State v. Pedockie

2006 UT 28
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20040746
Plaintiff and Petitioner,
v.
F I L E D
Robert Brian Pedockie,
Defendant and Respondent. May 12, 2006
---
Second District, Ogden Dep’t
The Honorable Ernest W. Jones
No. 011900689
Attorneys: Mark L. Shurtleff, Att’y Gen., Kris C. Leonard,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Sharon L. Preston, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 Defendant Robert Brian Pedockie was charged with
aggravated kidnapping, a first degree felony. During pretrial
proceedings, Pedockie was represented by a string of various
public defenders and private attorneys, all of whom either
withdrew or were fired. Despite Pedockie’s invocation of his
Sixth Amendment right to counsel, the trial court allowed the
trial to proceed with Pedockie representing himself. Pedockie
was convicted and appealed.
¶2 The court of appeals held that Pedockie voluntarily
waived his right to counsel through his dilatory conduct. It
nevertheless reversed his conviction, holding that the waiver was
not knowing and intelligent. We affirm the reversal of
Pedockie’s conviction, but on different grounds. Like the court
of appeals, we recognize that an accused may voluntarily waive
his right to counsel through his conduct. But we find no such
voluntary waiver in this case.

1 Utah Code Ann. § 76-5-302 (1999).
2 Id.
No. 20040746 2
FACTUAL AND PROCEDURAL BACKGROUND
¶3 We recite the facts in a manner consistent with the
jury’s verdict. On January 3, 2001, Pedockie and his cousin
kidnapped Nicole Sather, Pedockie’s ex-girlfriend. When Sather
attempted to escape from Pedockie’s truck, Pedockie’s cousin shot
at her, and Pedockie restrained her. The next day, Pedockie
threatened to kill Sather and himself. When Pedockie stopped for
gas, Sather escaped with the help of a gas station employee.
Pedockie was later arrested and charged with aggravated
kidnapping, a first degree felony, in violation of Utah Code
section 76-5-302.1
¶4 At Pedockie’s initial appearance on February 20, 2001,
the trial judge found Pedockie indigent and appointed the Weber
County Public Defenders’ Association (“PDA”) to defend him. The
judge also gave Pedockie a copy of the Information that had been
filed and advised him of the charges against him and the
potential penalties associated therewith. Pedockie requested
disposition of his case according to the Speedy Trial Statute,
which entitles a defendant who is imprisoned to be tried within
120 days of the request.2 At a later hearing, the judge set
Pedockie’s jury trial for August 13, 2001.
¶5 On August 1, 2001, at the request of Pedockie’s PDA
attorney, who needed additional time to prepare, the trial judge
continued the trial to December 10, 2001. The trial was
subsequently continued to February 4, 2002, to accommodate a
conflict in the prosecutor’s schedule.
¶6 Scheduling conflicts, however, were not the only
difficulties arising during pretrial proceedings. Difficulties
between Pedockie and his attorneys were a recurring theme.
Pedockie’s first two PDA attorneys withdrew, through no fault of
Pedockie, because one had a conflict of interest and the other
lost his contract with the PDA. And less than a month before
trial, Pedockie’s third PDA attorney, James Retallick, also moved
to withdraw.
¶7 Retallick informed the trial judge that Pedockie was
insisting that he file four motions that Retallick believed were
“absolutely frivolous.” Although Retallick had explained to
Pedockie why he could not in good faith file the motions,
Pedockie nevertheless believed that Retallick was not

