2018 UT App 182

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BILLY LEE ROHWEDDER,

Appellant.

Opinion

No. 20150357-CA

Filed September 20, 2018

Third District Court, Salt Lake Department

The Honorable Elizabeth A. Hruby-Mills

No. 111909523

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes, Jennifer Paisner Williams, and Mark 

C. Field, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion. JUDGE JILL M.

POHLMAN concurred. JUDGE DAVID N. MORTENSEN concurred, 

with opinion.

ORME, Judge:

¶1 Defendant Billy Lee Rohwedder appeals his convictions 

for theft by receiving stolen property, failure to respond to an 

officer’s signal to stop, and failure to signal. Defendant argues

that his right to a speedy trial was violated, that he was 

prejudiced by the trial court’s requirement that he wear leg 

restraints during trial, and that he was denied his rights both to 

self-representation and the effective assistance of counsel. We 

affirm.
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BACKGROUND1

¶2 One evening in December 2011, an officer on patrol saw 

Defendant driving a vehicle that had been reported stolen. The 

officer followed Defendant and activated his lights and siren, 

signaling Defendant to pull over. Defendant refused to stop and 

instead accelerated to a high speed. The officer, unable to safely

pursue Defendant, initiated a neighborhood containment plan to 

prevent Defendant from getting away. As the officer began

reconnoitering the neighborhood, he observed the stolen car

abandoned on the road with the driver’s door open and the 

engine still running. Soon after, another officer found Defendant 

half a block from the abandoned car, sweating and out of breath. 

A third officer with a dog that had tracked Defendant from the 

abandoned car also approached Defendant. Defendant was 

arrested and charged with the previously named offenses. 

¶3 In January 2014, a jury convicted Defendant of all three 

charges. On appeal, we summarily reversed his convictions

because the trial court had failed to address Defendant’s 

multiple requests to represent himself. On remand, Defendant 

again sought to represent himself, but he insisted that he would 

not waive his right to the assistance of counsel unless the trial

court either granted him the use of a law library or the assistance 

of standby counsel. The trial court granted his request for the 

assistance of standby counsel. The court clarified that Defendant 

would be representing himself and was responsible for his own 

defense. Standby counsel’s role was limited to assisting

Defendant in securing witnesses and in accessing relevant legal 

materials. Shortly before trial, Defendant complained that 

 

1. When reviewing an appeal from a jury verdict, “we view the 

evidence and all reasonable inferences drawn therefrom in a 

light most favorable to the verdict. We recite the facts 

accordingly.” State v. Shepherd, 1999 UT App 305, ¶ 2, 989 P.2d 

503 (citation and internal quotation marks omitted).
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standby counsel was not serving his interests and that he did not 

believe he was “being properly represented.” He also

complained that standby counsel was not providing him with 

the information or evidence he requested and had failed to help 

him locate the witnesses he wished to subpoena.

¶4 Also during pretrial hearings, Defendant raised concerns 

about wearing leg restraints in view of the jury. Defendant 

proposed that he wear a taser vest as an alternative to leg 

restraints. However, the bailiff explained to the court that 

courtroom security procedures do not allow criminal defendants 

to wear only a taser vest. Rather, the protocol calls for such vests

to be worn in addition to leg restraints. The court agreed that 

Defendant could not only wear a taser vest. To allay Defendant’s 

concerns of prejudice, the trial court suggested that both 

Defendant and the prosecutor remain seated during trial. 

Defendant rejected this suggestion, preferring to walk about the 

courtroom as best he could in leg restraints. Defendant’s case on 

remand proceeded expeditiously to trial with the exception of 

one continuance—at Defendant’s request—to locate additional

evidence and witnesses. After a two-day trial in April 2015, a 

jury convicted Defendant of all three charges. Defendant again 

appeals, and we affirm.

ISSUES AND STANDARDS OF REVIEW

¶5 Defendant raises three issues on appeal. First, he argues 

that the trial court denied his constitutional right to a speedy

trial. “We review the issue of whether a defendant was deprived 

of his right to a speedy trial for correctness.” State v. Hawkins, 

2016 UT App 9, ¶ 68, 366 P.3d 884. Next, Defendant argues that

the court unfairly prejudiced him by requiring him to wear leg 

restraints in view of the jury. Whether a defendant was denied 

his constitutional rights to a fair trial and the presumption of 

innocence is reviewed for correctness. State v. Madsen, 2002 UT 

App 345, ¶ 4, 57 P.3d 1134. And finally, Defendant argues that 

the trial court violated his rights to self-representation and to the 
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effective assistance of counsel. We consider these claims, “raised 

for the first time on appeal,” as “present[ing] a question of law,” 

State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162, which we evaluate for 

correctness, State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716.

