State v. Montes , 442 P.3d 1247 ( 2019 )

2019 UT App 74THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHRISTOPHER MONTES,
Appellant.
Opinion
No. 20170286-CA
Filed May 2, 2019
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 161700140
Happy J. Morgan, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Christopher Montes had already been held in contempt of
court three times when he asked his appointed counsel, “[D]o I
need to head-butt you so that the judge will give me a new
lawyer?” Based on this statement and other actions of Montes,
the trial court ruled that Montes had impliedly waived or
forfeited his right to counsel and would be required to represent
himself. Montes soon repented, and his lawyer represented him
for the rest of the trial, but not before opening statements and
two significant witnesses had testified. Now convicted, Montes
appeals. Because we conclude that the trial court erroneously
determined that the right to counsel had been waived or
forfeited, and because we conclude that the error constituted
structural error, we must reverse Montes’s criminal convictions,
State v. Montes
except for those associated with contempt, and remand for a
new trial. We affirm, however, Montes’s contempt convictions.
BACKGROUND 1
Theft of the Bikes
¶2 On a busy morning in October 2016, employees of a bike
shop in Moab were outfitting customers who had rented
mountain bikes. One employee (Clerk) saw a man—later
identified as Montes—removing a bike from an outside display
rack and jamming it haphazardly onto a bike rack on the back of
a car. Alarmed because the bikes on the display rack were
secured with a cable that only an employee could unlock, Clerk
ran out the front door of the shop to investigate. By the time
Clerk reached the car, Montes was putting a second bike on the
car rack.2 Another employee (Mechanic) positioned himself in
front of the car, placed his hands on the hood, and yelled for
Montes to stop. Meanwhile, Clerk successfully removed the
bikes from the car and then reached inside the car in an attempt
to prevent Montes from driving away. Montes ignored the
commands to stop and began to pull away. Clerk ran alongside
the car as he continued to struggle with Montes through the
open driver’s door, but he soon jumped free. Mechanic, to avoid
being run over, ran up the car’s hood, onto the roof, and then
jumped off. After the unsuccessful attempt to detain Montes, the
employees returned to the bike shop.
¶3 A Utah Highway Patrol trooper (Trooper), after hearing a
radio broadcast from the Grand County Sheriff’s Office
requesting help in locating Montes’s car, pulled Montes over,
1. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.
2. Together, the two bikes had a retail value of over $12,000.
20170286-CA 2 2019 UT App 74State v. Montes
who was leaving town at a speed of eighty-seven miles per hour.
Trooper noticed that Montes dropped a small pill bottle on the
car floor as Montes was retrieving his identification. The pill
bottle contained marijuana, and Trooper placed Montes under
arrest for possession of a controlled substance. A subsequent
search of Montes’s car also yielded a pipe similar to the kind
used to ingest illegal drugs, a mirror with a white residue on it, a
glass vial with a small spoon attached to it, and bolt cutters. A
Moab City police deputy (Deputy) transported Montes back to
the bike shop, where employees identified him as the individual
who had stolen the bikes.
Procedural History
¶4 The State charged Montes with theft, aggravated assault,
unlawful use or possession of a controlled substance, possession
of paraphernalia, and speeding. After finding Montes indigent,
the court appointed counsel (Appointed Counsel) to represent
him.
a. Montes’s Complaints at Pretrial Conference
¶5 At a pretrial conference two days before trial, Montes
asked the court to appoint new counsel and continue the trial. In
addition to contending that his communication with Appointed
Counsel was of a limited and argumentative nature, Montes
voiced several specific complaints. First, believing that his trial
should have taken place within thirty days of arraignment,
Montes stated that Appointed Counsel failed to assert his Sixth
Amendment right to a speedy trial. The trial court responded
that there was no speedy trial issue because the trial was set to
occur within three months of arraignment. Second, Montes
complained that Appointed Counsel talked him into waiving his
preliminary hearing. But Montes was unable to articulate how
he was harmed other than he would “like to have [a preliminary
hearing],” and the court rejected the claim. Third, Montes
explained that Appointed Counsel did not file paperwork to
request that Montes be released from jail to visit a sick family
member. The trial court told him that was not part of a public
20170286-CA 3 2019 UT App 74State v. Montes
defender’s representation. Fourth, Montes complained that
Appointed Counsel would not test the bolt cutters and would
not ensure that the two bikes, cable, and bolt cutters were
admitted into evidence. 3 The court noted that Appointed
Counsel had tested the bolt cutters and that pictures of the bikes
would be presented as evidence. Finally, Montes revealed that
he had filed a complaint in federal district court against
Appointed Counsel, apparently because Appointed Counsel had
refused to follow his specific directives.
¶6 In rejecting Montes’s reasons for releasing Appointed
Counsel, the trial court observed that the timing of Montes’s
complaints suggested that “Montes [was] trying to . . . postpone
his trial and create confusion in the system rather than actually
improving his chances of prevailing at trial.” The court further
told Montes:
You have the right to be consulted, and you have
the right to decide important critical questions that
take place during the course of the trial, but you do
not have the right to make every decision for
the . . . defense attorney. That is not something you
have the right to do. It would be impossible to
have a trial where we had the public defender—or
any defender for that matter—as puppet and the
accused as puppeteer. That simply will not work.
