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THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TIMOTHY LEE,
Appellant.
Opinion
No. 20220208-CA
Filed January 5, 2024
Seventh District Court, Monticello Department
The Honorable Don M. Torgerson
No. 191700205
Dain E. Smoland, Attorney for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.
OLIVER, Judge:
¶1 Timothy Lee was unhappy with his defense counsel’s
representation. After asking a few superficial questions, the
district court allowed Lee to waive his right to assistance of
counsel. Lee then represented himself at trial and was convicted
on all charges. On appeal, he argues his waiver was not
knowingly and intelligently made. We agree, vacate Lee’s
convictions, and remand the case for a new trial.
State v. Lee
BACKGROUND
¶2 Lee was speeding at 96 miles per hour in a 65-mile-perhour zone on the highway when a San Juan County deputy sheriff
(Deputy) activated his emergency lights to pull Lee over. Lee
slowed but did not stop until another officer intercepted him four
miles down the road. Lee’s vehicle registration was suspended
because he did not have car insurance, and Deputy found THC
gummies, oils, and pills in Lee’s car during an inventory search.
Lee was charged with one felony and five misdemeanors: failure
to respond to Deputy’s signal to stop, possession or use of a
controlled substance, possession of drug paraphernalia, reckless
driving, driving with a suspended license or registration, and
driving without motor vehicle insurance.
¶3 At his initial appearance, the court denied Lee’s request for
appointed counsel because he did not meet the financial
qualifications. Lee later retained his own counsel (Counsel), who
filed a discovery request and appeared at his arraignment. At the
beginning of the arraignment, Counsel informed the court that
she wanted to conference with Lee and have his case recalled that
afternoon. But Lee stated, “I don’t want [Counsel] to be my
lawyer.” The court asked Lee whether he would hire new counsel,
to which Lee said, “I haven’t made that decision today yet, but for
right now, I’m choosing to represent myself.” The court stated,
“It’s unlikely that I’m going to let you represent yourself unless
you can answer a few questions for me,” and then set a hearing
for two weeks later. But Lee stated, “We don’t have to wait two
weeks . . . ask me the questions now.” The court then initiated the
following exchange:
The Court: Mr. Lee, how many criminal cases
have you been involved with as a
defendant?
Lee: This is my only one.
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The Court: How many times have you been
involved in any court cases, including
civil cases as a party?
Lee: This is the only one here in Utah.
The Court: Have you ever been involved in
another state in any kind of court
case?
Lee: California.
The Court: Okay. And did you represent yourself
in those cases or that case?
Lee: Actually, that case has been pending.
The Court: Are you representing yourself in that
case?
Lee: We haven’t gone that far yet.
The Court: Have you ever represented yourself in
a court case?
Lee: I’ve never represented myself in a
court case.
The Court: Okay. Are you familiar with the Utah
Rules of Criminal Procedure?
Lee: I know I have a constitutional right to
represent myself in court.
The Court: That may or may not be accurate, so
that’s what I’m asking you is: Are you
familiar with the Utah Rules of
Criminal Procedure?
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Lee: Well, it depends on what you mean by
“familiar.”
The Court: Have you ever read them?
Lee: No.
The Court: Okay. Why do you think it’s in your
best interest to represent yourself in
this case?
Lee: Well, first of all, I don’t think
[Counsel] has been working in my
interest at all.
The Court: Aside from what [Counsel] did or
hasn’t done, I’m wondering why you
think it’s better that you represent
yourself versus . . . hiring a different
attorney to represent you?
Lee: Well, I’ll actually explain that when
we go to trial because I would like to
go to trial immediately.
The Court: Okay.
¶4 The court then “provisionally” found that Lee had
knowingly and voluntarily waived his right to counsel but
remained “not entirely convinced,” promising to “have more of a
discussion” about waiver at a scheduling conference one month
later. But at that scheduling conference, this promised discussion
consisted only of the court asking, “Mr. Lee, do you choose to still
represent yourself in this case?” and Lee answering, “Yes sir.” The
court then set a trial date.
