State of Utah v. Hales

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State of Utah,
Plaintiff and Appellee,

v.

Andrew Hales,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981545-CA

F I L E D
December 2, 1999
  1999 UT App 349 -----

Second District, Ogden Department
The Honorable W. Brent West

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Billings.

GREENWOOD, Associate Presiding Judge:

Defendant appeals from guilty pleas to three counts of forgery, Third degree felonies, in violation of Utah Code Ann. § 76-6-501 (Supp. 1998), and one count of possession of methamphetamine, in violation of Utah Code Ann. § 58-37-8(2) (1998). Defendant claims that his constitutional right to counsel was denied when the trial court allowed his attorney to withdraw and allowed defendant to represent himself. We affirm.

By pleading guilty, Hales is deemed to have waived all nonjurisdictional defects, including constitutional defects. See State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989). An exception to this rule exists when a defendant enters a conditional guilty plea, specifically preserving an issue for appeal. SeeState v. Sery, 758 P.2d 935, 938-40 (Utah Ct. App. 1988). In this case, defendant's guilty pleas did not preserve the right to appeal a Sixth Amendment right to counsel claim.(1)

In In re E.G.T., 808 P.2d 138, 138-39 (Utah Ct. App. 1991), the defendant entered guilty pleas in district court and then appealed a prior ruling of the juvenile court, denying defendant court-appointed counsel in a juvenile certification proceeding. We held that the right to counsel is subject to waiver; that defendant waived this right by pleading guilty; and that once a defendant enters voluntary guilty pleas, he is entitled only to attack the voluntary and knowing nature of his guilty pleas. See id. at 140.

Defendant has not moved to withdraw his guilty pleas and does not now challenge the knowing and voluntary character of his guilty pleas. Further, the trial court explained to defendant that he gave up various constitutional rights when he entered guilty pleas and that he had thirty days to make a motion to withdraw his pleas. Therefore, defendant's guilty pleas constitute a knowing and voluntary waiver of his right to challenge the trial court's findings allowing him to waive the right to counsel.

Furthermore, our review of the record indicates the trial court committed no errors in allowing defendant to waive his right to counsel and granting his request to represent himself. The preferred method of ascertaining the validity of a waiver of the right to counsel is a colloquy on the record. SeeState v. Frampton, 737 P.2d 183, 187-88 & n.12 (Utah 1987) (listing suggested questions to determine if waiver is voluntary, knowing, and intelligent).

In this case, the trial court properly advised defendant that he was entitled to an attorney and inquired into his intelligence and capacity to understand the consequences of representing himself. The trial court also discussed with defendant the possibility that the State would file additional charges. The colloquy between the trial court and defendant clearly indicates that defendant understood and waived these rights.

Although the trial court did not advise defendant of the seriousness of the charges pending against him or of the possible sentences should he be convicted of those charges at the time defendant waived his right to counsel, the trial court did so advise defendant in various other proceedings. Finally, although defendant previously waived his right to counsel, the record indicates that defendant had the help of an attorney at the June 24, 1998 hearing when he negotiated and entered his guilty pleas.(2)

We therefore affirm defendant's convictions.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. Defendant's guilty pleas to the forgery charges were unconditional. Defendant's guilty plea to the possession of controlled substance charge was conditioned on his right to appeal the trial court's denial of his 120-day disposition request. Defendant does not appeal the denial of his 120-day disposition request.

2. Although the trial court granted the public defender's motion to withdraw and allowed defendant to represent himself, the record reflects that the public defender was involved in the plea negotiation. At the June 24, 1998 hearing, Mr. Boyle from the public defender's office was present. Although Mr. Boyle reminded the trial court that the public defender had been fired by defendant, he told the court that he was "guiding [defendant] through the process." Defendant acknowledged Mr. Boyle's help and told the court that he "appreciate[d] it." Further, Mr. Boyle presented the plea agreement to the court and led defendant through his entry of plea in open court. As such, defendant had the assistance of counsel at the time he entered guilty pleas.