2018 UT App 28

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JONATHAN DENARD SMITH,

Appellant.

Opinion

No. 20151033-CA

Filed February 15, 2018

Third District Court, Salt Lake Department

The Honorable James T. Blanch

No. 151900912

Amy N. Fowler, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

GREGORY K. ORME and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Jonathan Denard Smith appeals the sentences resulting 

from his guilty pleas for one count of damage to jail property, a 

third degree felony, and one count of attempted damage to jail 

property, a class A misdemeanor. He was sentenced on these 

two offenses without his counsel present because the district 

court determined that, for purposes of sentencing, Smith had 

voluntarily and knowingly waived his right to counsel. Smith 

argues that the court erred in that determination. We agree and 

therefore vacate Smith’s sentences and remand for further 

proceedings.
State v. Smith

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BACKGROUND

¶2 While Smith was in custody, two charges relevant to this 

appeal were filed against him—one for propelling a substance at 

an officer in January 2015, a class A misdemeanor (Case One), 

and one for damaging jail property in April 2015, a third degree 

felony (Case Two) (collectively, the Cases). After an attorney 

from Salt Lake Legal Defender Association (LDA) withdrew on 

the basis of a conflict, a second attorney was appointed as

Smith’s attorney for the Cases.

¶3 The second attorney negotiated a plea deal in which 

Smith would plead guilty as charged on Case Two, and the 

charge underlying Case One would be amended to attempted 

damage to jail property, a class A misdemeanor. In exchange, the 

State promised to dismiss another charge that it had filed against 

Smith and agreed to release him from custody. Smith pleaded as 

negotiated, and during the May 2015 plea hearing, the court 

accepted his plea and ordered his pre-trial release.

¶4 Smith was rearrested and placed in custody on other 

charges in mid-August 2015.

1 Another LDA attorney—Smith’s 

third—was appointed to represent him on the new charges, but

that attorney also withdrew. In late September 2015, the court 

arranged for conflict counsel (Attorney) to be appointed on all of

Smith’s cases.

¶5 In late October 2015, Smith, through Attorney, moved to 

withdraw his guilty pleas in the Cases, and the court set the 

matter for a hearing on November 10, 2015. The court noted that, 

 

1. The charges that led to Smith’s initial custody before the 

Cases, and the charges filed subsequent to those cases, are not 

the subject of this appeal. We refer to them only for clarity in the 

narrative.
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20151033-CA 3 2018 UT App 28

in the event Smith’s motion to withdraw his pleas was denied, 

“sentencing may be addressed” at the November hearing.

¶6 One week before the November hearing, Attorney sought

to withdraw as Smith’s appointed counsel on the ground that a 

conflict existed. Attorney asserted that during a visit to Smith at 

the correctional facility, Smith became “hostile and 

argumentative” and threatened him with physical harm. On 

November 5, 2015, the court granted Attorney’s motion to 

withdraw and ordered LDA to appoint new conflict counsel. 

However, as of the November 10, 2015 hearing, LDA had yet to 

assign new counsel, and no counsel appeared on Smith’s behalf. 

Nonetheless, the hearing proceeded.

¶7 The court began the hearing by explaining that, although 

five total cases were pending against Smith, the hearing’s 

primary purpose was to address Smith’s motion to withdraw his 

pleas in the Cases and, depending on the outcome of that 

motion, to potentially sentence him for those cases. After the 

court stated for the record that Attorney had withdrawn and 

that it had ordered LDA to appoint new counsel for Smith, the 

State requested that the court determine that Smith had forfeited 

his right to counsel for the Cases. According to the State, Smith 

had fired “every attorney who gives him advice he doesn’t like, 

culminating [in] threatening physical violence against 

[Attorney].” In the alternative, the State requested at minimum 

that the court warn Smith “of the dangers of representing 

himself and of the behaviors that are inappropriate in interacting 

with future counsel” so that if Smith “continue[d] in this line of 

behavior, he will recognize that he is by his actions waiving his 

right to have an attorney going forward.”

