State v. Rohwedder

2018 UT App 182
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BILLY LEE R OHWEDDER ,
Appellant.
Opinion
No. 20150357-CA
Filed September 20, 2018
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 111909523
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes, Jennifer Paisner Williams, and Mark
C. Field, Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion. JUDGE JILL M.
POHLMAN concurred. JUDGE D AVID N. M ORTENSEN concurred,
with opinion.
ORME, Judge:
¶1 	Defendant Billy Lee Rohwedder appeals his convictions
for theft by receiving stolen property, failure to respond to an
officer’s signal to stop, and failure to signal. Defendant argues
that 	his 	right 	to 	a 	speedy 	trial 	was 	violated, 	that 	he 	was
prejudiced by the trial court’s requirement that he wear leg
restraints during trial, and that he was denied his rights both to
self-representation and the effective assistance of counsel. We
affirm.

State v. Rohwedder
20150357-CA 	2 	2018 UT App 182
BACKGROUND1
¶2 	One evening in December 2011, an officer on patrol saw
Defendant driving a vehicle that had been reported stolen. The
officer followed Defendant and activated his lights and siren,
signaling Defendant to pull over. Defendant refused to stop and
instead accelerated to a high speed. The officer, unable to safely
pursue Defendant, initiated a neighborhood containment plan to
prevent Defendant from getting away. As the officer began
reconnoitering the neighborhood, he observed the stolen car
abandoned on the road with the driver’s door open and the
engine still running. Soon after, another officer found Defendant
half a block from the abandoned car, sweating and out of breath.
A third officer with a dog that had tracked Defendant from the
abandoned 	car 	also 	approached 	Defendant. 	Defendant 	was
arrested and charged with the previously named offenses.
¶3 	In January 2014, a jury convicted Defendant of all three
charges. On appeal, we summarily reversed his convictions
because 	the 	trial 	court 	had 	failed 	to 	address 	Defendant’s
multiple requests to represent himself. On remand, Defendant
again sought to represent himself, but he insisted that he would
not waive his right to the assistance of counsel unless the trial
court either granted him the use of a law library or the assistance
of standby counsel. The trial court granted his request for the
assistance of standby counsel. The court clarified that Defendant
would be representing himself and was responsible for his own
defense. 	Standby 	counsel’s 	role 	was 	limited 	to 	assisting
Defendant in securing witnesses and in accessing relevant legal
materials. 	Shortly 	before 	trial, 	Defendant 	complained 	that
1. When reviewing an appeal from a jury verdict, “we view the
evidence and all reasonable inferences drawn therefrom in a
light 	most 	favorable 	to 	the 	verdict. 	We 	recite 	the 	facts
accordingly.” State v. Shepherd, 1999 UT App 305, ¶ 2, 989 P.2d
503 (citation and internal quotation marks omitted).

State v. Rohwedder
20150357-CA 	3 	2018 UT App 182
standby counsel was not serving his interests and that he did not
believe 	he 	was 	“being 	properly 	represented.” 	He 	also
complained that standby counsel was not providing him with
the information or evidence he requested and had failed to help
him locate the witnesses he wished to subpoena.
¶4 	Also during pretrial hearings, Defendant raised concerns
about wearing leg restraints in view of the jury. Defendant
proposed that he wear a taser vest as an alternative to leg
restraints. 	However, 	the 	bailiff 	explained 	to 	the 	court 	that
courtroom security procedures do not allow criminal defendants
to wear only a taser vest. Rather, the protocol calls for such vests
to be worn in addition to leg restraints. The court agreed that
Defendant could not only wear a taser vest. To allay Defendant’s
concerns 	of 	prejudice, 	the 	trial 	court 	suggested 	that 	both
Defendant 	and 	the 	prosecutor 	remain 	seated 	during 	trial.
Defendant rejected this suggestion, preferring to walk about the
courtroom as best he could in leg restraints. Defendant’s case on
remand proceeded expeditiously to trial with the exception of
one continuance—at Defendant’s request—to locate additional
evidence and witnesses. After a two-day trial in April 2015, a
jury convicted Defendant of all three charges. Defendant again
appeals, and we affirm.
ISSUES AND STANDARDS OF REVIEW
¶5 	Defendant raises three issues on appeal. First, he argues
that the trial court denied his constitutional right to a speedy
trial. “We review the issue of whether a defendant was deprived
of his right to a speedy trial for correctness.” State v. Hawkins,
2016 UT App 9, ¶ 68, 366 P.3d 884. Next, Defendant argues that
the court unfairly prejudiced him by requiring him to wear leg
restraints in view of the jury. Whether a defendant was denied
his constitutional rights to a fair trial and the presumption of
innocence is reviewed for correctness. State v. Madsen, 2002 UT
App 345, ¶ 4, 57 P.3d 1134. And finally, Defendant argues that
the trial court violated his rights to self-representation and to the

