State v. Patton , 2023 UT App 33 ( 2023 )

2023 UT App 33THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRYN MICHAEL PATTON,
Appellant.
Opinion
No. 20210681-CA
Filed April 6, 2023
Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 201502281
Nicolas David Turner, Attorney for Appellant
Eric Clarke and Jerry D. Jaeger,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 Bryn Michael Patton was charged with theft and
possession of a controlled substance after he allegedly picked up
his son’s medication from a pharmacy despite not being
authorized to do so. When Patton declined the appointment of
counsel, the district court indicated that Patton had waived his
right to counsel. However, the cursory waiver discussion the
court had with Patton was insufficient to determine whether
Patton’s waiver was made knowingly and intelligently. And no
other evidence indicates that Patton understood the nature of his
waiver. Therefore, we conclude that Patton did not knowingly
and intelligently waive his right to counsel. We vacate his
State v. Patton
conviction and sentence, and we remand the matter to the district
court for a new trial.
BACKGROUND
¶2 In September 2020, Patton allegedly went to a pharmacy
and picked up his son’s prescription for Adderall.1 The next day,
Patton’s ex-wife discovered this action and contacted the police
because Patton was not allowed to pick up the prescription, as he
did not have custody of his son and had experienced previous
issues with prescription medications. Patton allegedly did not
return the medication and was later charged with class A
misdemeanor possession or use of a controlled substance and
class B misdemeanor theft.
¶3 In February 2021, Patton appeared before the district court.
The minutes of the hearing indicate that Patton “was [a]dvised of
charges and penalties” and his “right to counsel” but that he
“waive[d] [his] right to counsel” and chose “to self-represent.”
The transcript of the hearing provides the following exchange:
The Court: You’re also entitled to be represented by
an attorney, and you can hire your own, or if you
couldn’t afford one, I could appoint one. Are you
going to hire an attorney, Mr. Patton?
Patton: No, sir.
The Court: Do you want me to see if you qualify to
have one appointed?
1. Adderall is “[a] combination of drugs used as a treatment for
attention deficit hyperactivity disorder (ADHD) and narcolepsy
(a sleep disorder). It is a type of stimulant.” Adderall, National
Cancer Institute, https://www.cancer.gov/publications/dictionari
es/cancer-terms/def/adderall [https://perma.cc/55DJ-T4GG].
20210681-CA 2 2023 UT App 33State v. Patton
Patton: No, this is a garbage case. I’m not worried
about it.
The Court: You want to represent yourself?
Patton: Yes, sir.
The Court: All right. Well, I’m—I’m a little offended
that I’m dealing with a garbage case, but that—that
does not—does not say a whole lot about you
favorably that you would speak of it in that regard,
but whatever. The—you are facing a Class A—
Patton: Well, if I’m—
The Court: —and Class B Misdemeanor. For a Class
A Misdemeanor, the maximum penalty in the State
of Utah is a year in jail and a $2500 fine, plus a 90
percent surcharge and $53 court security fee. For a
B Misdemeanor, the maximum penalty is six
months in jail and $1,000 fine, plus that 90 percent
surcharge and the $53 court security fee.
I anticipate that—well, the county attorney’s
office is staffed with attorneys who are familiar with
the Rules of Criminal Procedure and the Rules of
Evidence. So I anticipate that if you represent
yourself, you’ll probably be operating at a bit of a
disadvantage, but if you still want to do that and
represent yourself, you can. Do you still want to
represent yourself?
Patton: Yes, sir.
The Court: All right.
The court set a date for a half-day bench trial, which was to be
held via videoconference. Patton did not file any motions or
engage in discovery before that date.
20210681-CA 3 2023 UT App 33State v. Patton
¶4 On the day of the bench trial, Patton was not on the video
call when the trial began. The district court found that Patton had
been notified and voluntarily failed to appear, and it proceeded
with the trial. The court heard testimony from Patton’s ex-wife
and son and from the officer who had interviewed Patton’s ex-
wife after she contacted the police to report Patton picking up the
Adderall. The court was in the process of issuing its ruling—it
stated that it found Patton guilty of the possession charge but was
“a little more concerned about the theft issue because . . . [Patton]
paid for it”—when Patton joined the video call. Patton explained
that he “was having an issue with [his] phone” and that, in
addition to his tardiness, he was also “on audio only.”
¶5 The court responded that it had “just finished the trial”
and “was in the process of issuing [its] ruling.” The court said it
would tell Patton “what the evidence that’s been presented
demonstrate[d],” indicating that Patton’s ex-wife’s and son’s
testimonies showed that Patton picked up the prescription, “that
the prescription was not intended for [Patton], [that] it was never
delivered to [his son], [and] that [Patton] kept it.” The court stated
that the officer’s testimony “[p]rimarily . . . was that the
prescription of Adderall is a Schedule II controlled substance,
which would make possession of somebody else’s Adderall a
Class A Misdemeanor.”
