State v. West ( 2023 )

2023 UT App 61THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DEBORAH JEAN WEST,
Appellant.
Opinion
No. 20210335-CA
Filed June 2, 2023
Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
The Honorable John J. Walton
No. 191500815
Nicolas D. Turner, Attorney for Appellant
Eric Clarke and James R. Weeks,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Deborah Jean West appeals from a jury’s determination
that she violated a civil stalking injunction, challenging her
conviction and the sentencing court’s sentence on several
grounds. West asserts that the trial court erred in denying her
pretrial motions to exclude certain evidence and to continue the
trial. West also argues that her pro se post-trial motions to dismiss
were denied in error. Finally, West argues that her constitutional
right to be represented by counsel was violated when the court
sentenced her without first determining whether her decision to
represent herself was made knowingly and intelligently.
State v. West
¶2 We uphold the trial court’s denial of the motion to exclude
evidence and the motion to continue and therefore affirm West’s
conviction. However, because the sentencing court did not ensure
that West’s waiver of counsel was done knowingly, we vacate
West’s sentence and remand for further proceedings. Because of
our resolution of those issues, we do not reach the merits of West’s
argument regarding her post-trial motions.
BACKGROUND
The Pretrial Motions and Trial
¶3 In May 2019, West was charged with violating a stalking
injunction. The stalking injunction included the restriction that
West was not to come within twenty feet of C.L. (Petitioner). The
charge against West derived from an encounter between
Petitioner and West that occurred in their housing community’s
clubhouse library. At trial, the State bore the burden to prove that
West intentionally or knowingly violated the stalking injunction.
See Utah Code § 76-5-106.5(2)(b).
¶4 After being notified by the State that it intended to
introduce evidence that West had allegedly violated the
injunction on two other occasions after charges were filed, West
filed a motion in limine the day before trial to preclude the
admission of that evidence. The court addressed this motion on
the first day of trial. West argued that the evidence should be
excluded because it was improper character evidence, lacked any
relevance, and posed a danger of unfair prejudice. The State
argued that the evidence of West’s other alleged violations of the
injunction should be admitted and presented to the jury to show
West’s intent, knowledge, or lack of mistake, which the State
argued was relevant to proving the intent element of the charged
crime. See Utah R. Evid. 404(b) (stating that evidence of a crime,
wrong, or other act is not admissible to prove propensity, but may
be admissible to prove “motive, opportunity, intent, preparation,
20210335-CA 2 2023 UT App 61State v. West
plan, knowledge, identity, absence of mistake, or lack of
accident”).
¶5 When the trial court indicated its intention to admit the
evidence, West’s counsel requested a continuance of the trial,
arguing that as the State’s disclosure of the evidence was made
only fifteen days before trial, he was precluded from
appropriately preparing for the evidence, such as giving potential
witnesses the proper notice to appear to testify. West’s counsel
further contended that based on the sparse information regarding
the State’s evidence, he would not have known whom to
subpoena. The trial court ultimately denied the motion to
continue, stating, “We have a jury here, a jury panel. I want the
case tried,” indicating that it might “revisit the issue again” as the
evidence was admitted.
¶6 During trial, the evidence presented showed that Petitioner
was present at the clubhouse library, West entered the library, a
brief verbal interaction occurred between the two, Petitioner
called the police, and West left the library.
¶7 Petitioner testified that when she saw West was about to
enter the library, she said, “Please don’t come in now. There is a
20-feet rule. You need to stay away from me 20-feet. . . . Or I’m
going to have to call the police.” Despite this warning, West
continued to enter the library and responded by saying something
to the effect that she did not care and to “go ahead.” She then
proceeded to remove her shoes, step onto a couch cushion, and
hang a poster advertising a community event. Petitioner then left
the clubhouse library in search of another person to witness that
West had entered the clubhouse library where Petitioner had
been. During Petitioner’s testimony, the State also showed video
surveillance of the door to the clubhouse library, showing West
walking in and Petitioner walking out shortly afterward. And a
police officer testified that following the incident, based upon
Petitioner’s report, he measured the approximate distance that
would have been between Petitioner and West and concluded
20210335-CA 3 2023 UT App 61State v. West
that West was easily within the twenty-foot radius prohibited by
the stalking injunction.