State v. Rohwedder
20150357-CA 	4 	2018 UT App 182
effective assistance of counsel. We consider these claims, “raised
for the first time on appeal,” as “present[ing] a question of law,”
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162, which we evaluate for
correctness, State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716.
ANALYSIS
I. Trial Delay
¶6 	The Sixth Amendment to the United States Constitution
guarantees a defendant the right to a speedy trial. U.S. Const.
amend. VI. In determining whether a criminal defendant has
been deprived of the right to a speedy trial, we consider four
factors: the “[l]ength of delay, the reason for the delay, the
defendant’s 	assertion 	of 	his 	right, 	and 	prejudice 	to 	the
defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). But the
length of delay is the “triggering mechanism,” and “[u]ntil there
is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the
balance.” 	Id. 	Whether 	a 	delay 	is 	presumptively 	prejudicial
depends on “the peculiar circumstances of the case,” id. at 530–31,
because for “serious, more complex crimes, a greater period of
delay will be tolerated,” State v. Cornejo, 2006 UT App 215, ¶ 27,
138 P.3d 97 (brackets, citation, and internal quotation marks
omitted). Typically, courts view “delays approaching one year
[as] presumptively prejudicial.” United States v. Larson, 627 F.3d
1198, 1208 (10th Cir. 2010). See Doggett v. United States, 505 U.S.
647, 652 n.1 (1992).
¶7 	Here, Defendant points to the time from when he was
originally 	charged 	right 	up 	until 	his 	second 	trial, 	which
exceeded three years. He argues that this delay is presumptively
prejudicial. But in his first appeal, Defendant asked this court for
a new trial, which he received. In cases of retrial, other courts
have declined to include all the time that has passed from the
original charge to the second trial, considering only the time
period between the appellate mandate reversing a conviction

State v. Rohwedder
20150357-CA 	5 	2018 UT App 182
and the retrial. See, e.g., Icgoren v. State, 653 A.2d 972, 978 (Md.
Ct. Spec. App. 1995); Mitchell v. State, 572 So. 2d 865, 870‒71
(Miss. 1990); State v. Kula, 579 N.W.2d 541, 546 (Neb. 1998); Soffar
v. State, No. AP-75,363, 2009 WL 3839012, at *39 (Tex. Crim. App.
Nov. 18, 2009) (per curiam). Given that “[i]t has long been the
rule 	that 	when 	a 	defendant 	obtains 	a 	reversal 	of 	a 	prior,
unsatisfied conviction, he may be retried in the normal course of
events” without running afoul of the Sixth Amendment’s right
to a speedy trial, United States v. Ewell, 383 U.S. 116, 121 (1966),
we are inclined to follow the lead of those courts. Defendant’s
case returned to the trial court on November 12, 2014, and the
first day of his retrial was April 7, 2015. The time between these
two dates was a period of only 146 days, which Defendant has
not shown is presumptively prejudicial under the circumstances
of this case. See Larson, 627 F.3d at 1208. Cf. Cornejo, 2006 UT App
215, ¶ 27 (concluding that 315 days was “potentially, but not
necessarily, prejudicial”) (citation and internal quotation marks
omitted).
¶8 	Because Defendant’s claim of a speedy trial violation falls
short of being even “presumptively prejudicial,” we have no
occasion 	to 	consider 	the 	other 	Barker 	factors. 	We 	therefore
conclude that the trial court did not deprive Defendant of his
right to a speedy trial.
II. Leg Restraints
¶9 	Defendant 	contends 	that 	the 	trial 	court 	unfairly
prejudiced him by requiring him to wear leg restraints in the
presence of the jury. “It is well established that a principal
ingredient of due process is that every criminal defendant is
entitled to a fair and impartial trial.” State v. Mitchell, 824 P.2d
469, 473 (Utah Ct. App. 1991) (brackets, citation, and internal
quotation marks omitted). It can be “inherently prejudicial” to
“visibly shackl[e] a defendant” because “it suggests to the minds
of jurors that he is guilty.” State v. Madsen, 2002 UT App 345, ¶ 8,
57 P.3d 1134. Still, a trial court may physically restrain a criminal

