State v. Vancleave, 980210-CA.

• Decision Date: 19 July 2001
• Docket Number: No. 980210-CA.,980210-CA.
• Citation: 2001 UT App 228,29 P.3d 680
• Parties: STATE of Utah, Plaintiff and Appellee, v. Rodger VANCLEAVE, Defendant and Appellant.
• Court: Utah Court of Appeals

29 P.3d 680

2001 UT App 228

STATE of Utah, Plaintiff and Appellee, v. Rodger VANCLEAVE, Defendant and Appellant.

No. 980210-CA.

Court of Appeals of Utah.

July 19, 2001.

Margaret P. Lindsay, Aldrich, Nelson, Weight & Esplin, Provo, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and THORNE.

OPINION

THORNE, Judge:

¶ 1 Defendant Rodger Vancleave appeals from his convictions for possession of a clandestine drug lab, a first degree felony; possession of a dangerous weapon by a restricted person, a second degree felony; possession or use of drug paraphernalia in a drug free zone, a class A misdemeanor; carrying a loaded firearm in a motor vehicle, a class B misdemeanor; and speeding, a class C misdemeanor. We affirm.

BACKGROUND

¶ 2 The underlying facts of this matter are not in dispute. On March 17, 1997, Deputy David Knowles of the Utah County Sheriff's Office, while on routine traffic patrol, stopped defendant for speeding. During the stop, the deputy discovered that defendant was the subject of an outstanding felony warrant. Subsequently, the deputy arrested defendant and searched his vehicle. During the search, the deputy discovered the materials necessary to construct a methamphetamine lab, a fully loaded .357 magnum, a full box of .357 shells, a partially burnt marijuana cigarette, and broken glass covered with methamphetamine residue. As a result, defendant was charged with possession of a clandestine drug lab and six other drug and firearm related crimes.

¶ 3 On April 14, 1997, the trial court appointed Mr. Steve Killpack to represent defendant. On April 21, June 12, and August 18, defendant petitioned the trial court to remove Mr. Killpack.¹ The trial court denied each of defendant's motions and on each occasion asked defendant if he would prefer to represent himself. Each time, after a brief dialogue with the court, defendant chose to retain Mr. Killpack as counsel. However, defendant consistently maintained that Mr. Killpack's refusal to follow his instructions, as well as his refusal to file certain motions, amounted to Mr. Killpack's failure to fully represent defendant. Defendant also submitted several pro se motions² without consulting Mr. Killpack, despite the trial courts instruction that all motions and argument should flow through Mr. Killpack.

¶ 4 Finally, on the morning of defendant's trial, and following defendant's repeated refusal to comply with the court's instructions, the trial court asked defendant to choose between representing himself or accepting the representation of Mr. Killpack. Following a brief exchange with the court, defendant chose to represent himself. The trial court cautioned defendant as to the wisdom of this choice; however, the trial court accepted defendant's decision and retained Mr. Killpack in an advisory role. Ultimately, the jury convicted defendant of five of the seven charges. He now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 5 Defendant's sole argument on appeal is that he did not intelligently and voluntarily waive his right to counsel at trial. "[T]he question of whether a defendant knowingly, intelligently, and voluntarily waives the right to counsel is `highly fact dependant, and the fact patterns are quite variable.'" State v. McDonald, 922 P.2d 776, 781 (Utah Ct.App.1996) (citation omitted). However, the right to counsel is constitutionally protected, see id., therefore, "[w]hether a waiver of counsel was made knowingly and intelligently is a mixed question of law and fact." State v. Heaton, 958 P.2d 911, 914 (Utah 1998). Thus, we review the trial court's factual findings for clear error, and its legal conclusions for correctness. See State v. Tenney, 913 P.2d 750, 753 (Utah Ct.App.1996)

.

ANALYSIS

¶ 6 Under these circumstances, we must first examine whether the trial court properly discharged its duty to inquire following defendant's motions to remove Mr. Killpack. See State v. Valencia, 2001 UT App 159, ¶ 13, 421 Utah Adv. Rep. 11

. We then must determine whether the trial court properly determined that good cause did not exist to require the appointment of substitute counsel. See id. at ¶ 14, 27 P.3d 573. Finally, we examine whether defendant properly waived his right to counsel. See id. at ¶ 19, 27 P.3d 573.

I. The Trial Court's Duty to Inquire

¶ 7 "[T]he trial court has a duty to `make some reasonable, non-suggestive efforts to determine the nature of [a] defendant's complaints' before deciding whether good cause [to appoint] substitute counsel exists." Id. at ¶ 13, 27 P.3d 573 (citation omitted). In the instant case, defendant petitioned the court to remove Mr. Killpack on at least three separate occasions: once expressing an interest in retaining counsel from out-of-state, and thereafter expressing his dissatisfaction with Mr. Killpack's services.

