State v. Smith

2018 UT App 28
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JONATHAN DENARD S MITH ,
Appellant.
Opinion
No. 20151033-CA
Filed February 15, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151900912
Amy N. Fowler, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which J UDGES
GREGORY K. O RME and DIANA H AGEN concurred.
POHLMAN, Judge:
¶1 	Jonathan Denard Smith appeals the sentences resulting
from his guilty pleas for one count of damage to jail property, a
third degree felony, and one count of attempted damage to jail
property, a class A misdemeanor. He was sentenced on these
two offenses without his counsel present because the district
court determined that, for purposes of sentencing, Smith had
voluntarily and knowingly waived his right to counsel. Smith
argues that the court erred in that determination. We agree and
therefore 	vacate 	Smith’s 	sentences 	and 	remand 	for 	further
proceedings.

State v. Smith
20151033-CA 	2 	2018 UT App 28
BACKGROUND
¶2 	While Smith was in custody, two charges relevant to this
appeal were filed against him—one for propelling a substance at
an officer in January 2015, a class A misdemeanor (Case One),
and one for damaging jail property in April 2015, a third degree
felony (Case Two) (collectively, the Cases). After an attorney
from Salt Lake Legal Defender Association (LDA) withdrew on
the basis of a conflict, a second attorney was appointed as
Smith’s attorney for the Cases.
¶3 	The second attorney negotiated a plea deal in which
Smith would plead guilty as charged on Case Two, and the
charge underlying Case One would be amended to attempted
damage to jail property, a class A misdemeanor. In exchange, the
State promised to dismiss another charge that it had filed against
Smith and agreed to release him from custody. Smith pleaded as
negotiated, and during the May 2015 plea hearing, the court
accepted his plea and ordered his pre-trial release.
¶4 	Smith was rearrested and placed in custody on other
charges in mid-August 2015.1 Another LDA attorney—Smith’s
third—was appointed to represent him on the new charges, but
that attorney also withdrew. In late September 2015, the court
arranged for conflict counsel (Attorney) to be appointed on all of
Smith’s cases.
¶5 	In late October 2015, Smith, through Attorney, moved to
withdraw his guilty pleas in the Cases, and the court set the
matter for a hearing on November 10, 2015. The court noted that,
1. The charges that led to Smith’s initial custody before the
Cases, and the charges filed subsequent to those cases, are not
the subject of this appeal. We refer to them only for clarity in the
narrative.

State v. Smith
20151033-CA 	3 	2018 UT App 28
in the event Smith’s motion to withdraw his pleas was denied,
“sentencing may be addressed” at the November hearing.
¶6 	One week before the November hearing, Attorney sought
to withdraw as Smith’s appointed counsel on the ground that a
conflict existed. Attorney asserted that during a visit to Smith at
the 	correctional 	facility, 	Smith 	became 	“hostile 	and
argumentative” and threatened him with physical harm. On
November 	5, 	2015, 	the 	court 	granted 	Attorney’s 	motion 	to
withdraw and ordered LDA to appoint new conflict counsel.
However, as of the November 10, 2015 hearing, LDA had yet to
assign new counsel, and no counsel appeared on Smith’s behalf.
Nonetheless, the hearing proceeded.
¶7 	The court began the hearing by explaining that, although
five 	total 	cases 	were 	pending 	against 	Smith, 	the 	hearing’s
primary purpose was to address Smith’s motion to withdraw his
pleas in the Cases and, depending on the outcome of that
motion, to potentially sentence him for those cases. After the
court stated for the record that Attorney had withdrawn and
that it had ordered LDA to appoint new counsel for Smith, the
State requested that the court determine that Smith had forfeited
his right to counsel for the Cases. According to the State, Smith
had fired “every attorney who gives him advice he doesn’t like,
culminating 	[in] 	threatening 	physical 	violence 	against
[Attorney].” In the alternative, the State requested at minimum
that the court warn Smith “of the dangers of representing
himself and of the behaviors that are inappropriate in interacting
with future counsel” so that if Smith “continue[d] in this line of
behavior, he will recognize that he is by his actions waiving his
right to have an attorney going forward.”
¶8 	The court did not determine that Smith had forfeited his
right to counsel for the Cases. Instead, the court outlined for the
record Smith’s history with counsel across the “various cases”
pending against him and then attempted to have a discussion