¶6 The district court asked Patton if he wanted to cross-
examine the witnesses, and Patton responded that he did not and
admitted to picking up the prescription. He tried to explain the
situation by stating that he and his son both had prescriptions for
Adderall and sometimes shared their pills. The court rebuffed
this effort and, when Patton tried to provide the same explanation
later, said, “[Y]ou might not want to go a lot farther with that, Mr.
Patton, because if you’ve been giving somebody else your
Adderall, that is a felony distribution of a controlled substance.”
Patton told the court, “I—I guess I’m—I guess—I—I really feel at
a loss here because I came in late. . . . To be honest, I thought—I
20210681-CA 4 2023 UT App 33State v. Patton
thought this was—this court case was another court case. I did
not know it was this one, so I’m very ill[-]equipped. I thought . . .
I thought this whole case was in May.” The court then briefly
summarized the evidence again and asked, “With that in mind,
do you want to cross examine—do you want to reconsider your
decision and cross examine anybody, or do you want to just have
me make a decision based on the evidence that I have?” Patton
responded, “Your Honor, go ahead and make a decision based on
the evidence you have.” The court found Patton guilty on the
possession charge and indicated that it was still struggling with
the theft charge, at which point Patton said, “Your Honor, in all
honesty, if I can say one thing, I’m a victim of what’s called chemo
fog[2] because I had cancer, and I don’t remember a lot of things.
So I’m really, really at a disadvantage now.” The court went on to
finish issuing its ruling, dismissing the theft charge.
¶7 The court then asked Patton if he wanted to come back for
sentencing another day, to which Patton responded, “No, your
Honor, I’d like to just take care of [it] today, if possible.” The court
said, “All right. So I’m aware of [the State’s] recommendations.”
The State had recommended supervised private probation and a
fine of $750, with half of that creditable for substance abuse
evaluation and treatment. The court then asked Patton, “[W]hat
do you think I ought to do in terms of sentencing?” Patton
responded, “You know, it would only be right for me to say for
you to follow the law and to serve justice as it properly needs to
be served [in] this matter for the actions that were committed.”
2. “Chemo brain is a common term used by cancer survivors to
describe thinking and memory problems that can occur
during and after cancer treatment. Chemo brain can also
be called chemo fog, cancer-related cognitive impairment
or cognitive dysfunction.” Chemo brain, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/chemo-
brain/symptoms-causes/syc-20351060 [https://perma.cc/HBJ6-
HUX7].
20210681-CA 5 2023 UT App 33State v. Patton
The court then sentenced Patton on the possession charge to “the
maximum, which is 364 days in jail and a $2500 fine, plus a 90
percent surcharge and a $53 court security” fee, but it stayed the
jail time and placed Patton on private supervision for twenty-four
months. The court also suspended a portion of the fine, reducing
it to $750 plus the security fee.
¶8 Later, Patton submitted a letter indicating that he wished
to appeal the ruling because he “suffer[ed] greatly from a
condition commonly referred to as Chemo Brain which is a post
cancer medical issue that is caused by [a] significant amount of
chemotherapy and radiation.” Patton indicated that he was
“seeking an opportunity to reappear and retry [his] case with the
assistance of counsel” because “[w]ith the anxiety and
forgetfulness associated with” his condition, he was “unable to
make decisions and speak on a matter like when [he was] tried
for this case.” Patton then stated,
I am asking the court to please grant me this appeal
and let me seek counsel as I am not capable of doing
this properly where I get an actual fair chance in
court. I collect SSI/Disability purely from the Chemo
Brain[,] and if I cannot hold a job properly then I
clearly should not be trying to represent myself
which has proven to be exactly that. I am asking for
help and prefer a physical in person trial process or
at least be with someone who can help speak on my
behalf.
¶9 Patton sent another letter some three months later
declaring, “To this date, I have not heard anything regarding this
appeal which is why I am writing this follow up.” In this letter,
he claimed, “[A]fter I filed the appeal, the medication that I was
accused of stealing was found at the home of the person who
originally filed the police report. I DID NOT steal them as I was
accused of.” Patton attributed the circumstances to his medical
20210681-CA 6 2023 UT App 33State v. Patton
condition: “My memory and my Chemo Brain was why I could
not find the misplaced medication and was accused of taking or
stealing it[,] but I didn’t[,] and they found the prescription I was
originally accused of taking which I did not do.” That same day,
the court scheduled a hearing to determine Patton’s indigency
status on appeal. At that hearing, the court called Patton’s earlier
letter a “Notice of Appeal . . . that has gone unaddressed” and
declared that it was “treating this as a timely filed Notice of
Appeal.” The court also found Patton indigent and appointed
counsel to represent Patton in this appeal.
