SUMMARY

March 5, 2020

2020COA37

No. 18CA1308, People v. Lavadie — Constitutional Law — Sixth 

Amendment — Right to Self-Representation

Defendant contends that the trial court violated his 

constitutional right to represent himself when it forced him to 

proceed to trial with appointed counsel over his numerous 

objections. When defendant first requested to represent himself, 

the trial court attempted to give the advisement required by People 

v. Arguello, 772 P.2d 87, 94-95 (Colo. 1989). But defendant’s 

unresponsive answers to the court’s questions during that 

advisement made it difficult, if not impossible, for the court to 

ascertain whether his waiver of his right to counsel was knowing 

and intelligent. So, the court appointed counsel and refused to 

entertain defendant’s subsequent requests to represent himself. 

Defendant contends that was error.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
A division of the court of appeals, addressing an issue of first 

impression in Colorado, lays out what a trial court should do when 

a defendant, through his conduct, frustrates a trial court’s efforts to 

properly advise him of his constitutional rights before being allowed 

to proceed pro se. The division holds that, before a trial court can 

conclude a defendant will not be permitted to represent himself

based on failure to cooperate with an Arguello advisement, it must 

advise the defendant that the possible consequences of refusing to 

answer the court’s questions, offering nonsensical responses to 

those questions, or generally refusing to acknowledge the court’s 

jurisdiction will be a denial of his request to represent himself, the 

appointment of counsel against his wishes, and a barrier to the 

court entertaining a subsequent request to represent himself.

Applying that holding to this case, the division concludes that, 

because the trial court terminated the advisement, appointed 

counsel over his continuing objection, and refused to entertain a 

subsequent request to proceed pro se without such a warning, the 

trial court violated his right to self-representation. Therefore, the 

division reverses the convictions and remands the case for a new 

trial.
COLORADO COURT OF APPEALS 2020COA37

Court of Appeals No. 18CA1308

Mesa County District Court No. 17CR828

Honorable Lance P. Timbreza, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul Alex Lavadie,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE WELLING

Furman and Pawar, JJ., concur

Announced March 5, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 A jury found defendant, Paul Alex Lavadie, guilty of felony 

menacing with a real or simulated weapon, aggravated robbery as a

crime of violence, and misdemeanor theft. He now appeals those 

convictions, contending that the trial court violated his 

constitutional right to represent himself when it forced him to 

proceed to trial with appointed alternate defense counsel (ADC) over 

his numerous objections. 

¶ 2 While it may not be uncommon that a defendant who insists 

on self-representation also poses communication challenges, we 

have found no Colorado cases directly addressing what a trial court 

should do when a defendant, through his conduct, frustrates a trial 

court’s efforts to properly advise him of his constitutional rights 

before being allowed to proceed pro se. Addressing this issue of 

first impression, we recognize that such a situation places the trial 

court in an unenviable predicament because either depriving a 

defendant of his constitutional right to represent himself or allowing 

him to represent himself without a valid waiver of his right to 

counsel results in structural error requiring reversal. While we are 

sympathetic to the court’s plight in dealing with a difficult 

defendant, we now hold that, before denying uncooperative or 
2

obstreperous defendants the right to represent themselves, the trial 

court must advise them that their continued failure to appropriately 

answer the court’s questions will result in the court finding that the 

waiver of their right to counsel is unknowing and unintelligent, 

appointing an attorney to represent them against their wishes, and 

potentially declining to entertain a subsequent request to proceed 

without counsel. Applying that holding to this case, we conclude 

that, because the trial court without giving such a warning 

terminated the advisement, appointed counsel over his continuing 

objection, and refused to consider his subsequent requests to 

proceed pro se, the trial court violated Lavadie’s right to 

self-representation. Therefore, we reverse his convictions and 

remand the case for a new trial.