State v. Smith
20151033-CA 	4 	2018 UT App 28
with Smith regarding his understanding about what it would
mean to represent himself. The court took a comprehensive
approach. It explained to Smith that if he were sentenced to the
maximum punishment for all the charges filed against him in all
of his five pending cases, he could be “potentially ordered to
serve 162 years in prison” and “face tens of thousands of dollars
in monetary penalties.”
¶9 	The court also attempted to ask Smith questions relevant
to his understanding 	of the risks associated with generally
representing himself in all of his cases. For example, the court
asked Smith about his legal knowledge, whether he had ever
represented 	himself 	in 	a 	criminal 	proceeding, 	whether 	he
realized he would not receive any help “in terms of how the
cases would be tried,” whether he understood that he would be
expected to follow the rules of procedure, and whether he
understood the difficulties inherent in representing himself in
front of a jury. Smith refused to provide responsive answers to
these questions, and, in large part, remained silent; indeed, the
court stated for the record, “Whether you understand it or not,
you are refusing to answer my question,” and thereafter noted
each instance Smith refused to answer. In conclusion, the court
advised Smith to “be represented by an attorney,” stating that it
“strongly urge[d] [Smith] to accept representation from the next
lawyer who’s going to be appointed to represent” him.
¶10 	At the conclusion of the court’s attempted colloquy with
Smith, the State again asked the court to warn Smith “about
what behaviors are inappropriate and would result in a waiver
of his right to counsel.” The court began to do so, explaining to
Smith that he had gone through “four excellent lawyers” by
interfering 	with 	their 	ability 	to 	represent 	him, 	but 	Smith
interrupted the court and proposed,
All right. Since today is sentencing on the other
two cases, how about this? I don’t need no lawyer

State v. Smith
20151033-CA 	5 	2018 UT App 28
for that. Sentence me. Send me to the Utah State
Prison. Let me get comfortable. And I’ll fight those
cases from there. Do you agree? That way I don’t
have to deal with getting no more charges or no
more none of that. I can do my time the way I do
my time and you ain’t got to worry about that.
¶11 	In response, the district court attempted to verify that
Smith 	indeed 	wished 	to 	represent 	himself 	for 	sentencing
purposes in the Cases; the court asked Smith several times
whether he wanted to be sentenced that day, whether he wanted
to represent himself for sentencing in the Cases, and whether he
had “heard everything” the court told him about representing
himself. Each time, Smith demanded that the court sentence him.
¶12 	The court ultimately denied Smith’s motion to withdraw
his pleas, found that Smith had chosen to represent himself and
to be sentenced in the Cases, and then proceeded to sentencing.
The 	court 	asked 	the 	State 	for 	its 	input, 	and 	the 	State
recommended that Smith be committed to prison, noting that
while the sentencing “matrix would not usually recommend
prison[,] 	. 	. 	. 	[Smith’s] 	behavior 	precludes 	an 	option 	of
probation.” The court then asked Smith if he had “anything else
[he] want[ed] to say,” and Smith responded, “No, I don’t.”
¶13 	The court sentenced Smith to prison for zero to one year
for Case One, and zero to five years for Case Two. It ordered the
sentences to run consecutively and recommended that Smith not
receive credit for time served. Smith appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 	Smith argues that the district court erred by concluding
that he voluntarily, knowingly, and intelligently waived his right
to 	counsel. 	Whether 	Smith 	“voluntarily, 	knowingly, 	and
intelligently waived his right to counsel is a mixed question of

State v. Smith
20151033-CA 	6 	2018 UT App 28
law and fact.” State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716.
We will review the court’s conclusions of law for correctness and
will reverse the court’s factual findings only if they are clearly
erroneous. Id.
¶15 	Smith 	also 	argues 	that 	the 	district 	court 	abused 	its
discretion by sentencing him to prison instead of probation.
While we ordinarily review sentencing decisions for abuse of
discretion, see State v. Karren, 2017 UT App 163, ¶ 2, 405 P.3d 825
(per curiam), we do not reach Smith’s arguments regarding the
propriety 	of 	his 	sentences 	here 	because 	we 	vacate 	those
sentences on other grounds as explained below.
ANALYSIS
I. The Law of Waiver
¶16 	Smith challenges the court’s determination that he waived
his right to counsel for purposes of sentencing in the Cases.
“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, which includes the right
to effective counsel for sentencing proceedings, State v. Casarez,
656 P.2d 1005, 1007 (Utah 1982). “Concomitant with that right is
the criminal defendant’s guaranteed right to elect to present his
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 [waive the right to counsel], . . . a trial court
should 	ensure 	that 	the 	waiver 	is 	voluntary, 	knowing, 	and
intelligent.” Pedockie, 2006 UT 28, ¶ 26. If there are any doubts