3 No. 20040746
representing his best interests and requested the appointment of
a PDA attorney who would file them. The trial judge explained
that Pedockie did not have a right to “pick and choose” an
attorney from the PDA, stating, “I can appoint an attorney to
work with you but if you don’t want to accept his advice, you’ve
either got to represent yourself or get your own attorney.”
Pedockie stated that he did not wish to proceed pro se and agreed
to have Retallick continue the representation. The next day,
however, Pedockie fired him.
¶8 A couple of weeks later, Pedockie requested that the
judge release the PDA office because he had hired private
attorney Ed Brass to represent him. Stating that Pedockie was
entitled to legal representation, the trial judge granted his
request and continued the trial to April 15, 2002, to give Brass
time to prepare.
¶9 Three days before trial, Brass moved to withdraw as
counsel, stating that he had an ethical conflict with Pedockie
that made representation impossible. Brass was unwilling to stay
on the case as standby counsel because he did not believe that
Pedockie was “sophisticated enough to handle a first degree
felony trial” without full-time counsel. The trial judge
reluctantly granted Brass’s motion to withdraw, stating, “I want
Mr. Pedockie to understand, I’m not gonna continue this case
again . . . . [Y]ou either get an attorney who will represent you
on the matter or you’re just gonna represent yourself next time
it’s scheduled.”
¶10 On May 1, Pedockie appeared in court without an
attorney and reported that he was still attempting to hire one.
The judge continued the case until May 29 and again admonished
Pedockie to get an attorney. But on May 29, Pedockie again
appeared without counsel, explaining that he had been unable to
find an attorney to file his motion for prosecutorial misconduct
because “[e]verybody thinks it’s unethical to bring.”
¶11 The trial judge warned Pedockie that he was going to
set the case for trial and that Pedockie would have to get an
attorney or proceed without one. Pedockie emphasized the
seriousness of his case, explaining that “you’re talking about my
life at stake.” The prosecutor asked the judge to make a record
that Pedockie’s “election to represent himself at the time of
trial is voluntary and knowing.” The judge responded that “the
problem is he doesn’t want to represent himself. . . . But on
the other side, every time we give him an attorney or have him
hire an attorney, the attorney withdraws.” When Pedockie
reiterated that he wanted another attorney appointed who would

No. 20040746 4
file his motions, the judge stated, “See, that’s the problem.
You need to start following the advice of the attorney that’s
representing you instead of you trying to tell him what to do.”
¶12 After scheduling trial for September 30, 2002, the
trial judge informed Pedockie that he could hire a private
attorney, but warned him that the trial would not be continued
again. The trial judge also appointed standby counsel, but
clarified that Pedockie was still responsible for filing and
arguing his own motions.
¶13 At a July 31 hearing, Pedockie announced that he had
hired Paul Grant as his attorney but that Grant had indicated he
was going to withdraw. Pedockie asked the judge to appoint
primary counsel who could assist him in arguing his motions, and
the judge chastised him for his unwillingness to follow the
advice of his prior attorneys. But when Pedockie persisted, the
trial judge relented:
The Court: I can appoint the public
defenders’ office. I cannot pick and choose
which attorney represents you. There are at
least three people in that office that you’ve
had, and now they no longer can represent
you. So do you want the public defenders’
office or not?
Mr. Pedockie: As of right now, I’d like to--
I need a attorney--
The Court: Okay.
Mr. Pedockie: --Unless you’re gonna–-
The Court: I’ll appoint the public
defenders’ office for the third time then.
Okay.
A hearing on Pedockie’s motions was then set for August 12.
Thereafter, the trial judge indicated that Pedockie needed to
give a copy of his motions to the PDA attorney prior to the
hearing, and the clerk suggested that they coordinate with the
PDA to make sure August 12 was an acceptable date. All of this
was consistent with the fact that the PDA had been appointed to
act as Pedockie’s primary, rather than standby, counsel.
¶14 Prison officials failed to transport Pedockie to the
August 12 hearing. In Pedockie’s absence, the trial judge

