 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Balderrama5/8/2003
MEMORANDUM DECISION
Not For Official Publication
Appellant Angel Balderrama appeals his conviction of Driving Under the Influence of Alcohol, a class B misdemeanor. In lieu of a brief, the State has filed a Concession of Error and Motion for Summary Reversal and Remand.
The State concedes that Balderrama "did not knowingly waive his Sixth Amendment right to counsel, and the trial court did not fully advise the defendant of that right as required by State v. Heaton, 948 P.2d 911 (Utah 1998)." The State further concedes that "the trial court erred in refusing to permit [Balderrama] to withdraw his plea as waiver of counsel was not supported by a colloquy to demonstrate a constitutionally adequate waiver of counsel." State v. Petty, 2001 UT App 396, 38 P.3d 998, cert. denied, 42 P.3d 951 (Utah 2002).
In Petty, this court stated the following requirements for the colloquy preceding a waiver of the right to counsel:
At a minimum, during the colloquy the trial court must (1) inform the defendant of his constitutional right to counsel and his right to represent himself; (2) determine that the defendant has the "intelligence and capacity to understand and appreciate the consequences of the decision to represent himself"; and (3) make certain that the defendant "comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case." Id. at (citations omitted).
We continued that "it must be clear from the colloquy that the defendant understands the risks he faces in making the decision," which must include "a discussion of the nature of the charges and the possible penalties." Id. at .
Based upon the arguments in Appellant's opening brief and the concession of the State, we reverse the conviction and the denial of the motion to withdraw guilty plea, and we remand the case with directions to allow Balderrama to withdraw his guilty plea. Our disposition makes it unnecessary to consider the remaining issues raised on appeal.
James Z. Davis, Judge
Pamela T. Greenwood, Judge
I CONCUR IN THE RESULT:
Gregory K. Orme, Judge
|