State v. Smith
20151033-CA 	7 	2018 UT App 28
regarding the defendant’s understanding of the consequences of
waiver, 	those 	doubts 	“must 	be 	resolved 	in 	favor 	of 	the
defendant.” Id. ¶ 45.
¶17 	There are three methods through which a defendant may
validly waive his right to counsel—true waiver, implied waiver,
and forfeiture. See id. ¶ 27. Here, the dispute centers on true
waiver. Smith contends that he did not provide a true waiver of
counsel for sentencing in the Cases, while the State contends that
he did.
¶18 	A true waiver is one in which the defendant affirmatively
represents that he wishes to proceed without counsel. Id. ¶ 28.
First, for such waiver to be valid, the district court “must be
assured 	that 	a 	defendant 	has 	clearly 	and 	unequivocally
requested the right to proceed pro se.” Hassan, 2004 UT 99, ¶ 22
(brackets, citation, and internal quotation marks omitted); see also
Bakalov, 1999 UT 45, ¶ 16 (stating that “[t]o invoke the right of
self-representation, a defendant must in a timely manner ‘clearly
and unequivocally’ request it” (quoting United States v. McKinley,
58 F.3d 1475, 1480 (10th Cir. 1995))).
¶19 	Second, the court must be assured that the defendant’s
choice is knowingly and intelligently made, meaning that the
defendant has “actual awareness of the risks of proceeding pro
se” under the particular facts and circumstances at hand. See
Hassan, 2004 UT 99, ¶ 22 (citation and internal quotation marks
omitted); see also State v. Frampton, 737 P.2d 183, 188 (Utah 1987)
(stating that, for the waiver to be knowing and intelligently
made, a defendant must understand “the relative advantages
and 	disadvantages 	of 	self-representation 	in 	a 	particular
situation” (citation and internal quotation marks omitted)). Our
supreme court has instructed that 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.” Pedockie, 2006 UT 28, ¶ 29; see also

State v. Smith
20151033-CA 	8 	2018 UT App 28
Frampton, 737 P.2d at 187 (explaining that determining whether a
defendant’s waiver is knowing and intelligent can generally
“only be elicited after penetrating questioning by the trial court”
and that “a colloquy on the record between the court and the
accused is the preferred method of ascertaining the validity of a
waiver”). For example, in Frampton, the court set out a sixteen-
point inquiry to assist and guide courts in their determinations
of whether a defendant’s waiver is knowing and intelligent, see
737 P.2d at 187 n.12, and since then it has encouraged district
courts to conduct an inquiry based on the Frampton factors, see,
e.g., Pedockie, 2006 UT 28, ¶¶ 42, 45; Bakalov, 1999 UT 45, ¶¶ 23–25.
¶20 	Nonetheless, “the validity of a waiver [does not] turn . . .
on whether the trial judge actually conducted the colloquy, but
rather ‘upon the particular facts and circumstances surrounding
each case.’” Hassan, 2004 UT 99, ¶ 22 (quoting Frampton, 737 P.2d
at 188); see also id. (“Beyond the colloquy, we will look at any
evidence 	in 	the 	record 	which 	shows 	a 	defendant’s 	actual
awareness of the risks of proceeding pro se.” (citation and
internal quotation marks omitted)); State v. Drobel, 815 P.2d 724,
733 (Utah Ct. App. 1991) (explaining that “the Frampton colloquy
alone cannot form the basis for granting a self-representation
request 	when 	other information 	available 	to 	the trial 	court
suggests that the request may not be knowingly and intelligently
made”). Ultimately, the crucial determination that must be made
is 	“whether 	the 	defendant 	understood 	the 	consequences 	of
waiver,” regardless of whether a district court conducts the
colloquy. See Pedockie, 2006 UT 28, ¶ 45. But see id. (anticipating
“that reviewing courts will rarely find a valid waiver of the right
to counsel absent a colloquy” conducted by the district court).
II. The Arguments on Appeal
¶21 	Smith contends that he did not provide a true waiver for
two 	reasons. 	First, 	he 	asserts 	that 	he 	“did 	not 	make 	an
unequivocal request to represent himself.” Second, he asserts

