State of Utah v. Johnson

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Donald R. Johnson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971730-CA

F I L E D
May 4, 2000
  2000 UT App 127 -----

Sixth District, Kanab Department
The Honorable David Mower

Attorneys:
John E. Hummel, St. George, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Presiding Judge:

On appeal, defendant claims that he received ineffective assistance of counsel. After two court-appointed attorneys withdrew as defense counsel, defendant proceeded pro se, with an appointed attorney acting as stand-by counsel. Given the fact that defendant acted pro se, he cannot assert ineffective assistance of counsel. A defendant who represents himself "'cannot thereafter complain that the quality of his own defense amounted to a denial of "effective assistance of counsel."'" State v. Frampton, 737 P.2d 183, 189 (Utah 1987) (citations omitted). Accordingly, this court has no legal basis upon which to reach defendant's ineffective assistance of counsel arguments.

At oral argument, defendant's appellate counsel argued that the trial court failed to conduct a colloquy on the record, or take other steps to determine that defendant knowingly and voluntarily waived his right to counsel. See State v. Heaton, 958 P.2d 911, 918 (Utah 1998) ("In making this determination, the court must advise the defendant of the dangers and disadvantages of self-representation."); Frampton, 737 P.2d at 187 (recommending colloquy on record before allowing criminal defendants to waive counsel). Unfortunately, defendant's appellate brief fails to raise or analyze this issue and cites no authority relevant to such an assertion. See Utah R. App. P. 24. However, the State admitted at oral argument that the record before us in this case lacks any colloquy or other attempt to assure that defendant knowingly and intelligently waived his right to counsel. Nonetheless, it is unnecessary to reach this issue given our reversal on other grounds, as hereafter explained.

Defendant also asserts that the trial court erred by failing to hold a competency hearing as required by section 77-15-5 of the Utah Code. The proper interpretation of the competency statute is a question of law which we review for correctness. See State v. Robertson, 932 P.2d 1219, 1223 (Utah 1997).

Section 77-15-5(1) of the Utah Code provides: The district court in which the [competency] petition is filed shall pass upon the sufficiency of the allegations of incompetency. . . . If the court finds that the allegations of incompetency raise a bona fide doubt as to the defendant's competency to stand trial, it shall enter an order for a hearing on the mental condition of the person who is the subject of the petition. Utah Code Ann. § 77-15-5(1) (1999). The statute further provides that "[t]he hearing shall be conducted according to the procedures outlined in Subsections 62A-12-234(9)(b) through (9)(f)."(1) Id. § 77-15-5(9).

In Robertson, the Utah Supreme Court explained that "[t]his statute is written in mandatory rather than permissive language, as it states that 'the court shall enter an order for a hearing.'" 932 P.2d at 1226. The Robertson court analyzed an earlier version of the statute; however, the mandatory "shall" language remains in the amended version. As such, the statute requires that the trial court hold a competency hearing.

In this case, the trial court reviewed defendant's petition for a competency evaluation, determined the petition was sufficient to raise doubt as to defendant's competency, stayed further proceedings, and ordered a competency evaluation. The parties next appeared before the court for a status hearing on March 21, 1997, which the State asserts was a competency hearing. At this hearing, the court indicated it had received the competency evaluations, noted that the evaluators found defendant competent, and set the matter for trial. Although defendant's competency was briefly discussed, defendant was not given notice that this was a competency hearing or a meaningful opportunity to participate. Further, this hearing did not follow the procedures set forth in Utah Code Ann. § 62A-12-234(9)(b) (1997). As such, the March 21 hearing did not satisfy the statutory requirements.

Nevertheless "[a]n erroneous decision by a trial court 'cannot result in reversible error unless the error is harmful.'" Robertson, 932 P.2d at 1227 (citation omitted). "Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings," id., and one that does not "undermine confidence in the verdict." State v. Knight, 734 P.2d 913, 920 (Utah 1987).

Although defendant does not present strong arguments that the trial court's failure to hold a competency hearing prejudiced the outcome of the proceedings, we conclude that the circumstances here are sufficient to undermine our confidence in the outcome. The trial court's finding of competency took place at a status hearing which was scheduled shortly after defense counsel filed a notice of withdrawal. Consequently, defendant appeared at the status hearing without counsel and did not have the benefit of counsel's advise regarding competency issues. Further indications of defendant's mental instability were brought to the trial court's attention by defendant's second appointed attorney in an affidavit filed with the court. The trial court's failure to hold a competency hearing combined with the glossing over of defendant's constitutional right to counsel convinces us that the trial court's error was not harmless and that we must reverse and remand.

Defendant raises two additional issues which we address because they might arise again. First, defendant did not appear for the preliminary hearing in this case and argues that the trial court erred by not requiring a waiver in person or in writing of defendant's presence at the preliminary hearing. Our review of the record indicates that defendant chose not to attend the preliminary hearing. Consequently, defendant's challenge is without merit and the trial court did not err in proceeding with the preliminary hearing in defendant's absence.

We also find no merit in defendant's speedy trial claim because the delays in this case were caused almost exclusively by defendant's request for a competency determination and motions for continuances. "'When a defendant's actions cause delay in the trial date, the right to a speedy trial is temporarily waived by those actions.'" State v. Snyder, 932 P.2d 120, 130 (Utah Ct. App. 1997) (citation omitted).

We have carefully examined the other issues raised by defendant and conclude they are wholly without merit. Accordingly, we decline to address them. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (explaining "this Court need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal. Rather it is a maxim of appellate review that the nature and extent of an opinion rendered by an appellate court is largely discretionary with that court.").

Accordingly, we reverse and, in view of the difficulties of retrospectively determining whether defendant was competent three years ago, remand this matter to the trial court for a hearing to determine defendant's present competency to stand trial, and if he is found competent, for a new trial. See State v. Holland, 921 P.2d 430, 435 (Utah 1996) (explaining that "an attempt by the trial court to retrospectively determine a defendant's competency is improper").
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Section 62A-12-234(9)(b) provides that "[t]he proposed patient, the applicant, and all other persons to whom notice is required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses." Utah Code Ann. § 62A-12-234(9)(b) (1997).