ANALYSIS

I. Trial Delay

¶6 The Sixth Amendment to the United States Constitution 

guarantees a defendant the right to a speedy trial. U.S. Const. 

amend. VI. In determining whether a criminal defendant has 

been deprived of the right to a speedy trial, we consider four 

factors: the “[l]ength of delay, the reason for the delay, the 

defendant’s assertion of his right, and prejudice to the 

defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). But the 

length of delay is the “triggering mechanism,” and “[u]ntil there 

is some delay which is presumptively prejudicial, there is no 

necessity for inquiry into the other factors that go into the 

balance.” Id. Whether a delay is presumptively prejudicial 

depends on “the peculiar circumstances of the case,” id. at 530–31, 

because for “serious, more complex crimes, a greater period of 

delay will be tolerated,” State v. Cornejo, 2006 UT App 215, ¶ 27, 

138 P.3d 97 (brackets, citation, and internal quotation marks 

omitted). Typically, courts view “delays approaching one year 

[as] presumptively prejudicial.” United States v. Larson, 627 F.3d 

1198, 1208 (10th Cir. 2010). See Doggett v. United States, 505 U.S. 

647, 652 n.1 (1992). 

¶7 Here, Defendant points to the time from when he was 

originally charged right up until his second trial, which

exceeded three years. He argues that this delay is presumptively 

prejudicial. But in his first appeal, Defendant asked this court for 

a new trial, which he received. In cases of retrial, other courts 

have declined to include all the time that has passed from the 

original charge to the second trial, considering only the time 

period between the appellate mandate reversing a conviction 
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and the retrial. See, e.g., Icgoren v. State, 653 A.2d 972, 978 (Md. 

Ct. Spec. App. 1995); Mitchell v. State, 572 So. 2d 865, 870‒71

(Miss. 1990); State v. Kula, 579 N.W.2d 541, 546 (Neb. 1998); Soffar 

v. State, No. AP-75,363, 2009 WL 3839012, at *39 (Tex. Crim. App. 

Nov. 18, 2009) (per curiam). Given that “[i]t has long been the 

rule that when a defendant obtains a reversal of a prior, 

unsatisfied conviction, he may be retried in the normal course of 

events” without running afoul of the Sixth Amendment’s right 

to a speedy trial, United States v. Ewell, 383 U.S. 116, 121 (1966),

we are inclined to follow the lead of those courts. Defendant’s

case returned to the trial court on November 12, 2014, and the

first day of his retrial was April 7, 2015. The time between these 

two dates was a period of only 146 days, which Defendant has

not shown is presumptively prejudicial under the circumstances 

of this case. See Larson, 627 F.3d at 1208. Cf. Cornejo, 2006 UT App 

215, ¶ 27 (concluding that 315 days was “potentially, but not 

necessarily, prejudicial”) (citation and internal quotation marks 

omitted).

¶8 Because Defendant’s claim of a speedy trial violation falls 

short of being even “presumptively prejudicial,” we have no 

occasion to consider the other Barker factors. We therefore 

conclude that the trial court did not deprive Defendant of his 

right to a speedy trial.

II. Leg Restraints

¶9 Defendant contends that the trial court unfairly 

prejudiced him by requiring him to wear leg restraints in the 

presence of the jury. “It is well established that a principal

ingredient of due process is that every criminal defendant is 

entitled to a fair and impartial trial.” State v. Mitchell, 824 P.2d 

469, 473 (Utah Ct. App. 1991) (brackets, citation, and internal 

quotation marks omitted). It can be “inherently prejudicial” to 

“visibly shackl[e] a defendant” because “it suggests to the minds 

of jurors that he is guilty.” State v. Madsen, 2002 UT App 345, ¶ 8, 

57 P.3d 1134. Still, a trial court may physically restrain a criminal 
State v. Rohwedder

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defendant “to prevent an escape, resort to violence, or disruption 

of the trial.” Mitchell, 824 P.2d at 473.

