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Lucero v. Kennard4/1/2004
of the defendant" in order to ensure "that the defendant's waiver of counsel is knowingly, intelligently, and voluntarily made." Heaton, 958 P.2d at 918. Though a colloquy on the record is not required, see State v. Valencia, 2001 UT App 159, 20-22, 27 P.3d 573, it is "the preferred method of ascertaining the validity of a waiver because it insures that defendants understand the risks of self-representation." Frampton, 737 P.2d at 187. "Where there is no colloquy, [appellate courts] 'will look at any evidence in the record' " created in the district court in order to ascertain whether the district court has fulfilled its duty of inquiry. Valencia, 2001 UT App 159 at 22, 27 P.3d 573 (quoting Frampton, 737 P.2d at 188). [FN5]
FN5. In its brief and again at oral argument, counsel for Lucero asserted that, insofar as justice court proceedings are not conducted on the record, our review of this case should be limited to the information contained in the justice court docket or filings. The cases state, however, that an appellate court reviewing a waiver of that right must be able to look at " 'any evidence in the record' " in order to determine whether the right was properly waived. State v. Valencia, 2001 UT App 159, 22, 27 P.3d 573 (emphasis added) (quoting State v. Frampton, 737 P.2d 183, 188 (Utah 1987)); accord State v. Heaton, 958 P.2d 911, 919 (Utah 1998); State v. McDonald, 922 P.2d 776, 780 (Utah Ct.App.1996).
Similarly, I also note my disagreement with Lucero's assertion that the trial court in this case should not have received testimony from witnesses in its efforts to ascertain whether the waiver proceedings at the justice court were constitutionally valid. In State v. Gutierrez, the defendant sought to challenge the application of a repeat offender DUI enhancement statute to his case, therein arguing that his prior convictions were each invalid. See 2003 UT App 95, 2-5, 68 P.3d 1035. As part of his challenge, the defendant argued that one of his prior guilty pleas, entered at a justice court, had been involuntary. See id. at 9. In upholding the use of the justice court guilty plea by the trial court, we concluded
that Gutierrez had failed to prove involuntariness. See id. at 12. Addressing Gutierrez's concerns about how he could have established such proof where the justice court keeps no official record, we noted that "Gutierrez could have produced testimony from those who were present regarding the taking of his plea, the court's docket sheet, or other affirmative evidence." Id. In spite of this clear holding, Lucero suggests that there is a distinction between the trial court's use of such testimony for purposes of sentence enhancement and for use when the trial court reviews a petition for post-conviction relief. I disagree with that attempted distinction. In both situations, the trial court is simply exercising its authority to review the lower proceedings in order to determine whether they were constitutionally valid. Given the important nature of this solemn responsibility, I see no reason why the trial court should be limited in its ability to inquire as to what occurred in the justice court proceedings. Accordingly, I would conclude that the trial court's use of testimony and extrinsic evidence in this case was proper.
**25 In explaining the contours of this required inquiry, the United States Supreme Court has stated that the defendant "should be made aware of the dangers and disadvantages *184 of self-representation" prior to the trial court's acceptance of a waiver of the right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1974). In accordance with the United States Supreme Court's unquestioned authority over questions of federal constit
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