ISSUE AND STANDARD OF REVIEW
¶10 On appeal, Patton argues that the waiver of his right to
counsel was not knowingly and intelligently made. “Because the
determination that a defendant has [knowingly and] intelligently
waived his right to counsel turns upon the particular facts and
circumstances surrounding that case, including the background,
experience, and conduct of the accused, the constitutionality of an
accused’s waiver of the right to counsel is a mixed question
involving both fact and law.” State v. McDonald, 922 P.2d 776, 780
(Utah Ct. App. 1996) (cleaned up).3 Thus, we review the district
3. For some time, various judges on this court have been using the
parenthetical “(cleaned up)” to enhance the readability of our
opinions. See State v. Cady, 2018 UT App 8, ¶ 9 n.2, 414 P.3d 974,
cert. denied, 421 P.3d 439 (Utah 2018). Our opinions also employ
the parenthetical “(quotation simplified),” which is identical in
meaning to “(cleaned up).” See In re K.W., 2018 UT App 44, ¶ 15
n.3, 420 P.3d 82. Both parentheticals indicate the omission of
internal quotation marks, brackets, ellipses, emphases, internal
citations, and footnote signals in published sources, as well as the
traditional parenthetical notation referencing a prior case or cases
being quoted. Ellipses indicate all other omissions. We also use
(continued…)
20210681-CA 7 2023 UT App 33State v. Patton
court’s determination “for correctness, but with a reasonable
measure of discretion given to the trial court’s application of the
facts to the law.” State v. Petty, 2001 UT App 396, ¶ 4, 38 P.3d 998(cleaned up), cert. denied, 42 P.3d 951 (Utah 2002).
ANALYSIS
I. The Waiver Colloquy
¶11 Patton asserts that the district court erred in failing to
conduct an adequate “self-representation colloquy to determine
that [his] desire to represent himself was knowingly and
intelligently made.” We agree.
¶12 Both the Utah Constitution and the Sixth Amendment to
the United States Constitution provide persons accused of
these parentheticals to make unbracketed changes to
capitalization. Apart from capitalization, alterations to words in
the source are indicated by brackets.
These parentheticals are powerful editing tools because
they make legal writing less tedious, more streamlined, and more
concise. But their appeal begets a temptation to misuse them. And
we acknowledge that we have, at times, ventured too far by using
them with (1) quotations from unpublished sources not readily
available to the public (namely, briefs, lower court documents,
and transcripts) and (2) quotations of parenthetical language
from cases citing other cases. To be more transparent and precise,
we intend to limit our employment of these parentheticals to the
circumstances identified in the above paragraph, and we expect
practitioners who choose to employ these devices to abide by
these same strictures. So that consistency of use might be
achieved, the publishers of The Bluebook may wish to adopt rules
similar to those proffered by Jack Metzler. See Jack Metzler,
Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154–55
(2017).
20210681-CA 8 2023 UT App 33State v. Patton
criminal charges with the right to be represented by counsel in
their defense. Utah Const. art. I, § 12; U.S. Const. amend. VI. This
right also implicitly carries with it the right of self-representation.
Faretta v. California, 422 U.S. 806, 817 (1975); State v. Hassan, 2004
UT 99, ¶ 21, 108 P.3d 695. “It follows therefrom that an accused’s
decision to [self-represent] is a waiver of the right to assistance of
counsel.” State v. Frampton, 737 P.2d 183, 187 (Utah 1987).
Accordingly, “it is the trial court’s duty to determine if this waiver
is a voluntary one which is knowingly and intelligently made.”
Id.; see State v. Petty, 2001 UT App 396, ¶ 5, 38 P.3d 998, cert. denied,
42 P.3d 951 (Utah 2002); State v. McDonald, 922 P.2d 776, 779 (Utah
Ct. App. 1996).
¶13 In State v. Frampton, 737 P.2d 183 (Utah 1987), a defendant
faced charges related to selling counterfeit baseball gloves. Id. at
186. The defendant’s first trial, in which the defendant was
represented by counsel, resulted in a hung jury. Id. The defendant
then represented himself during his second trial, but that trial
resulted in a mistrial after the judge recused himself partway
through the proceedings. Id. At the third trial, the defendant
declared that he would represent himself, and the judge also
appointed a public defender as standby counsel. Id. The
defendant was convicted, and he argued on appeal that “his
conviction should be overturned because he failed to knowingly
and intelligently waive his right to counsel.” Id. at 187. Our
supreme court stated that “[s]ince [the] defendant expressly
declined an offer of counsel by the trial judge, he has the burden
of showing by a preponderance of the evidence that he did not so
waive this right.” Id. But the court made clear that defendants
electing to represent themselves “should be made aware of the
dangers and disadvantages of self-representation, so that the
record will establish” that they know what they are doing and
their “choice is made with eyes open.” Id. (cleaned up) (quoting
Faretta, 422 U.S. at 835). The court indicated that “[g]enerally, this
information can only be elicited after penetrating questioning by
the trial court. Therefore, a colloquy on the record between the
20210681-CA 9 2023 UT App 33State v. Patton
court and the accused is the preferred method of ascertaining the
validity of a waiver because it [e]nsures that defendants
understand the risks of self-representation.” Id.¶14 In expressing its clear preference for a colloquy, the
Frampton court “pointed trial courts to a scripted colloquy from
the Bench Book for United States District Court Judges, outlining
questions which might be asked to verify that a defendant
understands the significant right being waived and how that
waiver might be applied in the real-world setting of a trial court.”