¶8 The State also presented evidence of the two other
interactions between West and Petitioner—both occurring after
the library incident for which West was charged and before the
trial—where West was alleged to have been closer to Petitioner
than the injunction’s twenty-foot restriction. In the first incident,
both West and Petitioner attended a community potluck, and
West sat at a table within twenty feet of Petitioner. In the second
incident, while attending services at their church, Petitioner was
in the church foyer and West approached, put her things down
near where Petitioner was standing, and then stood within the
same area for an extended time.
¶9 West testified at trial and she and her counsel had the
following exchange after viewing surveillance video from the
clubhouse library:
Counsel: [S]o you saw in the video [Petitioner]
walks off away from the library, correct? And then
the video shows you walking out some seconds
later in the same direction. Is that correct?
West: That is correct.
Counsel: Now did you know where she had gone?
West: No.
Counsel: Okay. So where were you going when you
walked out of there?
West: I was going to the kitchen . . . . And then I went
from there into the exercise room.
....
20210335-CA 4 2023 UT App 61State v. West
Counsel: So you hung up two more posters after the
library. And then did you leave?
West: Yes . . . .
¶10 Following deliberation, the jury found West guilty of
violating the stalking injunction.
The Post-trial Motions and Sentencing
¶11 After trial and prior to sentencing, West filed several pro
se post-trial motions, claiming in each that she was no longer
represented by counsel. West also aired numerous grievances, of
which few are relevant here. Pertinent to this appeal, West took
issue with the trial court’s admission of the evidence of the other
instances of alleged contact between her and Petitioner, and she
repeatedly requested that her case be dismissed.
¶12 During a sentencing review hearing in December 2019, the
sentencing court1 asked West if she would “like a new lawyer,” to
which West responded in the negative. Without engaging in any
colloquy2 and without questioning West about her understanding
1. The judge who presided over West’s trial and ruled on the
pretrial motions was not the same judge who presided over
West’s sentencing hearings and denied West’s pro se post-trial
motions.
2. The entire exchange between the sentencing court and West
consisted of the following:
Sentencing Court: [Trial counsel] was appointed to
represent you previously?
West: He was.
Sentencing Court: Would you like a new lawyer?
(continued…)
20210335-CA 5 2023 UT App 61State v. West
of the significance and the risk of proceeding without counsel, the
court accepted West’s indication to proceed pro se, ordered
West’s trial counsel to withdraw, and allowed West to represent
herself.
¶13 At her sentencing hearing approximately sixteen months
later—the delay in proceedings due in small part to expected
scheduling conflicts and in larger part to the COVID-19
pandemic—the court engaged in no further discussion with West
about her decision to waive counsel and represent herself, other
than to note that West “put [herself] at a disadvantage . . . having
fired [her] lawyer,” which was “pretty clear in the record, and
[West] confirmed that . . . at [the sentencing review].” During this
hearing, the sentencing court focused on West’s post-trial
motions. The sentencing court indicated on the record that West
had “framed most of the written materials . . . as motions to
dismiss,” and noted that the motions had not “been submitted for
decision, which would normally be required under the [Utah]
Rules of Criminal Procedure.” However, the court expressed its
intention to provide immediate responses to the motions, having
told West that the court “would rule on [the] motions” during the
sentencing hearing. The court then proceeded to deny the portion
of West’s motions to dismiss dealing with the evidence of the
other alleged injunction violations admitted at trial.
¶14 Next, the sentencing court addressed the other issues
raised in West’s motions, simply concluding that “frankly, . . . the
motions that [West had] made [were] legally frivolous.” The court
ultimately denied all of West’s motions in totality and then
proceeded with sentencing. The court sentenced West to serve 364
days in jail, but it suspended the jail time, and imposed a fine. The
West: No. I will represent myself. I can do better
representing myself.
Sentencing Court: Okay. So [trial counsel] is
allowed to withdraw from the cases. And Ms. West
will represent herself.