And courts have consistently held that is not the
3. The cable that secured the bikes to the shop’s display rack had
been cut. However, the bolt cutters found in Montes’s car were
not tested on that cable. At trial, Appointed Counsel asked an
investigating officer to cut a cable similar to the one used on the
sale rack at the shop. It took forty-seven cuts to sever the
demonstration cable, and the attempt left the ends frayed. In
contrast, the cable at the bike shop was left with cleaner cuts.
However, the officer testified that it had taken fewer cuts to
sever the same cable in a test conducted with Appointed
Counsel before trial.
20170286-CA 4 2019 UT App 74State v. Montes
obligation of the defender. The defender is entitled
to use the defender’s judgment in representing the
accused.
Montes nevertheless asked for a continuance to seek new
counsel. The trial court denied the continuance but stated it
would release Appointed Counsel if Montes obtained new
counsel by the time of trial. But the court warned Montes that if
he did not find new counsel, he would have to proceed with trial
as scheduled with Appointed Counsel or represent himself.
When Montes responded that he would need a continuance if he
represented himself, the court told him, “That will not be [an]
option,” observing that Montes would not have the luxury of
saying he wants to represent himself and then insisting on a
delay.
b. Events on the Day of Trial
¶7 It appears that Montes took the court’s admonition about
delaying the trial to heart, but in the opposite way as it was
intended. As Montes left the jail on the morning of the trial, one
of the deputies wished him good luck. Montes responded that he
did not need good luck because he was going to fire Appointed
Counsel and “spend more of Grand County’s money.”
¶8 Montes appeared at trial without new counsel and
insisted that he “[a]bsolutely” refused to proceed with
Appointed Counsel. The judge asked Montes, “So do you want
me to excuse [Appointed Counsel]?” Montes responded, “If you
like.” The judge answered, “No, I don’t like. I want [Appointed
Counsel] to represent you, and . . . you would be a fool not to
have him as your representative.” After Montes reiterated that
he did not want Appointed Counsel to represent him, the court
conducted a colloquy to confirm that Montes understood the risk
of pro se representation. The court told him that he had only two
options—represent himself or accept Appointed Counsel’s
representation. Montes said he wanted neither, and the court
stated that Appointed Counsel would represent Montes. Montes
20170286-CA 5 2019 UT App 74State v. Montes
continued to protest, saying that it would create a conflict of
interest since he had filed a complaint against Appointed
Counsel.
¶9 Montes then proceeded to rehash his already rejected
complaints against Appointed Counsel. The court admonished
Montes to stop arguing and interrupting, reiterating that
Montes’s only two options were to have Appointed Counsel
represent him or to represent himself. The judge warned Montes,
“If you do not choose one of those [options], I will choose for
you. I’m going to give you to the count of ten to decide one of
those two options. If you don’t decide one of those two options
by the time I’ve counted to ten, [Appointed Counsel] will
represent you.” The court commenced counting, and at the count
of seven, Montes told the court that he did not want Appointed
Counsel to represent him but that he did not want to represent
himself. The court followed through on its warning and directed
Appointed Counsel to represent Montes.
¶10 Yet Montes persisted. He continued to interrupt the court,
even after seven warnings to remain silent. The court held him
in contempt and sentenced him to thirty days in jail. The court
issued another warning that if Montes continued to speak
without invitation or permission, it would sentence him to
another thirty days in jail. It further explained that Montes
would serve that time even if he was acquitted. Montes
immediately interrupted, and the court again held him in
contempt, sentenced him to another thirty days, and told him he
must ask for permission to speak. Montes asked for permission
to speak, and the court told him he may on the condition that he
give a “different answer to [the] question” of whether he wanted
Appointed Counsel to represent him or to represent himself.
Montes revisited the already decided complaints against
Appointed Counsel. The court responded by saying, “We’ve
talked about that long enough. . . . We will not speak about
that,” and directed that the prospective jurors be brought into
the courtroom for jury selection. Montes interrupted yet again,
saying he did not wish to proceed with Appointed Counsel, and
the court held him in contempt a third time and imposed
20170286-CA 6 2019 UT App 74State v. Montes
another thirty-day sentence. Undaunted, Montes continued to
speak and interrupt the court until prospective jurors were
escorted into the courtroom.
¶11 During a short recess after the jury was selected, but
outside the jury’s presence, Appointed Counsel informed the
court that Montes decided to represent himself and was asking
for a continuance to prepare. The court denied the continuance
and told Montes his “options are to proceed now representing
[himself] or to proceed now with [Appointed Counsel].”
Appointed Counsel then revealed that Montes had just
threatened to harm him by stating:
[D]o I need to head-butt you so the judge will give
me a new lawyer? I’m willing to do that. That’s
what happens in California when you need a new
lawyer, is you harm the attorney, and I’m willing
to do that. Let’s do that now. There are all these
officers around me to witness that happening.