¶10 The question of whether Defendant actually presented 

any of those risks is not at issue in this appeal. Instead,

Defendant argues that there were ways the trial court could have 

minimized the risk of prejudice even if it was necessary to 

restrain him. Defendant was restrained using shackles that 

would lock “if someone stands up abruptly or moves.” To 

ensure the jury could not see Defendant’s leg restraints, the trial

court offered to have everyone at counsel table remain seated, 

including the prosecutor, and for curtains to be hung from the 

tables to conceal everyone’s legs. But Defendant rejected the trial 

court’s offer, insisting confining everyone to counsel table would 

signal the jury that Defendant was shackled. And he wished to 

move about freely during trial. He therefore made the choice to

forgo the everyone-remain-seated option and preserve his ability

to get up and move around during trial. 

¶11 To conclude that the use of visible restraints was 

inherently prejudicial, it has to be clear that “the trial court 

created [the] inherently prejudicial situation.” State v. Daniels, 

2002 UT 2, ¶ 20, 40 P.3d 611. Had Defendant accepted the trial

court’s offer to have everyone at counsel table remain seated, the 

jury would have been none the wiser that he was physically 

restrained.

2 Defendant therefore created his own prejudicial 

situation, and accordingly, we conclude that the trial court did 

not err in requiring Defendant to wear leg restraints during his 

trial.

 

2. We reject Defendant’s argument that if everyone at counsel 

table remained seated, the jury would immediately guess that 

the root cause for this arrangement was Defendant’s being 

restrained as a security risk, as opposed to there being some 

other explanation, such as a physical disability or a judicial 

preference for informality in the courtroom.
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III. Standby Counsel

¶12 Defendant contends, seemingly inconsistently, that both

his right to self-representation and his right to the effective 

assistance of counsel were violated when “his standby counsel 

failed to . . . provide him access to relevant legal materials 

[and] . . . subpoena witnesses.” There are two mutually exclusive 

rights guaranteed by the Sixth Amendment: the right to the 

assistance of counsel and the right to self-representation. State v. 

Bakalov, 1999 UT 45, ¶ 15, 979 P.2d 799. 

¶13 When a criminal defendant invokes the right to 

self-representation, he waives his right to the assistance of 

counsel. State v. Frampton, 737 P.2d 183, 187 (Utah 1987). Before 

allowing a criminal defendant to represent himself, a trial court 

must ensure that the “waiver is a voluntary one which is 

knowingly and intelligently made” by making the defendant

“aware of the dangers and disadvantages of self-representation.” 

Id. (citation and internal quotation marks omitted). Once “[t]he 

choice to represent oneself” is made, “a pro se criminal

defendant relinquishes many of the traditional benefits 

associated with the right to counsel,” including “full access to 

legal materials, when the defendant remains in custody pending 

trial.” State v. Drobel, 815 P.2d 724, 736 (Utah Ct. App. 1991)

(citation and internal quotation marks omitted).

¶14 Defendant sought to represent himself, but he refused, as 

he put it, to “sign[] away imperative rights” absent assurances

he would have access to a law library or the assistance of

“back-up counsel.” The trial court allowed him to represent 

himself and also made standby counsel available to him. But the 

court clarified that Defendant would be “primarily responsible 

for things” and “responsible for being able to comply with all the 

expectations.” While Defendant does not dispute that his 

waiver of the right to counsel was knowing and voluntary, 

he denies that he waived the right to the assistance of counsel

in toto, arguing that he “did not entirely self-represent” because
State v. Rohwedder

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his standby counsel played the role of “co-counsel” during his 

trial.

¶15 Courts have traditionally appointed standby counsel “to

aid the accused if and when the accused requests help” and “to 

be available to represent the accused in the event that 

termination of the defendant’s self-representation is necessary.” 

Faretta v. California, 422 U.S. 806, 834‒35 n.46 (1975). Particularly, 

standby counsel assists “the pro se defendant in overcoming 

routine procedural or evidentiary obstacles to the completion of 

some specific task, such as introducing evidence or objecting to 

testimony.” McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). But the 

appointment of standby counsel “does not alter a party’s pro se 

status.” In re C.C., 2011 UT App 99, ¶ 7 n.2, 250 P.3d 1038. 