5 No. 20040746
informed Martin Gravis, the PDA attorney who had been assigned to
represent Pedockie following the July 31 hearing, that he “was
not inclined to appoint a public defender” for Pedockie and that
Gravis was there only in the capacity as standby counsel. The
motion hearing was then rescheduled for the following day.
¶15 The next day, Pedockie expressed surprise and confusion
when he learned that Gravis was acting only as standby counsel
and would not argue the motions. Pedockie again requested that
the court appoint an attorney to argue his motions, emphasizing
their importance to his case and his desire to see them argued
properly. The trial judge declined, indicating that he would not
appoint an attorney because of Pedockie’s insistence that his
attorneys pursue unethical courses of action. The judge
reiterated that, if Pedockie wanted an attorney, he would have to
hire one himself.
¶16 During a hearing on August 21, the trial judge again
scolded Pedockie, refused to appoint an attorney, and informed
Pedockie that he must hire a private attorney or proceed pro se.
He told Pedockie that his attorneys have “always asked to be
recused because you want them to do something that’s illegal
that’s a violation of the Canons of Ethics.” Pedockie insisted
that he could not afford a private attorney and that he was
invoking his Sixth Amendment right to counsel.
¶17 At a September 18 pretrial conference, Pedockie failed
to submit the jury instructions that his standby counsel had
prepared and again requested that an attorney be appointed to
represent him. The trial judge refused, stating that he had
waived his right to counsel.
¶18 Pedockie’s jury trial began on September 30, 2002.
Pedockie again requested counsel, complaining that he was neither
“educated nor familiar with the rules and proceedings” of the
court and did not know how many juror challenges he had. The
trial judge denied Pedockie’s request, finding that Pedockie had
knowingly and intelligently waived his right to an attorney.
Pedockie then asked that standby counsel be excused from the case
because the whole case was a “scam and a mockracy” and standby
counsel was “just taking up the taxpayers’ dollars.” After
explaining the benefits of having standby counsel who was trained
in the law, the judge granted Pedockie’s request, and Pedockie
proceeded to represent himself.
¶19 The jury found Pedockie guilty of aggravated
kidnapping, and he was sentenced. Pedockie appealed, arguing
that he was deprived of his constitutional right to assistance of

3 State v. Pedockie, 2004 UT App 224, ¶ 1, 95 P.3d 1182.
4 Id. ¶ 35.
5 Utah Code Ann. § 78-2-2(3)(a) (2002).
6 Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978
P.2d 460.
7 State v. Heaton, 958 P.2d 911, 914 (Utah 1998).
No. 20040746 6
counsel.3 The court of appeals reversed Pedockie’s conviction
and remanded the case for a new trial.
¶20 The court of appeals first considered whether
Pedockie’s conduct evidenced a voluntary waiver of his right to
counsel. Recognizing that a defendant’s decision to waive
counsel may be subject to constitutionally permissible
constraints, the court of appeals reasoned that the trial judge
reasonably required Pedockie to either accept representation by
the PDA, hire private counsel, or proceed pro se. It therefore
held that Pedockie had voluntarily waived his right to counsel
through his conduct.
¶21 The court of appeals then considered whether Pedockie’s
waiver was knowing and intelligent. Because the trial judge had
failed to conduct an on-the-record colloquy with Pedockie to
inform him of the dangers and disadvantages of self-
representation, the court of appeals was confronted with the
question of whether the case involved “extraordinary
circumstances” that would require a de novo review of the record.
It concluded it need not decide that question because there was
“nothing in the record to persuade [it] that [Pedockie’s] waiver
was knowing and intelligent.”4 It therefore reversed Pedockie’s
conviction and remanded the case for a new trial.
¶22 The State petitioned for certiorari, which we granted.
We have jurisdiction pursuant to Utah Code section 78-2-2(3)(a).5
STANDARD OF REVIEW
¶23 “On certiorari, we review the decision of the court of
appeals, not the decision of the trial court.”6 Whether Pedockie
voluntarily, knowingly, and intelligently waived his right to
counsel is a mixed question of law and fact.7 While we review
questions of law for correctness, a trial court’s factual

8 State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995).
9 State v. Pedockie, 2004 UT App 224, ¶ 30 n.5, 95 P.3d 1182
(noting that Pedockie did not preserve a state constitutional
claim).
10 U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.”).
11 287 U.S. 45, 68-69 (1932).
12 422 U.S. 806, 818-32 (1975).
7 No. 20040746
findings may be reversed on appeal only if they are clearly
erroneous.8
ANALYSIS
¶24 The State urges us to find that Pedockie waived his
right to counsel through his dilatory conduct and that he did so
knowingly and intelligently. Whether a defendant may waive his
right to counsel through his conduct is an issue of first
impression in this court. We therefore begin by addressing the
substantive requirements for waiver of a defendant’s right to
counsel under the Sixth Amendment and the procedure to be
followed by appellate courts when reviewing cases of alleged
waiver.9 With these substantive and procedural requirements in
mind, we turn to the court of appeals’ conclusion that Pedockie
waived his right to counsel through his dilatory conduct but that
the waiver was invalid because it was not knowing and
intelligent.
I. THE RIGHT TO ASSISTANCE OF COUNSEL
¶25 The Sixth Amendment to the United States Constitution
guarantees defendants the right to counsel in felony
proceedings.10 As the United States Supreme Court articulated in
Powell v. Alabama, “The right to be heard would be, in many
cases, of little avail if it did not comprehend the right to be
heard by counsel.”11
¶26 Defendants also have the right to waive their right to
counsel. The United States Supreme Court in Faretta v.
California12 held that the Sixth Amendment implicitly guarantees
criminal defendants the ability to waive their right to the
assistance of counsel and proceed pro se. Before permitting a
defendant to do so, however, a trial court should ensure that the

