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Lucero v. Kennard4/1/2004
erly and validly chose the second option, and the trial court correctly determined that it did have jurisdiction to hear the merits of Lucero's petition for post-conviction relief. I would accordingly conclude that the majority's reversal of that threshold determination is in error.
FN4. At oral argument, Murray City Justice Court argued that allowing defendants who are convicted in justice court to have two separate avenues of appellate relief is unnecessary and duplicative. This concern, however,
is misplaced. Instead, I think that there is a certain degree of logic present in allowing a defendant to bypass the trial de novo stage and instead directly appeal for post-conviction relief. The financial costs and emotional tolls that are involved in having to prepare for and go through a trial de novo can be heavy. In situations where a defendant has suffered a clear constitutional wrong at the justice court level, it would seem patently unjust to require the defendant to pay for and endure a full trial before allowing the defendant any access to direct appellate review. Instead, I think that our statutory scheme is wise in allowing defendants in such situations to immediately petition a court for redress under the Post Conviction Remedies Act, while at the same time allowing defendants who are willing to proceed to trial the opportunity to pursue that course of action instead. Regardless, I again note that this appears to be the statutorily created system. Thus, I see no option but to conclude that, as presently constituted, the Utah Code does allow a defendant to choose between these two different forms of relief.
II. Lucero's Petition for Post Conviction Relief
**22 Because of my conclusion that Lucero did have a right to petition for post-conviction relief, I think that we are obligated to review the district court's determination that Lucero's waiver of the right to counsel at the justice court proceeding was constitutionally valid. Having reviewed the record and the applicable law, I would conclude that Lucero did not validly waive his right to counsel and that the district court's denial of Lucero's *183 petition for post-conviction relief should accordingly be reversed.
**23 "The right to have the assistance of counsel in a criminal trial is a fundamental constitutional right which must be jealously protected by the trial court." State v. Heaton, 958 P.2d 911, 917 (Utah 1998). "Because of the importance of the right to counsel and the heavy burden placed upon the trial court to protect this right, there is a presumption against waiver, and doubts concerning waiver must be resolved in the defendant's favor." Id. However, because the right to assistance of counsel is "personal in nature," State v. Frampton, 737 P.2d 183, 187 (Utah 1987), the right "may be waived by a competent accused if the waiver is 'knowingly and intelligently' made." Id. (citation omitted); see also State v. Bakalov, 849 P.2d 629, 633 (Utah Ct.App.1993). Further, the relevant Utah cases establish that there is a distinction between the "knowingly" and the "intelligently" prongs of the waiver test.
"Intelligent" in this context means "only that the defendant has been provided with adequate information on which to make his or her self- representation choice. Because such a choice is seldom, if ever, a wise one, 'intelligent' does not carry that meaning here." "Knowing" refers to a defendant's competence to waive the right to counsel, similar to a defendant's competence to stand trial....
State v. McDonald, 922 P.2d 776, 779 (Utah Ct.App.1996) (citations omitted).
**24 Before determining that a defendant has knowingly and intelligently waived his or her right to counsel, a trial court has an affirmative duty to "conduct a thorough inquiry
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