State v. Pedockie, 20030222-CA.

Decision Date01 July 2004
Docket NumberNo. 20030222-CA.,20030222-CA.
Citation2004 UT App 224,95 P.3d 1182
PartiesSTATE of Utah, Plaintiff and Appellee, v. Robert Brian PEDOCKIE, Defendant and Appellant.
CourtUtah Court of Appeals

Sharon L. Preston, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Kris C. Leonard, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BILLINGS, P.J., BENCH, Associate P.J., and THORNE, Jr., J.


BILLINGS, Presiding Judge:

¶ 1 Defendant Robert Pedockie appeals his conviction of aggravated kidnapping, a first degree felony in violation of Utah Code Annotated section 76-5-302 (1999). In particular, Defendant argues that (1) the trial court erred in denying his motion to dismiss because the State had failed to bring him to trial within 120 days in violation of Utah Code Annotated section 77-29-1 (1999) (Speedy Trial Statute); and (2) he was denied his state and federal constitutional right to assistance of counsel when the trial court determined that Defendant had waived his right to counsel and required him to represent himself.1 We reverse and remand for a new trial.


¶ 2 On January 3, 2001, Defendant went to the Ogden, Utah residence of his ex-girlfriend, Nicole Sather (Nicole), with his cousin, Justin Pedockie (Justin), and forced Nicole to accompany them on a drive in Defendant's truck. Justin carried a loaded rifle, and Defendant threatened to kill Nicole if she did not comply. At a stop in Payson, Utah, Nicole attempted to flee in Defendant's truck but she was shot at by Justin and ultimately stopped by Defendant. Later that day, Defendant dropped Justin off in Salt Lake City and then took Nicole to her home in Ogden where the two went inside and fell asleep. The next morning, as Defendant drove Nicole toward Park City, Utah, he threatened to kill her and then himself. At a stop for gas near Park City, Nicole slipped away from Defendant with help from one of the gas station clerks.

¶ 3 Defendant was charged with aggravated kidnapping. At Defendant's initial appearance on February 20, 2001, the Honorable Pamela G. Heffernan appointed an attorney from the Weber County Public Defenders' Association (PDA) to represent him. Defendant's first PDA attorney was Michael Bouwhuis, who was released from representing Defendant because he was actively representing two of the State's main witnesses. Defendant was then represented by a second PDA attorney, Michael Boyle. A preliminary hearing was set for April 13, 2001. However, at a hearing on April 10, 2001, Judge Heffernan recused herself from the case, and it was reassigned to the Honorable Ernie W. Jones, who set a preliminary hearing for May 25, 2001.

¶ 4 Defendant requested a 120-day disposition of his case pursuant to the Speedy Trial Statute, and on April 10, 2001, the Division of Institutional Operations at the Utah State Prison received the written notice. The trial court attempted to schedule trial for July 12, 2001, but defense counsel was not available until early August. Accordingly, Judge Jones bound Defendant over for trial.

¶ 5 At a pretrial conference on August 1, 2001, trial was reset for December 10, 2001 at Defendant's request. Thus, Defendant waived his right to a 120-day disposition as to this continuance.

¶ 6 At a pretrial motion hearing on November 29, 2001, Defendant was represented by a third PDA attorney, James Retallick, because Boyle's contract with Weber County had been terminated. The prosecutor requested a continuance of the trial date on the grounds that she had a murder trial set for December 10 in a case that predated Defendant's case. Retallick was prepared to go to trial on December 10. However, the trial judge found good cause for granting the continuance and issued Findings of Fact, Conclusions of Law and Order on December 3, 2001. The trial court attempted to reschedule trial for January 7, 2002, and January 14, 2002, but defense counsel was unavailable. Trial was then reset for February 4, 2002.

¶ 7 At a pretrial conference on January 9, 2002, Retallick indicated that Defendant had requested that he be terminated from Defendant's case because Retallick refused to file motions that Defendant insisted be filed. In particular, Retallick stated that Defendant wanted him to file motions regarding, inter alia, prosecutorial misconduct, 120-day disposition, and change of venue. Retallick had explained to Defendant that he did not have grounds to file these particular motions and that he found the motions to be "absolutely frivolous." Defendant stated that he wanted counsel who would follow his direction and file the motions he requested.

¶ 8 The trial judge explained to Defendant that while he had a right to counsel, he did not have a right to counsel of his choice from PDA. The trial judge further explained that if Defendant did not want to accept the advice of Retallick, then he could either hire his own attorney or represent himself. Defendant indicated that he wanted Retallick to continue to represent him. At the end of the hearing, the court confirmed that the trial would go forward on February 4.

