State of Utah, in the interest of L.B., S.B., C.B., and K.B.

Annotate this Case
State of Utah, in the interest of L.B., S.B., C.B., and K.B., persons under eighteen years of age, Case No. 990524-CA, Filed February 15, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of L.B., S.B., C.B., and K.B.,
persons under eighteen years of age.
______________________________

L.B.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990524-CA

F I L E D
February 15, 2001
2001 UT App 42
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Third District Juvenile, Salt Lake Department
The Honorable Olof A. Johansson

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff and Carol L. Verdoia, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Greenwood, Jackson, and Billings.

BILLINGS, Judge:

Appellant appeals from the juvenile court's order terminating his parental rights. Appellant argues that the juvenile court erred in its determination that Appellant waived counsel voluntarily, knowingly, and intelligently. We conclude that Appellant did not waive counsel, but rather was represented by counsel at all times throughout the termination proceedings. We therefore affirm.

The juvenile court determined that Appellant was at all times represented by counsel. In its termination decision the juvenile court specifically found that: At all times in these proceedings, [Appellant] has been represented by counsel. Initially, Mr. David Burns, and subsequently, Mr. Michael Bringhurst, to the conclusion of the trial. On more than one occasion, [Appellant] claimed to have "fired" his Court-appointed counsel, and demanded to proceed pro se. The Court denied his requests, but did permit [Appellant], with the assistance of counsel, to call and question several of his own witnesses. But, at no time was [Appellant] ordered or directed to represent himself. (emphasis added). While the juvenile court's finding is a legal conclusion which we would review for correctness, we "review with far less rigor the court's determination of the legal consequences of facts." State v. Pena, 869 P.2d 932, 937 (Utah 1994). Thus, we give significant deference to the juvenile court's determination that the facts in this case demonstrate that Appellant was represented by counsel.

The record clearly supports the juvenile court's determination. On the sixth day of trial, November 16, 1998, Appellant was put under oath and questioned about whether he wanted to represent himself or merely question his own witnesses. Appellant was asked at least three times whether he wanted to waive court-appointed counsel and represent himself. He never definitively answered in the affirmative. Q (BY MR. BRINGHURST): Do you want to question your witnesses?

A: Yes, I do.

Q: And do you want to represent yourself?

A: I'd like legal counsel behind me while I'm asking the questions so if they can rephrase the same question that I'm asking if the prosecution objects to it, that they could do that.

THE COURT: Alright, that's a legitimate request. Let's proceed in that fashion. . . . I'll permit that [Appellant] can question his own witnesses and then I'll rule on any objections and I'll permit Mr. Bringhurst to remain and respond to any legal issues that may come up or if you need to rephrase questions.(1) During the remainder of the trial, Appellant called over twenty witnesses. In the course of Appellant's questioning, his legal counsel, Mr. Bringhurst, was present at all times and actively participated by asking Appellant's witnesses questions and arguing on Appellant's behalf.(2) For example, during Appellant's direct examination of Lana Ricord, the State objected to his line of questioning as irrelevant. Mr. Bringhurst's argument on behalf of Appellant persuaded the court to overrule the objection. Mr. Bringhurst also prepared and submitted closing arguments on behalf of Appellant, submitting the same as "Michael T. Bringhurst, Attorney for [Appellant]." In addition to the closing argument submitted by Mr. Bringhurst, Appellant also submitted a closing argument which was signed by Mr. Bringhurst and captioned "Michael T. Bringhurst, Attorney For [Appellant], Natural Father."

Therefore, we conclude Appellant did not waive counsel but rather was represented by competent counsel at all times during the termination proceedings.

Accordingly, we affirm.(3)
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

1. At best, what can be said of Appellant on the question of whether he wanted to represent himself and thereby waived counsel is that he did not "clearly and unequivocally" request the same. As the Utah Supreme Court stated recently in State v. Bakalov, 1999 UT 45, 979 P.2d 799, "[t]o invoke the right of self-representation, a defendant must in a timely manner 'clearly and unequivocally' request it." Id. at ¶16 (quoting United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995)). The supreme court stated that "[i]f a defendant equivocates in his request to represent himself, he is presumed to have requested the assistance of counsel." Id. Based on Appellant's equivocal responses to questioning on whether he wanted to invoke the right of self-representation, Bakalov requires us to presume that Appellant did not waive counsel.

2. We note that no claim of ineffective assistance of counsel was raised on appeal.

3. In light of our decision, we do not reach the other issues raised on appeal.