13 See id. at 835.
14 Id. (internal quotation marks omitted).
15 See United States v. Goldberg, 67 F.3d 1092, 1099 (3d
Cir. 1995).
16 Id.
17 1999 UT 45, ¶ 16, 979 P.2d 799.
18 Faretta, 422 U.S. at 835.
19 737 P.2d 183, 187-89 (Utah 1987).
No. 20040746 8
waiver is voluntary, knowing, and intelligent.13 A defendant
should “be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows
what he is doing.”14
¶27 Courts have recognized three methods pursuant to which
a defendant may give up his constitutional right to the
assistance of counsel: waiver, forfeiture, and waiver by
conduct.15 We outline the elements of each.
A. True Waiver
¶28 True waiver is the most common method by which
defendants forsake their right to counsel. True waiver typically
occurs when a defendant affirmatively requests permission to
proceed pro se.16 In State v. Bakalov, we required that
defendants “clearly and unequivocally” request self-
representation in order to waive their right to counsel.17
¶29 When a defendant requests to proceed pro se, his waiver
will be valid only if he acts knowingly and intelligently, being
aware of the dangers inherent in self-representation.18 The most
reliable way for a trial court to determine whether a defendant
is aware of the dangers and disadvantages of self-representation
is to engage in a colloquy on the record. At times, however, we
have found a waiver of the right to counsel absent a colloquy.
For example, in State v. Frampton, we found that a defendant
knowingly and intelligently waived his right to counsel when he
affirmatively requested to proceed pro se despite the fact that
the trial court had not engaged in a colloquy.19 We reasoned
that the defendant should have realized the “value of counsel”

20 Id. at 189.
21 Id. at 189 n.19.
22 Id. at 189.
23 United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir.
1995).
24 Id. at 1101.
25 Id.
9 No. 20040746
because he was represented by counsel in a prior trial.20
Additionally, we concluded that he must have realized the
seriousness of the charges filed against him because the judge
had appointed standby counsel over his objection21 and the judge
had explained the charges, including the maximum penalty
associated therewith, in two prior trials involving the same
charges.22
¶30 True waiver does not apply in this case because
Pedockie never expressed a desire to represent himself. To the
contrary, the record is replete with instances of Pedockie
insisting that he “want[ed] adequate counsel” and that he was
“not going to represent [himself].”
B. Forfeiture
¶31 While waiver is an intentional relinquishment of a
known right, forfeiture occupies the opposite end of the
spectrum. Unlike waiver, “forfeiture results in the loss of a
right regardless of the defendant’s knowledge thereof and
irrespective of whether the defendant intended to relinquish the
right.”23
¶32 In United States v. Goldberg, the United States Court
of Appeals for the Third Circuit observed that a defendant may be
deemed to have forfeited his right to counsel when he engages in
“extremely dilatory conduct” or abusive behavior, such as
physically assaulting counsel.24 When circumstances are
egregious enough to constitute forfeiture, a court need not
determine whether a defendant understands the risks of self-
representation or warn him that he will lose his right to
counsel. But because of its drastic nature, a defendant must
engage in extreme conduct before forfeiture may be imposed.25 We
find no basis for imposing forfeiture under the facts presented
here.

