State v. Gavette

2019 UT App 73

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KEVIN GAVETTE,
Appellant.

Opinion
No. 20170894-CA
Filed May 2, 2019

Fourth District Court, Provo Department
The Honorable Samuel D. McVey and Kraig Powell
No. 151402980

Neil D. Skousen, Attorney for Appellant
Sean D. Reyes, Nathan D. Anderson, and
Christopher D. Ballard, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1 When faced with a motion to disqualify, a judge has only
two options: grant the motion or certify the motion to a
reviewing judge for decision. Under rule 29(b)(2)(A) of the Utah
Rules of Criminal Procedure, “[t]he judge shall take no further
action in the case until the motion is decided.” Failure to comply
with this rule renders void any further proceedings presided
over by that judge. Because this case proceeded to trial despite a
pending motion to disqualify the judge, we must vacate the
conviction and remand for a new trial.
State v. Gavette

BACKGROUND

¶2 Kevin Gavette was charged with one count of filing a false
or fraudulent insurance claim. During the preliminary hearing,
the trial judge saw Gavette shaking his head during a witness’s
testimony. The trial judge interrupted the State’s direct
examination and advised defense counsel:

[Y]our client’s shaking his head. He ought to know
that that makes me think he’s lying so—he’s a liar,
so he shouldn’t be doing that. So, okay? Go ahead.

Defense counsel offered no response to the judge’s comment,
and the hearing proceeded. The judge bound Gavette over for
trial.

¶3 About eight months later, Gavette filed a motion to
disqualify the judge under rule 29 of the Utah Rules of Criminal
Procedure. In support of the motion, Gavette argued that the
judge’s comments at the preliminary hearing would cause a
reasonable person to doubt whether the judge could be impartial
and unbiased toward Gavette. Specifically, Gavette argued that
the judge’s “comment regarding [Gavette] to be a liar, evidences
[the judge’s] opinion that [Gavette] would not tell the truth if he
were to testify at trial.”

¶4 The judge did not grant the rule 29 motion nor did he
certify the motion to a reviewing judge. See Utah R. Crim. P.
29(b)(2)(A). Instead, the judge proceeded with a previously
scheduled hearing on a motion to continue the trial. At the
outset of that hearing, defense counsel raised the issue of the
pending motion:

[DEFENSE COUNSEL]: . . . I did find—file a
motion to recuse. Personally I thought I did it too
late.

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THE COURT: Right.

[DEFENSE COUNSEL]:—and I thought I had
qualmed my client’s—

THE COURT: Okay.

[DEFENSE COUNSEL]:—the problems he thought
that he was having, and it was—

THE COURT: Uh-huh.

[DEFENSE COUNSEL]:—regarding the statement
that the Court had made during [the] preliminary
hearing back in January 25th of this year.

[Defense counsel proceeds to read the relevant
portion of the preliminary hearing transcript.]

THE COURT: Yeah.

[DEFENSE COUNSEL]: That’s as far as it went,
and then in the course of the investigation with my
investigator, he comes back to me on September
26th saying, “You know, I really think this is a
problem,” feeling that I had to look into it more. I
did discuss this with two of my cohorts who
thought, well, better safe than sorry. Maybe I
should file something. I realize that it’s rather late,
but I just—

THE COURT: Okay.

[DEFENSE COUNSEL]:—I wasn’t sure what to do,
so I just—

THE COURT: Okay. All right, thank you, then.
Okay, good. Anything else, then?

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[PROSECUTOR]: Do you want to talk about your
issue with the witness or—

[DEFENSE COUNSEL]: Oh, okay. That’s bad.

THE COURT: Okay.

Defense counsel then proceeded to discuss the need to continue
the trial to locate a defense witness.