I. Background

¶ 3 Stemming from an incident during which Lavadie took a cell 

phone from one of the victims while holding an open pocket knife 

and a rock, he was charged by information with the following 

felonies: (1) aggravated robbery; (2) two counts of menacing; and (3) 

theft from a person, in violation of section 18-4-401(5), C.R.S. 2019. 
3

¶ 4 At his first court appearance after his arrest, Lavadie rejected 

the trial court’s offer to appoint an attorney to represent him. And, 

at the beginning of the preliminary hearing roughly two weeks later, 

the trial court asked Lavadie if he wanted an attorney to represent 

him. Lavadie responded, “I wish not to enter into the corporation 

by any means.” 

¶ 5 The court then attempted to conduct an advisement pursuant 

to People v. Arguello, 772 P.2d 87, 94-95 (Colo. 1989), and the 

following exchange occurred:

[COURT]: Mr. Lavadie, I do need to have a

discussion with you about your decision to 

represent yourself and so I have some 

questions for you. First of all, do you

understand that you have the right to be 

represented by an attorney?

[LAVADIE]: No, I do not understand anything.

[COURT]: All right. Do you understand that if 

you cannot afford an attorney, one will be 

appointed to represent you at no cost to you?

[LAVADIE]: I would not like to enter into the

corporation.

[COURT]: All right.

[LAVADIE]: For any reason.
4

[COURT]: Do you understand I will appoint an

attorney if you want an attorney to represent 

you?

[LAVADIE]: I, I, [Judge], I don’t mean an- -,

any disrespect. I wish not to participate with 

the established corporation that is a 

half-truth, which makes it a whole lie.

[COURT]: All right, and that’s an important 

answer to that question. And so I understand 

you don’t want to participate, but I have to ask 

you these questions, and once I have answers 

to these, we can be done with this. Do you

understand that, Mr. Lavadie?

[LAVADIE]: Yes, sir.

[COURT]: All right. Do you understand that 

there are charges against you that carry 

the . . . penalties that we’ve discussed 

previously? Those include robbery, menacing, 

two counts of menacing, and theft from a

person?

[LAVADIE]: First of all, Your Honor, I have not 

been given a discovery, okay, and that’s my, 

my right, okay.

[COURT]: And we can have a discussion about

discovery in just a minute. I just want to -

[LAVADIE]: Okay. 

. . . .

[COURT]: Okay. And do you understand the 

potential penalties that you can face for those 

counts include a sentence of 2 to 6 years in 

the Department of Corrections, up to 12 years
5

in the aggravated range, 3 years of parole, a 

fine of [$]2,000 to $500,000.00?

[LAVADIE]: That’s all corporation. I do not do

corporation.

[COURT]: Okay. And do you, Mr. Lavadie, tell 

me about, you just cited some law to me which 

was, it’s a, some law on point. Do you have 

any legal training?

[LAVADIE]: I’ve been doing this for a little 

while, Your Honor, and I wish not to do it any 

longer, or, [Judge]. I –

[COURT]: And when you say this, what is 

this?

[LAVADIE]: I’ve been brought before the 

judgment seat of man pretty much all my life 

since I was 14 years old. I’m now 47. I have a 

lot of experience of the persuasive words and 

the flattery speech that is meant to beguile the 

minds of the innocent, and I wish not to 

participate with it anymore.

. . . .

[COURT]: Did you graduate high school?

[LAVADIE]: No, I was dismissed.

. . . .

[COURT]: Okay. How long ago was that? Do 

you recall that?

[LAVADIE]: I don’t.

[COURT]: Okay. Are you under the influence 

of any drugs, medications, alcohol, anything 
6

impacting your ability to understand what 

we’re doing here today?

[LAVADIE]: No, [Judge].

[COURT]: Do you understand that criminal 

law is a complicated area and that an attorney 

trained in the field could be a great help in 

preparing and representing your defense?

[LAVADIE]: You, you’re trying, I, I wish not to

enter into any part of the corporation 

whatsoever.

. . . .