Montes admitted saying “something in that fashion, but not like
that.” Montes explained that his putative threat was not to be
taken literally as it was borne out of frustration:
I said that . . . I didn’t want him to represent me.
What did I need to do? Did I need to threaten him
or head-butt him or something like that? . . . He’s
saying that I told him that I’m going to do that, and
I did not say that. All I said is that I didn’t want
him representing me . . . . What is it that one has to
go through so that I cannot have [Appointed
Counsel] as my counsel? . . . I did not threaten to
do it. I asked him, what is it that I have to do? . . . I
apologize. I feel strongly, Your Honor, that he’s not
helping me.
¶12 A lengthy discussion ensued about the appropriate
response to the head-butt threat. The court sought assurance that
there was “no chance” that Montes would attempt to hurt
20170286-CA 7 2019 UT App 74State v. Montes
Appointed Counsel, but Montes asked for more time to find a
different attorney and proceeded to rehash Appointed Counsel’s
perceived deficiencies. The prosecutor argued that Montes
“indicat[ed] that he wants to represent himself by making a
physical threat to [his] attorney,” but he also suggested that
Montes might merely be “posturing” in making the threat. The
court raised the possibility of restraining Montes. Montes said
that there was no need for restraints and that he was “not
adequately fit” to represent himself. He then continued to
complain about Appointed Counsel’s representation, but the
court again determined his complaints were without merit.
¶13 The court returned to the question of whether Montes had
“elected to represent himself by his conduct of threatening his
lawyer.” The prosecutor revealed that Montes had commented
to deputies that morning that he intended to delay the trial, an
accusation Montes denied. After some discussion, the court
ruled that Montes, by his threat to head-butt Appointed
Counsel, had elected to represent himself. But the court ordered
Appointed Counsel to remain in the courtroom to act as standby
counsel. 4 The court gave Montes one more chance to decide if he
wanted to proceed representing himself or with Appointed
Counsel representing him. Montes answered, “I don’t know . . . .
I can’t answer that.” The court responded, “Okay. Then you’re
going to represent yourself.” The jury then entered the
courtroom, and the trial proceeded.
¶14 Montes represented himself during opening statements,
the full examination of the State’s first witness—a Moab police
officer (Officer) who had investigated the theft—and the direct
examination of Trooper. After the prosecution’s opening
statements, during which Montes did not object, Montes
delivered his own opening statement. As he began his opening
statement, Montes asked if he could have Appointed Counsel
“sit right here,” presumably at the defendant’s table. The court
4. The court instructed Appointed Counsel to sit “two seats
back,” presumably behind Montes.
20170286-CA 8 2019 UT App 74State v. Montes
denied the request, and the prosecutor responded that “[t]here is
no threat there,” presumably meaning that Montes posed no
threat if Appointed Counsel remained where he was seated.
During his opening statement, Montes struggled, like many pro
se litigants, and was admonished by the court several times for
testifying and offering arguments instead of summarizing the
evidence.
¶15 Early in the direct examination of Officer, Montes
attempted to object but stated, “I wouldn’t know when and
where it would be right to object, so I apologize for what
happened earlier, and I would love [Appointed Counsel] to
represent me.” The court responded, “Okay. We’ll talk about
that later.” Officer then testified about investigating the theft,
taking the statements of the employees, and the details of the
theft, including the severed cable and the description of the
stolen bikes and Montes’s car. Officer also testified that bolt
cutters were found in Montes’s car. Officer further revealed that
during transport to the county jail, Montes made some voluntary
statements to the effect that he was going to purchase the bikes
but had been assaulted by shop employees, that he did not cut
the cable, that he wished to go back to the shop to apologize, that
he had money to buy the bikes, and that the bolt cutters did not
work. On cross-examination conducted by Montes, Officer stated
that he had not tested the bolt cutters on the shop’s cable.
Montes also questioned Officer about the prices of the bikes.
Montes conferred with Appointed Counsel once during the
cross-examination.
¶16 The prosecution then conducted the direct examination of
the second witness—Trooper—who testified to the events
surrounding Montes’s apprehension. See supra ¶ 3. Once direct
examination of Trooper concluded, the court took a recess,
excused the jury, and took-up Montes’s request to reinstate
Appointed Counsel. 5 After discussing the issue with the
5. Fifty-six pages of trial transcript pass between the time Montes
requested that Appointed Counsel be reinstated and the time
(continued…)
20170286-CA 9 2019 UT App 74State v. Montes
prosecutor and Appointed Counsel and receiving Montes’s
assurance that he would behave, the court allowed Appointed
Counsel to resume representation of Montes. Appointed
Counsel then cross-examined Trooper and represented Montes
for the remainder of the trial. 6
¶17 At the conclusion of the trial, the jury convicted Montes of
theft, aggravated assault, possession of a controlled substance,
and speeding. The court sentenced him to an immediate
ninety-day jail term for the contempt charges. But the court
released Montes from custody on the underlying case while it
awaited a pre-sentence investigation report (PSI), so that his
contempt sentences would not be credited as time served against
his felony and misdemeanor convictions. At sentencing,
Appointed Counsel requested that the court follow the PSI
matrix and that Montes be given credit for time served. The
court did not grant that request, and instead it sentenced Montes
to concurrent prison terms of one to fifteen years for theft, zero
to five years for aggravated assault, and six months for
possession of a controlled substance. The court suspended
forty-three days of Montes’s contempt sentences and credited
him with 113 days of time served. 7 Montes appeals.