State v. Rohwedder, 2018 UT App 182, ¶ 22, 436 P.3d 324(Mortensen, J., concurring), cert. denied, 437 P.3d 1248 (Utah 2019).
The colloquy is as follows:
(a) Have you ever studied law?
(b) Have you ever represented yourself or any other
defendant in a criminal action?
(c) You realize, do you not, that you are charged
with these crimes: (Here state the crimes with which
the defendant is charged.)[?]
(d) You realize, do you not, that if you are found
guilty of the crime charged in Count I, the court . . .
could sentence you to as much as _____ years in
prison and fine you as much as $________? (Then
ask . . . a similar question with respect to each other
crime with which [the defendant] may be charged
in the indictment or information.)
(e) You realize, do you not, that if you are found
guilty of more than one of those crimes this court
can order that the sentences be served
consecutively, that is, one after another?
(f) You realize, do you not, that if you represent
yourself, you are on your own? I cannot tell you
20210681-CA 10 2023 UT App 33State v. Patton
how you should try your case or even advise you as
to how to try your case.
(g) Are you familiar with the . . . Rules of Evidence?
(h) You realize, do you not, that the . . . Rules of
Evidence govern what evidence may or may not be
introduced at trial and, in representing yourself,
you must abide by those rules?
(i) Are you familiar with the . . . Rules of Criminal
Procedure?
(j) You realize, do you not, that those rules govern
the way in which a criminal action is tried in . . .
court?
(k) You realize, do you not, that if you decide to take
the witness stand, you must present your testimony
by asking questions of yourself? You cannot just
take the stand and tell your story. You must proceed
question by question through your testimony.
(l) (Then say to the defendant something to this
effect): I must advise you that in my opinion you
would be far better defended by a trained lawyer
than you can be by yourself. I think it is unwise of
you to try to represent yourself. You are not familiar
with the law. You are not familiar with court
procedure. You are not familiar with the Rules of
Evidence. I would strongly urge you not to try to
represent yourself.
(m) Now, in light of the penalty that you might
suffer if you are found guilty and in light of all the
difficulties of representing yourself, is it still your
desire to represent yourself and to give up your
right to be represented by a lawyer?
(n) Is your decision entirely voluntary on your part?
20210681-CA 11 2023 UT App 33State v. Patton
(o) If the answers to the two preceding questions are
in the affirmative, you should then say something
to the following effect: “I find that the defendant has
knowingly and voluntarily waived [the] right to
counsel. I will therefore permit [the defendant] to
[self-represent].”
(p) You should consider the appointment of
standby counsel to assist the defendant and to
replace [the defendant] if the court should
determine during trial that the defendant can no
longer be permitted to [self-represent].
Frampton, 737 P.2d at 187 n.12 (quoting Bench Book for U.S. District
Court Judges, vol. 1 §§ 1.02-2 to -5 (Federal Judicial Center, 3d ed.
1986)).4 While a waiver colloquy need not follow this precise
script, “the sixteen-point colloquy found in State v. Frampton
establishes a sound framework for efficient and complete
questioning. Moreover, on appeal, such a colloquy 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.” State v. Pedockie,
2006 UT 28, ¶ 42, 137 P.3d 716 (cleaned up).5
4. Later editions of the Benchbook have made some alterations to
the colloquy, see, e.g., Benchbook for U.S. District Court Judges § 1.02
(Federal Judicial Center, 6th ed. 2013). Here we provide the
language quoted in State v. Frampton, 737 P.2d 183 (Utah 1987),
but subsequent versions are also effective.
5. Our supreme court has “urged” and “strongly
recommend[ed]” trial courts to employ the full Frampton
colloquy. State v. Pedockie, 2006 UT 28, ¶¶ 40, 42, 137 P.3d 716.
Recent cases highlight that this urging has not been universally
embraced. We encourage trial courts to keep a prepared Frampton
(continued…)
20210681-CA 12 2023 UT App 33State v. Patton
¶15 The district court here did not perform an adequate
Frampton colloquy. After Patton indicated that he did not want an
attorney appointed, the district court did not engage in the usual
series of questions designed to determine whether Patton fully
understood the risks of proceeding pro se. Instead, the court
chided Patton for calling the proceeding “a garbage case” and
then identified the charges and the maximum penalties for each.