26 Id. at 1100-01.
27 Id. at 1100.
28 Id. at 1101.
29 Id. at 1102.
30 Id.
31 Illinois v. Allen, 397 U.S. 337, 343 (1970).
32 Id.
33 Id.
No. 20040746 10
C. Waiver by Conduct
¶33 Waiver by conduct, often referred to as implied waiver,
combines elements of both true waiver and forfeiture.26 “Once a
defendant has been warned that he will lose his attorney if he
engages in dilatory tactics, any misconduct thereafter may be
treated as an implied request to proceed pro se and thus, as a
waiver of the right to counsel.”27 The conduct required to give
rise to an implied waiver does not have to be as extreme as that
required for forfeiture. And unlike the situation in cases of
true waiver, a defendant need not intend to relinquish the right
to counsel.28 But the defendant must have been warned that
continuation of the unacceptable conduct will result in a waiver
of the right to counsel. As is the case in a true waiver
situation, the waiver also must be knowing and intelligent. In
other words, the defendant must have also possessed an awareness
of the dangers and disadvantages of self-representation at the
time of the implied waiver.29
¶34 While the United States Supreme Court has never
specifically addressed whether a defendant may waive the right to
counsel through inappropriate conduct,30 it has recognized that a
defendant may lose the constitutional right to be present at
trial because of such conduct.31 In Illinois v. Allen, the trial
court had warned the defendant that he would lose his right to be
present at his trial because of his disruptive behavior, yet he
continued “in a manner so disorderly, disruptive, and
disrespectful of the court that his trial [could not] be carried
on with him in the courtroom.”32 Consequently, he lost the
constitutional right to be present, even though he did not
affirmatively relinquish it.33 Thus, Allen suggests that a

34 Goldberg, 67 F.3d at 1101 (emphasis added).
35 624 F.2d 163, 166-67 (10th Cir. 1980).
36 Id.; see also United States v. Bauer, 956 F.2d 693, 694
(7th Cir. 1992) (finding that the combination of the defendant’s
“ability to pay for counsel plus refusal to do so . . . waive[d]
the right to counsel at trial”).
37 Weninger, 624 F.2d at 166-67; see also Goldberg, 67 F.3d
at 1102-03 (refusing to find waiver by conduct because the court
had not made the defendant aware of the risks of self-
representation).
38 Goldberg, 67 F.3d at 1100-03.
11 No. 20040746
defendant can lose constitutional rights because of his conduct
so long as he is “aware of the consequences of his actions.”34
¶35 In United States v. Weninger,35 the United States Court
of Appeals for the Tenth Circuit applied analogous analysis in
holding that the defendant had waived his right to counsel by
failing to secure an attorney for trial. The defendant was given
ample time and was warned to obtain an attorney, but he
strategically and stubbornly failed to do so.36 The Tenth
Circuit held that this dilatory conduct should be treated as a
request to proceed pro se.37
¶36 In summary, before we will find an implied waiver of
the right to counsel based on a defendant’s conduct, two
requirements must be satisfied. First, the implied waiver must
be voluntary. Second, the waiver must have been made knowingly
and intelligently.
¶37 For an implied waiver to be voluntary, the trial court
must warn the defendant of the specific conduct that will give
rise to the waiver of his right to counsel. In other words, when
a trial court believes that a defendant’s conduct is unacceptable
and will result in a waiver of his right to counsel, the court
must warn the defendant that continuation of the unacceptable
conduct will be treated as an implied request to proceed pro se
and, thus, as a waiver of the right to counsel.38 This warning
must be explicit so that a defendant clearly understands both the
nature of the unacceptable conduct and the implications of any
such future conduct.
¶38 For an implied waiver to be knowing and intelligent,
the trial court must ensure that the defendant is cognizant of