20210335-CA 6 2023 UT App 61State v. West
court ordered West to serve eighteen months of probation with
the conditions that she complete community service, complete an
anger management course, and continue to comply with the
stalking injunction. West appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 The first issue we address is West’s challenge to the denial
of her pretrial motions. She argues that the trial court erred in
denying the motion in limine, contending that she was denied the
right to a fair trial when the court allowed evidence of additional
interactions between West and Petitioner to be admitted. We
review for an abuse of discretion a trial court’s decision to admit
evidence under rules 404(b), 402, and 403 of the Utah Rules of
Evidence. See State v. Tarrats, 2005 UT 50, ¶ 16, 122 P.3d 581 (“Trial
courts have wide discretion in determining relevance, probative
value, and prejudice. Therefore, we will not reverse the trial
court’s ruling on evidentiary issues unless it is manifest that the
trial court so abused its discretion that there is a likelihood that
injustice resulted.” (quotation simplified)). In the event that the
trial court admits evidence in error, “we will not disturb the
outcome of a trial if the admission of the evidence did not
reasonably affect the likelihood of a different verdict.” State v.
Miranda, 2017 UT App 203, ¶ 24, 407 P.3d 1033 (quotation
simplified), cert. denied, 417 P.3d 581 (Utah 2018). And West “bears
the burden of showing that [she] was harmed by the trial court’s
error.” See id. ¶ 44.
¶16 West further asserts that the trial court erred in denying her
request to continue the trial after the court determined the
other-acts evidence was admissible. We review the court’s denial
of a motion for continuance for an abuse of discretion. State v.
Cabututan, 861 P.2d 408, 413 (Utah 1993) (“The standard of review
for the denial of a motion for continuance is abuse of discretion: It
is well-established that the granting of a continuance is
discretionary with the trial judge. Absent a clear abuse of that
discretion, the decision will not be reversed by this court.”
20210335-CA 7 2023 UT App 61State v. West
(quotation simplified)). A trial court “abuses its discretion when
it denies a continuance and the resulting prejudice affects the
substantial rights of the defendant, such that a review of the
record persuades the court that without the error there was a
reasonable likelihood of a more favorable result for the
defendant.” Mackin v. State, 2016 UT 47, ¶ 33, 387 P.3d 986(quotation simplified).
¶17 Next, we address West’s argument that her constitutional
right to be represented by counsel at sentencing was violated
because the sentencing court did not adequately explore through
an on-the-record colloquy whether her waiver of counsel was
knowingly and intelligently made with an understanding of the
risks of representing herself. In the absence of a colloquy, we
review the record de novo to determine whether the defendant
knowingly and intelligently waived her right to counsel. See State
v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716 (“De novo review is
appropriate because the validity of a waiver does not turn upon
whether the trial judge actually conducted the colloquy, but upon
whether the defendant understood the consequences of waiver.”
(quotation simplified)). “Whether [West’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 [trial] court’s application of the facts to the
law.” State v. Bozarth, 2021 UT App 117, ¶ 21, 501 P.3d 116(quotation simplified).3
3. West also argues on appeal that the sentencing court erred in
(1) interpreting West’s pro se post-trial motions as motions to
dismiss instead of considering them as motions for a new trial and
(2) denying those motions. However, given our determination
that West did not knowingly and intelligently waive her
constitutional right to counsel at sentencing, which requires
vacating the sentence and remanding for further proceedings, we
need not reach West’s final argument here. Remand for re-
sentencing will allow West to refile her motions for consideration,
with the assistance of counsel if she so chooses.
20210335-CA 8 2023 UT App 61State v. West
ANALYSIS
I. Pretrial Motions
¶18 West first challenges the trial court’s denials of her motion
to exclude evidence and motion to continue the trial. We do not
reach the merits of West’s argument that the trial court
erroneously admitted the other-acts evidence or abused its
discretion in denying her continuance motion because even if the
trial court erred, West has failed to meet her burden to show that
she was prejudiced by either alleged error such that our
confidence in the jury’s verdict is undermined. See State v. High,
2012 UT App 180, ¶ 41, 282 P.3d 1046 (“We will not disturb the
jury’s verdict unless the likelihood of a different outcome is
sufficiently high to undermine confidence in the verdict.”
(quotation simplified)). In other words, West has not persuaded
us that a “reasonable likelihood exists that the [alleged] error
affected the outcome of the proceedings.” State v. Bilek, 2018 UT
App 208, ¶ 35, 437 P.3d 544 (quotation simplified), cert. denied, 440
P.3d 693 (Utah 2019). “A reasonable likelihood requires a
probability sufficient to undermine confidence in the outcome.”
State v. Gallegos, 2020 UT App 162, ¶ 62, 479 P.3d 631 (quotation
simplified), cert. denied, 496 P.3d 717 (Utah 2021).