¶5 The day after the scheduling conference, Lee spray-painted
the wall of the Public Safety Building in Monticello, Utah, with
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the words “Tim Lee versus Utah” and “justice delayed is justice
denied, a trial 2,000 years in the making.” Lee was found sitting
on the front steps of the building with a can of black spray paint
and $680 dollars in cash—“the exact cash amount needed to bail
[himself] out on a Class B misdemeanor.” The information against
Lee was later amended to add a charge for graffiti.
¶6 Representing himself at trial, Lee questioned prospective
jurors and, after being informed of the right by the court,
exercised his peremptory strikes. Lee cross-examined several of
the State’s witnesses and took the stand to testify in his own
defense—though his testimony garnered multiple objections and
interventions by the court. After being cross-examined, Lee gave
a closing argument, in which he argued for his innocence. But the
jury found him guilty on all seven charges.
ISSUE AND STANDARD OF REVIEW
¶7 On appeal, Lee argues he did not knowingly and
intelligently waive his right to counsel. “Whether [a defendant’s]
waiver was knowing and intelligent involves a mixed question of
law and fact which we review for correctness, but with a
reasonable measure of discretion given to the trial court’s
application of the facts to the law.” State v. West, 2023 UT App 61,
¶ 17,
532 P.3d 114 (cleaned up).
ANALYSIS
¶8 “Under both the United States and Utah Constitutions, a
criminal defendant has the right to assistance of counsel.” State v.
West, 2023 UT App 61, ¶ 27,
532 P.3d 114 (cleaned up).
“Concomitant with that right is the criminal defendant’s
guaranteed right to elect to present one’s own defense.”
Id.
(cleaned up). Relinquishing the right to counsel “may occur in
three ways: true waiver, implied waiver, or forfeiture.” State v.
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Bozarth, 2021 UT App 117, ¶ 33,
501 P.3d 116. “True waiver occurs
when a defendant directly communicates a desire to proceed pro
se.” Id. ¶ 34. To be a valid true waiver, a defendant must “(1)
clearly and unequivocally request self-representation and (2) act
knowingly and intelligently, being aware of the dangers inherent
in self-representation.” Id. (cleaned up). Lee does not dispute that
he clearly and unequivocally expressed his desire to represent
himself. He argues only that he did not do so knowingly and
intelligently.
¶9 Because “pro se defendants may often find themselves at a
serious disadvantage in our legal system,” it is “the solemn duty
of the trial court” to ensure defendants exercise their right of self-representation “voluntarily, knowingly, and intelligently.” State
v. Hassan,
2004 UT 99, ¶¶ 21–22,
108 P.3d 695 (cleaned up). “In
making this determination, the defendant should be made aware
of the dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing and his
choice is made with eyes open.” State v. Frampton,
737 P.2d 183,
187 (Utah 1987) (cleaned up). “The best way to ascertain if a
defendant has the requisite knowledge of the legal mire [they]
wish[] to wade into is for a court to engage in ‘penetrating
questioning’” through a colloquy on the record. West,
2023 UT
App 61, ¶ 31 (cleaned up).
¶10 Here, the court attempted—or at least began—a colloquy
on the record at Lee’s arraignment. But, as both sides agree, it was
only a “partial colloquy.” In State v. Frampton,
737 P.2d 183 (Utah
1987) our supreme court cited a model list of sixteen questions to
guide district courts in conducting such colloquies.