¶8 The court did not determine that Smith had forfeited his 

right to counsel for the Cases. Instead, the court outlined for the 

record Smith’s history with counsel across the “various cases” 

pending against him and then attempted to have a discussion 
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20151033-CA 4 2018 UT App 28

with Smith regarding his understanding about what it would 

mean to represent himself. The court took a comprehensive

approach. It explained to Smith that if he were sentenced to the 

maximum punishment for all the charges filed against him in all 

of his five pending cases, he could be “potentially ordered to 

serve 162 years in prison” and “face tens of thousands of dollars 

in monetary penalties.”

¶9 The court also attempted to ask Smith questions relevant 

to his understanding of the risks associated with generally 

representing himself in all of his cases. For example, the court 

asked Smith about his legal knowledge, whether he had ever 

represented himself in a criminal proceeding, whether he 

realized he would not receive any help “in terms of how the 

cases would be tried,” whether he understood that he would be 

expected to follow the rules of procedure, and whether he 

understood the difficulties inherent in representing himself in 

front of a jury. Smith refused to provide responsive answers to 

these questions, and, in large part, remained silent; indeed, the 

court stated for the record, “Whether you understand it or not, 

you are refusing to answer my question,” and thereafter noted 

each instance Smith refused to answer. In conclusion, the court 

advised Smith to “be represented by an attorney,” stating that it 

“strongly urge[d] [Smith] to accept representation from the next 

lawyer who’s going to be appointed to represent” him.

¶10 At the conclusion of the court’s attempted colloquy with 

Smith, the State again asked the court to warn Smith “about 

what behaviors are inappropriate and would result in a waiver 

of his right to counsel.” The court began to do so, explaining to 

Smith that he had gone through “four excellent lawyers” by 

interfering with their ability to represent him, but Smith 

interrupted the court and proposed,

All right. Since today is sentencing on the other 

two cases, how about this? I don’t need no lawyer 
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20151033-CA 5 2018 UT App 28

for that. Sentence me. Send me to the Utah State 

Prison. Let me get comfortable. And I’ll fight those 

cases from there. Do you agree? That way I don’t 

have to deal with getting no more charges or no 

more none of that. I can do my time the way I do 

my time and you ain’t got to worry about that.

¶11 In response, the district court attempted to verify that 

Smith indeed wished to represent himself for sentencing 

purposes in the Cases; the court asked Smith several times 

whether he wanted to be sentenced that day, whether he wanted 

to represent himself for sentencing in the Cases, and whether he 

had “heard everything” the court told him about representing 

himself. Each time, Smith demanded that the court sentence him.

¶12 The court ultimately denied Smith’s motion to withdraw 

his pleas, found that Smith had chosen to represent himself and 

to be sentenced in the Cases, and then proceeded to sentencing. 

The court asked the State for its input, and the State 

recommended that Smith be committed to prison, noting that 

while the sentencing “matrix would not usually recommend 

prison[,] . . . [Smith’s] behavior precludes an option of 

probation.” The court then asked Smith if he had “anything else 

[he] want[ed] to say,” and Smith responded, “No, I don’t.”

¶13 The court sentenced Smith to prison for zero to one year 

for Case One, and zero to five years for Case Two. It ordered the 

sentences to run consecutively and recommended that Smith not 

receive credit for time served. Smith appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Smith argues that the district court erred by concluding 

that he voluntarily, knowingly, and intelligently waived his right 

to counsel. Whether Smith “voluntarily, knowingly, and 

intelligently waived his right to counsel is a mixed question of 
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20151033-CA 6 2018 UT App 28

law and fact.” State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716. 

We will review the court’s conclusions of law for correctness and

will reverse the court’s factual findings only if they are clearly 

erroneous. Id.

¶15 Smith also argues that the district court abused its 

discretion by sentencing him to prison instead of probation.

While we ordinarily review sentencing decisions for abuse of 

discretion, see State v. Karren, 2017 UT App 163, ¶ 2, 405 P.3d 825 

(per curiam), we do not reach Smith’s arguments regarding the 

propriety of his sentences here because we vacate those 

sentences on other grounds as explained below.

ANALYSIS

I. The Law of Waiver

¶16 Smith challenges the court’s determination that he waived 

his right to counsel for purposes of sentencing in the Cases. 

“Under both the United States and Utah Constitutions, a 

criminal defendant has the right to assistance of counsel,” State v. 