A. Motion to Exclude Rule 404(b) Evidence
¶19 West contends on appeal that evidence of other uncharged
alleged violations of the stalking injunction admitted at trial was
“precisely what [rule] 404(b) was intended to bar.”4 West further
4. West highlights in her brief the fact that these events occurred
after the incident for which she is charged but does not further
expound on any potential significance of this. Even so, we
reiterate that timing of other acts in relation to the incident for
which a defendant is charged is not a precluding factor to the
admission of evidence of those acts: “Rule 404(b) itself . . . makes
no reference to ‘prior’ crimes, wrongs, or acts, but refers only to
(continued…)
20210335-CA 9 2023 UT App 61State v. West
argues that had the jury not heard the evidence of these other
alleged violations, “there was a reasonable likelihood that West
would not have been found guilty of the charge.” Rule 404(b) of
the Utah Rules of Evidence provides that other-acts evidence,
while prohibited to “prove a person’s character in order to show
that on a particular occasion the person acted in conformity with
the character,” may be admissible for other purposes, such as
“proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Utah R. Evid. 404(b). Such evidence must also pass the muster of
rules 402 and 403, which require that evidence be relevant and
have probative value that is not substantially outweighed by a
danger of unfair prejudice. See id. R. 402, 403.
¶20 However, we need not address the underlying question of
whether the trial court erred in admitting the other-acts evidence
because, “even if the admission of rule 404(b) evidence by the
[trial] court was in error, reversal on appeal is not appropriate
unless the defendant demonstrates that the error materially
affected the fairness or outcome of the trial.” Bilek, 2018 UT App
208, ¶ 35 (quotation simplified). Thus, the burden rests on West to
make such a showing, and she fails to carry her burden here. In
arguing that she was prejudiced, West simply asserts that,
“[a]bsent the 404(b) evidence, there was a reasonable likelihood
that West would not have been found guilty of the charge herein.”
But she does not then provide much discussion as to how the
outcome of the trial would have differed absent the admitted
other-acts evidence, other than to essentially conclude that
because it was, therefore it is so. That is, West has failed to
demonstrate how excluding evidence that she was close to
Petitioner at church and at a potluck, after the events in the
clubhouse library, would have changed the jury’s determination
that West knowingly and intentionally came within twenty feet of
‘other’ crimes, wrongs, or acts.” State v. Barney, 2018 UT App 159,
¶ 16 n.2, 436 P.3d 231. “Many courts have recognized that other
crimes, wrongs, or acts can be relevant, even if those acts occurred
after the charged conduct.” Id. (collecting cases).
20210335-CA 10 2023 UT App 61State v. West
Petitioner while in the clubhouse library in violation of the
injunction.
¶21 To be sure, the evidence of the other acts was most likely
helpful to the State in proving its case. Absent the evidence, the
State would have had to rely solely on Petitioner’s credibility in
the eyes of the jury and her testimony of what occurred between
West and her to support its case that West had knowingly and
intentionally violated the stalking injunction. See Utah Code
§ 76-5-106.5(2)(b). But even without the other-acts evidence,
evidence and testimony presented to the jury during trial
sufficiently supports our confidence in the jury’s verdict. See State
v. Ferguson, 2011 UT App 77, ¶ 20, 250 P.3d 89 (acknowledging
that while erroneously admitted evidence had “the potential of
being highly prejudicial, the other evidence presented at trial was
sufficiently strong as to convince us that there was no reasonable
likelihood of a different result” (quotation simplified)), cert.
denied, 262 P.3d 1187 (Utah 2011); High, 2012 UT App 180, ¶¶ 50–
51, 54 (noting that while the case was not like Ferguson, “where
the evidence of guilt was overwhelming” in the absence of
evidence allegedly admitted in error, the court’s “confidence in
the jury’s verdict” was not undermined as “the jury would still
have heard unchallenged and properly admitted” evidence
supporting the defendant’s guilt).
¶22 For example, here the jury heard generally unchallenged
testimony from Petitioner about the nature of her encounter with
West: that she told West to stop and not enter until she was
finished or she would have to call the police, and that West
ignored her entreaty and threat and carried on with her business
in the clubhouse library. The jury then heard West testify as to her
actions following the encounter with Petitioner. Even by her own
account, West did not immediately leave after the incident, but
instead made her way through the clubhouse facilities without
much concern about whether Petitioner was still in the area or not.