¶5 The case proceeded to trial and a jury found Gavette
guilty of filing a fraudulent insurance claim. After sentencing,
Gavette filed post-trial motions, including a motion to set aside
the judgment as void under rule 60(b)(4) of the Utah Rules of
Civil Procedure because the trial judge had proceeded to trial
and sentencing without either granting the motion to disqualify
or certifying it to a reviewing judge as required by rule 29 of the
Utah Rules of Criminal Procedure.

¶6 Due to the trial judge’s retirement, Gavette’s post-trial
motions were heard by a newly assigned judge. The post-trial
judge recognized that rule 29 directs a judge to “take no further
action in the case until the motion is decided,” but noted that the
rule “does not state that the Court loses jurisdiction over the case
or over the defendant if the judge acts contrary to this directive
and takes further action in the case without the motion being
decided.” Given that Gavette had cited “no specific authority for
his contention that a trial judge’s failure to follow the procedure
prescribed by rule 29 renders void any judgment entered in the
case,” the court denied the motion to set aside the judgment as
void. Gavette appeals.

ISSUE AND STANDARD OF REVIEW

¶7 On appeal, Gavette argues that his conviction must be set
aside due to the trial judge’s failure to comply with rule 29(b) of

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the Utah Rules of Criminal Procedure. 1 “As this issue implicates
the trial judge’s authority—a question of law—we review for
correctness, affording no deference to the trial court.” Pugh v.
Dozzo-Hughes, 2005 UT App 203, ¶ 17, 112 P.3d 1247.

ANALYSIS

¶8 Gavette argues that his conviction is void because the trial
judge lacked authority to conduct further proceedings while the
disqualification motion was pending. Once a motion to
disqualify is filed, rule 29(b) of the Utah Rules of Criminal
Procedure dictates the following procedure:

The judge against whom the motion and affidavit
are directed shall, without further hearing, enter an
order granting the motion or certifying the motion
and affidavit to a reviewing judge. The judge shall
take no further action in the case until the motion is
decided.

Utah R. Crim. P. 29(b)(2)(A). The language in rule 29(b) mirrors
that in rule 63 of the Utah Rules of Civil Procedure. 2 Both rules
present the trial judge with a binary choice: “recuse him- or

1. Gavette also challenges his conviction by alleging partiality on
the part of the trial judge and ineffective assistance of counsel.
We need not reach these additional issues because we conclude
that the rule 29(b) issue is dispositive.

2. Although the cases cited herein refer to rule 63(b)(2) of the
Utah Rules of Civil Procedure, the relevant provision is now
codified at rule 63(c)(1). Utah R. Civ. P. 63(c)(1). There have been
no substantive changes to the rule’s language with respect to
that provision. Compare id. R. 63(b)(2) (2015), with id. R. 63(c)(1)
(2018).

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herself, or if he or she questions the legal sufficiency of the
affidavit, certify the matter to another named judge for a ruling
on its legal sufficiency.” Barnard v. Murphy, 852 P.2d 1023, 1025
(Utah Ct. App. 1993); see also Utah R. Crim. P. 29(b)(2)(A).

¶9 The important policy behind the rules governing
disqualification “is to insulate trial judges from participating in
unseemly disputes regarding their impartiality and thereby to
preserve the appearance (as well as the actuality) of the
detachment necessary to the legitimacy of our court system.”
Young v. Patterson, 922 P.2d 1280, 1281 (Utah 1996). Although
“the rule is vulnerable to abuse by unscrupulous parties or their
counsel,” such “potential for abuse is preferable to the
alternative of requiring or permitting trial judges to engage in
disputes about their capacity to hear cases when their
impartiality has been questioned.” Id. at 1281–82. And, in
practice, a short recess is often all that is necessary for a
reviewing judge to determine that a patently frivolous motion is
legally insufficient.

¶10 In this case, the trial judge took neither available option.
Instead, the judge disregarded the motion to disqualify and
continued to preside over the case. The State acknowledges that,
normally, “it would be error for a judge to continue to preside
over a case without first resolving a recusal motion.” But the
State contends that there was no error in this case because
Gavette abandoned the recusal motion, invited the error, or, at
least, failed to preserve the issue below. Although Gavette never
expressly moved to withdraw his motion, the State points to
defense counsel’s sheepish attempts to justify the motion to the
trial judge, acknowledgment that the motion might ultimately be
deemed untimely, and failure to object when the trial judge
continued to preside over the case.