(…continued)
that the court addressed his request. This delay occurred despite
the trial judge having earlier told Montes, “When you . . . say to
me, I would prefer to have [Appointed Counsel] here than
represent myself, I would hear that.”
6. The other witnesses who testified after Appointed Counsel
resumed representing Montes were three bike shop employees,
the bike shop owner, and three other police officers.
7. Montes had been in jail for 160 days at the time of sentencing.
He served forty-seven days on the contempt sentences, leaving a
credit of 113 days toward the theft, assault, and possession
convictions.
20170286-CA 10 2019 UT App 74State v. Montes
ISSUES AND STANDARDS OF REVIEW
¶18 The first issue is whether the trial court erred when it
(1) ruled that Montes had forfeited or impliedly waived his right
to counsel after threatening to head-butt Appointed Counsel and
(2) required Montes to represent himself during the first portion
of his trial. “Whether [a defendant] voluntarily, knowingly, and
intelligently waived his right to counsel is a mixed question of
law and fact. While we review questions of law for correctness, a
trial court’s factual findings may be reversed on appeal only if
they are clearly erroneous.” State v. Santonio, 2011 UT App 385,
¶ 9, 265 P.3d 822 (cleaned up).
¶19 The second issue is whether the trial court erred in
imposing three separate sentences for Montes’s three
contemptuous acts rather than viewing Montes’s actions as
constituting a single violation. “On review of both criminal and
civil [contempt] proceedings, we accept the trial court’s findings
of fact unless they are clearly erroneous.” Von Hake v. Thomas,
759 P.2d 1162, 1172 (Utah 1988), superseded by statute on other
grounds as stated in State v. Hurst, 821 P.2d 467 (Utah Ct. App.
1991).
ANALYSIS
I. The Trial Court Erred in Requiring Montes to
Represent Himself
A. Montes Did Not Forfeit or Waive His Right to Counsel
¶20 The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI;
see also Utah Const. art. I, § 12 (stating that the accused has the
right to counsel in criminal prosecutions). A defendant may
intentionally waive his constitutional right to legal counsel and
represent himself, see State v. Cooper, 2011 UT App 234, ¶ 13, 261
P.3d 653, but such intentional waiver must be “voluntary,
20170286-CA 11 2019 UT App 74State v. Montes
knowing, and intelligent,” State v. Pedockie, 2006 UT 28, ¶ 26, 137
P.3d 716. “True waiver typically occurs when a defendant
affirmatively requests permission to proceed pro se.” Id. ¶ 28.
With intentional waiver, “[a] defendant should be made aware
of the dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing.” Id.
¶ 26 (cleaned up).
¶21 In addition to intentionally waiving the right to counsel, a
defendant may lose the right by “forfeiture” and “waiver by
conduct.” Id. ¶ 27. Forfeiture occurs when a defendant “engages
in extremely dilatory conduct or abusive behavior, such as
physically assaulting counsel.” Id. ¶ 32 (cleaned up). When a
defendant’s behavior is egregious enough to constitute
forfeiture, the court need not determine whether a defendant
understands the risks of pro se representation or even warn a
defendant that his behavior could lead to the loss of counsel. Id.“But because of its drastic nature, a defendant must engage in
extreme conduct before forfeiture may be imposed.” Id.
¶22 Waiver by conduct, also called implied waiver, “combines
elements of both true waiver and forfeiture. Once a defendant
has been warned that he will lose his attorney if he engages in
dilatory tactics, any misconduct thereafter may be treated as an
implied request to proceed pro se and thus, as a waiver of the
right to counsel.” Id. ¶ 33 (emphasis added) (cleaned up). Thus,
the conduct need not be “as extreme as that required for
forfeiture” and “a defendant need not intend to relinquish the
right to counsel.” Id. Nevertheless, a “defendant must have been
warned that continuation of the unacceptable conduct will result
in a waiver of the right to counsel.” Id. Unlike forfeiture, waiver
by conduct “must be knowing and intelligent” in that a
defendant must have been aware of “the dangers and
disadvantages of self-representation” at the time of the waiver.
Id.
¶23 Asserting that none of the three methods of waiver
applies in this matter, Montes argues that the trial court erred
when it concluded that he had either forfeited or waived by
20170286-CA 12 2019 UT App 74State v. Montes
conduct his right to counsel and required him to represent
himself during the first portion of the trial. We agree with
Montes that the trial court erred in reaching this conclusion.
¶24 First, Montes never intentionally waived his right to
counsel. Just the opposite is true. Montes repeatedly told the
court that he did not want to represent himself and that he
lacked the skills to do so.
