State of Utah v. Wickham

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jessie T. Wickham,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990294-CA

F I L E D
September 10, 1999
  1999 UT App 260 -----

Seventh District Juvenile, Moab Department
The Honorable S. Don LeBaron

Attorneys:
Happy J. Morgan, Moab, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Billings.

PER CURIAM:

Appellant Jessie T. Wickham appeals from his conviction of Contributing to the Delinquency of a Minor, a class B misdemeanor. This case is before the court on a joint motion for summary reversal.

The State concedes error in the trial court's failure to satisfy the prerequisites to allowing Wickham to represent himself at trial. The Utah Supreme Court delineated the prerequisites to allowing a defendant to represent himself in State v. Heaton, 958 P.2d 911, 917-18 (Utah 1998) and State v. Frampton, 737 P.2d 183, 187-88 (Utah 1987). Before allowing a defendant to proceed without the assistance of counsel, a trial court "must conduct a thorough inquiry of the defendant to fulfill its duty of insuring that the defendant's waiver of counsel is knowingly, intelligently, and voluntarily made." Heaton, 958 P.2d at 918. There is a presumption against waiver of counsel and all doubts concerning waiver must be resolved in the defendant's favor. Id. at 917. In making its determination, "the court must advise the defendant of the dangers and disadvantages of self-representation." Id. at 918 (citations omitted). A colloquy on the record between the court and the defendant is the preferred method for determining the validity of a waiver of counsel. Frampton, 737 P.2d at 187. In the absence of a colloquy, an appellate court "will look at any evidence in the record to determine whether the particular facts and circumstances support a valid waiver." Heaton, 958 P.2d at 918.

The record in this case does not contain sufficient evidence to support a valid waiver. Although the previous public defender appeared on Wickham's behalf, that attorney was allowed to withdraw shortly before trial. Although notice of the withdrawal was sent to the successor public defender, counsel was apparently not made aware of the trial setting. As a result, Wickham appeared for trial without counsel. The trial court inquired whether Wickham would be representing himself. Upon receiving Wickham's response that he wished to proceed with the trial, the court did not conduct a colloquy or take other steps to create a record that would support a valid waiver of the right to be represented.

Based upon the governing case law and the State's concession of error on the counsel issue, we reverse the judgment and remand this case to the trial court for a new trial at which Wickham may be represented by counsel or may represent himself based upon a valid waiver of the right to counsel. Our disposition of this issue makes it unnecessary to consider the remaining claim that the evidence presented at trial was insufficient to support the conviction, and we do not consider that issue.

The judgment is reversed, and the case is remanded for a new trial in accordance with this decision. Appellant has also applied to this court for a certificate of probable cause seeking a stay of the sentence pending this appeal. Our decision reversing the conviction and remanding for a new trial makes a separate ruling on the application unnecessary.
 
 
 

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Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge