State of Utah v. Phipps

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State of Utah v. Phipps, Case No. 990941-CA, Filed June 8, 2000 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Nicholas D. Phipps,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990941-CA

F I L E D
June 8, 2000 2000 UT App 179 -----

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

Attorneys:
Happy J. Morgan, Moab, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

This matter is before the court on the State's stipulated motion for summary reversal. We reverse and remand the case for a new trial.

Appellant alleges and the State concedes that the trial court's inquiry into his right to court-appointed counsel was deficient as a matter of law, citing Orem City v. Bergstrom, 1999 UT App 350, 992 P.2d 991, and Utah Code Ann. § 77-32-202 (1999). In Bergstrom, this court held that the defendant's constitutional right to counsel was denied when the court failed to adequately scrutinize defendant's indigence. Bergstrom, 1999 UT App 350, ¶12.(1) Specifically, the court stated that "'[d]etermining whether a defendant [is indigent] is a fact-intensive inquiry,' requiring a consideration of the defendant's entire financial situation." Id. at ¶9 (citation omitted). The court should consider the defendant's "'employment status and earning capacity; financial aid from family or friends; financial assistance from state and federal programs; [the defendant's] necessary living expenses and liabilities; [his] unencumbered assets, or any disposition thereof, and borrowing capacity.'" Id. (citation omitted); see also Utah Code Ann. § 77-32-202(3)(b) (1999) (enumerating several other factors court must consider in assessing a defendant's claim of indigence).

The only factors considered by the trial court were appellant's employment status and monthly income. Thus, the trial court's inquiry into appellant's indigent status and subsequent right to court-appointed counsel was deficient as a matter of law and violated his Sixth Amendment right to the assistance of counsel. See Bergstrom, 1999 UT App 350,¶12. Accordingly, the conviction is reversed and the case is remanded for a new trial.
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. The court noted that the right to counsel arises when "the court determines, pretrial, to impose jail time[,]" and ruled that the defendant's right to counsel was implicated where he was sentenced to serve fourteen days of a six-month sentence. Bergstrom, 1999 UT App 350,¶2. Similarly, appellant's right to counsel was implicated in the case at hand because, although he faced only misdemeanor charges, such charges carried the possibility of jail time, and the court did not agree prior to trial not to impose jail and, indeed, imposed jail time as part of the sentence. During its inquiry into appellant's desire to waive counsel, the trial court specifically informed appellant that he could go to jail if convicted.

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