“Precedent is clear. Defendants who knowingly and intelligently 

waive their right to assistance of counsel must be allowed to 

conduct their own defense.” State v. Bakalov, 862 P.2d 1354, 1355 

(Utah 1993) (per curiam). The “choice of self-representation often 

results in detrimental consequences to the defendant,” Bakalov, 

1999 UT 45, ¶ 15, but “a defendant who elects to represent 

himself cannot thereafter complain that the quality of his own 

defense amounted to a denial of ‘effective assistance of 

counsel,’” Frampton, 737 P.2d at 189 (quoting Faretta, 422 U.S. at

834‒35 n.46). Standby counsel acts only to “protect the rights of 

accused persons foolishly trying to defend themselves” and to 

“vindicate the process itself” by promoting fairness in the 

criminal justice system. Mayberry v. Pennsylvania, 400 U.S. 455, 

468 (1971) (Burger, C.J., concurring) (internal quotation marks 

omitted). 

¶16 Some courts using this type of “hybrid representation” 

have muddied the waters of the Sixth Amendment by allowing 

standby counsel to take on more of the role of counsel during the 

course of a trial, such as making opening statements and closing 

arguments, suggesting legal arguments to the defendant, or 

presenting legal arguments on the defendant’s behalf. We 

recognize that there can be value in appointing standby counsel 
State v. Rohwedder

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to assist a pro se defendant who lacks adequate access to the 

resources necessary to present his defense or to help the 

defendant with questions of procedure and protocol in the 

courtroom. But pro se defendants cannot have it both ways; they 

cannot invoke the right to self-representation and later claim 

they were denied the right to the effective assistance of counsel.

Nor does a pro se defendant have “a constitutional right to 

choreograph special appearances by counsel.”3 McKaskle, 465 

U.S. at 183.

¶17 But neither does it follow that standby counsel may shirk 

his or her responsibilities with impunity. Counsel does not 

evade the obligation to adhere to the Rules of Professional 

Conduct when appointed as standby counsel. And while the 

Sixth Amendment does not set a baseline standard for standby 

counsel’s performance,4 the Due Process Clause does. See Snyder 

 

3. As outlined in State v. Frampton, 737 P.2d 183 (Utah 1987), the 

trial court should conduct “a colloquy on the record” that not 

only ascertains the validity of a right to counsel waiver, but also 

“insures that defendants understand the risks of 

self-representation.” Id. at 187. As more fully explained in Judge 

Mortensen’s concurring opinion, if a defendant elects to 

represent himself and the trial court chooses to appoint standby 

counsel, it follows that the trial court should also advise 

defendants of the limits of standby counsel’s duties and how 

those limits affect a defendant’s decision to represent himself. Cf. 

id. (“[T]he 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.”) (citation and internal quotation marks 

omitted).

4. We recognize that a few courts have held that ineffective 

assistance of counsel claims can be brought when standby 

counsel fails to perform competently. See People v. Bloom, 774 

(continued...)
State v. Rohwedder

20150357-CA 10 2018 UT App 182

v. Massachusetts, 291 U.S. 97, 116 (1934) (“Due process of law 

requires that the proceedings shall be fair, but . . . [i]t is fairness 

with reference to particular conditions or particular results.”), 

overruled on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964). 

See also Estelle v. Williams, 425 U.S. 501, 504 (1976) (“Courts must 

do the best they can to evaluate the likely effects of a particular 

procedure, based on reason, principle, and common human 

experience.”). It would violate due process for a pro se 

defendant who lacks access to legal materials to be provided 

standby counsel who subsequently fails to assist the defendant 

in securing items reasonably requested by the defendant. When 

standby counsel is appointed, that attorney assumes particular 

duties in assisting a self-represented criminal defendant, and 

counsel must discharge those duties.

¶18 Defendant characterizes his standby counsel’s role as an 

active one, and he suggests that this active role brought with it a 

duty on the part of standby counsel to ensure Defendant 

“was able to accomplish the tasks he needed.” But the 

record does not reflect that standby counsel took on such an

active role in Defendant’s defense. Even Defendant concedes 

that standby counsel was only being used as “a law library” 

and to help “secure [two] witnesses’ presence at [trial].”