The jury was also aware, by nature of the charge against West,
that a stalking injunction was in place, and it could have
reasonably inferred that West had a history of unwanted
20210335-CA 11 2023 UT App 61State v. West
interactions with Petitioner that would warrant the imposition of
the stalking injunction, and that the reported clubhouse library
incident was not just a solitary incident. And West has not argued
how all of this, standing alone and absent the added gloss of the
rule 404(b) evidence, would have induced the jury to find in her
favor instead.
¶23 Accordingly, we are not persuaded that exclusion of the
other two alleged incidents would so tilt the jury’s view of West’s
credibility as to change its verdict. In other words, West has failed
to persuade us that even without the admission of the other
alleged violations of the stalking injunction, the result of the trial
would have been favorable for her.
B. Motion to Continue
¶24 West also contends the court’s denial of her motion to
continue to address the other violations evidence “deprived [her]
of her right to a fair trial.” A defendant bears the burden of
showing that the trial court’s denial of the motion to continue was
“an unreasonable action that prejudiced the party.” State v.
Cornejo, 2006 UT App 215, ¶ 14, 138 P.3d 97 (quotation simplified).
“Such prejudice exists when our review of the record persuades
us that had the trial court not denied the continuance request
there would have been a reasonable likelihood of a more
favorable result for the moving party.” Id. (quotation simplified).
West again fails to persuade us that the denial of the continuance
was prejudicial.
¶25 West has not outlined on appeal how her defense strategy
would have changed had she been given more time to prepare.
And though she indicates in her brief and told the sentencing
court judge that she had witnesses to one of the incidents, she has
neither provided even the slightest information on who those
witnesses may be nor provided an explanation as to whether they
would have been available to testify within an appropriate time
frame. Moreover, West does not flesh out on appeal why the
State’s information was so lacking that she could not subpoena
20210335-CA 12 2023 UT App 61State v. West
witnesses prior to trial. See id. ¶ 15 (“When a party to a criminal
action moves for a continuance in order to procure the testimony
of an absent witness, the party must demonstrate that: (1) the
testimony sought is material and admissible, (2) the witness could
actually be produced, (3) the witness could be produced within a
reasonable time, and (4) due diligence had been exercised before
the request for a continuance.” (quotation simplified) (quoting
State v. Creviston, 646 P.2d 750, 752 (Utah 1982))). West contends
only that once the trial court allowed the other-acts evidence to be
introduced, “had the continuance been afforded as it should have
been, counsel would have had time to gather evidence, find
witnesses, and raise a defense against that other evidence.” This
simply is not a sufficient showing on appeal to persuade us that
the denial of her motion to continue affected the outcome of the
trial. Therefore, her claim fails here as well.
II. Knowing and Intelligent Waiver
¶26 The next question before us is whether West knowingly
and intelligently waived her right to be represented by counsel at
sentencing. West argues that because there was no colloquy on
the record that would inform this court that her waiver was
knowingly and intelligently made, her waiver was invalid. The
State disagrees and argues that even in the absence of a colloquy
conducted by the sentencing court, the record shows that West
knowingly and intelligently waived her right to counsel because
she “was given a front row seat to the intricacies of navigating a
criminal case” as she did not excuse her counsel until after the
trial.
¶27 “Under both the United States and Utah Constitutions, a
criminal defendant has the right to assistance of counsel,” State v.
Hall, 2013 UT App 4, ¶ 25, 294 P.3d 632, cert. denied, 308 P.3d 536(Utah 2013), which includes the right to effective counsel for
sentencing proceedings, see State v. Casarez, 656 P.2d 1005, 1007
(Utah 1982) (“Sentencing is a critical stage of a criminal
proceeding at which a defendant is entitled to the effective
assistance of counsel.”). “Concomitant with that right is the
20210335-CA 13 2023 UT App 61State v. West
criminal defendant’s guaranteed right to elect to present [one’s]
own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695; see
also State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (“Defendants
also have the right to waive their right to counsel.”). Because the
right to counsel and the right to waive counsel are mutually
exclusive, “a trial court must be vigilant to assure that the choice
[to waive counsel] is freely and expressly made ‘with eyes open.’”
State v. Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799 (quoting Faretta v.
California, 422 U.S. 806, 835 (1975)). “Before permitting a
defendant to [self-represent], . . . a trial court should ensure that
the waiver [of counsel] is voluntary, knowing, and intelligent.”
