Lucero v. Kennard

JACKSON, Judge

(dissenting):

¶ 15 I respectfully dissent from the majority’s opinion.

I. The District Court’s Jurisdiction to Hear a Petition for Extraordinary Relief

¶ 16 It is unquestionably true that a defendant’s right to appeal a justice court conviction to a district court for a trial de novo satisfies the various state and federal constitutional guarantees relating to due process and the right to appeal. See, e.g., North v. Russell, 427 U.S. 328, 337, 96 S.Ct. 2709, 2713, 49 L.Ed.2d 534 (1976); City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990). The question before us, however, is not one of constitutional propriety, but is instead a question of statutory interpretation. Specifically, the question of whether the district court had jurisdiction to hear Lucero’s petition for post-conviction relief hinges upon our reconciliation of two different statutory provisions. The first is Utah Code Annotated section 78-5-120 (Supp.2002), which dictates the manner by which defendants can appeal justice court convictions. That section is entitled “Appeals from justice court,” and provides that, “[i]n a criminal case, a defendant is entitled to a trial de novo in the district court.” Id. § 78-5-120(1). The second is Utah Code Annotated section 78-35a-106 (1996), which establishes the means by which a defendant can petition for post-conviction relief under the Post^Conviction Remedies Act. See generally Utah Code Ann. §§ 78-35a-106 to -110 (1996). Section 78-35a-106(l) states that “[a] person is not eligible for relief under this chapter upon any ground that: (a) may still be raised on direct appeal or by a post-trial motion.” (Emphasis added.) The question before us, then, is whether a trial de novo qualifies as a “direct appeal.” Id. The majority concludes that it does, and therefore rules that Lucero’s failure to file for a trial de novo precludes him from petitioning for post-conviction relief under the Post-Conviction Remedies Act. I disagree.

¶ 17 I first examine the meaning of the phrase “direct appeal.” There is no provision in the Post-Conviction Remedies Act that specifically defines what constitutes a “direct appeal” for purposes of section 78-35a-106, nor is there a provision anywhere in the Utah Code defining that specific phrase for purposes of any other particular statutory scheme.¹ Accordingly, we must interpret the meaning of this phrase using the accepted rules of statutory interpretation. “When interpreting statutes, we determine the statute’s meaning by first looking to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.” Dick Simon Trucking, Inc. v. Utah State Tax Comm’n, 2004 UT 11,¶ 17, 84 P.3d 1197. As I see it, a party receives a “direct appeal” when an appellate tribunal conducts a case-specific, ruling-specific review of the lower court proceedings. This understanding comports with the limited discussion that this phrase has received in various Utah courts. See, e.g., Collins v. Sandy City Bd. of Adjustment, 2002 UT 77,¶¶ 18-19, 52 P.3d 1267 (referring to a “direct appeal” as a “direct review”); see also State v. Hamilton, 2003 UT 22,¶ 25, 70 P.3d 111 (distinguishing “direct appeals” from collateral attacks). Accordingly, Utah courts have used the phrase “direct appeal” to refer to a variety of situations in which appellate tribunals undertook a case-specific, ruling-specific review of the proceedings below. See, e.g., Hutchings v. State, 2003 UT 52,¶ 16, 84 P.3d 1150 (referring to an appellate review of a probation revocation as a “direct appeal”); Thomas v. State, 2002 UT 128,¶ 6, 63 P.3d 672 (stating that such issues as the validity of a search warrant, the admissibility of a confession, and the correctness of a bindover order are reviewable on “direct appeal”); Salazar v. Utah State Prison, 852 P.2d 988, 991 n. 6 (Utah 1993) (referring to an appellate review of a denial of a motion to withdraw a guilty plea as a “direct appeal”). Applied to the present ease, a trial de novo would therefore only constitute a “direct appeal” of the justice court conviction if it provided the district court with the opportunity to conduct a case-specific, ruling-specific review of the justice court proceedings.