Moreover, the trial court appointed standby counsel to “act as 

a resource” out of concern that Defendant did not have access to 

 

(...continued)

P.2d 698, 718 (Cal. 1989) (en banc) (“[A] self-represented 

defendant must show that [standby] counsel failed to perform 

competently within the limited scope of the duties assigned to or 

assumed by counsel.”) (emphasis omitted); Downey v. People, 25 

P.3d 1200, 1204 (Colo. 2001) (en banc) (concluding that there is a 

claim for ineffective assistance of counsel when standby counsel 

“exceeds his role as advisory counsel”). 
State v. Rohwedder

20150357-CA 11 2018 UT App 182

legal materials.5 Standby counsel clarified that he could be used 

“as a resource if there [was] a specific request regarding specific 

cases[,] . . . specific treatises, Utah Rules of Criminal Procedure, 

code, etc.” Standby counsel’s role was limited to helping 

Defendant get legal materials, with the single additional 

responsibility of assisting Defendant with subpoenaing

witnesses. To show that standby counsel failed to perform those 

duties, Defendant’s claim must be supported by the record. 

“Where the record appears inadequate in any fashion, 

ambiguities or deficiencies resulting therefrom simply will be 

construed in favor of a finding that counsel performed 

effectively . . . [which] is consistent . . . with the general rule that 

record inadequacies result in an assumption of regularity on 

appeal.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.

¶19 Here, the record is unclear as to what, exactly, standby 

counsel did and did not do to assist Defendant. First, Defendant 

maintains that standby counsel was intended to serve more in

the role of co-counsel, but the record does not support this claim. 

Defendant clarified with the trial court on multiple occasions 

that he was representing himself and would conduct his own 

 

5. Pro se defendants have a fundamental right to access court

resources, and under this right, they must be provided with 

“adequate law libraries or adequate assistance from persons

trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). 

Defendant did not have access to a law library because the jail in 

which he was housed did not have one. However, the jail did 

have a paralegal that would pull requested sources for inmates. 

But Defendant never requested help from the available 

paralegal. Standby counsel’s duty was to assist him in a 

comparable way, namely, by pulling the research materials

Defendant needed. And “[i]t is well established that providing 

legal counsel is a constitutionally acceptable alternative to a 

prisoner’s demand to access a law library.” United States v. 

Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999).
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20150357-CA 12 2018 UT App 182

defense. Over the course of trial, standby counsel was limited to

helping Defendant with legal research and securing witnesses. 

Second, the record is silent as to whether standby counsel 

meaningfully discharged these duties. Even Defendant 

acknowledges that “[t]he record is silent as to the conversation 

between [Defendant] and his standby counsel as to counsel’s 

actions” in providing Defendant the access he needed to legal 

materials and “the record is silent as to . . . what efforts counsel 

made to locate . . . witnesses.”6 As standby counsel was limited 

to these two specific duties and the record is silent as to whether 

standby counsel faithfully discharged them, we assume that 

standby counsel did what Defendant asked of him and have no 

occasion to further consider this issue.7

 

6. Defendant sought to fill the void in the record with a rule 23B

motion to remand. See Utah R. App. P. 23B. This motion was 

denied because Defendant failed to include specific facts and 

details supporting his claims of ineffective assistance of counsel. 

See id. R. 23B(b) (“The motion shall include or be accompanied 

by affidavits alleging facts not fully appearing in the record on 

appeal that show the claimed deficient performance of the 

attorney. The affidavits shall also allege facts that show the 

claimed prejudice suffered by the appellant as a result of the 

claimed deficient performance.”).

7. Even if Defendant had established that standby counsel failed 

to discharge his duties, it is doubtful that we could conclude the 

failure was prejudicial, warranting yet another trial for 

Defendant. Defendant maintains that standby counsel failed to 

procure witnesses or obtain evidence or legal research on his 

behalf, but he never demonstrates why this was prejudicial to his 

case. He alludes to one witness as being “the person he was 

going to meet the evening the police arrested him,” but there is 

no indication as to what this witness or any other witnesses 

would have testified. He also fails to show how the outcome of 

(continued...)
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20150357-CA 13 2018 UT App 182

CONCLUSION

¶20 We conclude that there was no violation of Defendant’s 

speedy trial right in convening his second trial. The trial court 

did not err when it required Defendant to wear leg restraints 

during his trial because any prejudice resulting therefrom was 

attributable to Defendant. We also conclude that standby 

counsel’s conduct violated neither Defendant’s right to 

self-representation nor his right to the effective assistance of 

counsel. We therefore affirm Defendant’s convictions.