39 State v. Heaton, 958 P.2d 911, 918 (Utah 1998).
40 See Trujillo v. State, 2 P.3d 567, 575 (Wyo. 2000)
(explaining that a warning in a waiver by conduct situation
“should be comparable in content to the warning given to a
defendant who affirmatively asserts his right to self-
representation”).
No. 20040746 12
the dangers and disadvantages of self-representation. The court
should explain the consequences of a decision to proceed pro se
and, at a minimum, must
ascertain that the defendant possesses the
intelligence and capacity to understand and
appreciate the consequences of the decision
to represent himself, including the
expectation that the defendant will comply
with technical rules and the recognition that
presenting a defense is not just a matter of
telling one’s story; and . . . ascertain that
the defendant comprehends the nature of the
charges and proceedings, the range of
permissible punishments, and any additional
facts essential to a broad understanding of
the case.39
¶39 Trial courts generally evaluate a defendant’s
understanding and intelligence by conducting a colloquy on the
record. In those cases where a defendant continues to insist on
his right to counsel, it may seem awkward for a trial court to
engage in a typical colloquy regarding the inherent dangers of
self-representation. But we still strongly encourage trial
courts to do so as a means to ensure that a defendant is aware of
the disadvantages and dangers of self-representation.40
II. DETERMINING THE VALIDITY OF A WAIVER
¶40 While we have urged that trial courts engage in an on-
the-record colloquy with defendants to ensure that they are aware
of the dangers and disadvantages of self-representation, we have
not imposed an absolute requirement that they do so. Rather, we
have recognized that the validity of a defendant’s waiver turns
upon the particular facts and circumstances surrounding each
case.
¶41 Relying on admittedly confusing language from some of
our prior cases, the court of appeals stated that, in the absence
of a colloquy, appellate courts are required to conduct a de novo

41 State v. Pedockie, 2004 UT App 224, ¶ 35, 95 P.3d 1182.
42 State v. Frampton, 737 P.2d 183, 187 (Utah 1987)
(internal quotation marks and citation omitted).
43 Id.
44 Id. at 187 n.12.
45 Wayne R. LaFave et al., 3 Criminal Procedure § 11.5(c)
(2d ed. 1999) (quoting People v. Sawyer, 438 N.E.2d 1133, 1138
(N.Y. 1982)); see also State v. Heaton, 958 P.2d 911, 918 (Utah
1998).
46 958 P.2d at 918.
13 No. 20040746
review of the record to determine the validity of a defendant’s
waiver of the right to counsel only in “extraordinary
circumstances.” It then concluded that it need not evaluate
Pedockie’s case for such extraordinary circumstances because
“there is simply nothing in the record to persuade us that
[Pedockie’s] waiver was knowing and intelligent.”41
¶42 We take this opportunity to clarify our prior case law
regarding appellate review in cases involving waiver of the right
to counsel. As previously stated, before we will accept a
defendant’s waiver of his right to counsel, we have required that
he be “aware of the dangers and disadvantages[] of self-
representation,”42 and we continue to strongly recommend a
colloquy on the record as the preferred method of determining
whether a defendant is aware of these risks. Indeed, a trial
court generally cannot determine a defendant’s understanding
without engaging in the “penetrating questioning” found in a
colloquy.43 The sixteen-point colloquy found in State v.
Frampton44 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.”45
¶43 In declining to review the record de novo, the court of
appeals relied on State v. Heaton, where we held that a reviewing
court could engage in de novo review only in “extraordinary
circumstances.”46 But in two cases following Heaton, we found
that de novo review was appropriate in the absence of a colloquy
and never indicated that such a review was dependent on the

47 See State v. Hassan, 2004 UT 99, ¶ 22, 108 P.3d 695;
State v. Arguelles, 2003 UT 1, ¶ 70, 63 P.3d 731.
48 834 F.2d 853, 857 (9th Cir. 1987).
49 Id.
50 See Hassan, 2004 UT 99, ¶ 22; Arguelles, 2003 UT 1, ¶ 70;
State v. Frampton, 737 P.2d 183, 188 (Utah 1987).
51 Hassan, 2004 UT 99, ¶ 22.
52 Frampton, 737 P.2d at 188.
53 Id.
No. 20040746 14
existence of extraordinary circumstances.47 We now clarify that
it is not.
¶44 When this court stated in Heaton that a de novo review
was appropriate only in extraordinary circumstances, we cited the
Ninth Circuit case of Harding v. Lewis.48 But the Harding court
actually allowed for de novo review absent a colloquy; it only
explained that a valid waiver absent a colloquy should “rarely”
be found.49 Our mistaken interpretation of Harding, combined
with the fact that Heaton is inconsistent with this court’s more
recent decisions, suggests the need for us to rearticulate the
procedure to be followed by reviewing courts when evaluating the
validity of a defendant’s waiver of the right to counsel in the
absence of a colloquy.50
¶45 Absent a colloquy on the record, a reviewing court
should review the record de novo to determine whether the
defendant knowingly and intelligently waived his right to
counsel. De novo review is appropriate because the validity of a
waiver does not turn upon “whether the trial judge actually
conducted the colloquy,”51 but upon whether the defendant
understood the consequences of waiver.52 A de novo review allows
a reviewing court to analyze the “particular facts and
circumstances surrounding each case” to make that
determination.53 But we pause to note that, considering the
strong presumption against waiver and the fundamental nature of
the right to counsel, any doubts must be resolved in favor of the
defendant. We therefore anticipate that reviewing courts will
rarely find a valid waiver of the right to counsel absent a
colloquy.