Hall, 2013 UT App 4, ¶ 25, 294 P.3d 632, which includes the right 

to effective counsel for sentencing proceedings, State v. Casarez, 

656 P.2d 1005, 1007 (Utah 1982). “Concomitant with that right is 

the criminal defendant’s guaranteed right to elect to present his 

own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695; see 

also State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (“Defendants 

also have the right to waive their right to counsel.”). Because the 

right to counsel and the right to waive counsel are mutually 

exclusive, “a trial court must be vigilant to assure that the choice 

[to waive counsel] is freely and expressly made ‘with eyes 

open.’” State v. Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799 (quoting 

Faretta v. California, 422 U.S. 806, 835 (1975)). “Before permitting 

a defendant to [waive the right to counsel], . . . a trial court 

should ensure that the waiver is voluntary, knowing, and 

intelligent.” Pedockie, 2006 UT 28, ¶ 26. If there are any doubts 
State v. Smith

20151033-CA 7 2018 UT App 28

regarding the defendant’s understanding of the consequences of 

waiver, those doubts “must be resolved in favor of the 

defendant.” Id. ¶ 45.

¶17 There are three methods through which a defendant may 

validly waive his right to counsel—true waiver, implied waiver, 

and forfeiture. See id. ¶ 27. Here, the dispute centers on true 

waiver. Smith contends that he did not provide a true waiver of 

counsel for sentencing in the Cases, while the State contends that 

he did.

¶18 A true waiver is one in which the defendant affirmatively 

represents that he wishes to proceed without counsel. Id. ¶ 28. 

First, for such waiver to be valid, the district court “must be 

assured that a defendant has clearly and unequivocally 

requested the right to proceed pro se.” Hassan, 2004 UT 99, ¶ 22 

(brackets, citation, and internal quotation marks omitted); see also 

Bakalov, 1999 UT 45, ¶ 16 (stating that “[t]o invoke the right of 

self-representation, a defendant must in a timely manner ‘clearly 

and unequivocally’ request it” (quoting United States v. McKinley, 

58 F.3d 1475, 1480 (10th Cir. 1995))).

¶19 Second, the court must be assured that the defendant’s 

choice is knowingly and intelligently made, meaning that the 

defendant has “actual awareness of the risks of proceeding pro 

se” under the particular facts and circumstances at hand. See 

Hassan, 2004 UT 99, ¶ 22 (citation and internal quotation marks 

omitted); see also State v. Frampton, 737 P.2d 183, 188 (Utah 1987)

(stating that, for the waiver to be knowing and intelligently 

made, a defendant must understand “the relative advantages 

and disadvantages of self-representation in a particular 

situation” (citation and internal quotation marks omitted)). Our 

supreme court has instructed that the “most reliable way for a 

trial court to determine whether a defendant is aware of the 

dangers and disadvantages of self-representation is to engage in 

a colloquy on the record.” Pedockie, 2006 UT 28, ¶ 29; see also 
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20151033-CA 8 2018 UT App 28

Frampton, 737 P.2d at 187 (explaining that determining whether a 

defendant’s waiver is knowing and intelligent can generally 

“only be elicited after penetrating questioning by the trial court” 

and that “a colloquy on the record between the court and the 

accused is the preferred method of ascertaining the validity of a 

waiver”). For example, in Frampton, the court set out a sixteenpoint inquiry to assist and guide courts in their determinations 

of whether a defendant’s waiver is knowing and intelligent, see 

737 P.2d at 187 n.12, and since then it has encouraged district

courts to conduct an inquiry based on the Frampton factors, see, 

e.g., Pedockie, 2006 UT 28, ¶¶ 42, 45; Bakalov, 1999 UT 45, ¶¶ 23–25.

¶20 Nonetheless, “the validity of a waiver [does not] turn . . .

on whether the trial judge actually conducted the colloquy, but 

rather ‘upon the particular facts and circumstances surrounding 

each case.’” Hassan, 2004 UT 99, ¶ 22 (quoting Frampton, 737 P.2d 

at 188); see also id. (“Beyond the colloquy, we will look at any 

evidence in the record which shows a defendant’s actual 

awareness of the risks of proceeding pro se.” (citation and 

internal quotation marks omitted)); State v. Drobel, 815 P.2d 724, 

733 (Utah Ct. App. 1991) (explaining that “the Frampton colloquy 

alone cannot form the basis for granting a self-representation 

request when other information available to the trial court 

suggests that the request may not be knowingly and intelligently 

made”). Ultimately, the crucial determination that must be made 

is “whether the defendant understood the consequences of 

waiver,” regardless of whether a district court conducts the 

colloquy. See Pedockie, 2006 UT 28, ¶ 45. But see id. (anticipating

“that reviewing courts will rarely find a valid waiver of the right 

to counsel absent a colloquy” conducted by the district court).

