarth needs to represent himself.” The
district court then explained counsel’s role, and Bozarth
requested legal materials so he could do his own research to
“verify” the credibility of legal printouts provided by counsel.
Jail personnel and counsel offered to make arrangements for
Bozarth to obtain legal books, and the court set the case for a
review hearing to give Bozarth and counsel time to determine
how to proceed.
¶9 Two weeks later, counsel told the court,
[I]t is my understanding Mr. Bozarth would like to
represent himself from now on. I have indicated to
him his options. And I find Mr. Bozarth to be more
educated in the law than other people. He’s
cognizant of what his rights are. . . . It’s my
understanding that Mr. Bozarth would still like to
represent himself.
....
20190397-CA 4 2021 UT App 117State v. Bozarth
. . . Mr. Bozarth, as you can tell, he’s educated.
He knows the law to some degree. He’s very well
versed to some degree.
The court then asked Bozarth, “Do you want [counsel] aboard or
not?” To which Bozarth responded, “I do not. I want to represent
myself.” The court acknowledged Bozarth’s position, and
Bozarth continued, “I would like assistance. . . . I would like
assistance of counsel. Assistance. That means when I ask for law
it doesn’t take me three months to get the constitution.” Bozarth
claimed that he had limited access to legal materials, but jail
personnel refuted that statement, insisting Bozarth had never
asked to access the jail library that was available to him.
Additionally, counsel disclosed that he had delivered two books
of court rules and procedure for Bozarth’s use. Bozarth asked for
more materials, the rules of professional conduct, and the rules
of judicial conduct, asserting, “I am entitled to all the laws,
because all the laws are applied to me. I am entitled to read
them, study them, have knowledge[,] be able to write proper
meaningful papers to the court.”
¶10 After hearing from all parties—but without conducting a
specific colloquy with Bozarth designed to ascertain whether
Bozarth’s waiver of his right to counsel was knowing and
voluntary—the court appointed standby counsel “on a limited
basis to assist” Bozarth. The court also conferred with jail
personnel to ensure that Bozarth had access to legal materials.
Bozarth indicated that he intended to file a motion to suppress
and attempted to give the court documents relating to
accusations he had against jail personnel. In response, the court
described how it receives information, explaining,
So you need to realize that you are representing
yourself. . . . [Y]ou need to file the appropriate
documents. Usually, they are called a motion. And
20190397-CA 5 2021 UT App 117State v. Bozarth
then the other party has a right to respond. Then
you have a right to reply.
....
. . . And then there’s going to be a notice to
submit filed to the court. And then that will let the
court know what [action] the court needs to take.
Bozarth expressed frustration that he could not give documents
directly to the court and requested additional direction but was
told, “[The court] can’t instruct you now that you are going to be
representing yourself.”
¶11 Bozarth next attended court for a status hearing a few
months later. Standby counsel shared concerns that Bozarth
misunderstood the role of standby counsel because Bozarth was
asking standby counsel to file civil claims against the county.
The court clarified to standby counsel, “Bozarth’s going to be
representing himself, but you are there to advise him” on the
criminal charges stemming from the search of his bedroom.
Turning to Bozarth, the court explained, “[Y]ou are representing
yourself, but you have [standby counsel] on your side.” And it
followed up by asking,
[W]hat role do you want [standby counsel] to play
in your criminal case? . . . [A]re you wanting
[standby counsel] to be . . . the one that is going to
be presenting opening, closing, asking questions at
trial, and you are going to be quiet, or are you
going to be the one that is, that’s taking the lead?
Bozarth declared, “I’ll proceed with my own. Because I am going
to ask the questions . . . . As I told you, you assigned him to be
my assistant, my assistant.” The court reiterated that standby
counsel was available should Bozarth need assistance, but
Bozarth was in charge of his representation. To this, Bozarth
20190397-CA 6 2021 UT App 117State v. Bozarth
said, “Correct. And that’s what I had the impression of also.”
The court proceeded to remind Bozarth that standby counsel
was assisting on a limited basis and did “not have any legal
responsibility” to help with items pertaining to civil claims or
other criminal complaints.