¶11 Rather than supporting a conclusion of no error in this
case, the transcript of the hearing on the motion to continue

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underscores the wisdom of rule 29. Gavette was placed in the
unenviable position of having to defend the motion to the judge
he sought to disqualify—the very situation that rule 29 is
designed to avoid. The trial judge’s dismissive response—
“Okay. All right, thank you, then. Okay, good. Anything else,
then?”—signaled that the court intended to proceed despite the
pending disqualification motion. When the prosecutor next
suggested that they turn to Gavette’s “issue with the witness,”
defense counsel replied, “Oh, okay. That’s bad,” then turned to
the argument in support of a continuance. By doing so, defense
counsel did not abandon the disqualification issue or invite the
court to take further action in the case. Nor was Gavette
obligated to remind the trial judge that the recusal motion must
be granted or certified to a reviewing judge. The requirements of
rule 29(b) are automatically triggered when a disqualification
motion is filed. See Utah R. Crim. P. 29(b)(2)(A). Moreover, the
motion is deemed submitted for decision upon filing. See id. R.
29(b)(1)(D). Accordingly, the motion itself functioned as the
objection to the trial judge presiding over further proceedings
and preserved the issue for appeal.

¶12 The trial court’s error in failing to comply with rule 29(b)
necessitates a remand for a new trial. Rule 29(b) expressly states
that the judge subject to the disqualification motion “shall take
no further action in the case until the motion is decided.” Id. R.
29(b)(2)(A). Our courts have construed identical language in rule
63(b)(2) of the Utah Rules of Civil Procedure to mean that once a
disqualification motion is filed, the trial judge lacks authority to
proceed until the motion is decided and any action taken by the
court in the intervening time is void. See Pugh v. Dozzo-Hughes,
2005 UT App 203, ¶ 21, 112 P.3d 1247 (holding that where a trial
judge held a hearing while a rule 63(b) motion to disqualify was
pending, “any action taken during the hearing is void”).

¶13 In Anderson v. Anderson, 368 P.2d 264 (Utah 1962), for
example, the Utah Supreme Court construed the language of

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rule 63(b) to require a new trial where the trial judge denied the
disqualification motion without certifying it to a reviewing
judge. Id. at 265. The court explained, “If the rule means
anything at all, it means what is plainly stated to the effect that
the judge against whom the affidavit of bias and prejudice [is
filed] thereafter cannot proceed to hear the issue himself.” Id.
The court concluded that the case “must be remanded for
another trial” because “any order of judgment based on evidence
thereafter taken by [the judge] would be ineffective against the
affiant.” Id. Two years later, the court extended the provisions of
rule 63(b) to criminal cases, holding that the rule was “equally or
more apropos in criminal cases.” Pons v. Faux, 396 P.2d 407, 408
(Utah 1964). The court noted that the rule had been construed in
civil cases, citing Anderson, and that “such construction in futuro
is applicable to criminal cases.” Pons, 396 P.2d at 408–09.

¶14 In this case, the trial judge lacked authority to proceed
once the motion for disqualification was filed. Because the court
did not certify the motion to a reviewing judge as required by
rule 29(b), the motion remained pending and all subsequent
actions taken by the trial judge—including the trial, sentencing,
and entry of judgment—are void. Accordingly, we vacate
Gavette’s conviction and remand for a new trial.

CONCLUSION

¶15 The trial judge erred in failing to either grant the motion
to disqualify or certify the motion to a reviewing judge as
required by rule 29(b) of the Utah Rules of Criminal Procedure.
Because the trial judge lacked authority to preside over the case
while the motion was pending, we vacate Gavette’s conviction
and remand for a new trial.

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