This sufficiently addressed the Frampton colloquy topic of the
seriousness of the charges and the associated possible maximum
penalties. However, the colloquy provided in Frampton includes
the desirable next step of confirming the defendant’s
understanding of this information, see Frampton, 737 P.2d at 187
n.12, which step the court ignored.
¶16 And the court either entirely omitted or fell well short of
addressing other key points of the Frampton colloquy. The court
did not question Patton to determine whether he had any legal
knowledge, criminal defense experience representing himself or
anyone else, understanding of consecutive sentencing were he to
be convicted of both charges, awareness that he would not receive
assistance in his defense from the court, familiarity with the Utah
Rules of Evidence and the Utah Rules of Criminal Procedure or
basic knowledge of their roles in court proceedings, or
understanding of the nature of his role as both interviewer and
testifier were he to testify. See id. In fact, the court engaged in no
questioning that could be considered “penetrating,” see id. at 187,
to determine Patton’s level of understanding about the risks he
was accepting and the benefits he was forfeiting.
¶17 Furthermore, while the court indicated that “the county
attorney’s office is staffed with attorneys who are familiar with
the Rules of Criminal Procedure and the Rules of Evidence,” its
warning on the associated disadvantages of self-representation
waiver-of-counsel colloquy script at the ready on the bench, for
use when the occasion arises.
20210681-CA 13 2023 UT App 33State v. Patton
was extraordinarily shallow: “So I anticipate that if you represent
yourself, you’ll probably be operating at a bit of a disadvantage,
but if you still want to do that and represent yourself, you can.”
This fell far short of providing the warning the Frampton court
recommended. See id. at 187 n.12 (“I must advise you that in my
opinion you would be far better defended by a trained lawyer
than you can be by yourself. I think it is unwise of you to try to
represent yourself. You are not familiar with the law. You are not
familiar with court procedure. You are not familiar with the Rules
of Evidence. I would strongly urge you not to try to represent
yourself.”). Moreover, the court’s warning actually downplayed
the disadvantages Patton would face in proceeding pro se. This is
not language that we can condone. Therefore, we are convinced
that the district court’s perfunctory exchange with Patton was
inadequate to satisfy the standard articulated in Frampton.
¶18 Our conclusion that the court’s limited discussion was
insufficient is supported by our application of the Frampton
standard in other cases. In State v. Petty, 2001 UT App 396, 38 P.3d
998, cert. denied, 42 P.3d 951 (Utah 2002), for example, a defendant
faced charges after attempting to pawn a handgun while
restricted from possessing a gun based on a previous conviction.
Id. ¶¶ 2–3. The defendant was represented by appointed counsel
for his initial appearance, preliminary hearing, and arraignment,
but then “appointed counsel informed the court that [the
defendant] wished to represent himself, that he had represented
himself in the past, and that counsel stood ready to act as standby
counsel.” Id. ¶ 3. “The trial court then engaged [the defendant] in
a brief colloquy,” id., during which “the trial court inquired about
[the defendant’s] education, his general understanding of the
legal system, [and] his knowledge of the Rules of Evidence and
Procedure[] and informed him that he had the right to counsel as
well as the right to proceed pro se,” id. ¶ 7. “The trial court also
advised [the defendant] against proceeding pro se and selected
[the defendant’s] appointed counsel to act in a standby capacity.”
Id. The court then granted the defendant’s request to proceed pro
20210681-CA 14 2023 UT App 33State v. Patton
se. Id. ¶ 3. On appeal, this court concluded that “at no point
during the colloquy did the trial court address whether [the
defendant] comprehended the nature of the charges and
proceedings or the range of permissible punishments.” Id. ¶ 7
(cleaned up). Accordingly, we held that “in the absence of a
complete colloquy, . . . [the defendant] did not knowingly and
intelligently waive his right to counsel.” Id. ¶ 11.
¶19 Here, the district court addressed the nature of the charges
and possible punishments, but like in Petty, it did not perform a
“complete colloquy.” See id. The district court did not inquire
about Patton’s education, understanding of the legal system, or
knowledge of the Utah procedural or evidentiary rules, unlike the
trial court in Petty. See id. ¶ 7. The court here also did less to advise
Patton against proceeding pro se than the trial court did in Petty.
See id. And the court did not appoint standby counsel, as the court
did in Petty, see id., and as our supreme court has recommended,
see State v. Bakalov, 862 P.2d 1354, 1355 (Utah 1993) (per curiam)
(“The court is also urged to appoint standby counsel to preserve
[the defendant’s] right to self-representation and to preclude
subsequent claims of lack of waiver or ineffective assistance of
counsel.”). Moreover, in Petty the defendant’s counsel had
represented the defendant for some proceedings (giving the
defendant some awareness of the benefits of having counsel), and
counsel also indicated that the defendant had represented himself
in the past, 2001 UT App 396, ¶ 3, neither of which is true here.
