State of Utah v DeYoung

State of Utah v DeYoung, No. 971601-CA Filed February 11, 1999 IN THE UTAH COURT OF APPEALS
----ooOoo---- State of Utah,
Plaintiff and Appellee,

v.

Rulon F. DeYoung,
Defendant and Appellant. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971601-CA

F I L E D
February 11, 1999 ----- Third District, Salt Lake Department
The Honorable Anne Stirba

Attorneys:
Rulon Frederick DeYoung, Draper, Appellant Pro Se
Linda M. Jones and Robin K. Ljungberg, Salt Lake
City, Standby Counsel for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Wilkins, Davis, and Jackson.

DAVIS, Judge:

¶1     Defendant Rulon F. DeYoung appeals his conviction, arguing he was denied his Sixth Amendment right to counsel. We are constrained by State v. Heaton, 958 P.2d 911 (Utah 1998), to agree and remand for a new trial.(1)

¶2     In determining whether a defendant has waived his or her Sixth Amendment right to counsel, pre-Heaton case law recommended that the trial court conduct a lengthy colloquy on the record. See State v. Frampton, 737 P.2d 183, 187 & n.12 (Utah 1987). Absent such a colloquy, however, a reviewing court was free to examine the entire record to determine a defendant's awareness of the risks of self-representation and whether he or she knowingly, voluntarily, and intelligently waived the right to counsel. See State v. McDonald, 922 P.2d 776, 780 (Utah Ct. App. 1996). Heaton, however, held that the earlier "preferred method" of an on-the-record detailed colloquy is now a requirement. A trial court must "advise the defendant of the dangers and disadvantages of self-representation 'so that the record will establish that "he knows what he is doing and his choice is made with eyes open."'" Id. at 918 (citations omitted). Heaton also requires that the trial court conduct additional inquiry to (1) advise the defendant of his constitutional right to the assistance of counsel, as well as his constitutional right to represent himself; (2) ascertain that the defendant possesses the intelligence and capacity to understand and appreciate the consequences of the decision to represent himself, including the expectation that the defendant will comply with technical rules and the recognition that presenting a defense is not just a matter of telling one's story; and (3) ascertain that the defendant comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case. Id. The most effective way to secure a knowing, voluntary, and intelligent waiver is to conduct the sixteen-point colloquy set out in full in Frampton, 737 P.2d at 187-88 n.12, and "strongly recommended" by Heaton, 958 P.2d at 918 n.5.(2)

¶3     Here, the magistrate conducted virtually no colloquy regarding defendant's right to counsel under the Sixth Amendment, and no effort was made by the magistrate to ascertain whether defendant knowingly, voluntarily, and intelligently waived his right to counsel. Furthermore, although numerous colloquies took place between the trial judge and defendant regarding defendant's constitutional right to counsel and right to self-representation, defendant was not fully advised of the dangers and disadvantages of self-representation as it was not "ascertain[ed] that the defendant comprehend[ed] the nature of the charges and proceedings"; nor was it "ascertain[ed] that the defendant comprehend[ed] . . . the range of permissible punishments." See id. Because no extraordinary circumstances are identified as such by the State, Heaton precludes us from "look[ing] at the record and mak[ing] a de novo determination regarding the validity of the defendant's waiver." See id.(3) Accordingly, under Heaton's mandate and the record before us, we must hold that defendant did not validly waive his Sixth Amendment right to counsel.

¶4     Defendant's conviction is reversed and the case remanded for both a new preliminary hearing and a new trial.
 
 

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James Z. Davis, Judge

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¶5 WE CONCUR:
 
 

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Michael J. Wilkins,
Presiding Judge
 
 

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Norman H. Jackson, Judge

1. The State does not contest the applicability of Heaton to this case; but argues, instead, that it is distinguishable.

2. The recommended colloquy, originating in the Bench Book for United States District Court Judges, has been updated, although the changes are negligible. See Bench Book for United States District Court Judges, vol. 1, § 1.02 (Federal Judicial Center, 4th ed. 1996).

3. At oral argument, the State asserted, for the first time, that the "thorough" colloquy conducted by the trial court in this case constituted extraordinary circumstances within the meaning of Heaton. Although Heaton provided no guidance to the meaning of extraordinary circumstances, it surely cannot be based on colloquies, however thorough, which do not satisfy Heaton. Otherwise, a reviewing court could sidestep Heaton in virtually every instance.