¶12 The parties then discussed Bozarth’s intention to file a
motion to suppress. Because the trial date was approaching, the
court informed Bozarth that the State “has a right to respond to
[the motion] within a two-week period of time.” In order to file
the suppression motion and have an evidentiary hearing,
Bozarth agreed to postpone trial. The court proceeded to confirm
that Bozarth had all the relevant evidence needed for the
suppression hearing and trial. The State alerted the court that it
had insufficient evidence to proceed with the second and third
charges and consequently, it would only be trying Bozarth for
possession of a controlled substance with priors. The State also
informed Bozarth it would be willing to accept a plea on the
remaining charge and made an offer to resolve the case. Bozarth
declined.
¶13 A week before the evidentiary hearing, Bozarth filed his
motion to suppress the evidence seized from his bedroom. The
limited lead time precluded the State from responding to the
motion in writing. Nevertheless, the parties wished to proceed
with the hearing, with briefing to follow. The court instructed
standby counsel to file a memorandum supporting Bozarth’s
suppression motion, as requested by Bozarth, within a month.
And the court also took some time to explain to Bozarth how the
briefing schedule would work and what each filing would look
like.
¶14 The evidentiary hearing proceeded with the parole
officer, the deputy, the corporal, and finally Bozarth, all
testifying to the facts surrounding the search. Before the first
witness was called, the court described the process for the
20190397-CA 7 2021 UT App 117State v. Bozarth
hearing and told Bozarth what would be required of him,
including adherence to the rules of evidence, and how standby
counsel could assist. As the hearing began, Bozarth invoked the
exclusionary rule, requesting that testifying individuals remain
outside the courtroom when not testifying. Bozarth then
conducted the majority of the hearing with standby counsel
providing objections, procedural direction, and other support as
necessary. The crux of Bozarth’s argument was that the police
conducted an improper search under the Fourth Amendment
because he had not authorized them to search his bedroom.
¶15 Shortly after the hearing, standby counsel requested, and
was granted, a one-week extension for filing the memorandum
in support of Bozarth’s suppression motion. Inexplicably, the
memorandum was not filed for another three months. In the
interim, Bozarth mailed a variety of handwritten motions and
other miscellaneous documents to the court; many of them
included complaints about standby counsel.
¶16 Some three months after the tardy memorandum was
filed, the parties returned to court for a ruling on the motion to
suppress. At the outset of the hearing, Bozarth addressed the
court to complain about standby counsel’s delayed
memorandum. The court then proceeded to issue its ruling,
denying the motion to suppress for three alternative reasons.
First, after finding that the corporal had searched Bozarth’s
bedroom only upon instruction from the parole officer, the court
concluded that Bozarth’s parole agreement authorized a
suspicionless search. Second, the court concluded that the search
had been authorized because mother, the homeowner, consented
to the search. Third, the court determined that even if a parole
search required justification, there had been “reasonable
suspicion and probable cause to conduct a search” based on the
facts. Accordingly, the court set a trial date.
20190397-CA 8 2021 UT App 117State v. Bozarth
¶17 The next month, Bozarth filed a motion to terminate
standby counsel and appoint new counsel to assist his defense.
In the motion, Bozarth listed grievances with standby counsel
that Bozarth claimed denied him effective assistance of counsel.
The court denied the motion after finding standby counsel had
been “attendant” and acting with Bozarth’s “best interests at
heart.” Of his own accord, Bozarth terminated standby counsel
and opted to proceed without assistance.
¶18 Bozarth then proceeded to negotiate a plea agreement in
open court. Under the agreement, Bozarth would plead to a
reduced class A misdemeanor with one-year jail time and credit
for the eighteen months served, reserving his right to appeal all
prior objections including those based on ineffective assistance
of counsel. Bozarth told the court that he wanted “to reserve all
those objections . . . that I have made, I don’t want to waive any
of those, . . . [l]ike, ineffective assistance of counsel and some of
that other stuff I want to revisit. . . . So I’m trying to reserve
those.” The State agreed to Bozarth’s terms, and he signed a
statement pleading no contest to the reduced charge. Below his
signature, Bozarth added a handwritten note that he was
“[r]eserving the rights to appeal prior court rulings and pursue
legal remedies in civil court.” Bozarth now appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Bozarth, through appellate counsel, raises three grounds
for reversal. First, he argues that the district court erred in
denying his motion to suppress. The “decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation”
comprises a mixed question of law and fact. State v. Mikkelson,
2016 UT App 136, ¶ 5, 379 P.3d 54 (cleaned up). We review the
district court’s factual findings for clear error and its legal
conclusions for correctness, affording no deference to the district
court’s application of law to the facts “[b]ecause this case
20190397-CA 9 2021 UT App 117State v. Bozarth
involves a search and seizure.” State v. Alverez, 2005 UT App 145,
¶ 8, 111 P.3d 808, aff’d, 2006 UT 61, ¶ 8, 147 P.3d 425.
¶20 Second, Bozarth argues that standby counsel rendered
ineffective assistance by filing the memorandum in support of
his motion to suppress nearly four months late. The State
contends that this claim is not properly before this court because
it falls outside the contours of Bozarth’s conditional guilty plea.
We evaluate this issue as a question of law because it is “raised
for the first time on appeal” with “no lower court ruling to
review.” See Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d
587.
¶21 Third, Bozarth argues he did not knowingly and
intelligently waive his right to counsel and thus, the district
court erred in allowing him to represent himself. Whether
Bozarth’s waiver was knowing and intelligent involves a mixed
question of law and fact “which we review for correctness, but
with a reasonable measure of discretion given to the [district]
court’s application of the facts to the law.” See State v. Valencia,
2001 UT App 159, ¶ 11, 27 P.3d 573 (cleaned up).
ANALYSIS
I. Motion to Suppress
¶22 Bozarth first challenges the district court’s denial of his
motion to suppress the evidence police seized during the search
of his bedroom. In particular, Bozarth contends the court’s
denial of the motion should be reversed because (1) “the officers
did not have reasonable suspicion” to conduct a warrantless
search of his bedroom, and (2) “mother did not have authority to
consent to a search of [Bozarth’s] private room.” But the district
court denied Bozarth’s motion to suppress on three independent
grounds, and “failure to challenge one of the district court’s
independent grounds leaves us with no basis for reversal and
20190397-CA 10 2021 UT App 117State v. Bozarth
thus no choice except to affirm.” See State v. Rigby, 433 P.3d 803,
803 (Utah 2018) (cleaned up).
¶23 Bozarth’s motion to suppress was first denied on the
ground that a suspicionless search was proper under the terms
of his parole agreement. The court found that Bozarth was on
parole and subject to an agreement authorizing law enforcement
to execute warrantless searches “with or without cause” so long
as police obtained “prior approval from a parole officer.”
(Quoting Utah Code Ann. § 77-23-301.) The court further found
that Bozarth had signed the parole agreement and thereby
consented to its search and seizure provisions. Finally, the court
concluded that the parole officer had instructed the police to
search Bozarth’s bedroom and that the police had complied with
the parole agreement in conducting the search.
¶24 On appeal, Bozarth fails to challenge the main basis for
denial—the propriety of the search under his parole agreement.
Bozarth’s opening brief addresses only the district court’s two
alternative bases for denying the motion to suppress. And at oral
argument, Bozarth provided no response when directly asked
whether the search was proper under the parole agreement.
¶25 “Our rules of appellate procedure place the burden on the
appellant to identify and brief any asserted grounds for reversal
of the decision below.” Kendall v. Olsen, 2017 UT 38, ¶ 12, 424
P.3d 12 (citing Utah R. App. P. 24(a)(5), (9)). Where an appellant
fails to challenge each independent basis for the district court’s
ruling, we affirm without reaching the merits of the decision. Id.
¶ 9; see also In re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (“We
will not reverse a ruling of a lower court that rests on
independent alternative grounds where the appellant challenges
less than all of those grounds.” (cleaned up)). The circumstances
here dictate that result.
¶26 But even were we to construe Bozarth’s arguments as
claiming that a search predicated on the parole agreement
20190397-CA 11 2021 UT App 117State v. Bozarth
requires reasonable suspicion, his arguments would still fail.