[COURT]: All right, let, let me ask you this, 

Mr. Lavadie. Do you understand that even if 

you don’t want an attorney to represent you, I 

can appoint advisory counsel to help you, and 

they could help you do such things as get 

discovery- -

[LAVADIE]: - Excuse me, [Judge]. This

lawyering craft that was created only to 

represent the corporation, which does not have 

my best interest at hand, I wish not to 

participate with, so I would ask you, [Judge], 

to please, please don’t offer me this no more.

. . . .

[COURT]: - so, you, let me just ask you so we 

can complete this, this advisement. Do you 

wish to have an attorney?

[LAVADIE]: I wish not to at all enter into the 

corporation.
7

¶ 6 After that discussion, the trial court made the following 

findings:

[B]ased upon the record and the advisement 

given pursuant to Arguello, the Court finds, 

based upon information provided by the 

Defendant, he did come in and at least 

provided the Court with a cite to authority that 

was relevant and applicable, so he does have 

at least a minimal understanding of the law, 

however, he indicates that he’s not 

participating in the proceeding and he 

questions the authority and jurisdiction of the 

Court, he indicates he doesn’t wish to 

participate, he hasn’t demonstrated that he 

can sufficiently answer any of the 

requirements for the Court to make a finding 

pursuant to Arguello that he is competent to 

represent himself, and for those reasons, the 

Court will appoint a public defender to 

represent Mr. Lavadie.

¶ 7 When the court said that it would continue the preliminary 

hearing because Lavadie would require the representation of an 

attorney, Lavadie interjected, “Did I do something wrong[?]” The 

court did not acknowledge that remark, and went on to discuss 

with the prosecutor a new date for the preliminary hearing.

¶ 8 At the next court date, while represented by appointed 

counsel, Lavadie was held in contempt for not sitting down and was 

removed from the courtroom. His counsel told the court that 
8

Lavadie did not want to be represented by him and that he believed 

that presented a conflict of interest. 

¶ 9 At the next hearing, Lavadie appeared with his newly 

appointed ADC because the public defender had withdrawn, but 

Lavadie insisted from the outset that the ADC was not his attorney. 

The ADC then addressed the court telling it that Lavadie had told 

him 

to ask the Court to dismiss [him] from the case 

as his representation. He wants to be self 

represented in his -- in this case. He’s made it 

pretty clear to me that he wants to represent 

himself. That he has some different ideas than 

I do as far as the case goes. He talks about if 

he has me representing him then he’ll become 

. . . part of the corporation and end up giving 

up his liberty and freedom to represent himself 

in this case.

¶ 10 After discussions with the ADC and prosecutor regarding the 

requirements for a knowing and intelligent waiver of the right to 

counsel, the court said:

Well for the purpose of both People [v.] Davis

and Arguello, I believe the Court does have to 

find that based upon the totality of the 

circumstances there’s a demonstration of a 

knowing and intelligent waiver of the right to 

be represented by an attorney. Thus 

indicating also that one is able and knowing, 
9

voluntary and intelligent way to exercise the 

right to self-representation.

That requires the understanding of the nature 

of the charges, the statutory offenses included 

with them, the range of liable punishments 

they’re under, possible defenses to the 

charges, circumstances and mitigation thereof 

and all the other facts essential to a broad 

understanding of the whole matter.

Part of that is an understanding of the 

jurisdiction of this Court, the applicable 

validity of the rules of law that govern the 

proceedings in this matter as well as the 

substantive both procedural and substantive 

law that governs the case and that’s what the 

Defendant is lacking in terms of being able to 

knowingly and intelligently represent himself 

in this case.

And so the Court previously made those 

findings on the record and I find nothing new 

today to indicate that anything has changed 

with regard to the ability -- the ability of the 

Defendant to represent himself.

And so the Court can’t -- doesn’t make any 

change in the Arguello determination it 

previously made when it appointed [ADC] as 

Counsel.

¶ 11 At two of the subsequent hearings, and again on the first day 

of the trial, Lavadie persisted in his desire to represent himself. The 

court, however, did not readdress the issue; Lavadie was ultimately 

represented throughout his trial by ADC. 
10

¶ 12 Although the court entered a judgment of acquittal on the 

felony theft from a person count, the jury found Lavadie guilty of 

aggravated robbery, felony menacing counts, and misdemeanor 

theft.

II. Trial Court Improperly Denied Defendant His Sixth 

Amendment Right to Self-Representation

¶ 13 Lavadie contends that the trial court violated his Sixth 

Amendment right to self-representation when it forced him to be 

represented by counsel despite his repeated and unequivocal 

requests to represent himself. We agree.

A. Standard of Review

¶ 14 Whether a trial court properly denied a defendant’s right to 

self-representation poses a question of law we review de novo. 

People v. Abdu, 215 P.3d 1265, 1267 (Colo. App. 2009). If we

conclude that a trial court denied a defendant’s right to 

self-representation, structural error results, and we must reverse. 

See People v. Waller, 2016 COA 115, ¶ 23 (stating that structural 

error, and not harmless error analysis, applies to the denial of the 

right to self-representation).
11

B. Constitutional Right to Self-Representation

¶ 15 The Sixth Amendment to the United States Constitution, as 

well as the Colorado Constitution guarantee the right of a criminal 

defendant to represent himself at trial. See Faretta v. California, 

422 U.S. 806, 818 (1975) (“The Sixth Amendment does not provide 

merely that a defense shall be made for the accused; it grants to the 

accused personally the right to make his defense.”); see also Colo. 

Const. art. II, § 16 (“[T]he accused shall have the right to appear 

and defend in person.”).

¶ 16 “The right of self-representation . . . is personal to the 

defendant and may not be abridged by compelling a defendant to 

accept a lawyer when he desires to represent himself.” People v. 

Romero, 694 P.2d 1256, 1264 (Colo. 1985); see also People v. 

Johnson, 2015 COA 54, ¶ 16. 

¶ 17 Because waiving the right to counsel and opting to proceed pro 

se implicates constitutional rights, the trial court must ensure that 

the defendant has knowingly, intelligently, and voluntarily

relinquished the right to counsel in favor of proceeding pro se. See

Arguello, 772 P.2d at 93. Indeed, “a trial court’s ability to force 
12

counsel upon an unwilling defendant is limited.” Reliford v. People, 

195 Colo. 549, 552, 579 P.2d 1145, 1147 (1978).

¶ 18 When a defendant asserts a violation of his right to 

self-representation, appellate courts generally consider whether the 

trial court appointed counsel despite the defendant’s unequivocal 

waiver of his right to counsel. See People v. West, 2019 COA 131, 

¶¶ 18-19. Even if a defendant properly invokes the right to selfrepresentation, however, the defendant must still show that he

“knowingly and intelligently” relinquishes the benefits of 

representation by counsel. Faretta, 422 U.S. at 835; Arguello, 772 

P.2d at 93; see also Ronquillo v. People, 2017 CO 99, ¶ 32. 

¶ 19 “The trial court should conduct a thorough and comprehensive 

inquiry on the record to determine whether the defendant is aware 

of the nature of the charges, the range of allowable punishments, 

possible defenses, and the risks of proceeding pro se.” Johnson, 

¶ 17 (citing United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.

1991)).

¶ 20 While the Supreme Court “has not ‘prescribed any formula or 

script to be read to a defendant who states that he elects to proceed 

without counsel[,]’ . . . ‘[t]he information a defendant must possess 
13

in order to make an intelligent election . . . will depend on a range of 

case-specific factors, including the defendant’s education or 

sophistication, the complex or easily grasped nature of the charge, 

and the stage of the proceeding.” United States v. Hansen, 929 F.3d 

1238, 1251 (10th Cir. 2019) (quoting Iowa v. Tovar, 541 U.S. 77, 88 

(2004)); see also Arguello, 772 P.2d at 95 (the validity of the waiver 

must be determined on the basis of the particular facts and 

circumstances of each case, including the background, experience, 

and conduct of the defendant).