Accordingly, we have no trouble concluding that the district
court’s exchange with Patton was less comprehensive than the
one in Petty and that it was likewise inadequate to show that the
waiver was knowingly and intelligently made.
¶20 Similarly, this court found a colloquy to be insufficient in
State v. Smith, 2018 UT App 28, 414 P.3d 1092, where a defendant
faced five charges and was unrepresented at a hearing after
conflicts arose with each of four previously appointed attorneys,
id. ¶¶ 4–7. We concluded that the colloquy was insufficient partly
20210681-CA 15 2023 UT App 33State v. Patton
because the defendant “refused to engage with the court and
responsively answer the court’s questions”: “For most of the
colloquy, [the defendant] was silent . . . . And when [the
defendant] did respond, his answers were largely nonresponsive
to the questions posed. For example, when the court asked [the
defendant] to talk about his legal knowledge, he responded that
it ‘doesn’t matter’ . . . .” Id. ¶¶ 9, 24. We indicated that “if there
are any doubts regarding the defendant’s understanding of the
consequences of waiver, those doubts must be resolved in favor
of the defendant.” Id. ¶ 16 (cleaned up). Furthermore, we
concluded that we could not “discern from the court’s interaction
with [the defendant] whether he understood the risks he
undertook in choosing to represent himself at sentencing” as
there was “no evidence that [the defendant] was informed of the
risks associated with representing himself for sentencing
purposes” and “[t]he court did not ask questions aimed
specifically toward determining [the defendant’s] understanding
of what it would mean to waive counsel for sentencing.” Id. ¶ 25.
We also found “no evidence from which we could conclude that
[the defendant] understood the various matters germane to a
sentencing proceeding, such as whether certain evidence
militated against imposing the maximum available penalty for
the convictions.” Id. ¶ 26. Ultimately, we concluded that the
defendant’s waiver was not “knowingly and intelligently made.”
Id. ¶ 27.
¶21 We note similar circumstances here. While Patton
responded to the court’s limited questions, his response to the
court’s question about whether he wanted counsel appointed
was, “No, this is a garbage case. I’m not worried about it.” This is
similar to the Smith defendant’s response that “it doesn’t matter.”
See id. ¶ 24 (cleaned up). The court appeared to take offense from
Patton’s statement, but it did not ask any follow-up questions to
determine, for example, whether this statement meant that Patton
was hopeless about succeeding in the case or that he felt there was
no basis for the case and expected to be acquitted. Additionally,
20210681-CA 16 2023 UT App 33State v. Patton
Patton—like the defendant in Smith—was not represented at
sentencing, and the court took no steps to inform him of the risks
associated with waiving the right to counsel for sentencing or to
gauge his understanding of the risks of proceeding pro se for
sentencing. See id. ¶¶ 25–26. Patton’s comment that “it would
only be right for me to say for you to follow the law and to serve
justice as it properly needs to be served [in] this matter for the
actions that were committed” clearly demonstrates that Patton
did not understand his role as his own advocate at sentencing
and, like the defendant in Smith, that he did not understand “the
various matters germane to a sentencing proceeding, such as
whether certain evidence militated against imposing the
maximum available penalty for the convictions.” See id. ¶ 26. For
these reasons, we reach the same conclusion as this court did in
Petty and Smith and determine that the court did not perform an
adequate colloquy to establish that Patton’s waiver was
knowingly and intelligently made.
II. Other Record Evidence of Waiver
¶22 Rather than defend the district court’s cursory discussion
with Patton as a sufficient colloquy, the State argues that Patton
made a knowing and intelligent waiver of his right to counsel
apart from any colloquy. Our supreme court has indicated 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. But despite advocating a clear and complete colloquy,
the Frampton court indicated that “[e]ven absent such a colloquy,”
we “look at any evidence in the record which shows a defendant’s
actual awareness of the risks of proceeding pro se.” State v.
Frampton, 737 P.2d 183, 188 (Utah 1987). And our supreme court
in Frampton was “careful to note that the validity of a waiver
would turn not on whether the trial judge actually conducted the
colloquy, but rather ‘upon the particular facts and circumstances
surrounding each case.’” State v. Hassan, 2004 UT 99, ¶ 22, 108
P.3d 695 (quoting Frampton, 737 P.2d at 188). Thus, it is
20210681-CA 17 2023 UT App 33State v. Patton
appropriate for a reviewing court to “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, whether the trial
court conducted a proper colloquy or not. To find that a waiver
was made knowingly and intelligently, our review must reveal
that “the defendant understood the seriousness of the charges
and knew the possible maximum penalty,” as well as “that the
defendant was aware of the existence of technical rules and that
presenting a defense is not just a matter of telling one’s story.” Id.