¶ 9 On January 23, 2002, the trial court held a hearing addressing the issue of Defendant's counsel. Both the court and Retallick had received letters from Defendant requesting that Retallick be removed from the case. At the hearing, Defendant reiterated his desire to have PDA released from his case and indicated that he had hired a private attorney, Ed Brass, to represent him. The court allowed PDA to withdraw from representing Defendant. Defendant requested that the trial be continued so that Brass could prepare for trial. At a subsequent hearing on January 30, 2002, the court granted Defendant's request for a continuance and set the trial for April 15, 2002.

¶ 10 In a telephone conference three days before trial, Brass informed the court that he could no longer represent Defendant because of an "ethical issue." The court allowed Brass to withdraw from the case and explained to Defendant that once the trial was reset, the court would not allow any further continuances. Specifically, the court stated, "I want [you] to understand, I'm not [going to] continue this case again.... I don't care what your excuse or reason is, you either get an attorney who will represent you on the matter or you're just [going to] represent yourself next time it's scheduled."

¶ 11 At another pretrial conference on May 1, 2002, Defendant indicated that he was in the process of hiring an attorney from Provo but that the attorney had not yet agreed to take his case. At Defendant's request, the court set another pretrial conference for May 29, 2002. At that hearing, Defendant appeared pro se and indicated that he had been unable to retain private counsel because the attorneys he had contacted believed that it was unethical to file the motions that he wanted filed.

¶ 12 The court again informed Defendant that if he was unwilling to follow the advice of counsel, then he would have to represent himself. Defendant stated that he was not capable of representing himself and that he desired counsel. The court informed Defendant that if PDA was appointed again, it was final, and Defendant could not then retain private counsel. Defendant indicated that he did not want PDA to represent him because he intended to retain counsel.

¶ 13 The court appointed PDA as standby counsel and informed Defendant that he could still retain private counsel. The court cautioned Defendant that there would be no further continuances and scheduled the trial for September 30, 2002.

¶ 14 Defendant subsequently filed three motions: motion for a change of venue, motion to dismiss for prosecutorial misconduct, and motion to dismiss for violation of the Speedy Trial Act. A pretrial motion hearing was set for July 31, 2002. At the hearing, Defendant stated that he had hired Paul Grant as his attorney. On June 13, 2002, Paul Grant had entered an appearance of counsel for Defendant. However, Grant had moved to withdraw because after meeting with Defendant at the Utah State Prison, Defendant "told counsel that he does not want counsel to be his attorney of record." The court allowed Grant to withdraw. After the court determined that Grant was no longer Defendant's attorney, Defendant requested representation, and the court again appointed PDA to represent him.

¶ 15 The pretrial motion hearing was rescheduled for August 12, 2002, but because the prison failed to transport Defendant, the hearing was reset for the following day. Martin V. Gravis from PDA appeared on behalf of Defendant. The court informed Gravis that he was to act as standby counsel for Defendant. At the August 13, 2002 hearing, Defendant expressed his belief that the court had appointed PDA to represent him and again stated that he was not capable of representing himself. The court explained to Defendant that he would not be granted any more continuances and must argue his motions at that time. Defendant initially refused because he wanted an attorney to argue his motions and Gravis, as standby counsel, would not. The court explained to Defendant that Gravis was available to assist Defendant with legal issues but that Gravis was not going to argue his motions. Further, the court again informed Defendant that if Defendant wanted an attorney to represent him, he must follow that attorney's advice or represent himself. Defendant agreed to argue his motions as long as the record reflected Defendant's desire to have an attorney argue his motions and his objection to self-representation. The court denied all three motions.

¶ 16 At another pretrial hearing on August 21, 2002, Defendant again objected to representing himself and requested that counsel be appointed. Gravis again was present as standby counsel. The court again informed Defendant that he was not going to appoint another public defender because the court had "appointed several public defenders, [and] they've always asked to be recused because [...

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8 cases
  • State v. Stallings
    • United States
    • New Mexico Supreme Court
    • August 27, 2020 be unequivocally exercising his right to self-representation." (internal quotation marks, citation, and emphasis omitted)); State v. Pedockie , 2004 UT App 224, ¶ 34, 95 P.3d 1182 ("That [Defendant] did not particularly like the choice presented to him ... and that he did not want to pro......
  • State v. Treptow
    • United States
    • Iowa Supreme Court
    • May 28, 2021
    ...that good cause for failure to timely serve must be supported by some reasonable basis for noncompliance); State v. Pedockie , 95 P.3d 1182, 1188 (Utah Ct. App. 2004) (stating good cause for purposes of speedy trial must have reasonable basis).Where the legislature has not defined "good cau......
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  • Pedockie v. Bigelow
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