State v. Rohwedder
20150357-CA 	6 	2018 UT App 182
defendant “to prevent an escape, resort to violence, or disruption
of the trial.” Mitchell, 824 P.2d at 473.
¶10 	The question of whether Defendant actually presented
any 	of 	those 	risks 	is 	not 	at 	issue 	in 	this 	appeal. 	Instead,
Defendant argues that there were ways the trial court could have
minimized the risk of prejudice even if it was necessary to
restrain 	him. 	Defendant 	was 	restrained 	using 	shackles 	that
would lock “if someone stands up abruptly or moves.” To
ensure the jury could not see Defendant’s leg restraints, the trial
court offered to have everyone at counsel table remain seated,
including the prosecutor, and for curtains to be hung from the
tables to conceal everyone’s legs. But Defendant rejected the trial
court’s offer, insisting confining everyone to counsel table would
signal the jury that Defendant was shackled. And he wished to
move about freely during trial. He therefore made the choice to
forgo the everyone-remain-seated option and preserve his ability
to get up and move around during trial.
¶11 	To 	conclude 	that 	the 	use 	of 	visible 	restraints 	was
inherently prejudicial, it has to be clear that “the trial court
created [the] inherently prejudicial situation.” State v. Daniels,
2002 UT 2, ¶ 20, 40 P.3d 611. Had Defendant accepted the trial
court’s offer to have everyone at counsel table remain seated, the
jury would have been none the wiser that he was physically
restrained.2 Defendant 	therefore 	created 	his own 	prejudicial
situation, and accordingly, we conclude that the trial court did
not err in requiring Defendant to wear leg restraints during his
trial.
2. We reject Defendant’s argument that if everyone at counsel
table remained seated, the jury would immediately guess that
the root cause for this arrangement was Defendant’s being
restrained as a security risk, as opposed to there being some
other explanation, such as a physical disability or a judicial
preference for informality in the courtroom.

State v. Rohwedder
20150357-CA 	7 	2018 UT App 182
III. Standby Counsel
¶12 	Defendant contends, seemingly inconsistently, that both
his right to self-representation and his right to the effective
assistance of counsel were violated when “his standby counsel
failed 	to . . . provide 	him 	access 	to 	relevant 	legal 	materials
[and] . . . subpoena witnesses.” There are two mutually exclusive
rights guaranteed by the Sixth Amendment: the right to the
assistance of counsel and the right to self-representation. State v.
Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799.
¶13 	When 	a 	criminal 	defendant 	invokes 	the 	right 	to
self-representation, 	he 	waives his right 	to 	the 	assistance 	of
counsel. State v. Frampton, 737 P.2d 183, 187 (Utah 1987). Before
allowing a criminal defendant to represent himself, a trial court
must ensure that the “waiver is a voluntary one which 	is
knowingly and intelligently made” by making the defendant
“aware of the dangers and disadvantages of self-representation.”
Id. (citation and internal quotation marks omitted). Once “[t]he
choice 	to 	represent 	oneself” 	is 	made, 	“a 	pro 	se 	criminal
defendant 	relinquishes 	many 	of 	the 	traditional 	benefits
associated with the right to counsel,” including “full access to
legal materials, when the defendant remains in custody pending
trial.” State v. Drobel, 815 P.2d 724, 736 (Utah Ct. App. 1991)
(citation and internal quotation marks omitted).
¶14 	Defendant sought to represent himself, but he refused, as
he put it, to “sign[] away imperative rights” absent assurances
he would have access to a law library or the assistance of
“back-up counsel.” The trial court allowed him to represent
himself and also made standby counsel available to him. But the
court clarified that Defendant would be “primarily responsible
for things” and “responsible for being able to comply with all the
expectations.” 	While 	Defendant 	does 	not 	dispute 	that 	his
waiver of the right to counsel was knowing and voluntary,
he denies that he waived the right to the assistance of counsel
in toto, arguing that he “did not entirely self-represent” because