15 No. 20040746
III. PEDOCKIE’S CASE
¶46 We now turn to the particular facts of this case. This
case is a prime example of the confusion and inconsistency that
can permeate proceedings in the absence of an explicit warning
and colloquy regarding the right to counsel. In the face of such
confusion, we cannot find a voluntary, knowing, or intelligent
waiver of Pedockie’s right to counsel.
¶47 First, we conclude that Pedockie did not voluntarily
waive his right to counsel through his conduct. While the trial
judge repeatedly chastised Pedockie for his past unwillingness to
follow counsel’s advice, his statements with respect to
Pedockie’s right to appointed counsel were inconsistent and
confusing.
¶48 For example, when Retallick moved to withdraw, the
trial judge warned Pedockie that he would need to either accept
Retallick’s advice, represent himself, or get his own attorney.
But after Pedockie fired Retallick, the trial judge ordered a
continuance, stating that “you’re entitled to have an attorney
represent you, and, obviously, Mr. Brass . . . hasn’t had enough
time to get ready.”
¶49 When Brass withdrew, the trial judge continued to scold
Pedockie for prior delays and maintain that Pedockie would need
to hire a private attorney or proceed pro se. Nevertheless, at
the July 31 hearing, the trial judge agreed to “appoint the
public defender’s office for the third time” and gave every
indication that the PDA attorney would act as primary, rather
than standby, counsel. Pedockie relied on this statement when he
failed to retain private counsel and appeared at the August 13
hearing expecting representation by the PDA. He was thus
understandably confused when the judge insisted that the PDA
attorney’s role was limited to that of standby counsel. It is
particularly troubling that, after agreeing to appoint counsel on
July 31, the trial judge never warned Pedockie of the conduct
that would give rise to an implied waiver of his right to
appointed counsel but nevertheless imposed such a waiver sometime
between the July 31 and August 13 hearings when Pedockie does not
appear to have engaged in any objectionable conduct. Because any
uncertainty over an alleged waiver of the right to counsel must
be resolved in favor of an accused, we are unable to find a
voluntary waiver under these circumstances.
¶50 Finally, even if Pedockie had voluntarily waived his
right to counsel, our de novo review of the record fails to
establish that any implied waiver was knowing and intelligent.

54 State v. Heaton, 958 P.2d 911, 918 (Utah 1998).
No. 20040746 16
There is nothing in the record to indicate that, at the time of
the alleged waiver, Pedockie appreciated “the consequences of the
decision to represent himself, including the expectation that [he
would need to] comply with technical rules and the recognition
that presenting a defense is not just a matter of telling one’s
story.”54
¶51 Although the record does contain evidence that Pedockie
wanted his case to be tried by an attorney because he knew
“nothing about the law” and was not familiar with the rules of
the court, such general knowledge does not necessarily evidence
an understanding of the technical requirements inherent in
presenting one’s case. While Pedockie arguably obtained some
understanding of these technical requirements during the course
of the proceedings, the record is devoid of evidence that
Pedockie understood these requirements prior to the time of the
alleged waiver. For instance, Pedockie was informed of the
technical rules of the court when the judge appointed standby
counsel and explained that standby counsel could help prepare
jury instructions and cross-examine and subpoena witnesses for
trial but would not argue Pedockie’s motions. By this point,
however, the trial judge had already ruled that Pedockie was not
entitled to appointment of primary counsel. Therefore, any
knowledge that Pedockie may have had regarding the dangers and
disadvantages of self-representation was too little, too late.
CONCLUSION
¶52 We agree with the court of appeals that Pedockie is
entitled to a new trial. We have reviewed the record and
conclude that Pedockie did not voluntarily, knowingly, or
intelligently waive his right to the assistance of counsel.
---
¶53 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.