Id. at 187 n.12
(quoting 1 Fed. Jud. Ctr., Bench book for U.S. District Court Judges,
§§ 1.02-2 to -5 (3d ed. 1986)). At best, the court’s attempted
colloquy addressed only two of Frampton’s recommended
questions. The court asked Lee about his previous experience
representing himself or someone else in any civil or criminal
matters, which addressed Frampton’s second recommended
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question. See id. (“Have you ever represented yourself or any
other defendant in a criminal action?” (cleaned up)). And the
court asked Lee whether he was familiar with the Utah Rules of
Criminal Procedure, addressing Frampton’s ninth recommended
question. See
id. (“Are you familiar with the . . . Rules of Criminal
Procedure?” (cleaned up)). A colloquy “need not follow
[Frampton’s] precise script.” State v. Patton,
2023 UT App 33, ¶ 14,
528 P.3d 1249. 1 But the partial colloquy here did not show whether
0F
Lee had an “actual awareness of the risks of proceeding pro se
under the particular facts and circumstances at hand” and
“understood the consequences of waiver.” State v. Smith, 2018 UT
App 28, ¶¶ 19–20,
414 P.3d 1092 (cleaned up). Thus, the colloquy
was inadequate.
¶11 “In the absence of [an adequate] colloquy, we review the
record de novo to determine whether the defendant knowingly
and intelligently waived [the] right to counsel.” West,
2023 UT
App 61, ¶¶ 17, 33 (cleaned up). Our review of the record “must
somehow otherwise show that the defendant understood the
seriousness of the charges and knew the possible maximum
penalty” and “should also show that the defendant was aware of
the existence of technical rules and that presenting a defense is not
just a matter of telling one’s story.” Frampton,
737 P.2d at 188
(cleaned up).
¶12 In Frampton, our supreme court stated that, in conducting
this de novo review, the court “will look at any evidence in the
record which shows a defendant’s actual awareness of the risks of
1. We recently suggested, as a best practice, that district judges
“keep a prepared Frampton waiver-of-counsel colloquy script at
the ready on the bench, for use when the occasion arises.” State v.
Patton,
2023 UT App 33, ¶ 14 n.5,
528 P.3d 1249. Given the recent
frequency of challenges to waiver colloquies before this court, see
e.g. State v. West,
2023 UT App 61,
532 P.3d 114; Patton,
2023 UT
App 33, we echo that suggestion here.
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proceeding pro se.” Id. (cleaned up) (emphasis added). But later,
in State v. Pedockie,
2006 UT 28,
137 P.3d 716, the court emphasized
that the validity of a defendant’s waiver must be assessed “at the
time of the alleged waiver.” Id. ¶ 50 (emphasis added). There, the
court concluded a defendant’s waiver was not knowing or
intelligent because “[w]hile [the defendant] arguably obtained
some understanding of the[] technical requirements” of trial
“during the course of the proceedings,” the record was “devoid
of evidence” that the defendant “understood these requirements
prior to the time of the alleged waiver.” Id. ¶ 51.
¶13 The holding in Pedockie indicates that, in cases like this one,
where a colloquy—albeit an inadequate one—has occurred, the
appellate court’s de novo review of a defendant’s waiver is
limited to events occurring prior to or at the time of that colloquy.
The State contends that we should consider all of Lee’s postwaiver conduct because Frampton’s “analysis considering postwaiver conduct . . . remains good law.” We need not decide
whether this assertion is correct, however, because even
considering all of Lee’s post-colloquy conduct—including at
trial—it is clear that Lee’s waiver of counsel, while voluntary, was
not knowingly and intelligently made.
¶14 The State points to the minute entry from Lee’s initial
appearance, arguing the entry shows he understood the
significance of the charges against him. While the minute entry
does state that Lee was “[a]dvised of charges and penalties” and
of his “right to counsel,” this is substantially all it says. The
minutes do not indicate whether Lee understood the nature of
these charges. The State also argues that because Counsel
prepared a plea agreement on Lee’s behalf, we can “infer that
[she] informed [Lee] of the nature of the charges and penalties.”
But as soon as the colloquy hearing began, Counsel informed the
court that she “would like to be able to answer Mr. Lee’s questions
about his defendant statement” and to have his case recalled that
afternoon. This suggests Lee’s interactions with Counsel had been
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limited and that the two of them had not had an opportunity to
discuss Lee’s charges prior to his waiver.
