WVC v. Sellers

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West Valley City,
Plaintiff and Appellee,

v.

David W. Sellers,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990472-CA

F I L E D
September 2, 1999 1999 UT App 254 -----

Third District, West Valley Department
The Honorable Paul S. Maughan

Attorneys:
David W. Sellers, Salt Lake City, Appellant Pro Se
J. Richard Catten, West Valley City, for Appellee

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Before Judges Wilkins, Billings, and Jackson.

PER CURIAM:

Appellant appeals his conviction for speeding, a class C misdemeanor, following a bench trial. He challenges the sufficiency of the evidence supporting the conviction and asserts numerous constitutional violations. We affirm.

Appellant's challenges to his conviction and the supporting evidence are fact-intensive and require an analysis of the trial transcript, which appellant has failed to provide. In the absence of transcript on appeal, this court presumes the regularity of the proceedings below. See State v. Jones, 657 P.2d 1263, 1267 (Utah 1982); see also Call v. City of West Jordan, 788 P.2d 1049, 1052 (Utah Ct. App. 1990) (stating that "the appellant has the burden of providing the reviewing court with an adequate record on appeal to prove his allegations."). Accordingly, we presume that appellant was properly convicted of speeding.

With respect to appellant's challenge to the Utah Rules of Civil Procedure and to the City's system of enforcing speeding laws, because appellant failed to provide a transcript and proper citations to the record, he cannot demonstrate that these constitutional issues were preserved. This court will not consider an issue, even a constitutional one, raised for the first time on appeal except in special circumstances not applicable in this case. See State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990). Thus, we decline to address these issues.

Finally, we conclude that appellant's right to counsel and right to a trial by jury were not violated. A criminal defendant in a misdemeanor case is entitled to appointment of counsel only where he is actually deprived of his liberty. See Layton City v. Longcrier, 943 P.2d 655, 658 (Utah Ct. App. 1997), cert. denied, 953 P.2d 449 (Utah 1997) (citing Scott v. Illinois, 440 U.S. 367, 99 S.Ct 1158 (1979)). Appellant, whose jail sentence was suspended, was not deprived of his liberty. Accordingly, he was not entitled to appointed counsel.

Similarly, appellant was not automatically entitled to a trial by jury. Utah Rule of Criminal Procedure 17(d) provides that all non-felony cases are to be tried without a jury unless the defendant demands a trial by jury in writing at least ten days prior to trial. Appellant made no such written demand. Moreover, defendants facing a class C misdemeanor charge are not constitutionally entitled to a jury trial. See West Valley City v. McDonald, 948 P.2d 371, 374-75 n.3 & n.6 (Utah Ct. App. 1997). Thus, even if appellant had requested a jury trial, the trial court could have denied the request without violating appellant's constitutional rights.

Affirmed.
 

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Michael J. Wilkins,
Presiding Judge
 

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Judith M. Billings, Judge
 

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Norman H. Jackson, Judge