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Lucero v. Kennard4/1/2004
utional law, Utah courts have long enforced the Faretta directive as part of the Sixth Amendment analysis. See Heaton, 958 P.2d at 918; Frampton, 737 P.2d at 188; State v. Ruple, 631 P.2d 874, 875-76 (Utah 1981); State v. Dominguez, 564 P.2d 768, 769-70 (Utah 1977); State v. Petty, 2001 UT App 396, 8, 38 P.3d 998; Valencia, 2001 UT App 159 at 22, 27 P.3d 573; McDonald, 922 P.2d at 779; Bakalov, 849 P.2d at 633. [FN6]
FN6. Counsel for Murray City Justice Court points us to language in McDonald, wherein we stated that "a recommendation by the court against self-representation is not necessary for a defendant to intelligently waive the right to counsel." 922 P.2d at 785. Murray City Justice Court argues that this language obviates the duty of inquiry discussed above. I disagree. A careful reading of the precedent discussed above indicates that the trial court's specific duty here is to ensure that the defendant understands the "dangers and disadvantages " of self-representation. Heaton, 958 P.2d at 918 (emphasis added); accord McDonald, 922 P.2d
at 779. Though subtle, there is a clear distinction between a rule requiring the court to inform a defendant of the dangers and disadvantages of self-representation and one requiring the court to take the further step of actually advising the defendant not to represent himself or herself. The former is simply a fulfillment of the court's duty to ensure that the defendant has the proper information; the latter would put the trial court into the role of advisor to the defendant, a role that would clearly be impermissible. As discussed below, a subsequent decision by the United States Supreme Court may indicate that a warning of the dangers and disadvantages of self-representation is not required at all stages of litigation. However, I would stress here that our statement in McDonald regarding the lack of a "recommendation" requirement does not remove the duty of inquiry from trial courts before accepting a counsel waiver at the trial setting.
**26 The proper scope of the Faretta directive was recently addressed by the United States Supreme Court in Iowa v. Tovar, 541 U.S. 77, ----, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). [FN7] In Tovar, the defendant was arrested for operating a motor vehicle while under the influence of alcohol. See id. at ----, 124 S.Ct. at 1383. An intoxilyzer test administered the night of the defendant's arrest showed that he had a blood alcohol level that was well above the legal limit. See id. At his arraignment, the defendant informed the court that he wished to waive his right to counsel and that he wished to plead guilty. See id. at ----, 124 S.Ct. at 1384. The court accordingly conducted a plea colloquy in which the court explained that the defendant had the right to be represented at trial by an attorney who "could help [the defendant] select a jury, question and cross-examine the State's witnesses, present evidence, if any, in [his] behalf, and make arguments to the judge and jury on [his] behalf." Id. at ---- - ----, 124 S.Ct. at 1384. (second and third alterations in original). After receiving this and other warnings, the defendant affirmed his wish to waive his right to counsel and to plead guilty. See id. at ----, 124 S.Ct. at 1385.
FN7. Though Tovar was concededly decided after the events at issue here took place, it is a "long standing traditional rule ... that the law established by a court decision applies both prospectively and retrospectively, even when the decision overrules prior case law." Carter v. Galetka, 2001 UT 96, 26, 44 P.3d 626 (quotations and citations omitted).
**27 Several years later, the defendant was arrested for a third DUI offense, and accordingly sought to challenge his prior guilty plea as a means of avoiding
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