¶15 The State also argues the minute entries from Lee’s initial
appearance show that he understood the value of representation.
Again, the minutes state only that Lee was informed of his right
to counsel—not that he actually contemplated the value of
representation. The State also argues that the work Counsel
performed on Lee’s behalf prior to his waiver informed him of the
value of counsel. But Lee did not have anything more than
nominal observation of Counsel engaged in court proceedings.
She had filed one discovery request on his behalf. And Lee
dismissed her almost immediately at his arraignment. This does
not assure us that Lee understood the value of representation.
¶16 Further, the record indicates that Lee did not grasp the
significance of the trial proceedings. The State argues that Lee’s
rejection of a plea agreement and his performance during trial
indicate that he was aware of the technical complexities of trial.
Lee did reject the plea agreement in favor of contesting the
charges against him at trial, which indicates he appreciated the
utility of trial. But “such general knowledge does not necessarily
evidence an understanding of the technical requirements inherent
in presenting one’s case.” Pedockie, 2006 UT 28, ¶ 51. And during
trial, Lee’s testimony repeatedly strayed into conclusions about
the legality of marijuana in Nevada, Colorado, and California and
constitutional arguments about the delay of his trial due to the
COVID-19 pandemic—prompting the court to remind him
multiple times to testify only to relevant facts or to conclude his
testimony. This indicates he was not aware of or able to follow
trial procedures, even after repeated explanations by the court.
¶17 Finally, and perhaps most critically, our review of the
record should indicate that Lee understood “that presenting a
defense is not just a matter of telling one’s story.” Frampton,
737
P.2d at 188 (cleaned up). Here, Lee testified that he wanted the
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jury to “hear [his] story” and that it was “quite a story.” Later he
asked the court, “I can speak my mind, tell the story of why [my
constitutional rights have] been violated; correct?” Lee stated that
his testimony “comes with a story” and asked the court, “I’m
going to make an accusation and then I can prove that accusation
with a story. No?” Later, during the State’s cross-examination of
Lee, he said, “[I]f I was allowed to tell my story that would all
make sense.” And he asked the State, “Can I tell my story?” before
saying, “Let me tell you my story.” Because Lee mentions telling
his story more than a dozen times during trial, it is clear he saw
his trial as little more than his opportunity to do just that.
¶18 Our review of all the record evidence does not convince us
that Lee recognized the nature of the charges against him, was
aware of the value of representation or the technicality of trial
proceedings, or understood that his trial was more than a mere
opportunity to tell his story. See id. And “considering the strong
presumption against waiver and the fundamental nature of the
right to counsel, any doubts must be resolved in favor of the
defendant.” Pedockie,
2006 UT 28, ¶ 45. Given this strong
presumption against waiver 2 and the lack of evidence to the
1F
2. As we have pointed out in prior decisions, this “strong
presumption against waiver” and our resolution of doubt “in
favor of the defendant” is in tension with our supreme court’s
allocation of burden on the defendant. See State v. Frampton, 737
P.2d 183, 187 (Utah 1987) (concluding when a defendant
“expressly decline[s] an offer of counsel by the trial judge, he has
the burden of showing by a preponderance of the evidence that
he did not so waive this right”). As we recently suggested, “A
better, and far clearer, rule would be that where a trial court fails
to employ a Frampton colloquy, the presumption is that waiver
did not occur and the burden would be placed on the State to
prove otherwise.” Patton,
2023 UT App 33, ¶ 22 n.6,; see also West,
2023 UT App 61, ¶ 29 n.5. Again, “We hope that our supreme
(continued…)
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contrary, we conclude that Lee’s waiver was not knowing and
intelligent.
CONCLUSION
¶19 Because we conclude Lee waived his right to assistance of
counsel without a knowing and intelligent understanding of the
consequences of the decision, we vacate his convictions and
remand the case for a new trial.
court would look favorably on such an articulation.” Patton, 2023
UT App 33, ¶ 22 n.6.
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