Pedockie, 2006 UT 28, ¶ 26.
¶28 A defendant may employ any of three different methods to
validly waive a right to counsel: “true waiver, implied waiver,
and forfeiture.” State v. Smith, 2018 UT App 28, ¶ 17, 414 P.3d 1092.
¶29 At issue here is true waiver: “A true waiver is one in which
the defendant affirmatively represents that [she] wishes to
proceed without counsel.” Id. ¶ 18. To be a valid true waiver, a
defendant must “clearly and unequivocally” communicate to the
court the wish “to proceed pro se.” Id. (quotation simplified); see
also State v. Bozarth, 2021 UT App 117, ¶ 34, 501 P.3d 116 (“True
waiver occurs when a defendant directly communicates a desire
to proceed pro se.”). “Where a defendant expressly declines an
offer of counsel by the trial judge” but later challenges the validity
of that waiver, “[she] has the burden of showing by a
preponderance of the evidence that [she] did not knowingly and
intelligently waive this right.” Bozarth, 2021 UT App 117, ¶ 39
(quotation simplified).5
5. This court has recently noted the dissonance between the
language in State v. Frampton, 737 P.2d 183, 187 (Utah 1987)—that
a defendant who expressly declines a trial court’s offer of counsel
then bears the burden to show “by a preponderance of the
evidence that [she] did not so waive this right”—and the language
(continued…)
20210335-CA 14 2023 UT App 61State v. West
¶30 There is no question in this case that West clearly and
unequivocally communicated to the court her desire to represent
herself at sentencing. In her written motions, and then at the
sentencing hearing when the court asked if she wanted a new
lawyer, West plainly expressed her wish to proceed on her own
without the assistance of counsel. But waiver alone is not enough
to verify that West understood the significant right being waived
and how her waiver might be applied in the real-world setting of
sentencing. So, we must next address whether West’s waiver was
knowingly and intelligently made. See id. ¶ 34 (“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.” (quotation
simplified) (emphasis added)).
¶31 For a waiver to be knowingly and intelligently made, a
defendant must understand “the relative advantages and
disadvantages of self-representation in a particular situation.”
State v. Frampton, 737 P.2d 183, 188 (Utah 1987) (quotation
simplified). In other words, a court must be satisfied that a
defendant has “actual awareness of the risks of proceeding pro se
under the particular facts and circumstances at hand.” Smith, 2018
UT App 28, ¶ 19 (quotation simplified). The best way to ascertain
if a defendant has the requisite knowledge of the legal mire she
wishes to wade into is for a court to engage in “penetrating
questioning,” Frampton, 737 P.2d at 187, on the record, see Smith,
2018 UT App 28, ¶ 19. Such questioning is the “encouraged”
in State v. Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716—that because
of the “strong presumption against waiver and the fundamental
nature of the right to counsel, any doubts must be resolved in
favor of the defendant.” See State v. Patton, 2023 UT App 33, ¶ 22
n.6. We again take the liberty to suggest that the “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.” Id.20210335-CA 15 2023 UT App 61State v. West
practice for courts, utilizing Frampton’s “sixteen-point guide” as a
framework to ensure a defendant is making the decision to
proceed pro se knowingly and intelligently. See id.; see also
Pedockie, 2006 UT 28, ¶ 42 (“The sixteen-point colloquy found in
State v. Frampton establishes a sound framework for efficient and
complete questioning.”); cf. State v. Patton, 2023 UT App 33, ¶ 14
n.5 (“We encourage trial courts to keep a prepared Frampton
waiver-of-counsel colloquy script at the ready on the bench, for
use when the occasion arises.”).
¶32 Absent a colloquy, it is still possible for a reviewing court
to find that a defendant’s waiver was validly made after
examining “any evidence in the record which shows a
defendant’s actual awareness of the risks of proceeding pro se” at
the time the defendant communicated the wish to self-represent.