(cleaned up). And “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.” Pedockie, 2006
UT 28, ¶ 45.6
¶23 There have been at least two notable instances of “rare”
waivers that have been determined valid absent a colloquy. See
State v. Bozarth, 2021 UT App 117, ¶ 45, 501 P.3d 116. First, the
Frampton court held that the defendant failed to meet his burden
of showing that his waiver was not made knowingly and
intelligently because—on the facts of his particular case—the
record clearly demonstrated that he understood the risks of
proceeding pro se, including understanding the seriousness of
the charges and being aware of the technical rules of procedure.
737 P.2d at 189. The court highlighted the fact that the defendant
6. This statement from our supreme court appears to be in tension
with, and maybe antithetical to, that court’s prior holding that
defendants bear the burden of showing that they did not waive
their right to counsel. See State v. Frampton, 737 P.2d 183, 187 (Utah
1987). We previously noted this tension in State v. Bozarth, 2021
UT App 117, ¶ 41 n.1, 501 P.3d 116. A better, and far clearer, rule
would be that where a trial court fails to employ a Frampton
colloquy, the presumption is that waiver did not occur and the
burden would be placed on the State to prove otherwise. We hope
that our supreme court would look favorably on such an
articulation.
20210681-CA 18 2023 UT App 33State v. Patton
had been represented by counsel in his first trial—which made
him aware of the advantages of representation and exposed him
to the technical aspects of procedure and evidence, as well as the
facts that the defendant filed eighteen motions on his own behalf
and spoke to the jury about the charges, to support its conclusion
that the defendant’s waiver was made knowingly and
intelligently. Id.¶24 Similarly, in State v. Bozarth, 2021 UT App 117, 501 P.3d
116, this court found that the defendant had knowingly and
intelligently waived his right to counsel, despite the trial court not
conducting a proper Frampton colloquy, because the record
clearly demonstrated the defendant’s understanding of his
waiver. Id. ¶ 42. Initially, the trial court had appointed counsel,
but before trial, the defendant expressed a clear desire to
represent himself, with only the “assistance of counsel.” Id. ¶ 9
(cleaned up). Appointed counsel expressed to the court that he
found the defendant “to be more educated in the law than other
people,” saying, “He’s cognizant of what his rights are. . . . He
knows the law to some degree. He’s very well versed to some
degree.” Id. (cleaned up). The court then honored the defendant’s
request to represent himself, allowing him to proceed pro se, and
it “appointed standby counsel ‘on a limited basis to assist’ [him].”
Id. ¶ 10. The court also ensured that the defendant had access to
legal materials and explained some court procedures, including
the process for filing. Id. ¶¶ 10, 13. The defendant subsequently
filed multiple motions, id. ¶¶ 13, 15, and when these were denied,
id. ¶¶ 16–17, he negotiated a plea agreement, id. ¶ 18. On appeal,
the defendant argued that he did not knowingly and intelligently
waive his right to counsel. Id. ¶ 21.
¶25 On these facts, we noted that “it is possible—although
perhaps rare—for a defendant to knowingly and intelligently
waive the right to counsel without a Frampton colloquy,” id. ¶ 41
(cleaned up), and we ultimately concluded that “the record
demonstrate[d] that [the defendant] understood the value of
20210681-CA 19 2023 UT App 33State v. Patton
counsel and was well aware of the risks of proceeding pro se,” id.
¶ 42. To reach this conclusion, we “conduct[ed] a de novo review
of the record to analyze the particular facts and circumstances
surrounding the case,” id. ¶ 41 (cleaned up), looking for “‘any
evidence in the record which shows a defendant’s actual
awareness of the risks of proceeding pro se,’” id. (quoting
Frampton, 737 P.2d at 188). We expressed that “[t]he record [was]
replete with evidence indicating that [the defendant] understood
his role.” Id. ¶ 46. For example, once the defendant had “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, [the defendant] filed numerous court documents.” Id.
Additionally, at another hearing the court “took the time to
explain both [the defendant’s] and standby counsel’s roles”—
including indicating that the defendant “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”—and it “confirmed that this
was [the defendant’s] understanding.” Id. ¶ 47. Accordingly, we
concluded that the defendant “clearly stated that he understood
the implications of the arrangement to which he had agreed.” Id.
Furthermore, at a later hearing, the court again explained
procedures, and then the defendant “proceeded to manage the
hearing—almost entirely on his own—by asking questions,
lodging objections, and complying with the rules of evidence.” Id.
¶ 48. So we concluded that “[t]he record demonstrate[d] that [the
defendant] 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.” Id.
¶26 The circumstances of this case fall far afield from those in
Frampton and Bozarth, and the record does not support a
conclusion that Patton waived his right to counsel knowingly and
intelligently. Unlike in Frampton and Bozarth, the record does not
provide any support for the notion that Patton understood the
20210681-CA 20 2023 UT App 33State v. Patton
nature of his waiver, and the State wholly fails to point us to any
such evidence. The State argues only that Patton’s comment
about this being a “garbage case” was flippant and disrespectful
to the court. But even assuming that it was, this in no way excuses
the court from properly ascertaining whether Patton’s waiver of
his right to counsel was knowingly and intelligently made. There
is nothing in the record that indicates Patton understood the risks
of proceeding pro se or the technical rules associated with doing
so. This is unlike the defendant in Bozarth, who repeatedly
verbalized his understanding of the risks associated with
proceeding pro se and of his role. Id. ¶ 47. This is also unlike both
Frampton and Bozarth in that the defendants in those cases had
experience being represented by counsel (and therefore had some
insight into benefits they were giving up), while Patton did not.