State v. Rohwedder
20150357-CA 	8 	2018 UT App 182
his standby counsel played the role of “co-counsel” during his
trial.
¶15 	Courts have traditionally appointed standby counsel “to
aid the accused if and when the accused requests help” and “to
be 	available 	to 	represent 	the 	accused 	in 	the 	event 	that
termination of the defendant’s self-representation is necessary.”
Faretta v. California, 422 U.S. 806, 834‒35 n.46 (1975). Particularly,
standby counsel assists “the pro se defendant in overcoming
routine procedural or evidentiary obstacles to the completion of
some specific task, such as introducing evidence or objecting to
testimony.” McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). But the
appointment of standby counsel “does not alter a party’s pro se
status.” In re C.C., 2011 UT App 99, ¶ 7 n.2, 250 P.3d 1038.
“Precedent is clear. Defendants who knowingly and intelligently
waive their right to assistance of counsel must be allowed to
conduct their own defense.” State v. Bakalov, 862 P.2d 1354, 1355
(Utah 1993) (per curiam). The “choice of self-representation often
results in detrimental consequences to the defendant,” Bakalov,
1999 UT 45, ¶ 15, but “a defendant who elects to represent
himself cannot thereafter complain that the quality of his own
defense 	amounted 	to 	a 	denial 	of 	‘effective 	assistance 	of
counsel,’” Frampton, 737 P.2d at 189 (quoting Faretta, 422 U.S. at
834‒35 n.46). Standby counsel acts only to “protect the rights of
accused persons foolishly trying to defend themselves” and to
“vindicate 	the 	process 	itself” 	by 	promoting 	fairness 	in 	the
criminal justice system. Mayberry v. Pennsylvania, 400 U.S. 455,
468 (1971) (Burger, C.J., concurring) (internal quotation marks
omitted).
¶16 	Some courts using this type of “hybrid representation”
have muddied the waters of the Sixth Amendment by allowing
standby counsel to take on more of the role of counsel during the
course of a trial, such as making opening statements and closing
arguments, suggesting legal arguments to the defendant, or
presenting 	legal 	arguments 	on 	the 	defendant’s 	behalf. 	We
recognize that there can be value in appointing standby counsel

State v. Rohwedder
20150357-CA 	9 	2018 UT App 182
to assist a pro se defendant who lacks adequate access to the
resources 	necessary 	to 	present 	his 	defense 	or 	to 	help 	the
defendant with questions of procedure and protocol in the
courtroom. But pro se defendants cannot have it both ways; they
cannot invoke the right to self-representation and later claim
they were denied the right to the effective assistance of counsel.
Nor does a pro se defendant have “a constitutional right to
choreograph special appearances by counsel.”3 McKaskle, 465
U.S. at 183.
¶17 	But neither does it follow that standby counsel may shirk
his or her responsibilities with impunity. Counsel does not
evade the obligation to adhere to the Rules of Professional
Conduct when appointed as standby counsel. And while the
Sixth Amendment does not set a baseline standard for standby
counsel’s performance,4 the Due Process Clause does. See Snyder
3. As outlined in State v. Frampton, 737 P.2d 183 (Utah 1987), the
trial court should conduct “a colloquy on the record” that not
only ascertains the validity of a right to counsel waiver, but also
“insures 	that 	defendants 	understand 	the 	risks 	of
self-representation.” Id. at 187. As more fully explained in Judge
Mortensen’s 	concurring 	opinion, 	if 	a 	defendant 	elects 	to
represent himself and the trial court chooses to appoint standby
counsel, 	it 	follows 	that 	the 	trial 	court 	should 	also 	advise
defendants of the limits of standby counsel’s duties and how
those limits affect a defendant’s decision to represent himself. Cf.
id. (“[T]he 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 and his choice is made
with 	eyes 	open.”) 	(citation 	and 	internal 	quotation 	marks
omitted).
4. We recognize that a few courts have held that ineffective
assistance 	of 	counsel 	claims 	can 	be 	brought 	when 	standby
counsel fails to perform competently. See People v. Bloom, 774
(continued…)