¶ 18 I now turn to the scope of review provided by a “trial de novó.” In Pledger v. Cox, the Utah Supreme Court noted that “[t]he words ‘de novo’ ... have at least two possible interpretations when applied to judicial review ...: ‘(1) A complete retrial upon new evidence; and (2) a trial upon the record made before the lower tribunal.’ ” 626 P.2d 415, 416 (Utah 1981) (quoting Denver & R.G.W.R. Co. v. Public Serv. Comm’n, 98 Utah 431, 436, 100 P.2d 552 (1940)). Though “[t]he meaning of ‘trial de novo’ in each statute is obviously dictated by the wording and context of the statute in which it appears,” id., a trial de novo that is conducted following a defendant’s justice court conviction follows the first definition — that of a “complete retrial upon new evidence.” Id. This comports with the definition offered by Black’s Law Dictionary, wherein “trial de novo” is defined as “[a] new trial on the entire case — that is, on both questions of fact and issues of law.” Black’s Law Dictionary 1512 (7th ed. deluxe 1999). Thus, “[bjecause a justice of the peace court in this state is not a court of record, an appeal from that court is by way of a trial de novo in the district court, rather than a review of the justice’s rulings.” Wisden v. District Ct., 694 P.2d 605, 606 (Utah 1984).

¶ 19 Because it acts “as if there had been no trial in the first instance,” Black’s Law Dictionary. 1512 (7th ed. deluxe 1999), a district court conducting a trial de novo “is not confined to the record before the justice court and need not defer to the justice court’s findings and determinations. The district court neither reverses nor affirms the judgment of the justice court, but renders a new, distinct, and independent judgment.” State v. Hinson, 966 P.2d 273, 276 (Utah Ct.App.1998). When a district court conducts a trial de novo review of a justice court conviction, “the case [stands] precisely as it would have at that stage of the proceedings if it had begun in that court in the first instance.” Id.; accord Dean v. Henriod, 1999 UT App 50,¶ 9 n. 1, 975 P.2d 946.²

¶ 20 When confronted with possible statutory conflicts that might preclude a defendant from seeking post-conviction relief, “any ambiguity that may exist ... should be resolved in favor of a criminal defendant.” Smith v. Cook, 803 P.2d 788, 791 (Utah 1990). Against this backdrop, I think that the majority’s decision to deny Lucero post-conviction relief based on his failure to request a trial de novo is simply incorrect. Had Luce-ro requested a trial de novo, the district court would have been required to act as if “the proceedings had begun in that court in the first instance.” Hinson, 966 P.2d at 276. As such, Lucero would not have had the opportunity to focus his “appeal” on the particular legal conclusions or factual findings of the justice court that he believed were erroneous. Lucero’s trial de novo would not have been a framed, particularized proceeding that was directed at the review of specific alleged errors; instead, the district court conducting the trial de novo would have acted as a broad, general tribunal that would have examined the charges anew. Insofar as this avenue of appeal would simply not have given Lucero the opportunity to directly challenge any alleged errors below, I think it clear that the trial de novo cannot be regarded as a “direct appeal.”³

¶ 21 As I see it, the plain language of the statutory scheme thus provides a defendant who has been convicted in a justice court proceeding with two separate avenues of relief. First, the defendant can exercise his statutory right to file for a trial de novo. The advantages of this course would be clear: though the defendant would not have the opportunity to have the trial court review any potential errors that occurred below, the defendant would have the opportunity under this fresh start to try and persuade a new finder of fact of his or her innocence. Should the defendant choose not to file for a trial de novo, however, the defendant is still allowed to petition a district court for post-conviction relief under the Post^Conviction Remedies Act. In this hearing, the trial court would have the authority to directly review the proceedings in the justice court to determine whether any constitutional error occurred.⁴ In this case, Lucero properly and validly chose the second option, and the trial court correctly determined that it did have jurisdiction to hear the merits of Lucero’s petition for post-conviction relief. I would accordingly conclude that the majority’s reversal of that threshold determination is in error.

