State of Utah v. Rodriguez

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

James Rodriguez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010446-CA
 

F I L E D
(May 15, 2003)
 

2003 UT App 142

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Second District, Ogden Department

The Honorable Pamela G. Heffernan

Attorneys: Randall W. Richards, Ogden, for Appellant

Mark R. Decaria and David E. Weiskopf, Ogden, for Appellee

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Before Judges Jackson, Billings, and Davis.

BILLINGS, Associate Presiding Judge:

Rodriguez appeals his convictions and sentence, arguing he was deprived of his Sixth Amendment right to the assistance of counsel when the district court allowed defense counsel to withdraw at Rodriguez's trial in absentia. We agree and reverse and remand for a new trial.

This court has previously held that "the Sixth Amendment, the Utah Constitution, and state statutory law . . . guarantee an accused the right to be represented by counsel." State v. McDonald, 922 P.2d 776, 779 (Utah Ct. App. 1996) (citing U.S. Const. amend. VI; Utah Const. art. I, § 12; Utah Code Ann. § 77-1-6(1)(a) (1995)). Even though "the right to assistance of counsel is personal in nature and may be waived by a competent accused . . . ., it is the trial court's duty to determine if this waiver is a voluntary one which is knowingly and intelligently made." State v. Frampton, 737 P.2d 183, 187 (Utah 1987). Also, "[w]aiver may not be presumed from a silent record. The record must show, or there must be an allegation and evidence which show that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver." Wagstaff v. Barnes, 802 P.2d 774, 778 (Utah Ct. App. 1990) (alteration in original) (quotations and citations omitted).

In Barnes, appellant was represented by defense counsel at his arraignment in the district court on charges of assault and burglary. See id. at 777. Subsequently, however, appellant's attorney moved to withdraw as counsel for appellant, stating, "'Defendant has failed and refused to contact [me] and therefore it has become impossible . . . to adequately prepare a defense.'" Id. at 777. The district court granted the motion to withdraw. See id. Thereafter, the district court proceeded with the trial in appellant's absence and without an attorney representing him. See id. Appellant was convicted on charges of burglary and assault. See id.

We affirmed the convictions on direct appeal. See State v. Wagstaff, 772 P.2d 987, 988 (Utah Ct. App. 1989). Unfortunately, our opinion in that appeal contained the erroneous assertion that although appellant was not present at trial, he was "'represented by a court-appointed attorney.'" Barnes, 802 P.2d at 777 (quoting Wagstaff, 772 P.2d at 988). Upon further review on appellant's appeal from the district court's dismissal of a habeas petition, we concluded that to the contrary, the trial record "clearly demonstrate[d] that not only was [appellant] absent from trial, but also, that he was not represented by an attorney during the trial proceeding." Id. Accordingly, we reversed the district court's dismissal of appellant's habeas petition and remanded. See id. at 779.

Here, Rodriguez did not appear on the scheduled day of his trial. Just as in Barnes, Rodriguez failed to maintain contact with his attorney, and on the day of trial the district court granted Rodriguez's attorney's motion to withdraw. Also like the defendant in Barnes, Rodriguez was not present in court on the day of trial and hence was not aware that his attorney had withdrawn or that he was unrepresented. We can find nothing in the record indicating the district court, through on-the-record colloquy or otherwise, "explained the nature of the charges, the range of allowable punishments, and possible defenses to the charges." Id. Furthermore, the record contains nothing to indicate that Rodriguez "understood the risks of declining legal counsel [or] was aware of the legal ramifications of that decision[,]" or that the district court "ascertain[ed] whether [Rodriguez] knowingly and intelligently waived the right to the assistance of counsel." Id. at 778-79. Without record evidence of waiver, we must conclude that "there [was] no waiver and [Rodriguez] was entitled to be represented by counsel at trial even if he chose not to be there himself." Id. at 779 (emphasis added). Accordingly, we reverse Rodriguez's convictions and remand for a new trial.(1)

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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James Z. Davis, Judge

1. Because we reverse and remand for a new trial, we do not reach Rodriguez's remaining claims regarding admissibility of evidence at trial and ineffectiveness of counsel at sentencing.