State v. Smith
20151033-CA 	9 	2018 UT App 28
that any alleged waiver was not “knowingly and intelligently”
made.
¶22 	First, we disagree with Smith’s assertion that he did not
unequivocally 	request 	to 	represent 	himself 	for 	sentencing
purposes in the Cases. Smith exhibited awareness that he stood
to be potentially sentenced that day for the Cases and that,
though no counsel was present to represent him, he had the
right to be represented for the sentencing. Indeed, Smith himself
proposed 	to 	forgo 	counsel 	for 	sentencing 	in 	the 	Cases,
requesting instead that the district court sentence him that day.
Thereafter, 	Smith 	repeatedly 	demanded 	to 	be 	sentenced 	in
response to the court’s admonition that he wait for counsel and
its 	multiple 	inquiries 	regarding 	whether 	he 	wanted 	to 	be
sentenced that day, whether he wanted to represent himself for
sentencing in the Cases, and whether he had heard “everything”
the court told him about representing himself. Smith’s repeated
demands in response to the court’s questions left little room for
interpretation about his desire to be sentenced at the hearing
without the benefit of counsel. See generally State v. Bakalov, 1999
UT 45, ¶ 16, 979 P.2d 799 (explaining that the request for self-
representation must be clear and unequivocal, and describing
what is to be guarded against by requiring that the request for
self-representation be explicit).
¶23 	Nevertheless, although we conclude that Smith’s waiver
was voluntary, we cannot conclude that it was knowing and
intelligent. In particular, the record leaves us with doubts about
whether Smith understood the risks he faced proceeding pro se
for 	sentencing, 	and 	given 	“the 	strong 	presumption 	against
waiver and the fundamental nature of the right to counsel,”
these doubts must be resolved in Smith’s favor. See State v.
Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716.
¶24 	To 	begin 	with, 	even 	though 	the 	court 	attempted 	to
conduct a Frampton 	colloquy with Smith, 	the outcome was

State v. Smith
20151033-CA 	10 	2018 UT App 28
unsuccessful. 	Smith 	refused 	to 	engage 	with 	the 	court 	and
responsively 	answer 	the 	court’s questions. 	For 	most of 	the
colloquy, Smith was silent, and the court itself acknowledged
that 	Smith’s 	refusal 	to 	respond 	left 	uncertainty 	about 	his
understanding of the risks he would face representing himself.
And 	when 	Smith 	did 	respond, 	his 	answers 	were 	largely
nonresponsive to the questions posed. For example, when the
court 	asked 	Smith 	to 	talk 	about 	his 	legal 	knowledge, 	he
responded that it “doesn’t matter,” and when the court asked
whether he had ever represented himself in a criminal action,
Smith asked, “What is this relevant to?” and thereafter rebuffed
the court’s attempts to redirect the question.
¶25 	Further, and more importantly, even had Smith engaged
with the court’s attempted colloquy, we cannot discern from the
court’s interaction with him whether he understood the risks he
undertook in choosing to represent himself at sentencing for the
Cases. There is no evidence that Smith was informed of the risks
associated with representing himself for sentencing purposes.
The 	court 	did 	not 	ask 	questions 	aimed 	specifically 	toward
determining Smith’s understanding of what it would mean to
waive counsel for sentencing in the Cases. See State v. Frampton,
737 P.2d 183, 188 (Utah 1987) (explaining that a defendant must
understand “the relative advantages and disadvantages of self-
representation 	in 	a 	particular 	situation” 	(emphasis 	added)
(citation and internal quotation marks omitted)); see also State v.
Hassan, 2004 UT 99, ¶ 22, 108 P.3d 695 (emphasizing that the
“validity of a waiver would turn not on whether the trial judge
actually conducted the colloquy,” but whether “the particular
facts and circumstances surrounding [the] case” demonstrated
“a defendant’s actual awareness of the risks of proceeding pro
se” (citations and internal quotation marks omitted)); cf. State v.
Cabrera, 2007 UT App 194, ¶ 11, 163 P.3d 707 (stating that
sentencing is considered a “critical stage of criminal proceedings
at which a defendant is entitled to the effective assistance of
counsel” 	(citation 	and 	internal 	quotation 	marks 	omitted)).