C. Analysis

¶ 21 Here, the record reveals that, throughout the proceedings,

Lavadie consistently indicated that he did not want an attorney and 

wanted to represent himself. He never wavered from that position. 

Thus, the trial court properly attempted to ascertain whether his 

waiver of his right to counsel was knowing and intelligent by trying 

to conduct an Arguello advisement. 

¶ 22 Throughout that advisement, however, Lavadie repeatedly gave

unresponsive answers to the court’s questions, insisting that he 

“did not do corporation” or “did not want to enter into the 

corporation,” thereby conveying his refusal to participate in the 
14

proceeding. Faced with Lavadie’s unresponsiveness, the trial court 

told him, “I understand you don’t want to participate, but I have to 

ask you these questions, and once I have answers to these, we can 

be done with this. Do you understand that, Mr. Lavadie?” But, 

despite affirmatively indicating that he understood, Lavadie’s 

remaining answers to the court did not convey that he understood 

the right he was waiving. The trial court ended the advisement 

finding that it could not conclude he was “competent to represent 

himself,”1 and appointed a public defender to represent him.

 1 Although the trial court used the word “competent” in its findings, 

this case is not about Lavadie’s competence to stand trial. True, 

there is a close correlation between a defendant’s competence to 

stand trial and his or her competence to waive the right to counsel. 

See, e.g., United States v. Herrera-Martinez, 985 F.2d 298, 302 (6th 

Cir. 1993) (“[T]he fact that the district court found that Appellant 

was competent to stand trial is not conclusive as to whether she 

was competent to waive her right to counsel.”); United States v. 

McDowell, 814 F.2d 245, 250 (6th Cir. 1987) (recognizing “that the 

degree of competency required to waive counsel is ‘vaguely higher’ 

than the competency required to stand trial”), abrogated by Godinez 

v. Moran, 509 U.S. 389 (1993); People v. Davis, 2015 CO 36M, 

¶¶ 16-17 (discussing the relationship between competence to stand 

trial and competence to waive counsel); People v. Rawson, 97 P.3d 

315, 322 (Colo. App. 2004) (holding that a finding that defendant is 

competent to stand trial “is not a substitute for the level of inquiry 

and degree of competence necessary for a valid waiver of counsel”). 

But Lavadie did not contend in the trial court, and does not 

contends on appeal, that he was not competent to stand trial or 

that the court erred by failing to explore the issue further than it 
15

¶ 23 We begin by noting that “[t]he right of self-representation is 

not a license to abuse the dignity of the courtroom.” Faretta, 422 

U.S. at 834 n.46. And, a trial court faced with an obstreperous, 

uncooperative, or recalcitrant defendant may terminate 

self-representation if he deliberately engages in such behavior. See 

id. The same holds true for invoking the right in the first instance.

¶ 24 The Supreme Court has also recognized that an “obstreperous 

defendant” could be removed from the courtroom “until he promises 

to conduct himself properly.” Illinois v. Allen, 397 U.S. 337, 343-44

(1970). It follows then, that a defendant who behaves in such a 

manner waives his right to proceed pro se, and the court can 

appoint counsel to act in his stead while he is removed from the 

courtroom. See Faretta, 422 U.S. at 834 n.46. The refusal to 

provide answers to questions during an advisement is similar to a 

refusal to attend proceedings, and the court may treat it as a waiver 

of the right to self-representation. United States v. Pryor, 842 F.3d 

441, 450 (6th Cir. 2016).

 

did. Thus, in this opinion we are neither analyzing the relationship 

between competency to stand trial and competence to waive the 

right to counsel nor whether or when a defendant may satisfy the 

former but not the latter. 
16

¶ 25 However, as recognized in Justice Brennan’s concurrence in 

Allen, 397 U.S. at 350, “no action against an unruly defendant is 

permissible except after he has been fully and fairly informed that 

his conduct is wrong and intolerable, and warned of the possible 

consequences of continued misbehavior.” That is what was lacking 

here.