¶25 Second, Montes’s threat to head-butt his attorney was not
sufficiently egregious to rise to the level of forfeiture. The record
indicates that the threat was borne of frustration, desperation,
and posturing, with little probability of follow-through. When
confronted by the court about the threat, Montes immediately
apologized and denied that he intended to harm Appointed
Counsel. At most, Montes’s threat was a rhetorical device meant
to convey the message that he did not want Appointed Counsel
to represent him—“What is it that one has to go through so that I
cannot have [Appointed Counsel] as my counsel?” 8 Indeed,
8. The State relies on State v. Allgier (Allgier I), 2015 UT 6, 353
P.3d 50 (per curiam), to support its contention that Montes
forfeited his right to counsel. But Allgier I is readily
distinguishable in several ways. First, Allgier’s threats were of a
more serious and threatening nature, especially considering that
Allgier pled guilty to aggravated murder of a police officer while
in custody, aggravated escape, aggravated robbery, and
disarming a police officer. Id. ¶¶ 2–3, 5, 7, 11 n.3; State v. Allgier
(Allgier II), 2017 UT 84, ¶¶ 2–5, 416 P.3d 546. Second, Allgier’s
threats were made not against trial counsel but against appellate
counsel after filing the opening brief. Allgier I, 2015 UT 6, ¶ 12.
Third, Allgier’s threats were directed at three different
appointed attorneys. Id. ¶¶ 3–7. Fourth, the attorneys Allgier
threatened were frightened enough to file motions to withdraw.
Id. ¶¶ 3, 7. Furthermore, our supreme court cautioned that
forfeiture is a “drastic measure” applicable in only the most
egregious of cases:
(continued…)
20170286-CA 13 2019 UT App 74State v. Montes
Appointed Counsel remained in the courtroom at the court’s
direction as standby counsel, and Montes was not physically
restrained while he represented himself—facts suggesting that
neither the court nor Appointed Counsel regarded the
threatened head-butt as serious.
¶26 Third, the trial court erred in concluding that Montes
waived his right to counsel by conduct. For the trial court to
have reached this conclusion, it was required to warn Montes
that “continuation of the unacceptable conduct will result in a
waiver of the right to counsel.” Pedockie, 2006 UT 28, ¶ 33.
Montes was repeatedly warned to stop speaking and to choose
whether to represent himself or accept Appointed Counsel’s
representation. If he did not choose one of those two options
(i.e., self-representation or representation by Appointed
Counsel), the court told Montes that Appointed Counsel would
represent him. Thus, the consequence of not choosing was not
losing Appointed Counsel but proceeding with Appointed
Counsel. Montes was never warned that he would lose
Appointed Counsel’s representation if he did not choose. Rather,
the only warning Montes received is that he would be required
to proceed with Appointed Counsel if he did not make the
choice. And an ultimatum to either (1) represent himself or
accept Appointed Counsel or (2) be required to proceed with
Appointed Counsel is not the equivalent of a warning that
(…continued)
We conclude that making threats to the welfare of
appointed counsel may constitute extreme conduct
justifying a forfeiture of counsel. Whether a
particular course of threatening behavior merits
forfeiture will vary according to the particular case.
And even when conduct legitimately could be
viewed as a forfeiture, courts may err on the side of
solicitude to the right to counsel and permit a
substitution of counsel.
Id. ¶ 10.
20170286-CA 14 2019 UT App 74State v. Montes
“continuation of unacceptable conduct,” see id., would result in
loss of the right to counsel.
¶27 Therefore, we conclude that because Montes’s actions
were not sufficiently egregious to justify forfeiture, and because
he was not adequately warned that his behavior would result in
loss of counsel, the trial court erred in requiring Montes to
represent himself. 9
B. The Denial of Counsel Constituted Structural Error
¶28 “[T]here are some constitutional rights so basic to a fair
trial that their infraction can never be treated as harmless error.”
Chapman v. California, 386 U.S. 18, 23 (1967). These errors are
known as “structural errors.” Weaver v. Massachusetts, 137 S. Ct.
1899, 1907 (2017). Under the structural error standard recently
set forth by the United States Supreme Court, see id. at 1907–08, a
denial of the right to counsel at a critical stage of the criminal
process, such as Montes experienced in this case, constitutes
structural error and entitles a defendant to a new trial. 10
9. Inexplicably, when Montes attempted to reassert his right to
counsel, the trial court delayed addressing that request for some
time—as illustrated by the passage of fifty-six pages of
transcript. See supra note 5. Because we reverse and remand for
structural error, we need not address any error associated with
this discrete issue.