Frampton, 737 P.2d at 188. Therefore, we must conduct a “de novo
review of the record to analyze the particular facts and
circumstances surrounding the case” to establish “whether the
defendant understood the consequences of waiver.” See Bozarth,
2021 UT App 117, ¶ 41 (quotation simplified). However, more
than once and quite recently, Utah’s appellate courts have noted
that such a conclusion is rare. See id. (“It is possible—although
perhaps rare—for a defendant to knowingly and intelligently
waive the right to counsel without a Frampton colloquy.” (citation
omitted)); Pedockie, 2006 UT 28, ¶ 45 (“We therefore anticipate that
reviewing courts will rarely find a valid waiver of the right to
counsel absent a colloquy.”).6
6. Echoing previous decisions addressing this issue, “we continue
to strongly recommend a colloquy on the record as the preferred
method of determining whether a defendant is aware of [the]
risks.” Pedockie, 2006 UT 28, ¶ 42. While we are cognizant that the
“colloquy is not mandatory,” State v. Bozarth, 2021 UT App 117,
¶ 41, 501 P.3d 116, it is nevertheless “the most efficient means by
which appeals may be limited,” Frampton, 737 P.2d at 187. We
encourage courts to engage in a full colloquy to ensure that
(continued…)
20210335-CA 16 2023 UT App 61State v. West
¶33 Given the rarity, we look to Frampton and Bozarth for
instruction, both of which demonstrate when the record may
support a conclusion that a defendant did knowingly and
intelligently waive the right to counsel in the absence of an
adequate colloquy. See Frampton, 737 P.2d at 188–89; Bozarth, 2021
UT App 117, ¶¶ 42–48.
¶34 In Frampton, the defendant was represented by counsel at
a trial that resulted in a hung jury. 737 P.2d at 186. The defendant
then opted to represent himself at a second trial that resulted in a
mistrial. Id. A third trial was scheduled, and prior to the third trial,
the defendant filed eighteen of his own motions, two of which
“asserted his right to assistance of counsel,” but he “insisted on
being represented by a non-member of the Bar,” which option is
not constitutionally protected. Id. at 189. On the day of the third
trial, the defendant indicated that he wished to represent himself,
and the court acknowledged the defendant’s right to self-
representation and indicated that “[the defendant] would be
accorded every courtesy along that line.” Id. at 186 (quotation
simplified). The court then appointed standby counsel, over the
defendant’s objections, but the defendant “refused to receive any
help from the appointed counsel.” Id. at 186, 189. On appeal, the
Utah Supreme Court concluded that the defendant had
“knowingly and intelligently waived the right to representation
by counsel” for several reasons. Id. at 188–89. First, the record
clearly indicated that the “value of counsel should have been
apparent to defendant” because while represented, his trial ended
in a hung jury. Id. at 189. Furthermore, the court noted that the
record showed several instances that, taken together, supported a
conclusion that the defendant was sufficiently versed in legal
procedures and proceedings: (1) he had filed eighteen of his own
motions, (2) he had explained to jurors “the statute under which
he was charged,” (3) he had been informed of the charge he faced
and the possible penalty for a guilty verdict, and (4) he had been
“accorded . . . every courtesy” by the court when it “explain[ed]
criminal defendants are conscious of the challenges that come
with self-representation.
20210335-CA 17 2023 UT App 61State v. West
applicable procedure and [gave] defendant extremely wide
latitude in conducting his defense.” Id.¶35 Likewise, in Bozarth, this court reached a similar conclusion
regarding the question of whether a waiver was knowingly and
intelligently made for a similar reason: the record showed as
much. 2021 UT App 117, ¶ 44. In Bozarth, the defendant initially
requested counsel but reserved his right to self-representation in
the event that he wanted to “retake the helm” at a later time. Id.(quotation simplified). Additionally, prior to the defendant
undertaking his own representation, the trial court had instructed
and the defendant was aware of the importance of having
counsel, and the defendant specifically requested that standby
counsel be provided to “assist” only. Id. The defendant had even
demonstrated knowledge about court procedures: he invoked the
exclusionary rule at an evidentiary hearing and negotiated a plea
deal that included his reservation of the right to appeal all prior
objections, including “ineffective assistance of counsel.” Id. ¶¶ 14,
18. Lastly, the defendant had been informed of the charges against
him and the potential penalties of a conviction on his charges. Id.
¶ 44. The Bozarth court then concluded that, with all these things
taken together, the defendant had failed to meet his burden of
proving that he “did not knowingly and intelligently waive his
right to counsel.” Id.