“[T]he Fourth Amendment does not prohibit a police officer
from conducting a suspicionless search of a parolee.” Samson v.
California, 547 U.S. 843, 857 (2006). “[P]arolees . . . have severely
diminished expectations of privacy by virtue of their status
alone.” Id. at 852. A search conducted under the terms of a “clear
and unambiguous search condition” within a parole agreement
does not violate the Constitution. See id. at 846, 852. Here,
Bozarth’s parole agreement contained a search clause that
authorized law enforcement to search and seize property from
his residence after obtaining approval from a parole officer. The
district court found that Bozarth had signed the parole
agreement and consented to the search clause, and that the
police had initiated the search after being instructed to do so by
the parole officer. Under the circumstances presented here, we
find no merit in the notion that the police needed reasonable
suspicion to search Bozarth’s bedroom. Therefore, we affirm the
district court’s denial of the motion to suppress.
II. Ineffective Assistance of Standby Counsel
¶27 Bozarth next contends that standby counsel rendered
constitutionally ineffective assistance by filing the memorandum
in support of the motion to suppress several months late. The
State asserts that this claim is not properly before us because it
was not expressly reserved for appeal as part of Bozarth’s
conditional plea. We agree.
¶28 Bozarth argues that this issue was preserved because he
raised it before the district court when he complained about
standby counsel’s performance, including the tardy filing of the
memorandum. Bozarth further argues that, even if he did not
preserve the issue by raising it in a manner to allow the court to
rule on it, “ineffective assistance claims are not subject to the
preservation rule.” (Citing State v. Weaver, 2005 UT 49, ¶ 18, 122
P.3d 566.) But Bozarth misunderstands the State’s argument. The
20190397-CA 12 2021 UT App 117State v. Bozarth
question is not whether Bozarth preserved the issue for appellate
review by raising it below or whether an exception to the
preservation rule applies. The question is whether Bozarth
waived the issue by entering into a plea that was not
conditioned on his right to appeal that specific issue.
¶29 “The general rule applicable in criminal proceedings, and
the cases are legion, is that by pleading guilty, the defendant is
deemed to have admitted all of the essential elements of the
crime charged and thereby waives all nonjurisdictional defects,
including alleged pre-plea constitutional violations.” State v.
Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046. “This general rule
regarding forfeiture of appellate review . . . applies with equal
force to a defendant who enters an unconditional no contest
plea.” State v. Sery, 758 P.2d 935, 938 (Utah Ct. App. 1988). A
“plea acts as a waiver of earlier procedural flaws,” except where
the “errors affect the court’s jurisdiction or where claims of error
are expressly preserved for appeal.” Rhinehart, 2007 UT 61, ¶ 15.
¶30 A defendant may expressly reserve a non-jurisdictional
claim of error for appeal by entering a conditional plea pursuant
to rule 11(j) of the Utah Rules of Criminal Procedure. See Sery,
758 P.2d at 939. Rule 11(j) allows for appellate review of non-
jurisdictional, pre-plea issues only if three requirements are met:
(1) the court must approve the conditional plea, (2) the
prosecution must consent to the conditional plea, and (3) the
conditional plea must identify “the adverse determination of any
specified pre-trial motion” that is being reserved for appellate
review. Utah R. Crim. P. 11(j); see State v. Staats, 2002 UT App
341U, para. 2 (per curiam). “A defendant seeking appellate
review pursuant to a conditional plea bears the burden of
demonstrating that the conditional nature of the plea is
unambiguously established in the trial court record.” State v.
Bobo, 803 P.2d 1268, 1271 (Utah Ct. App. 1990).
20190397-CA 13 2021 UT App 117State v. Bozarth
¶31 In this case, Bozarth entered into a conditional plea of no
contest “[r]eserving the rights to appeal prior court rulings.”
Although the conditional plea did not identify any specific pre-
trial rulings reserved for appellate review, the State has not
contested Bozarth’s right to appeal the district court’s denial of
his motion to suppress. But there was no prior court ruling of
any kind on Bozarth’s ineffective assistance of counsel claim.