II. Lucero’s Petition for Post Conviction Relief

¶ 22 Because of my conclusion that Lucero did have a right to petition for post-conviction relief, I think that we are obligated to review the district court’s determination that Lucero’s waiver of the right to counsel at the justice court proceeding was constitutionally valid. Having reviewed the record and the applicable law, I would conclude that Lucero did not validly waive his right to counsel and that the district court’s denial of Lucero’s petition for post-conviction relief should ae-cordingly be reversed.

¶ 23 “The right to have the assistance of counsel in a criminal trial is a fundamental constitutional right which must be jealously protected by the trial court.” State v. Heaton, 958 P.2d 911, 917 (Utah 1998). “Because of the importance of the right to counsel and the heavy burden placed upon the trial court to protect this right, there is a presumption against waiver, and doubts concerning waiver must be resolved in the defendant’s favor.” Id. However, because the right to assistance of counsel is “personal in nature,” State v. Frampton, 737 P.2d 183, 187 (Utah 1987), the right “may be waived by a competent accused if the waiver is ‘knowingly and intelligently’ made.” Id. (citation omitted); see also State v. Bakalov, 849 P.2d 629, 633 (Utah Ct.App.1993). Further, the relevant Utah cases establish that there is a distinction between the “knowingly” and the “intelligently” prongs of the waiver test.

“Intelligent” in this context means “only that the defendant has been provided with adequate information on which to make his or her self-representation choice. Because such a choice is seldom, if ever, a wise one, ‘intelligent’ does not carry that meaning here.” “Knowing” refers to a defendant’s competence to waive the right to counsel, similar to a defendant’s competence to stand trial....

State, v. McDonald, 922 P.2d 776, 779 (Utah Ct.App.1996) (citations omitted).

¶24 Before determining that a defendant has knowingly and intelligently waived his or her right to counsel, a trial court has an affirmative duty to “conduct a thorough inquiry of the defendant” in order to ensure “that the defendant’s waiver of counsel is knowingly, intelligently, and voluntarily made.” Heaton, 958 P.2d at 918. Though a colloquy on the record is not required, see State v. Valencia, 2001 UT App 159,¶¶ 20-22, 27 P.3d 573, it is “the preferred method of ascertaining the validity of a waiver because it insures that defendants understand the risks of self-representation.” Frampton, 737 P.2d at 187. “Where there is no colloquy, [appellate courts] ‘will look at any evidence in the record’ ” created in the district court in order to ascertain whether the district court has fulfilled its duty of inquiry. Valencia, 2001 UT App 159 at ¶ 22, 27 P.3d 573 (quoting Frampton, 737 P.2d at 188).⁵

¶ 25 In explaining the contours of this required inquiry, the United States Supreme Court has stated that the defendant “should be made aware of the dangers and disadvantages of self-representation” prior to the trial court’s acceptance of a waiver of the right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1974). In accordance with the United States Supreme Court’s unquestioned authority over questions of federal constitutional law, Utah courts have long enforced the Faretta directive as part of the Sixth Amendment analysis. See Heaton, 958 P.2d at 918; Frampton, 737 P.2d at 188; State v. Ruple, 631 P.2d 874, 875-76 (Utah 1981); State v. Dominguez, 564 P.2d 768, 769-70 (Utah 1977); State v. Petty, 2001 UT App 396,¶ 8, 38 P.3d 998; Valencia, 2001 UT App 159 at ¶22, 27 P.3d 573; McDonald, 922 P.2d at 779; Bakalov, 849 P.2d at 633.⁶

¶26 The proper scope of the Faretta directive was recently addressed by the United States Supreme Court in Iowa v. Tovar, 541 U.S. -, -, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).⁷ In Tovar, the defendant was arrested for operating a motor vehicle while under the influence of alcohol. See id. at -, 124 S.Ct. at 1383. An intoxilyzer test administered the night of the defendant’s arrest showed that he had a blood alcohol level that was well above the legal limit. See id. At his arraignment, the defendant informed the court that he wished to waive his right to counsel and that he wished to plead guilty. See id. at-, 124 S.Ct. at 1384. The court accordingly conducted a plea colloquy in which the court explained that the defendant had the right to be represented at trial by an attorney who “could help [the defendant] select a jury, question and cross-examine the State’s witnesses, present evidence, if any, in [his] behalf, and make arguments to the judge and jury on [his] behalf.” Id. at -, 124 S.Ct. at 1384. (second and third alterations in original). After receiving this and other warnings, the defendant affirmed his wish to waive his right to counsel and to plead guilty. See id. at -, 124 S.Ct. at 1385.