State v. Rohwedder
20150357-CA 	10 	2018 UT App 182
v. Massachusetts, 291 U.S. 97, 116 (1934) (“Due process of law
requires that the proceedings shall be fair, but . . . [i]t is fairness
with reference to particular conditions or particular results.”),
overruled on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964).
See also Estelle v. Williams, 425 U.S. 501, 504 (1976) (“Courts must
do the best they can to evaluate the likely effects of a particular
procedure, based on reason, principle, and common human
experience.”). 	It 	would 	violate 	due 	process 	for 	a 	pro 	se
defendant who lacks access to legal materials to be provided
standby counsel who subsequently fails to assist the defendant
in securing items reasonably requested by the defendant. When
standby counsel is appointed, that attorney assumes particular
duties in assisting a self-represented criminal defendant, and
counsel must discharge those duties.
¶18 	Defendant characterizes his standby counsel’s role as an
active one, and he suggests that this active role brought with it a
duty 	on 	the 	part 	of 	standby 	counsel 	to 	ensure 	Defendant
“was 	able 	to 	accomplish 	the 	tasks 	he 	needed.” 	But 	the
record does not reflect that standby counsel took on such an
active role in Defendant’s defense. Even Defendant concedes
that standby counsel was only being used as “a law library”
and 	to 	help 	“secure 	[two] 	witnesses’ 	presence 	at 	[trial].”
Moreover, the trial court appointed standby counsel to “act as
a resource” out of concern that Defendant did not have access to
(…continued)
P.2d 	698, 	718 	(Cal. 	1989) 	(en 	banc) 	(“[A] 	self-represented
defendant must show that [standby] counsel failed to perform
competently within the limited scope of the duties assigned to or
assumed by counsel.”) (emphasis omitted); Downey v. People, 25
P.3d 1200, 1204 (Colo. 2001) (en banc) (concluding that there is a
claim for ineffective assistance of counsel when standby counsel
“exceeds his role as advisory counsel”).

State v. Rohwedder
20150357-CA 	11 	2018 UT App 182
legal materials.5 Standby counsel clarified that he could be used
“as a resource if there [was] a specific request regarding specific
cases[,] . . . specific treatises, Utah Rules of Criminal Procedure,
code, 	etc.” 	Standby 	counsel’s 	role 	was 	limited 	to 	helping
Defendant 	get 	legal 	materials, 	with 	the 	single 	additional
responsibility 	of 	assisting 	Defendant 	with 	subpoenaing
witnesses. To show that standby counsel failed to perform those
duties, Defendant’s claim must be supported by the record.
“Where 	the 	record 	appears 	inadequate 	in 	any 	fashion,
ambiguities or deficiencies resulting therefrom simply will be
construed 	in 	favor 	of 	a 	finding 	that 	counsel 	performed
effectively . . . [which] is consistent . . . with the general rule that
record inadequacies result in an assumption of regularity on
appeal.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.
¶19 	Here, the record is unclear as to what, exactly, standby
counsel did and did not do to assist Defendant. First, Defendant
maintains that standby counsel was intended to serve more in
the role of co-counsel, but the record does not support this claim.
Defendant clarified with the trial court on multiple occasions
that he was representing himself and would conduct his own
5. Pro se defendants have a fundamental right to access court
resources, and under this right, they must be provided with
“adequate law libraries or adequate assistance from persons
trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977).
Defendant did not have access to a law library because the jail in
which he was housed did not have one. However, the jail did
have a paralegal that would pull requested sources for inmates.
But 	Defendant 	never 	requested 	help 	from 	the 	available
paralegal. 	Standby 	counsel’s 	duty 	was 	to 	assist 	him 	in 	a
comparable way, namely, by pulling the 	research materials
Defendant needed. And “[i]t is well established that providing
legal counsel is a constitutionally acceptable alternative to a
prisoner’s demand to access a law library.” United States v.
Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999).