10. We note that many years prior to Weaver v. Massachusetts, 137
S. Ct. 1899 (2017), the United States Supreme Court stated in
dicta that the denial of the right to counsel could be analyzed
under a harmless error standard: “[T]he right to be represented
by counsel, . . . as with most constitutional rights, [is] subject to
harmless error analysis unless the deprivation, by its very
nature, cannot be harmless.” Rushen v. Spain, 464 U.S. 114, 117
n.2 (1983) (cleaned up); see also People v. El, 126 Cal. Rptr. 2d 88,
90 (Cal. Ct. App. 2002) (“[I]t is well-established that anything
(continued…)
20170286-CA 15 2019 UT App 74State v. Montes
¶29 As a preliminary matter, structural error is distinct from
harmless error. Harmless error is defined as an error in the trial
process that does not affect “the framework within which the
trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
“[A] constitutional error does not automatically require reversal
of a conviction,” for that error might be harmless. Id. at 306. The
harmless error doctrine requires the prosecution to show
“beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman, 386 U.S. at 24. If
such a showing cannot be made, a constitutional error cannot be
regarded as harmless. Thus, a court may not apply a harmless
error analysis if the error complained of “possibly influenced the
jury adversely.” Id. at 23.
¶30 In contrast, the structural error doctrine ensures that
“certain basic, constitutional guarantees . . . define the
framework of any criminal trial.” Weaver, 137 S. Ct. at 1907.
Structural errors constitute “a limited class of fundamental
constitutional errors that defy analysis by harmless error
standards.” Neder v. United States, 527 U.S. 1, 7 (1999) (cleaned
up). Thus, the United States Supreme Court has declared that
structural errors are “so intrinsically harmful as to require
automatic reversal . . . without regard to their effect on the
outcome.” Id. Although the contours of structural error doctrine
are prone to a certain nebulous imprecision, in Weaver the
Supreme Court identified “three broad rationales” for deeming
an error structural. 137 S. Ct. at 1908.
(…continued)
less than the complete denial of the right to counsel is subject to
harmless error analysis.”). Yet, even under this earlier standard,
the deprivation was not subject to harmless error analysis if it
was impossible for the deprivation, “by its very nature,” to be
harmless. As we explain, infra ¶¶ 36–38, deprivation of counsel
at a critical stage of the criminal process “cannot be harmless,”
and thus it lies outside harmless error analysis even under this
earlier jurisprudence.
20170286-CA 16 2019 UT App 74State v. Montes
¶31 First, an error is structural “if the right at issue is
not designed to protect the defendant from erroneous conviction
but instead protects some other interest.” Id. It does not matter
if the exercise of the right in question will increase the likelihood
of conviction; what matters is the inviolable nature of the
right itself. For example, exercising the right of self-
representation “usually increases the likelihood of a trial
outcome unfavorable to the defendant.” McKaskle v. Wiggins, 465
U.S. 168, 177 n.8 (1984). But because the right of self-
representation “is based on the fundamental legal principle
that a defendant must be allowed to make his own choices
about the proper way to protect his own liberty,” a denial of
that right constitutes structural error. Weaver, 137 S. Ct. at 1908.
Furthermore, the harm proceeding from self-representation is
“irrelevant to the basis underlying the right,” so “the Court
has deemed a violation of that right structural error.” Id. And a
“criminal defendant’s Sixth Amendment right to the Assistance
of Counsel” is also of such “fundamental character” that
the Court considers its “wrongful deprivation . . . a structural
error that so affects the framework within which the trial
proceeds that courts may not even ask whether the error harmed
the defendant.” Luis v. United States, 136 S. Ct. 1083, 1088–89
(2016) (cleaned up).
¶32 “Second, an error has been deemed structural if the effects
of the error are simply too hard to measure . . . [or] cannot be
ascertained.” Weaver, 137 S. Ct. at 1908 (cleaned up). The effect of
an error is immeasurable if (1) it is impossible to show the error
is harmless or (2) the cost of showing it is harmless is unjustified.
Id.
¶33 Third, an error is “deemed structural if the error always
results in fundamental unfairness.” Id. For example, denying an
indigent defendant an attorney or failing to give a
reasonable-doubt instruction are always fundamentally unfair.
Id. However, “[a]n error can count as structural even if the error
does not lead to fundamental unfairness in every case.” Id. Thus,
fundamental unfairness is an indicator, but not a necessary
component, of structural error.
20170286-CA 17 2019 UT App 74State v. Montes
¶34 The Supreme Court has explained, in terms especially
relevant to the case now before us, the necessity of counsel:
The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and
educated layman has small and sometimes no
skill in the science of law. If charged with crime,
he is incapable, generally, of determining for
himself whether the indictment is good or bad. He
is unfamiliar with the rules of evidence. Left
without the aid of counsel [a defendant] may be
put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant
to the issue or otherwise inadmissible. . . . [A
defendant] requires the guiding hand of counsel at
every step in the proceedings against him. Without
it, though he be not guilty, he faces the danger of
conviction because he does not know how to
establish his innocence.
Powell v. Alabama, 287 U.S. 45, 68–69 (1932). And the right to
counsel extends to those who cannot afford to hire an attorney of
their own:
[T]here are few defendants charged with crime,
few indeed, who fail to hire the best lawyers they
can get to prepare and present their defenses. . . .
[L]awyers in criminal courts are necessities, not
luxuries. The right of one charged with crime to
counsel may not be deemed fundamental
and essential to fair trials in some countries, but it
is in ours. . . . [The] noble ideal [of a fair trial]
cannot be realized if the poor man charged with
crime has to face his accusers without a lawyer to
assist him.
Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
20170286-CA 18 2019 UT App 74State v. Montes
¶35 And more recently, the Supreme Court has described the
necessity of counsel as a “fundamental” right “by which an
innocent man can make the truth of his innocence visible.” Luis,
136 S. Ct. at 1089 (cleaned up). So fundamental is the right that it
requires that “the Government provide counsel for an indigent
defendant accused of all but the least serious crimes.” Id.(cleaned up). The Court “consider[s] the wrongful deprivation of
the right to counsel a structural error that so affects the
framework within which the trial proceeds that courts may not
even ask whether the error harmed the defendant.” Id. (cleaned
up).
¶36 But the denial of the right to counsel, standing alone, does
not necessarily constitute structural error. To find structural
error, the deprivation must occur at a critical stage of criminal
proceedings:
Under both the United States Constitution and the
Utah Constitution, [a defendant has] the right to
the assistance of counsel at all critical stages of his
criminal proceeding. The accused’s right to the
assistance of counsel during the critical stages of a
criminal proceeding has long been recognized as a
fundamental constitutional right. . . . In most cases,
if the reviewing court holds that a constitutional
error was harmless beyond a reasonable doubt, it
need not reverse. However, we may find
constitutional error without any showing of
prejudice when counsel was either totally absent,
or prevented from assisting the accused during a
critical stage of the proceeding.
State v. Curry, 2006 UT App 390, ¶¶ 6–8, 147 P.3d 483 (emphasis
added) (cleaned up); see also United States v. Cronic, 466 U.S.
648, 659 n.25 (1984) (“The [Supreme] Court has uniformly found
constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting
the accused during a critical stage of the proceeding.”). Relevant
20170286-CA 19 2019 UT App 74State v. Montes
to the present case, opening statements and the examination and
cross-examination of witnesses are critical stages of the criminal
process.
¶37 Courts widely regard opening statements as constituting
a critical stage of criminal proceedings. “The purpose of an
opening statement is to apprise the jury how the case will
develop, its background and what will be attempted to be
proved; but it is not evidence.” Commonwealth v. Parker, 919 A.2d
943, 950 (Pa. 2007) (cleaned up). “[A]s a practical matter the
opening statement can often times be the most critical stage of
the trial, because here the jury forms its first and often lasting
impression of the case.” Id. (cleaned up); see also Crim v. State, 294
N.E.2d 822, 830 (Ind. Ct. App. 1973) (stating that opening
statements are “critical stages” of a trial); State v. Johnson, 391
P.3d 711, 717 (Kan. Ct. App. 2017) (stating that the opening
statements and examination of the prosecutor’s key witness are
“critical stages of the trial”), review granted (Sept. 29, 2017);
Commonwealth v. Ramos, 849 N.E.2d 243, 247 (Mass. App. Ct.
2006) (“It is well understood among litigators that an opening
statement can be critical in preventing a jury from forming a
one-sided view at the trial’s outset.”).
¶38 The examination and cross-examination of witnesses
also constitutes a critical stage of the criminal process. The
United States Supreme Court has stated that a preliminary
hearing is a “critical stage” in the criminal process precisely
because it involves the examination and cross-examination of
witnesses: “[T]he lawyer’s skilled examination and cross-
examination of witnesses [during a preliminary hearing]
may expose fatal weaknesses in the State’s case . . . . [T]he skilled
interrogation of witnesses by an experienced lawyer can fashion
a vital impeachment tool for use in cross-examination of
the State’s witnesses at the trial . . . .” Coleman v. Alabama, 399
U.S. 1, 9 (1970); see also Schneckloth v. Bustamonte, 412 U.S. 218,
239 (1973) (The “right of cross-examination . . . is an essential
safeguard to [a defendant’s] right to confront the witnesses
against him.”). The inability of an accused to realize
20170286-CA 20 2019 UT App 74State v. Montes
the advantages of effective examination and cross-examination
absent a lawyer’s assistance makes a preliminary hearing “a
critical stage of the State’s criminal process at which the accused
is as much entitled to such aid of counsel as at the trial itself.”
Coleman, 399 U.S. at 10 (cleaned up). Part of a lawyer’s value is
assisting the accused by making informed and experienced
judgment calls about when and to what extent, if at all, to
engage in examination and cross-examination of witnesses.
Thus, where courts have recognized the critical nature of
examination and cross-examination of witnesses at preliminary
proceedings, it follows, a fortiori, that the examination of
witnesses marks a critical stage of the trial itself.
¶39 The United States Supreme Court has further clarified
that “[d]espite its name, the term ‘structural error’ carries with it
no talismanic significance as a doctrinal matter.” Weaver, 137 S.
Ct. at 1910. Its availability does not require defense counsel to
invoke the term “structural error” as an incantation. Rather, “in
the case of a structural error where there is an objection at trial
and the issue is raised on direct appeal, the defendant generally
is entitled to automatic reversal regardless of the error’s actual
effect on the outcome.” Id. (cleaned up).