MORTENSEN, Judge (concurring):

¶21 I completely concur in the majority opinion. I write 

separately only to suggest a mechanism whereby the 

expectations between a pro se defendant and appointed standby 

counsel can be addressed and more clearly establish whether a 

voluntary and knowing waiver of counsel has occurred. To be 

sure, the appointment of standby counsel can introduce an 

element of uncertainty for appointed counsel in gauging the 

extent to which counsel can comfortably interject herself into the 

proceedings. At the same time, unrealistic expectations of a pro 

se defendant may arise when the function and role of standby 

counsel is not clear. Accordingly, where standby counsel is 

appointed, the trial court should strongly consider entering a 

formal order outlining the parameters of the expected 

representation. 

¶22 As the majority opinion acknowledges, our supreme 

court, in State v. Frampton, 737 P.2d 183 (Utah 1987), addressed 

the implications inherent in respecting an accused’s right to 

 

(...continued)

the trial would have been different had he been given access to 

the reference materials he requested. 
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20150357-CA 14 2018 UT App 182

conduct her own defense. In Frampton, the court affirmed the 

convictions of a defendant who had represented himself and 

concluded that the defendant had knowingly and voluntarily 

waived his right to counsel. In reaching this conclusion, the court 

painstakingly reviewed the record in order to verify that the 

defendant’s waiver of his Sixth Amendment right to counsel had 

been knowingly, intelligently, and voluntarily made. Id. at 187–

89. However, the court in Frampton also noted that generally 

ascertaining that a defendant is knowingly, intelligently, and 

voluntarily waiving his right to counsel “can only be elicited 

after penetrating questioning by the trial court.” Id. at 187. 

Indeed, our supreme court pointed trial courts to a scripted 

colloquy from the Bench Book for United States District Court 

Judges, outlining questions which might be asked to verify that a 

defendant understands the significant right being waived and 

how that waiver might be applied in the real-world setting of a 

trial court. Id. at 187 n.12. Similarly, when appointing standby 

counsel, trial courts would do well to enter a formal order 

appointing standby counsel. See Arkansas v. Robbins, 985 S.W.2d

293, 294 (Ark. 1998) (noting that the trial court appointed 

standby counsel “with specific instructions as to their duties in 

that role”); New Mexico v. Vincent, 112 P.3d 1119, 1125 (N.M. Ct. 

App. 2005) (affirming where the trial court explained that 

standby counsel “is just there to answer questions that [the 

defendant] might have and not [to] keep [defendant] from 

making a mistake”).

¶23 In another example, our supreme court remanded a case 

to the trial court to conduct a “searching” colloquy of a 

defendant to ensure that the defendant understood the risks of 

self-representation. See generally State v. Bakalov, 862 P.2d 1354 

(Utah 1993) (per curiam). The Utah Supreme Court remarked, 

“The court is also urged to appoint standby counsel to preserve 

[the defendant’s] right to self-representation and to preclude 

subsequent claims of lack of waiver or ineffective assistance of 

counsel.” Id. at 1355. Like the searching questions required in 

Bakalov, a formal order of appointment of standby counsel serves 
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20150357-CA 15 2018 UT App 182

to both highlight the risks attendant in a defendant representing 

himself and set expectations and parameters, which can be 

recurrently reviewed by a pro se defendant as well as standby 

counsel. Further, a formal order of appointment ensures that a 

defendant appreciates the truly binary nature of the decision 

between self-representation and representation by counsel: it is 

either one or the other.

¶24 Such an order appointing standby counsel, in addition to 

parameters specific to a case, might include language such as:

In summary of the warnings that have previously 

been made to Defendant in open court, and unless 

and until Defendant expressly invokes the right to 

counsel and relinquishes his status as pro se 

counsel:

A. Any witnesses in any hearing or trial will be 

questioned by Defendant, not his standby 

counsel.

B. Any arguments made in open court will be 

made by Defendant, not his standby counsel.

C. Any statements made by Defendant in court 

can be used against him in this or any other 

proceeding.

D. Defendant will continually be responsible for 

compliance with the Utah Rules of Criminal 

Procedure, the Utah Rules of Civil Procedure, 

and the Utah Rules of Evidence.

E. The court cannot give any legal advice to 

Defendant, including advice on how to try this

case, hold a hearing, or otherwise proceed in 

this matter.
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F. Standby counsel’s role is to act as a resource 

and is not appointed to keep Defendant from 

making mistakes.

G. Standby counsel may assist Defendant in 

obtaining legal resources, but standby counsel

is not expected to conduct research for 

Defendant.

H. In the court’s opinion, Defendant would be 

better served by being represented by an 

attorney. However, Defendant has elected to 

knowingly, intelligently, and voluntarily waive 

his right to counsel.