¶ 26 While Allen involved a defendant who was removed from the 

courtroom during his trial because he engaged in disorderly and 

disruptive speech and conduct such that it was difficult or nearly 

impossible to conduct the trial, see id. at 338 (majority opinion), we 

conclude that the requirement that a defendant be fully and fairly 

informed that his continued uncooperative conduct will have 

possible consequences applies equally to an advisement regarding a 

defendant’s waiver of his right to counsel where the defendant 

provides non-responsive answers or otherwise refuses to 

acknowledge the trial court’s jurisdiction. Cf. Pryor, 842 F.3d at 

450 (holding that because the magistrate expressly warned the 

defendant that his failure to answer the questions posed by the 

court during the Faretta advisement would result in counsel being 

appointed for him, the court did not violate the defendant’s 
17

constitutional right to self-representation when it appointed counsel 

for him after he continued to provide non-responsive answers). 

¶ 27 Indeed, we find the Sixth Circuit Court of Appeals’ analysis in 

Pryor instructive. There, in the trial court proceedings, the 

magistrate judge, after attempting “to have the [defendant] 

expressly state he wished to represent himself, clearly warned [him] 

that failure to respond to the question would result in the 

appointment of . . . [an] attorney.” Id. at 450. The Sixth Circuit, in 

deciding that the appointment of counsel against the defendant’s 

will in that case did not violate his constitutional right to 

self-representation, explained that 

[c]ourts dealing with defendants seeking to 

represent themselves face a dilemma: the 

potential for an unconstitutional denial of the 

right to counsel if the right to 

self-representation is too quickly provided or 

reversal for unconstitutional denial of the right 

to self-representation if the right to counsel is 

too vigorously shielded. The method that our 

court has devised to avoid the predicament is 

to provide an opportunity for defendants to 

indicate their desire to waive the right to 

counsel and then to undertake a thorough 

review of the detriments and disadvantages 

that accompany such a waiver. Where the 

defendant through his own actions does not 

permit the court to ascertain whether a waiver 

is knowing or voluntary, or even if he means to 
18

waive at all, he cannot use the court’s failure 

to acknowledge the waiver later to take a 

mulligan and try his case again if he loses.

This is not to say that an obstreperous 

defendant has forever waived his right to 

self-representation; on the contrary, where “he 

promises to conduct himself properly,” the 

court should reinvestigate the invocation. 

Id. at 451 (quoting Allen, 397 U.S. at 344).

¶ 28 Here, like the defendant in Pryor, Lavadie’s behavior made it 

difficult, if not impossible, for the court to ascertain whether his 

waiver of his right to counsel was knowing and intelligent. Indeed, 

the trial court here did a yeoman’s job of endeavoring to have 

Lavadie demonstrate that his waiver was knowing and intelligent 

while maintaining admirable control. However, unlike the 

magistrate judge in Pryor, the trial court here did not expressly tell 

Lavadie that his failure to provide responsive answers to the 

questions would result in an attorney being appointed to represent 

him. Cf. Arguello, 772 P.2d at 97 (“[B]efore a reviewing court can 

find a valid implied waiver based on conduct, there must be ample, 

unequivocal evidence in the record that the defendant was advised 

properly in advance of the consequences of his actions.”). We find 

that distinction dispositive.
19

¶ 29 Even though the trial court told Lavadie that it needed to 

finish the Arguello questions in order to move on, it is clear that 

Lavadie was unaware that his failure to answer the questions would 

result in an attorney being appointed for him against his wishes. 

Importantly, when the court continued the hearing to appoint 

counsel, Lavadie asked, “[d]id I do something wrong?” The court 

should have answered that question with “yes,” followed by an 

explanation that his refusal to give appropriate answers to the 

advisement questions would result in the court denying his request 

to represent himself, appointing counsel for him, and refusing to 

entertain a future request to proceed pro se.