State v. Rohwedder
20150357-CA 	12 	2018 UT App 182
defense. Over the course of trial, standby counsel was limited to
helping Defendant with legal research and securing witnesses.
Second, the record is silent as to whether standby counsel
meaningfully 	discharged 	these 	duties. 	Even 	Defendant
acknowledges that “[t]he record is silent as to the conversation
between [Defendant] and his standby counsel as to counsel’s
actions” in providing Defendant the access he needed to legal
materials and “the record is silent as to . . . what efforts counsel
made to locate . . . witnesses.”6 As standby counsel was limited
to these two specific duties and the record is silent as to whether
standby counsel faithfully discharged them, we assume that
standby counsel did what Defendant asked of him and have no
occasion to further consider this issue.7
6. Defendant sought to fill the void in the record with a rule 23B
motion to remand. See Utah R. App. P. 23B. This motion was
denied because Defendant failed to include specific facts and
details supporting his claims of ineffective assistance of counsel.
See id. R. 23B(b) (“The motion shall include or be accompanied
by affidavits alleging facts not fully appearing in the record on
appeal 	that 	show the 	claimed 	deficient 	performance 	of the
attorney. The affidavits shall also allege facts that show the
claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.”).
7. Even if Defendant had established that standby counsel failed
to discharge his duties, it is doubtful that we could conclude the
failure 	was 	prejudicial, 	warranting 	yet 	another 	trial 	for
Defendant. Defendant maintains that standby counsel failed to
procure witnesses or obtain evidence or legal research on his
behalf, but he never demonstrates why this was prejudicial to his
case. He alludes to one witness as being “the person he was
going to meet the evening the police arrested him,” but there is
no indication as to what this witness or any other witnesses
would have testified. He also fails to show how the outcome of
(continued…)

State v. Rohwedder
20150357-CA 	13 	2018 UT App 182
CONCLUSION
¶20 	We conclude that there was no violation of Defendant’s
speedy trial right in convening his second trial. The trial court
did not err when it required Defendant to wear leg restraints
during his trial because any prejudice resulting therefrom was
attributable 	to 	Defendant. 	We 	also 	conclude 	that 	standby
counsel’s 	conduct 	violated 	neither 	Defendant’s 	right 	to
self-representation nor his right to the effective assistance of
counsel. We therefore affirm Defendant’s convictions.
MORTENSEN, Judge (concurring):
¶21 	I 	completely 	concur 	in 	the 	majority 	opinion. 	I 	write
separately 	only 	to 	suggest 	a 	mechanism 	whereby 	the
expectations between a pro se defendant and appointed standby
counsel can be addressed and more clearly establish whether a
voluntary and knowing waiver of counsel has occurred. To be
sure, the appointment of standby counsel can introduce an
element of uncertainty for appointed counsel in gauging the
extent to which counsel can comfortably interject herself into the
proceedings. At the same time, unrealistic expectations of a pro
se defendant may arise when the function and role of standby
counsel is not clear. Accordingly, where standby counsel is
appointed, the trial court should strongly consider entering a
formal 	order 	outlining 	the 	parameters 	of 	the 	expected
representation.
¶22 	As 	the 	majority 	opinion 	acknowledges, 	our 	supreme
court, in State v. Frampton, 737 P.2d 183 (Utah 1987), addressed
the implications inherent in respecting an accused’s right to
(…continued)
the trial would have been different had he been given access to
the reference materials he requested.