¶ 27 Several years later, the defendant was arrested for a third DUI offense, and accordingly sought to challenge his prior guilty plea as a means of avoiding a recidivist sentence enhancement. See id. at-, 124 S.Ct. at 1385-1386. After proceeding through the lower Iowa courts, the Iowa Supreme Court ruled that the original waiver was constitutionally invalid due to the fact that the defendant had not been informed of “the dangers of self-representation.” Id. at -, 124 S.Ct. at 1387 (quotations and citation omitted).

¶ 28 On appeal, however, the United States Supreme Court reversed. See id. at -, 124 S.Ct. at 1390. In reversing, the Court held that “[t]he information a defendant must possess in order to make an intelligent election ... will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Id. at -, 124 S.Ct. at 1387 (emphasis added). While the Faretta directive is still required before a court accepts a waiver of counsel before trial, see id. at -, 124 S.Ct. at 1387-1388, “at the earlier stages of the criminal process, a less searching or formal colloquy may suffice.” Id. at -, 124 S.Ct. at 1388. Quoting prior precedent, the Court explained that “[w]e require less rigorous warnings pretrial ... not because pretrial proceedings are ‘less important’ than trial, but because, at that stage, ‘the full dangers and disadvantages of self-representation ... are less substantial and more obvious to an accused than they are at trial.’ ” Id. at -, 124 S.Ct. at 1388 (quotations and citations omitted).

¶29 Endorsing a “pragmatic approach to the waiver question,” id. at -, 124 S.Ct. at 1388 (quotations and citations omitted), the Court ultimately concluded that the inquiry must rest on “the particular facts and circumstances” of each ease. See id. at -, 124 S.Ct. at 1382. Analyzing the Tovar litigation, the Court concluded that there was not a “realistic” “prospect” that a “meritorious defense” would have existed for Tovar at trial or that the defendant could have pled “to a lesser charge.” Id. at -, 124 S.Ct. at 1390. Because “the admonitions at issue might confuse or mislead a defendant [in such a scenario] more than they would inform him,” id., the Court ultimately concluded that the lower court did not err by failing to inform Tovar of the dangers and disadvantages of self-representation.

¶ 30 Counsel for the Murray City Justice Court argues that Tovar mandates affir-mance in the present case. I disagree with that proposition. While it may be true that Tovar will require a reexamination of our “dangers and disadvantages” jurisprudence, at least as applied to waivers at a plea hearing, the facts of the present case do not require such a reexamination here. As discussed above, the Tovar ruling was expressly predicated on the unquestioned evidence that Tovar would have had no “realistic” alternatives to pleading guilty. Id. at -, 124 S.Ct. at 1390. Further, the trial court in Tovar did conduct an on-record colloquy in which the court advised Tovar of some of the advantages that having an attorney would have offered. See id. at —, 124 S.Ct. at 1384. In the present case, however, there is a complete absence of evidence from which we could similarly conclude that Lucero lacked a realistic prospect of success at trial or in negotiations with prosecutors. There is likewise no evidence that Lucero was informed by the justice court of any of the advantages of having counsel present at the hearing. Our supreme court has previously held that “there is a presumption against waiver.” Heaton, 958 P.2d at 917. Given this presumption, I think that we are obligated to conclude that Lucero was not informed of how the right to counsel would have applied “in general in the circumstances,” Tovar, — U.S. at —, 124 S.Ct. at 1389 (emphasis omitted), and that Lucero’s waiver of the right to counsel was thus invalid. As such, I would reverse the district court’s dismissal of Lucero’s petition for post-conviction relief.