Bozarth voiced various complaints regarding standby counsel’s
performance prior to the entry of his plea, but never filed a pre-
trial motion seeking relief on that basis. As a result, the district
court made no pre-trial ruling that could be reviewed on appeal
pursuant to Bozarth’s conditional plea.
¶32 Bozarth argues that his conditional plea was not limited
to the right to appeal “prior court rulings” because he informed
the court that he wished to reserve “all those objections that I
made,” including his complaints of “ineffective assistance of
counsel.” But under rule 11(j), a defendant who enters a
conditional plea is limited to reserving the right to appeal “the
adverse determination of any specified pre-trial motion.” Rule
11(j) does not allow a defendant to enter a plea reserving the
right to appeal issues on which there has been no pre-trial
motion and, consequently, no adverse determination on such a
motion. Because a plea waives all non-jurisdictional issues
except those expressly reserved for appeal in accordance with
rule 11(j), Bozarth is procedurally barred from raising his
ineffective assistance of counsel claim.
III. Waiver of Right to Counsel
¶33 Lastly, Bozarth argues that he did not knowingly and
intelligently waive his right to counsel. “Under both the United
States and Utah Constitutions, a criminal defendant has the right
to assistance of counsel.” State v. Smith, 2018 UT App 28, ¶ 16,
414 P.3d 1092 (cleaned up). Implicit in the right to counsel is a
defendant’s right to forgo the assistance of counsel and instead
20190397-CA 14 2021 UT App 117State v. Bozarth
exercise the right to self-representation. State v. Pedockie, 2006 UT
28, ¶ 26, 137 P.3d 716. Relinquishment of the right to counsel
may occur in three ways: true waiver, implied waiver, or
forfeiture. Smith, 2018 UT App 28, ¶ 17. At issue here is true
waiver.
¶34 True waiver occurs when a defendant directly
communicates a desire to proceed pro se. Pedockie, 2006 UT 28,
¶ 28. To be a valid true waiver, the defendant must (1) “clearly
and unequivocally request self-representation” and (2) “act[]
knowingly and intelligently, being aware of the dangers inherent
in self-representation.” Id. ¶¶ 28–29 (cleaned up). Bozarth asserts
that his purported waiver fails on both accounts; namely, he
claims that he did not clearly request to represent himself and
did not act knowingly and intelligently. We address each
argument in turn.
A. Clear and Unequivocal Request for Self-Representation
¶35 First, Bozarth asserts that his communication to the court
was “confusing” and did not clearly and unequivocally request
self-representation. “To invoke the right of self-representation, a
defendant must . . . make an explicit request” that clearly
communicates an intention to waive the right to counsel. See
State v. Bakalov, 1999 UT 45, ¶ 16, 979 P.2d 799 (cleaned up). This
requirement ensures a defendant does not “unthinkingly waive
the right to counsel through sporadic musings” and also
prevents a defendant from mischaracterizing the statements he
made to the district court when the case is reviewed on appeal.
Id. “If a defendant equivocates in his request to represent
himself, he is presumed to have requested the assistance of
counsel.” Id.
¶36 When Bozarth waived his right to counsel he explicitly
stated, “I do not [want counsel]. I want to represent myself.”
After the court acknowledged Bozarth’s request, he then stated,
“I would like assistance of counsel. Assistance.” Bozarth argues
20190397-CA 15 2021 UT App 117State v. Bozarth
on appeal that his request for “assistance” represents an
equivocation in his intentions regarding self-representation. We
disagree.
¶37 In context, Bozarth’s statement that he “would like
assistance of counsel” was a request to have standby counsel
present in a supporting role, supplementing Bozarth’s efforts to
represent himself. After requesting “assistance of counsel,”
Bozarth went on to explain what “assistance” meant—providing
him with the legal materials so he could “study” and “have
knowledge” about the law to “write proper meaningful papers
to the court.” On multiple occasions throughout the proceedings,
Bozarth reiterated that he wanted to represent himself with
standby counsel’s role limited to providing legal advice only
when requested. And Bozarth’s behavior unequivocally
indicated that he had elected to represent himself: Bozarth
requested legal materials and discovery; he filed numerous
motions, a request to submit, and other court documents; he
expressed his desire to take the lead in hearings, and did so by
asking questions, lodging objections, and invoking procedural
rules; and he made important decisions regarding scheduling
and plea deals.