II. The Arguments on Appeal

¶21 Smith contends that he did not provide a true waiver for 

two reasons. First, he asserts that he “did not make an 

unequivocal request to represent himself.” Second, he asserts 
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20151033-CA 9 2018 UT App 28

that any alleged waiver was not “knowingly and intelligently” 

made.

¶22 First, we disagree with Smith’s assertion that he did not 

unequivocally request to represent himself for sentencing 

purposes in the Cases. Smith exhibited awareness that he stood 

to be potentially sentenced that day for the Cases and that, 

though no counsel was present to represent him, he had the 

right to be represented for the sentencing. Indeed, Smith himself 

proposed to forgo counsel for sentencing in the Cases, 

requesting instead that the district court sentence him that day.

Thereafter, Smith repeatedly demanded to be sentenced in 

response to the court’s admonition that he wait for counsel and 

its multiple inquiries regarding whether he wanted to be 

sentenced that day, whether he wanted to represent himself for 

sentencing in the Cases, and whether he had heard “everything” 

the court told him about representing himself. Smith’s repeated 

demands in response to the court’s questions left little room for 

interpretation about his desire to be sentenced at the hearing 

without the benefit of counsel. See generally State v. Bakalov, 1999 

UT 45, ¶ 16, 979 P.2d 799 (explaining that the request for selfrepresentation must be clear and unequivocal, and describing 

what is to be guarded against by requiring that the request for 

self-representation be explicit).

¶23 Nevertheless, although we conclude that Smith’s waiver 

was voluntary, we cannot conclude that it was knowing and 

intelligent. In particular, the record leaves us with doubts about 

whether Smith understood the risks he faced proceeding pro se 

for sentencing, and given “the strong presumption against 

waiver and the fundamental nature of the right to counsel,” 

these doubts must be resolved in Smith’s favor. See State v. 

Pedockie, 2006 UT 28, ¶ 45, 137 P.3d 716.

¶24 To begin with, even though the court attempted to 

conduct a Frampton colloquy with Smith, the outcome was 
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20151033-CA 10 2018 UT App 28

unsuccessful. Smith refused to engage with the court and 

responsively answer the court’s questions. For most of the 

colloquy, Smith was silent, and the court itself acknowledged 

that Smith’s refusal to respond left uncertainty about his 

understanding of the risks he would face representing himself. 

And when Smith did respond, his answers were largely 

nonresponsive to the questions posed. For example, when the 

court asked Smith to talk about his legal knowledge, he 

responded that it “doesn’t matter,” and when the court asked 

whether he had ever represented himself in a criminal action, 

Smith asked, “What is this relevant to?” and thereafter rebuffed 

the court’s attempts to redirect the question.

¶25 Further, and more importantly, even had Smith engaged 

with the court’s attempted colloquy, we cannot discern from the 

court’s interaction with him whether he understood the risks he 

undertook in choosing to represent himself at sentencing for the 

Cases. There is no evidence that Smith was informed of the risks 

associated with representing himself for sentencing purposes. 

The court did not ask questions aimed specifically toward 

determining Smith’s understanding of what it would mean to 

waive counsel for sentencing in the Cases. See State v. Frampton, 

737 P.2d 183, 188 (Utah 1987) (explaining that a defendant must 

understand “the relative advantages and disadvantages of selfrepresentation in a particular situation” (emphasis added)

(citation and internal quotation marks omitted)); see also State v. 

Hassan, 2004 UT 99, ¶ 22, 108 P.3d 695 (emphasizing that the 

“validity of a waiver would turn not on whether the trial judge 

actually conducted the colloquy,” but whether “the particular 

facts and circumstances surrounding [the] case” demonstrated 

“a defendant’s actual awareness of the risks of proceeding pro 

se” (citations and internal quotation marks omitted)); cf. State v. 

