WVC v. Bhatia

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West Valley City,
Plaintiff and Appellee,

v.

Jasbir Singh Bhatia,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990249-CA

F I L E D
August 3, 2000 2000 UT App 240 -----

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

Attorneys:
Jeffrey C. Howe, Salt Lake City, for Appellant
J. Richard Catten, West Valley City, for Appellee

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Before Judges Bench, Billings, and Davis.

PER CURIAM: Absent evidence in the record of affirmative, knowing and intelligent action by [defendant] that might reasonably be construed as a waiver, we must conclude that there has been no waiver and [defendant] was entitled to be represented by counsel at trial even if he chose not to be there himself. Wagstaff v. Barnes, 802 P.2d 774, 779 (Utah Ct. App. 1990). There is nothing in the record to indicate that Bhatia took affirmative, knowing, and intelligent action to waive representation. In fact, West Valley concedes that the trial court erred in concluding Bhatia waived his right to counsel. West Valley goes on to argue that this error can be corrected by resentencing Bhatia to no jail time. We disagree. Because he was sentenced to jail, Bhatia was entitled to counsel absent a proper waiver. See Layton v. Longcrier, 943 P.2d 655, 658 (Utah Ct. App. 1997) (interpreting Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158 (1979) as imposing after-the-fact test to determine if person charged with misdemeanor is entitled to counsel).

The trial court also concluded that Bhatia waived his right to a jury trial by signing an agreement to waive his right to a jury if he did not contact his attorney two days before trial. This purported waiver was not sufficient. Bhatia made a written demand for a jury trial in accordance with Utah Rule of Criminal Procedure 17(3)(d). There is insufficient evidence in the record to suggest he knowingly and intelligently waived a jury trial. See State v. Moosman, 794 P.2d 474, 477 (Utah 1990) (stating defendant must understand nature and extent of waiver of jury trial and waiver must be informed and knowledgeable).

Accordingly, we reverse the trial court's determination that Bhatia waived his right to counsel and a jury trial and remand the case for such further proceedings as may now be proper.
 

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Russell W. Bench, Judge
 

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Judith M. Billings, Judge
 

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James Z. Davis, Judge