¶38 Admittedly, Bozarth requested standby counsel’s
assistance in providing legal points and authority in support of
his motion to suppress. In making this request Bozarth stated, “I
said in court I will speak for myself because I am very concerned
that [standby counsel] will not ask the questions that need to be
asked.” But Bozarth wanted standby counsel’s help with the
motion to suppress because, according to Bozarth, “[h]e’s still
my assistance of counsel.” This request does not represent
equivocation in Bozarth’s intention to represent himself. Indeed,
it merely reinforces what Bozarth communicated explicitly and
implicitly throughout his proceedings—that he desired to
represent himself with limited support from standby counsel
when requested. We therefore conclude that Bozarth clearly and
20190397-CA 16 2021 UT App 117State v. Bozarth
unequivocally communicated, through an explicit request to the
court, that he intended to waive his right to counsel.
B. Knowing and Intelligent Waiver
¶39 Next, Bozarth argues that he did not knowingly waive his
right to counsel. There exists a “fundamental right to counsel”
and a “strong presumption against waiver” of that right, and
“any doubts [regarding the validity of the waiver] must be
resolved in favor of the defendant.” State v. Pedockie, 2006 UT 28,
¶ 45, 137 P.3d 716. But where a defendant “expressly decline[s]
an offer of counsel by the trial judge, he has the burden of
showing by a preponderance of the evidence that he did not
[knowingly and intelligently] waive this right.” State v. Frampton,
737 P.2d 183, 187 (Utah 1987). Because we have concluded that
Bozarth expressly and unequivocally waived his right to
counsel, we now turn to whether he has carried his burden to
show that the waiver was not “knowingly and intelligently”
made. To this end, Bozarth raises three arguments.
¶40 First, Bozarth claims that the waiver was not knowing
and intelligent because the district court failed to conduct an on-
the-record colloquy explaining the risks of self-representation. In
State v. Frampton, 737 P.2d 183, 187 n.12 (Utah 1987), the Utah
Supreme Court articulated a sixteen-point colloquy designed to
ensure that defendants “are aware of the dangers and
disadvantages of self-representation.” Pedockie, 2006 UT 28, ¶ 40.
Conducting this on-the-record colloquy is the best way to ensure
that a defendant has knowingly and intelligently waived the
right to counsel and “provides the reviewing court with an
objective basis for review upon the almost inevitable challenge to
the waiver by the defendant who proceeds pro se and is
subsequently convicted.” Id. ¶ 42. Because no such colloquy
occurred in this case, Bozarth argues that he did not knowingly
and intelligently waive his constitutional right to counsel.
20190397-CA 17 2021 UT App 117State v. Bozarth
¶41 But while the Frampton colloquy is encouraged and can
constitute something of a safe harbor for district courts
confronting a waiver-of-counsel issue, the colloquy is not
mandatory. State v. Waterfield, 2014 UT App 67, ¶ 20, 322 P.3d
1194 (explaining that the sixteen-point colloquy articulated in
Frampton provides “guidance” to district courts when evaluating
a waiver of counsel but “is not mandatory and its phrasing not
talismanic”). It is possible—although perhaps rare, see Pedockie,
2006 UT 28, ¶ 45 1—for a defendant to knowingly and
intelligently waive the right to counsel without a Frampton
1. We perceive some tension between the analysis contemplated
by Pedockie and the rule that a defendant who expressly waives
his right to counsel bears the burden of proving that the waiver
was not knowing and intelligent. In instructing reviewing courts
to undertake a de novo review of the record, our supreme court
in Pedockie noted “that, considering the strong presumption
against waiver and the fundamental nature of the right to
counsel, any doubts must be resolved in favor of the defendant,”
and the court “anticipate[d] that reviewing courts will rarely
find a valid waiver of the right to counsel absent a colloquy.”
State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716 (cleaned up).
However, Pedockie did not involve an express waiver of the right
to counsel and did not purport to overrule Frampton’s
pronouncement, based on United States Supreme Court case
law, that the defendant in such cases bears “the burden of
showing by a preponderance of the evidence that he did not
[knowingly and intelligently] waive this right.” State v. Frampton,
737 P.2d 183, 187 (Utah 1987) (citing Moore v. Michigan, 355 U.S.
155, 161–62 (1957) (holding that “the petitioner had the burden
of showing, by a preponderance of the evidence, that he did not
intelligently and understandingly waive his right to counsel”)).
At the very least, we do not read Pedockie to suggest that a
district court’s failure to conduct a non-mandatory colloquy
relieves the appellant of his burden of persuasion on appeal.
20190397-CA 18 2021 UT App 117State v. Bozarth
colloquy. In the absence of such a colloquy, a reviewing court
“will look at any evidence in the record which shows a
defendant’s actual awareness of the risks of proceeding pro se.”
Frampton, 737 P.2d at 188. To determine “whether the defendant
understood the consequences of waiver,” the reviewing court
must conduct a de novo review of the record to “analyze the
particular facts and circumstances surrounding” the case.
Pedockie, 2006 UT 28, ¶ 45 (cleaned up).
¶42 Here, the record demonstrates that Bozarth understood
the value of counsel and was well aware of the risks of
proceeding pro se. At the time of the waiver, Bozarth’s
appointed counsel informed the court that he had explained
Bozarth’s “options,” that Bozarth was “cognizant of what his
rights are,” and that Bozarth was “well versed,” “educated,” and
“knows the law to some degree.” Bozarth confirmed that he
wanted to represent himself, but he also requested “assistance of
counsel” in obtaining the relevant law. Bozarth explained, “I am
entitled to all the laws, because all the laws are applied to me. I
am entitled to read them, study them, have knowledge[,] be able
to write proper meaningful papers to the court.” Bozarth
acknowledged that legal rules are complicated and recognized
that representing himself without the assistance of standby
counsel would be like “trying to work on a vehicle” without
“any kind of instruction whatsoever.” Nonetheless, he
repeatedly reaffirmed his desire to represent himself with
standby counsel providing assistance only when requested.
¶43 Admittedly, we “will rarely find a valid waiver of the
right to counsel absent a colloquy,” Pedockie, 2006 UT 28, ¶ 45,
yet our supreme court found a valid waiver in Frampton on a
similar record. In that case, the court held that Frampton validly
waived his right to counsel, even without a colloquy, because the
record showed an actual awareness of the risks of proceeding
pro se. See Frampton, 737 P.2d at 188–89. Frampton knew he was
entitled to “appointed counsel if he could show that he was
20190397-CA 19 2021 UT App 117State v. Bozarth
indigent,” “knew that the judge insisted upon having counsel
present,” and had been previously tried twice on the same
charges so that the “value of counsel should have been
apparent” to him. Id. Frampton “spoke to the jurors about the
statute under which he was charged,” and was afforded “every
courtesy” by the judge who explained “applicable procedures”
and gave the “defendant extremely wide latitude in conducting
his defense.” Id. And Frampton was present when “the judge
explained the charges in open court,” and therefore “knew he
faced a felony charge and was aware of the penalty he could be
subjected to if found guilty.” Id.
¶44 Here, the record demonstrates that Bozarth likewise
understood his right to counsel and the risks of proceeding pro
se. At the initial hearing, Bozarth had already prepared a request
for counsel and knew enough to reserve his right to self-
representation should he later desire “to retake the helm” of his
case. Prior to requesting that he represent himself, Bozarth was
aware of the value of counsel because the court explained
counsel’s role and Bozarth solicited standby counsel’s assistance
with certain tasks. Bozarth demonstrated his knowledge of court
procedures by requesting materials to properly file documents,
declaring his intention to file a motion to suppress, and
confirming that he was aware of the procedural requirements
when he elected to self-represent. Finally, the court had also
informed Bozarth of his charges and possible penalties. Bozarth
does not address this evidence nor does he point to anything in
the record to distinguish this case from Frampton. Under these
circumstances, Bozarth has not carried his burden to show that
he did not knowingly and intelligently waive his right to
counsel. See id.