Cabrera, 2007 UT App 194, ¶ 11, 163 P.3d 707 (stating that 

sentencing is considered a “critical stage of criminal proceedings 

at which a defendant is entitled to the effective assistance of 

counsel” (citation and internal quotation marks omitted)). 
State v. Smith

20151033-CA 11 2018 UT App 28

Instead, the court’s attempted colloquy comprehensively

addressed all five of the cases then pending against Smith. For 

example, the court informed Smith that he was facing twentyfour charges of varying degree across those five cases, and it 

explained to him that if he received the maximum punishment 

for each, he could potentially be ordered “to serve 162 years in 

prison” and could face “tens of thousands of dollars in monetary 

penalties.” The court also asked several questions related to 

what it would mean for Smith to defend himself at trial in his 

cases—questions obviously aimed at the pending charges to 

which he had not yet pleaded guilty rather than questions 

relevant to self-representation at his sentencing in the Cases.

¶26 Moreover, the record does not resolve the doubts 

regarding Smith’s understanding about the consequences of 

waiving his right to counsel at sentencing. See Pedockie, 2006 UT 

28, ¶¶ 42, 45. There is no evidence in the record suggesting that 

Smith otherwise understood the value imparted by 

representation during sentencing or what he would risk by 

proceeding without it. See generally Cabrera, 2007 UT App 194, 

¶¶ 11, 18. Smith told the court that he did not need a lawyer for 

sentencing, repeatedly demanded to be sentenced at the hearing, 

and seemed to appreciate both that he was proceeding pro se 

only as to sentencing in the Cases and that he faced a potential 

prison sentence. But his various statements suggest that he 

simply presumed he was going to be sentenced to prison and 

that an attorney would therefore be of no help to him. Similarly, 

there is no evidence from which we could conclude that Smith 

understood the various matters germane to a sentencing 

proceeding, such as whether certain evidence militated against 

imposing the maximum available penalty for the convictions. See 

generally State v. Johnston, 2009 UT App 136, ¶ 13, 210 P.3d 973 

(“Assistance of counsel at sentencing is necessary so that there is 

a real opportunity to present evidence of mitigating 

circumstances.”). Indeed, this lack of comprehension is evident 

in Smith’s response to the court’s question of whether he had 
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20151033-CA 12 2018 UT App 28

“anything else [he] want[ed] to say” before the court 

pronounced the sentences. Rather than offer the court mitigating 

evidence in response to the State’s argument that probation 

would not be appropriate, for example, see generally id., Smith 

tersely told the court that he did not have anything more to add.

¶27 For these reasons, we cannot conclude that Smith’s waiver 

of counsel for sentencing in the Cases was knowingly and 

intelligently made. We therefore vacate Smith’s sentences and 

remand for resentencing.2

CONCLUSION

¶28 We conclude that, although Smith clearly expressed a 

desire to be sentenced without the benefit of counsel, his waiver 

 

2. At oral argument before this court, Smith contended that it 

was error as a threshold matter for the district court to proceed 

with the November 2015 hearing given that Smith, although 

waiting for the appointment of new counsel, was still a 

represented party. Smith argued that the court should not have 

engaged with him and instead should have continued the 

proceeding until after new counsel was appointed. Because this 

issue was not briefed, we do not address it on its merits. See State 

v. Ojeda, 2015 UT App 124, ¶ 11 n.5, 350 P.3d 640 (“We will not 

reverse based on an unbriefed argument raised for the first time 

at oral argument.” (citation and internal quotation marks 

omitted)). Nevertheless, we are troubled that the State invited 

the court to address—and that the court did ultimately 

address—substantive issues with Smith without counsel being 

present and before Smith had suggested that he wanted to 

proceed pro se. At the very least, the better course of action 

would have been to continue the hearing until the assigned 

attorney had entered his or her appearance and was prepared to 

proceed.
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20151033-CA 13 2018 UT App 28

was not sufficiently knowing and intelligent to be valid. We 

vacate Smith’s sentences and remand for further proceedings 

consistent with this opinion.

¶29 Further, because we are vacating his sentences and 

remanding this case, we have no occasion to address Smith’s 

argument that the court exceeded its discretion in sentencing 

Smith to prison rather than placing him on probation.