State of Utah v. Balderrama

State v. Balderrama

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Angel Balderrama,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020786-CA
 

F I L E D
(May 8, 2003)
 

2003 UT App 139

 

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Third District, Salt Lake Department

The Honorable Paul G. Maughan

Attorneys: Joan C. Watt, Joel Jonathan Kittrell and Heather Brereton, Salt Lake City, for Appellant

David E. Yocom and Martin Verhoef, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

Appellant Angel Balderrama appeals his conviction of Driving Under the Influence of Alcohol, a class B misdemeanor. In lieu of a brief, the State has filed a Concession of Error and Motion for Summary Reversal and Remand.

The State concedes that Balderrama "did not knowingly waive his Sixth Amendment right to counsel, and the trial court did not fully advise the defendant of that right as required by State v. Heaton, 948 P.2d 911 (Utah 1998)." The State further concedes that "the trial court erred in refusing to permit [Balderrama] to withdraw his plea as [his] waiver of counsel was not supported by a colloquy to demonstrate a constitutionally adequate waiver of counsel." State v. Petty, 2001 UT App 396, 38 P.3d 998, cert. denied, 42 P.3d 951 (Utah 2002).

In Petty, this court stated the following requirements for the colloquy preceding a waiver of the right to counsel:

At a minimum, during the colloquy the trial court must (1) inform the defendant of his constitutional right to counsel and his right to represent himself; (2) determine that the defendant has the "intelligence and capacity to understand and appreciate the consequences of the decision to represent himself"; and (3) make certain 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. at ¶6 (citations omitted). We continued that "it must be clear from the colloquy that the defendant understands the risks he faces in making the decision," which must include "a discussion of the nature of the charges and the possible penalties." Id. at ¶8.

Based upon the arguments in Appellant's opening brief and the concession of the State, we reverse the conviction and the denial of the motion to withdraw guilty plea, and we remand the case with directions to allow Balderrama to withdraw his guilty plea. Our disposition makes it unnecessary to consider the remaining issues raised on appeal.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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I CONCUR IN THE RESULT:

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Gregory K. Orme, Judge