¶ 30 We acknowledge the difficulty trial courts face in dealing with 

such defendants; still, we hold that, before a trial court can 

conclude a defendant will not be permitted to represent himself

based on obstreperous or uncooperative conduct, it must advise the 

defendant that one possible consequence of refusing to answer the 

court’s questions, offering nonsensical responses to those 

questions, or generally refusing to acknowledge the court’s 

jurisdiction will be a denial of his request to represent himself, the 

appointment of counsel against his wishes, and a barrier to the 
20

court entertaining a subsequent request to represent himself. Id.

(noting the importance of “adequately explaining to [the defendant] 

the potential consequences of his behavior” before imposing a 

forfeiture of a right based on such behavior). But even when such 

an advisement is given, the court should still reinvestigate its 

decision to appoint counsel for a defendant against his wishes if, at 

a subsequent hearing, the defendant indicates that he is willing to 

engage in an appropriate dialogue with the court and properly 

conduct himself. Pryor, 842 F.3d at 451.

¶ 31 Applying that rule to this case, we conclude that the trial court

violated Lavadie’s constitutional right to represent himself because

it (1) failed to expressly warn him before terminating the advisement 

and appointing counsel that his continued refusal to answer the 

court’s questions would result in the court appointing counsel for 

him and declining to entertain a subsequent request to represent 

himself; and (2) did not allow Lavadie an opportunity to indicate he 

would engage in an appropriate dialogue with the court when 

Lavadie reasserted at subsequent hearings that he wanted to 

represent himself. See Allen, 397 U.S. at 344, 350; Pryor, 842 F.3d 

at 450-51. 
21

¶ 32 Accordingly, because a violation of the right of 

self-representation constitutes structural error, Lavadie’s 

convictions must be reversed and the case remanded for a new trial. 

See Waller, ¶ 23.

III. Remand Proceedings

¶ 33 We note that Lavadie was tried on one count of aggravated 

robbery, a class four felony; two counts of menacing, both class five 

felonies; and one count of theft from a person, a class five felony. 

At the conclusion of the prosecution’s case, Lavadie, through 

counsel, sought a judgment of acquittal on the theft from a person 

count, section 18-4-401(5), because elements of that crime include 

the victim being unaware of the theft and that the theft was not 

accomplished through force, threats, or intimidation, and because 

the evidence at trial did not support such a charge. The trial court 

agreed and granted Lavadie’s motion for judgment of acquittal on 

that count. See People v. Delgado, 2019 CO 82, ¶ 2 (holding that 

because convictions on both theft from a person and robbery are 

mutually exclusive, a defendant cannot be convicted of both). 

¶ 34 In response, the prosecution requested that the jury be 

instructed on misdemeanor theft under section 18-4-401(1) and
22

(2)(d), where the misdemeanor classification is based on the value of 

the item taken. Because the information charging Lavadie 

referenced both subsections (1) and (5) of the theft statute, the 

court granted the prosecution’s request. And, as relevant here, the 

jury returned a guilty verdict on the misdemeanor theft count,

finding that the value of the item taken was between $300 and 

$749. 

¶ 35 At the sentencing hearing, the court initially entered a 

conviction and sentence for the felony theft from a person count; 

but after the prosecution reminded the court that it had entered a 

judgment of acquittal on that count, the court reversed itself and 

did not enter a conviction or sentence on the felony theft charge.

However, it appears that the court and the parties overlooked the 

jury’s guilty verdict on the misdemeanor theft count and a 

judgment of conviction and sentence were not entered for that 

count. 

¶ 36 On remand, Lavadie’s new trial can encompass the aggravated 

robbery, menacing, and misdemeanor theft counts that the jury 

found him guilty of in the first trial. However, because the court 

entered a judgment of acquittal on the felony theft from a person 
23

count, he cannot be retried for that count. See People v. Porter, 

2015 CO 34, ¶ 9 (the Double Jeopardy Clauses of the United States 

and Colorado Constitutions prevent a second prosecution for the 

same offense after an acquittal).

IV. Conclusion

¶ 37 The judgment of conviction is reversed, and the case is 

remanded for a new trial consistent with the views expressed in this 

opinion. 

JUDGE FURMAN and JUDGE PAWAR concur.