Frampton, 737 P.2d at 189; Bozarth, 2021 UT App 117, ¶¶ 7–9. The
court had no information that Patton had experience representing
himself or someone else, and it did not examine Patton’s
familiarity with the law or the rules of procedure.
¶27 Also unlike the defendants in Frampton and Bozarth, Patton
took no action prior to trial that demonstrates an awareness of the
responsibilities of pro se representation. Where the defendant in
Frampton filed eighteen motions on his own behalf, 737 P.2d at
189, and the defendant in Bozarth filed multiple motions and
negotiated a plea agreement, 2021 UT App 117, ¶¶ 18, 46, Patton
filed no motions and took no other action before trial. Indeed,
Patton was not even aware that the video hearing was the trial for
these charges—a misunderstanding so basic it must cut against
any argument that he understood the procedures of the court.
And shortly after Patton joined the hearing, it became clear that
he did not understand his role in representing himself. He did not
seek to cross-examine any witnesses or provide any evidence, he
made no objections, and he repeatedly tried to explain the
circumstances of the case with information that could incriminate
him on other charges. Clearly, Patton was not aware “that
presenting a defense is not just a matter of telling one’s story.” See
20210681-CA 21 2023 UT App 33State v. Patton
Frampton, 737 P.2d at 188 (cleaned up). He also never mentioned
the Utah Rules of Criminal Procedure or the Utah Rules of
Evidence during the trial. This is in sharp contrast to the
defendant in Bozarth, who “proceeded to manage the hearing—
almost entirely on his own—by asking questions, lodging
objections, and complying with the rules of evidence.” 2021 UT
App 117, ¶ 48.
¶28 As discussed above, Patton’s comment on sentencing
further demonstrates that he did not understand his role as both
defendant and advocate. Indeed, he did not advocate for any
sentence lower than what the State recommended. The court
ultimately ordered the maximum possible fine, though it
suspended a portion of it.
¶29 Finally, Patton’s statements about his medical condition
cut against a conclusion that he understood the nature of his
waiver. Patton stated in his post-trial letter, “I collect
SSI/Disability purely from the Chemo Brain and if I cannot hold
a job properly then I clearly should not be trying to represent
myself which has proven to be exactly that.” This statement
shows that Patton did not comprehend that he was representing
himself because he seems surprised that it “has proven to be
exactly that.” But additionally, our supreme court has declared
that a trial court should “carefully evaluate the accused’s
background, experience, and conduct insofar as they indicate
what the accused understands in attempting to waive the right to
counsel.” State v. Bakalov, 1999 UT 45, ¶ 23, 979 P.2d 79. Questions
about Patton’s background or experience would likely have
included questions about his profession, and a response that he
was not able to work would almost certainly have elicited the
question of why he was unable to work, revealing his medical
condition. But the court did not inquire as to Patton’s education,
and the limited responses it elicited from Patton did not
demonstrate his comprehension of the waiver. While the trial
court in Bozarth had reason to believe that the defendant was
20210681-CA 22 2023 UT App 33State v. Patton
well-educated and “very well versed” in the law for a layperson,
2021 UT App 117, ¶ 9 (cleaned up), the district court here had no
reason to believe the same about Patton. If the court had engaged
in sufficiently penetrating questioning during its exchange with
Patton, it seems very likely that Patton would have stated that he
suffers from “chemo fog” or “chemo brain,” which information
Patton freely revealed without prompting during his trial, when
he also stated that his impaired cognitive ability and memory put
him “really, really at a disadvantage” in being able to mount a
defense to the charges. Ultimately, the court did not attempt to
draw out any information on Patton’s background or experience
that would indicate that Patton understood the nature of his
waiver, and the record does not provide evidence that he did.
¶30 For these reasons, we find the State’s argument without
merit and conclude that the record does not show that Patton
waived his right to counsel knowingly and intelligently.
CONCLUSION
¶31 The district court did engage in some discussion with
Patton related to his waiver of counsel, but that exchange fell well
short of establishing that Patton’s waiver was made knowingly
and intelligently. And the record does not provide other evidence
demonstrating that Patton understood the nature and
implications of his waiver. Accordingly, Patton has satisfied his
burden of showing that his waiver was not made knowingly and
intelligently. We therefore vacate Patton’s conviction and
sentence on the possession charge, and we remand to the district
court for a new trial on that charge.
20210681-CA 23 2023 UT App 33