State v. Rohwedder
20150357-CA 	14 	2018 UT App 182
conduct her own defense. In Frampton, the court affirmed the
convictions of a defendant who had represented himself and
concluded that the defendant had knowingly and voluntarily
waived his right to counsel. In reaching this conclusion, the court
painstakingly reviewed the record in order to verify that the
defendant’s waiver of his Sixth Amendment right to counsel had
been knowingly, intelligently, and voluntarily made. Id. at 187–
89. However, the court in Frampton also noted that generally
ascertaining that a defendant is knowingly, intelligently, and
voluntarily waiving his right to counsel “can only be elicited
after penetrating questioning by the trial court.” Id. at 187.
Indeed, our supreme court pointed trial courts to a scripted
colloquy from the Bench Book for United States District Court
Judges, outlining questions which might be asked to verify that a
defendant understands the significant right being waived and
how that waiver might be applied in the real-world setting of a
trial court. Id. at 187 n.12. Similarly, when appointing standby
counsel, trial courts would do well to enter a formal order
appointing standby counsel. See Arkansas v. Robbins, 985 S.W.2d
293, 	294 	(Ark. 	1998) 	(noting 	that 	the 	trial 	court 	appointed
standby counsel “with specific instructions as to their duties in
that role”); New Mexico v. Vincent, 112 P.3d 1119, 1125 (N.M. Ct.
App. 	2005) 	(affirming 	where 	the 	trial 	court 	explained 	that
standby counsel “is just there to answer questions that [the
defendant] might 	have and not [to] keep [defendant] from
making a mistake”).
¶23 	In another example, our supreme court remanded a case
to 	the 	trial 	court 	to 	conduct 	a 	“searching” 	colloquy 	of 	a
defendant to ensure that the defendant understood the risks of
self-representation. See generally State v. Bakalov, 862 P.2d 1354
(Utah 1993) (per curiam). The Utah Supreme Court remarked,
“The court is also urged to appoint standby counsel to preserve
[the defendant’s] right to self-representation and to preclude
subsequent claims of lack of waiver or ineffective assistance of
counsel.” Id. at 1355. Like the searching questions required in
Bakalov, a formal order of appointment of standby counsel serves

State v. Rohwedder
20150357-CA 	15 	2018 UT App 182
to both highlight the risks attendant in a defendant representing
himself and set expectations and parameters, which can be
recurrently reviewed by a pro se defendant as well as standby
counsel. Further, a formal order of appointment ensures that a
defendant appreciates the truly binary nature of the decision
between self-representation and representation by counsel: it is
either one or the other.
¶24 	Such an order appointing standby counsel, in addition to
parameters specific to a case, might include language such as:
In summary of the warnings that have previously
been made to Defendant in open court, and unless
and until Defendant expressly invokes the right to
counsel 	and 	relinquishes 	his 	status 	as 	pro 	se
counsel:
A. Any witnesses in any hearing or trial will be
questioned 	by 	Defendant, 	not 	his 	standby
counsel.
B. 	Any arguments made in open court will be
made by Defendant, not his standby counsel.
C. Any statements made by Defendant in court
can be used against him in this or any other
proceeding.
D. Defendant will continually be responsible for
compliance with the Utah Rules of Criminal
Procedure, the Utah Rules of Civil Procedure,
and the Utah Rules of Evidence.
E. 	The 	court 	cannot 	give 	any 	legal 	advice 	to
Defendant, including advice on how to try this
case, hold a hearing, or otherwise proceed in
this matter.

State v. Rohwedder
20150357-CA 	16 	2018 UT App 182
F. 	Standby counsel’s role is to act as a resource
and is not appointed to keep Defendant from
making mistakes.
G. Standby 	counsel 	may 	assist 	Defendant 	in
obtaining legal resources, but standby counsel
is 	not 	expected 	to 	conduct 	research 	for
Defendant.
H. In the court’s opinion, Defendant would be
better 	served 	by 	being 	represented 	by 	an
attorney. However, Defendant has elected to
knowingly, intelligently, and voluntarily waive
his right to counsel.