¶ 8 The trial court, in an effort to fully investigate defendant's claims, asked defendant to explain the reasons underlying his dissatisfaction, thereby attempting to explore the substance of defendant's complaint before denying his request. See State v. Vessey, 967 P.2d 960, 962-64 (Utah Ct.App. 1998)

. Additionally, the trial court explained to defendant that if he could show a true conflict of interest existed with Mr. Killpack, defendant would then be entitled to substitute appointed counsel. Accordingly, while the trial court's inquiry is not a model of clarity, we conclude that the trial court sufficiently discharged its duty to inquire.

II. Good Cause for Substitute Counsel

¶ 9 Next, we would normally determine whether defendant presented the trial court with sufficient information to establish the good cause necessary to trigger the appointment of substitute counsel. See Valencia, 2001 UT App 159

at ¶ 14, 27 P.3d 573. "It is well established that to warrant substitution of counsel, a defendant `must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.'" State v. Lovell, 1999 UT 40, ¶ 31, 984 P.2d 382 (quoting United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (citation omitted)). However, defendant does not challenge the trial court's denial of his motion for substitute counsel; therefore, we assume that the trial court's determination was correct. See State v. Rodriguez, 841 P.2d 1228, 1229 (Utah Ct.App.1992)(holding that, "[i]n general, if a defendant has not raised an issue on appeal, we may not consider the issue sua sponte"). Accordingly, we are left to examine whether defendant properly waived his right to counsel.

III. Waiver of the Sixth Amendment Right to Counsel

¶ 10 The Sixth Amendment guarantees both a defendant's right to representation by counsel, including the right to appointed counsel, and the right to proceed pro se. See State v. Heaton, 958 P.2d 911, 917

. When faced with a defendant who is unwilling to "proceed to trial with appointed counsel or insists on proceeding pro se," a trial court must balance the defendant's right to counsel with his right to represent himself. Id. However, a trial court also "must honor a defendant's choice of self-representation unless the court finds that the [defendant's] waiver was not [made] knowing[ly], intelligent[ly,] and voluntary[ly]." State v. McDonald, 922 P.2d 776, 779 (internal citations omitted). Therefore,

we have recommended that trial court[s] conduct an on-the-record colloquy with the accused [during] which the court should fully inform the accused "of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open."

State v. Bakalov, 1999 UT 45, ¶ 23, 979 P.2d 799 (quoting State v. Frampton, 737 P.2d 183, 187 (Utah 1987)). "[I]n the absence of such a colloquy, this court will look at the record and make a de novo determination regarding the validity of the defendant's waiver only in extraordinary circumstances." Heaton, 958 P.2d at 918.

¶ 11 In the present matter, defendant concedes that a colloquy took place. Thus, we are left to determine whether defendant's waiver of counsel was made both intelligently and voluntarily.³

¶ 12 Defendant first argues that his waiver was not voluntary because the trial court refused to appoint substitute counsel. In the context of a defendant's decision to waive the right to counsel, we have defined voluntary to mean "`free from official coercion, even if not free from the influence of a mental disorder.'" McDonald, 922 P.2d at 779 (quoting State v. Drobel, 815 P.2d 724, 732 n. 11 (Utah Ct.App.1991)). Moreover, as our supreme court stated in Bakalov, "`"[a] defendant may be asked, in the interest of orderly procedures, to choose between waiver [of counsel] and another course of action as long as the choice presented to him is not constitutionally offensive."'" Bakalov, 1999 UT 45 at ¶ 17, 979 P.2d 799 (alteration in original) (quoting Frampton, 737 P.2d at 187 (quoting United States v. Davis, 604 F.2d 474, 485 (7th Cir.1979))).

¶ 13 Defendant's fundamental argument is that, in forcing him to choose between Mr. Killpack's representation or representing himself, the trial court forced him to waive his right to counsel. We disagree. In Bakalov, the Utah Supreme Court addressed a similar argument. There, the trial court assigned the defendant a competent, conflict-free counsel with whom defendant refused to cooperate. See id. at ¶ 18, 979 P.2d 799. The defendant demanded that counsel "strictly follow tactics dictated" by him, and, after counsel refused, the defendant repeatedly demanded that the trial court assign substitute counsel.⁴ Id. As a result, the trial court "presented defendant with the choice of either accepting representation" from appointed counsel or proceeding pro se. Id. at ¶ 19, 979 P.2d 799.

¶ 14 On appeal, the supreme court explained that so long as no...