1 . Black’s Law Dictionary defines a "direct appeal” as "[a]n appeal from a trial court’s decision directly to the jurisdiction’s highest court, thus bypassing review by an intermediate appellate court.” Black's Law Dictionary 94 (7th ed. deluxe 1999). A review of the Utah cases, however, indicates that this strict definition is not followed by our courts. In Pascual v. Carver, for example, the Utah Supreme Court referred to the defendant’s prior appeal, which had been heard in the Utah Court of Appeals, as a "direct appeal” of the conviction. 876 P.2d 364, 366 (Utah 1994). Similarly, in State v. Lara, we referred to an appeal of a bindover order that was heard in this court as a "direct appeal.” 2003 UT App 318,¶ 20, 79 P.3d 951.

2 . Given this construct, Utah courts have insisted that though a district court exercises its "appellate jurisdiction" when conducting a trial de novo, State v. Hudecek, 965 P.2d 1069, 1071 (Utah Ct.App.1998), the trials de novo that are held before the district courts must not be characterized in the same manner as a standard appeal which is held before the court of appeals or supreme court. In State v. Hinson, this court clearly drew this distinction, therein declaring that certain rules governing a case filed “[i]n a conventional appeal environment

... [have] no place in an appeal from a justice court judgment.” 966 P.2d 273, 275-76 (Utah Ct.App.1998). Similarly, we emphasized in Dean v. Henriod that there is a distinction between a "traditional appeal” and "an appeal from justice court.” 1999 UT App 50,¶ 9 n. 1, 975 P.2d 946. Thus, when a district court conducts a trial de novo, the district court is "not acting in a typical appellate capacity.” Hinson, 966 P.2d at 276. In a related context, the Utah Supreme Court has declared that, because a district court has the authority to make findings of fact in its trial de novo review of Industrial Commission decisions, the district court should be viewed "as an independent fact finder and not as an intermediate appellate court.” University of Utah v. Industrial Comm’n, 736 P.2d 630, 633 (Utah 1987) (emphasis omitted).

3 . There is some confusion as to whether Murray City Justice Court’s argument is predicated on Utah Code Annotated section 78-35a-106(l)(a) (1996) (precluding relief under the Post Conviction Remedies Act where the petition is based on a ground that "may still be raised on direct appeal") or whether it is instead predicated on Utah Code Annotated section 78-35a-106(l)(c) (1996) (precluding relief under the Post Conviction Remedies Act where the petition is based on a ground that "could have been but was not raised at trial or on appeal”). Though Murray City Justice Court’s brief did not specify which of these subsections its argument was predicated on, the brief did directly discuss Utah Code Annotated section 78-35a-102(l) (1996), which states that relief is appropriate where a defendant has "exhausted all other legal remedies, including a direct appeal.” (Emphasis added.) Given this reference, and given the repeated references throughout the remainder of the brief to Lucero’s failure to exercise his rights to a "direct appeal,” I think it clear that any specific argument arising under Utah Code Annotated section 78-35a-106(l)(c) is not properly before us.

Even were we to consider the subtle differences embodied by section 78-35a-106(l)(c), however, I think that the result here would be the same. As discussed above, though the trial de novo is considered to be the form by which a defendant can "appeal” his or her justice court conviction, it is still nevertheless true that the district court conducting the trial de novo cannot consider any particular claims of error that might have arisen below. Thus, insofar as the defendant in such circumstances cannot "raise” any issues in his "appeal,” I think that the result under either section 78-35a-106(l)(a) or section 78-35a-106(l)(c) would be the same.

4 . At oral argument, Murray City Justice Court argued that allowing defendants who are convicted in justice court to have two separate avenues of appellate relief is unnecessary and duplicative. This concern, however, is misplaced. Instead, I think that there is a certain degree of logic present in allowing a defendant to bypass the trial de novo stage and instead directly appeal for post-conviction relief. The financial costs and emotional tolls that are involved in having to prepare for and go through a trial de novo can be heavy. In situations where a defendant has suffered a clear constitutional wrong at the justice court level, it would seem patently unjust to require the defendant to pay for and endure a full trial before allowing the defendant any access to direct appellate review. Instead, I think that our statutory scheme is wise in allowing defendants in such situations to immediately petition a court for redress under the Post Conviction Remedies Act, while at the same time allowing defendants who are willing to proceed to trial the opportunity to pursue that course of action instead. Regardless, I again note that this appears to be the statutorily created system. Thus, I see no option but to conclude that, as presently constituted, the Utah Code does allow a defendant to choose between these two different forms of relief.