¶36 But West’s case went differently. Here, unlike the
defendants in both Frampton and Bozarth, there is no indication in
the record that West had been informed by her counsel or by the
sentencing court of the risks she faced by proceeding alone, nor
was it clear that she understood the associated value of having the
assistance of counsel during her sentencing or that she
understood the law or the procedural requirements of a
sentencing hearing. When West elected to proceed pro se, the
sentencing court simply mentioned on the record that by doing
so, she may have put herself at a disadvantage, with no other
discussion or explanation as to why West’s decision would have
done so. Again, this is in direct contrast to the facts of both
Frampton and Bozarth, where those judges not only advised the
20210335-CA 18 2023 UT App 61State v. West
defendants of the risks of proceeding pro se, but also encouraged
or insisted on appointing standby counsel in the event assistance
was needed.
¶37 Furthermore, while it is true that West filed several pro se
motions prior to sentencing, which action on its face could
indicate an awareness of court procedures like in Frampton, the
content of West’s filings should have suggested to the sentencing
court that she did not understand that attorneys and litigants are
expected to conduct themselves with decorum and
professionalism every time they enter the courtroom or file a
pleading. The sentencing court even commented on the
disparaging content of West’s motions: “If you were a lawyer, you
would, in all likelihood, if you said those kinds of things to a
judge, and wrote the kinds of things that you did, there’s a
significant possibility that you would have sanctions issued
against you.” But even with these indications that West perhaps
did not grasp the implications of proceeding without counsel, the
sentencing court’s investigation of West’s knowledge of the risks
of self-representation stopped there.7
¶38 The State defends West’s waiver as knowing and
intelligent because West “was given a front row seat” to
observe her trial counsel at trial and argues that this knowledge
was sufficient to establish that West knew the “intricacies of
navigating a criminal case.” We disagree with this
reasoning. Merely observing court proceedings does not
provide an untrained pro se defendant with the awareness or
knowledge of the risks of appearing for sentencing without
representation. Few lay people, even after observing a trial
from start to finish, would then be able to understand “the
7. Of further note, the April 2021 sentencing hearing occurred
sixteen months after the sentencing review hearing at which West
verbally asserted her desire to self-represent at sentencing.
Sixteen months is a long time—with a pandemic in the middle, no
less—and it would have been helpful to revisit West’s intention of
being sentenced without an attorney.
20210335-CA 19 2023 UT App 61State v. West
various matters germane to a sentencing proceeding,” such as the
ability to argue mitigating circumstances and evidence to
influence sentencing. See State v. Smith, 2018 UT App 28, ¶ 26, 414
P.3d 1092. For instance, a sentencing may involve discussion of
the actions that a defendant may take following a guilty
verdict, the financial ability that a defendant has to pay a fine or
pay for a remedial course, appropriate lengths of jail time or
suspended jail time, and previous criminal history. Without
prior exposure to a sentencing for a charge of violating a stalking
injunction, it is not persuasive to argue that West
would understand the differences between a trial and a
sentencing proceeding and the risks she assumed by
continuing without the assistance of counsel to aid her in
arguing, for instance, against the imposition of an anger
management class or for a reduced fine or suspended jail time.
We therefore strongly disagree that West’s “observations” of
her attorney in action in court proceedings resulted in something
that resembled the legal acuity or understanding of court
proceedings that the defendants in Frampton and Bozarth
exhibited.
¶39 Accordingly, we conclude that West has met her burden to
show that her waiver of counsel prior to sentencing, though
express, was not knowingly and intelligently made. The
sentencing court should have conducted further inquiry into
West’s awareness, or lack thereof, of the risks of self-
representation before allowing her to be sentenced without the
assistance of counsel. Therefore, we vacate West’s sentence and
remand for resentencing.8
8. During oral argument, there was discussion about whether
what occurred at West’s sentencing would be subject to “harmless
error” review. However, the State acknowledged that it did not
brief this argument. Therefore, “we do not address [the argument]
on its merits.” See State v. Smith, 2018 UT App 28, ¶ 27 n.2, 414
P.3d 1092.
20210335-CA 20 2023 UT App 61State v. West
CONCLUSION
¶40 We are not convinced by West’s argument that the trial
court abused its discretion in denying the pretrial motions,
because West has not met her burden to show that if the other-acts
evidence had been excluded or her motion to continue had been
granted the outcome of her trial would have been different. We
therefore affirm West’s conviction. However, we are persuaded
that West did not knowingly and intelligently waive her right to
be represented by counsel at her sentencing. We therefore vacate
West’s sentence and remand for the limited purpose of
resentencing.
20210335-CA 21 2023 UT App 61