State v. Smith
20151033-CA 	11 	2018 UT App 28
Instead, 	the 	court’s 	attempted 	colloquy 	comprehensively
addressed all five of the cases then pending against Smith. For
example, the court informed Smith that he was facing twenty-
four charges of varying degree across those five cases, and it
explained to him that if he received the maximum punishment
for each, he could potentially be ordered “to serve 162 years in
prison” and could face “tens of thousands of dollars in monetary
penalties.” The court also asked several questions related to
what it would mean for Smith to defend himself at trial in his
cases—questions obviously aimed at the pending charges to
which he had not yet pleaded guilty rather than questions
relevant to self-representation at his sentencing in the Cases.
¶26 	Moreover, 	the 	record 	does 	not 	resolve 	the 	doubts
regarding Smith’s understanding about the consequences of
waiving his right to counsel at sentencing. See Pedockie, 2006 UT
28, ¶¶ 42, 45. There is no evidence in the record suggesting that
Smith 	otherwise 	understood 	the 	value 	imparted 	by
representation during sentencing or what he would risk by
proceeding without it. See generally Cabrera, 2007 UT App 194,
¶¶ 11, 18. Smith told the court that he did not need a lawyer for
sentencing, repeatedly demanded to be sentenced at the hearing,
and seemed to appreciate both that he was proceeding pro se
only as to sentencing in the Cases and that he faced a potential
prison sentence. But his various statements suggest that he
simply presumed he was going to be sentenced to prison and
that an attorney would therefore be of no help to him. Similarly,
there is no evidence from which we could conclude that Smith
understood 	the 	various 	matters 	germane 	to 	a 	sentencing
proceeding, such as whether certain evidence militated against
imposing the maximum available penalty for the convictions. See
generally State v. Johnston, 2009 UT App 136, ¶ 13, 210 P.3d 973
(“Assistance of counsel at sentencing is necessary so that there is
a 	real 	opportunity 	to 	present 	evidence 	of 	mitigating
circumstances.”). Indeed, this lack of comprehension is evident
in Smith’s response to the court’s question of whether he had

State v. Smith
20151033-CA 	12 	2018 UT App 28
“anything 	else 	[he] 	want[ed] 	to 	say” 	before 	the 	court
pronounced the sentences. Rather than offer the court mitigating
evidence in response to the State’s argument that probation
would not be appropriate, for example, see generally id., Smith
tersely told the court that he did not have anything more to add.
¶27 	For these reasons, we cannot conclude that Smith’s waiver
of counsel for sentencing in the Cases was knowingly and
intelligently made. We therefore vacate Smith’s sentences and
remand for resentencing.2
CONCLUSION
¶28 	We conclude that, although Smith clearly expressed a
desire to be sentenced without the benefit of counsel, his waiver
2. At oral argument before this court, Smith contended that it
was error as a threshold matter for the district court to proceed
with the November 2015 hearing given that Smith, although
waiting 	for 	the 	appointment 	of 	new 	counsel, 	was 	still 	a
represented party. Smith argued that the court should not have
engaged 	with 	him 	and 	instead 	should 	have 	continued 	the
proceeding until after new counsel was appointed. Because this
issue was not briefed, we do not address it on its merits. See State
v. Ojeda, 2015 UT App 124, ¶ 11 n.5, 350 P.3d 640 (“We will not
reverse based on an unbriefed argument raised for the first time
at 	oral 	argument.” 	(citation 	and 	internal 	quotation 	marks
omitted)). Nevertheless, we are troubled that the State invited
the 	court 	to 	address—and 	that 	the 	court 	did 	ultimately
address—substantive issues with Smith without counsel being
present and before Smith had suggested that he wanted to
proceed pro se. At the very least, the better course of action
would have been to continue the hearing until the assigned
attorney had entered his or her appearance and was prepared to
proceed.

State v. Smith
20151033-CA 	13 	2018 UT App 28
was not sufficiently knowing and intelligent to be valid. We
vacate Smith’s sentences and remand for further proceedings
consistent with this opinion.
¶29 	Further, 	because 	we 	are 	vacating 	his 	sentences 	and
remanding this case, we have no occasion to address Smith’s
argument that the court exceeded its discretion in sentencing
Smith to prison rather than placing him on probation.