5 . In its brief and again at oral argument, counsel for Lucero asserted that, insofar as justice court proceedings are not conducted on the record, our review of this case should be limited to the information contained in the justice court docket or filings. The cases state, however, that an appellate court reviewing a waiver of that right must be able to look at “ 'any evidence in the record' " in order to determine whether the right was properly waived. State v. Valencia, 2001 UT App 159,¶ 22, 27 P.3d 573 (emphasis added) (quoting State v. Frampton, 737 P.2d 183, 188 (Utah 1987)); accord State v. Heaton, 958 P.2d 911, 919 (Utah 1998); State v. McDonald, 922 P.2d 776, 780 (Utah Ct.App.1996).

Similarly, I also note my disagreement with Lucero’s assertion that the trial court in this case should not have received testimony from witnesses in its efforts to ascertain whether the waiver proceedings at the justice court were constitutionally valid. Irl State v. Gutierrez, the defendant sought to challenge the application of a repeat offender DUI enhancement statute to his case, therein arguing that his prior convictions were each invalid. See 2003 UT App 95,¶¶ 2-5, 68 P.3d 1035. As part of his challenge, the defendant argued that one of his prior guilty pleas, entered at a justice court, had been involuntary. See id. at ¶ 9. In upholding the use of the justice court guilty plea by the trial court, we concluded that Gutierrez had failed to prove involuntariness. See id. at ¶ 12. Addressing Gutierrez’s concerns about how he could have established such proof where the justice court keeps no official record, we noted that "Gutierrez could have produced testimony from those who were present regarding the taking of, his plea, the court’s docket sheet, or other affirmative evidence.” Id. In spite of this clear holding, Lucero suggests that there is a distinction between the trial court’s use of such testimony for purposes of sentence enhancement and for use when the trial court reviews a petition for post-conviction relief. I disagree with that attempted distinction. In both situations, the trial court is simply exercising its authority to review the lower proceedings in order to determine whether they were constitutionally valid. Given the important nature of this solemn responsibility, I see no reason why the trial court should be limited in its ability to inquire as to what occurred in the justice court proceedings. Accordingly, I would conclude that the trial court’s use of testimony and extrinsic evidence in this case was proper.

6 . Counsel for Murray City Justice Court points us to language in McDonald, wherein we stated that "a recommendation by the court against self-representation is not necessary for a defendant to intelligently waive the right to counsel.” 922 P.2d at 785. Murray City Justice Court argues that this language obviates the duty of inquiry discussed above. I disagree. A careful reading of the precedent discussed above indicates that the trial court's specific duty here is to ensure that the defendant understands the "dangers and disadvantages " of self-representation. Heaton, 958 P.2d at 918 (emphasis added); accord McDonald, 922 P.2d at 779. Though subtle, there is a clear distinction between a rule requiring the court to inform a defendant of the dangers and disadvantages of self-representation and one requiring the court to take the further step of actually advising the defendant not to represent himself or herself. The former is simply a fulfillment of the court's duty to ensure that the defendant has the proper information; the latter would put the trial court into the role of advisor to the defendant, a role that would clearly be impermissible. As discussed below, a subsequent decision by the United States Supreme Court may indicate that a warning of the dangers and disadvantages of self-representation is not required at all stages of litigation. However, I would stress here that our statement in McDonald regarding the lack of a "recommendation” requirement does not remove the duty of inquiry from trial courts before accepting a counsel waiver at the trial setting.

7 . Though Tovar was concededly decided after the events at issue here took place, it is a “long standing traditional rule ... that the law established by a court decision applies both prospectively and retrospectively, even when the decision overrules prior case law.” Carter v. Galetka, 2001 UT 96,¶ 26, 44 P.3d 626 (quotations and citations omitted).