¶45 Second, Bozarth argues that standby counsel’s limited
role was never clearly defined and without understanding what
support standby counsel would be able to provide, he could not
have knowingly and intelligently consented to waive his right to
20190397-CA 20 2021 UT App 117State v. Bozarth
counsel. Because no colloquy exists on the record, we must look
at “any evidence in the record which shows [Bozarth’s] actual
awareness” of his obligations as a pro se defendant, and what
assistance standby counsel could provide. See id. at 188; see also
State v. Rohwedder, 2018 UT App 182, ¶ 21, 436 P.3d 324(Mortensen, J., concurring) (urging district courts to engage in a
colloquy with pro se defendants when appointing standby
counsel to avoid any confusion that may arise “when the
function and role of standby counsel is not clear”).
¶46 The record is replete with evidence indicating that
Bozarth understood his role along with the limited role of
standby counsel. Once Bozarth indicated that he wanted to
represent himself, the court instructed him on the process for
court filings, reminding him that he was responsible for filings
since he was representing himself. Thereafter, Bozarth filed
numerous court documents.
¶47 At the next hearing, standby counsel expressed concern
that Bozarth did not understand the limited role standby counsel
was to play because he was asking for assistance with civil
matters. The court then took the time to explain both Bozarth’s
and standby counsel’s roles. As part of self-representation, the
court indicated that Bozarth would be required to conduct
opening and closing arguments, ask questions of witnesses, and
run hearings and the trial because standby counsel would not be
taking on that role. After this explanation, the court confirmed
that this was Bozarth’s understanding at the time he elected to
proceed pro se. The court noted, “I thought the last time you
appeared [standby counsel] was going to be . . . here in case you
need assistance, but you are the one that’s, basically, you know,
representing yourself.” Bozarth responded, “Correct. And that’s
what I had the impression of also.” Bozarth unambiguously
indicated that he understood his waiver of counsel to mean he
primarily would shoulder the responsibility for his defense with
standby counsel limited to assisting Bozarth as needed; simply
20190397-CA 21 2021 UT App 117State v. Bozarth
put, Bozarth clearly stated that he understood the implications of
the arrangement to which he had agreed.
¶48 Similarly, at the hearing on the motion to suppress, the
court again explained to Bozarth the process and timeline for
filing post-hearing briefs, and then described the procedure for
the evidentiary hearing and the rules Bozarth would be required
to follow. Bozarth proceeded to manage the hearing—almost
entirely on his own—by asking questions, lodging objections,
and complying with the rules of evidence. The record
demonstrates that Bozarth was informed of his responsibilities
as a pro se defendant and standby counsel’s limited role, and his
behavior indicated that he clearly understood those
responsibilities.
¶49 Third, Bozarth argues that he did not competently
represent himself, apparently in an attempt to undermine the
validity of his waiver. But district courts must respect
defendants’ constitutional right to proceed pro se so long as they
knowingly and intelligently waive their right to assistance of
counsel. Rohwedder, 2018 UT App 182, ¶ 15 (majority opinion).
While “the choice of self-representation often results in
detrimental consequences to the defendant,” the defendant
“cannot thereafter complain that the quality of his own defense
amounted to a denial of effective assistance of counsel.” Id.(cleaned up).
¶50 Bozarth has not pointed to any evidence indicating his
waiver was invalid. Thus, because Bozarth validly waived
counsel, the district court had a duty to allow Bozarth to exercise
his right to self-representation. See id.; see also Pedockie, 2006 UT
28, ¶ 26. Any complaints regarding his performance
representing himself are part and parcel of the risks associated
with that choice and do not undermine the validity of his
waiver.
20190397-CA 22 2021 UT App 117State v. Bozarth
CONCLUSION
¶51 We dismiss Bozarth’s ineffective assistance of counsel
claim because it is not properly before us. As to Bozarth’s other
claims, Bozarth has failed to carry his burden of demonstrating
error in the district court’s decisions to deny the motion to
suppress and to allow Bozarth to exercise his right to self-
representation. Therefore, we affirm.
20190397-CA 23 2021 UT App 117