¶40 We note that Montes invokes the incorrect standard of
harmless error with regard to the denial of his right to counsel,
but, under the circumstances of his case, this denial is subject to
structural error analysis. As the United States Supreme Court
made clear in Weaver, a structural error analysis is prompted by
(1) an objection regarding the error made at trial and (2) the issue
being raised on appeal. Id. So, while Montes on appeal fails to
mention structural error by name, it remains clear that he
objected to being required to represent himself at trial. Equally
clear is that Montes raises this same issue on appeal. Therefore,
the trial court’s deprivation of Montes’s right to counsel is
subject to structural error analysis on appeal.
¶41 The record confirms Montes was limited to self-
representation during a significant portion of the trial—the
opening statements, Officer’s entire testimony, and Trooper’s
20170286-CA 21 2019 UT App 74State v. Montes
direct testimony. Although we cannot quantify from the cold
record the exact number of minutes Montes represented himself,
the record transcript indicates that he did so for 91 out of 246
pages, or 37 percent of the trial. As we have pointed out, supra
¶¶ 37–38, the opening statements and examination of witnesses
mark a critical stage of the criminal process. A deprivation of
counsel during a critical stage of a trial—and for more than one-
third of the trial—constitutes structural error because it
“pervade[s] the entire proceeding,” Satterwhite v. Texas, 486 U.S.
249, 256 (1988), and determines “the framework within which
the trial proceeds,” Arizona v. Fulminante, 499 U.S. 279, 310
(1991).
¶42 Appointed Counsel may have pursued a different
approach to opening statements, trial strategies, questioning
of witnesses, and style of argument. Montes may have changed
the way he acted at trial in the presence of counsel. He
may have been more cooperative or appeared more sympathetic
to the jury with counsel sitting beside him. It is
simply impossible to know how different choices made by
Appointed Counsel would have impacted the outcome of the
proceedings. Thus, because a deprivation of counsel during a
critical stage of the trial constitutes structural error, and because
structural errors are considered “intrinsically harmful . . .
without regard to their effect on the outcome,” Montes is entitled
to “automatic reversal.” Neder v. United States, 527 U.S. 1, 7
(1999). 11
11. We note that the trial court could have avoided structural
error by insisting that Montes proceed with counsel until (1) he
expressly stated his desire to represent himself or (2) he
continued to engage in dilatory behavior after being warned that
such misconduct would result in loss of counsel via implied
waiver.
20170286-CA 22 2019 UT App 74State v. Montes
II. Montes Failed to Preserve a Challenge to the Separate
Contempt Sentences
¶43 Montes argues that the trial court erred in sentencing him
to three separate sentences for the contempt citations. We do not
consider this issue because we have determined that Montes
failed to preserve it and has identified no exception to the
preservation requirement. “As a general rule, claims not raised
before the [trial] court may not be raised on appeal.” Oseguera v.
State, 2014 UT 31, ¶ 10, 332 P.3d 963 (cleaned up). “An issue is
preserved for appeal when it has been presented to the [trial]
court in such a way that the court has an opportunity to rule on
it.” Id. (cleaned up).
¶44 The record offers no instance of Montes or his counsel 12
objecting or otherwise making any of the arguments he now
asserts on appeal regarding his contempt convictions and
sentences. 13 Nor does Montes argue that an exception to the
preservation rules applies. 14 Thus, we decline to consider this
12. Montes was represented by Appointed Counsel when he
incurred the contempt citations and when he was sentenced on
them.
13. In his reply brief, Montes argues that the issue was preserved
when at sentencing Appointed Counsel asked the court to
“follow the matrix, impose the supervised probation, and give
[Montes] credit for the jail that he’s served.” We conclude that
such an oblique request did not give the sentencing court the
opportunity to rule on the imposition of separate sentences for
the contempt charges.
14. Montes devoted two sentences to ineffective assistance of
counsel as an exception to preservation in the prefatory section
of his brief. Oddly, he does not develop the point any further in
the remainder of his brief. Our supreme court has long held that
appellate courts “have discretion to not address an inadequately
(continued…)
20170286-CA 23 2019 UT App 74State v. Montes
unpreserved issue, and we affirm the convictions and sentences
on contempt.
CONCLUSION
¶45 We conclude that the trial court erroneously determined
that Montes had forfeited or impliedly waived his right to
counsel, thus depriving him of counsel during critical stages of
trial and committing structural error. We reverse and remand for
a new trial on all convictions except for those associated with
contempt. We decline to address Montes’s challenges to his
separate contempt sentences because he failed to preserve this
issue. Accordingly, the contempt convictions and sentences
stand.
¶46 Affirmed in part. Reversed in part and remanded.
(…continued)
briefed argument. Rather, a party must plead his claims with
sufficient specificity for this court to make a ruling on the merits.
We will not assume a party’s burden of argument and research.”
Angel Inv’rs, LLC v. Garrity, 2009 UT 40, ¶ 35, 216 P.3d 944(cleaned up). Thus, we consider the matter inadequately briefed
and decline to address it.
20170286-CA 24 2019 UT App 74