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State v. Smith

Court of Appeals of Utah

February 15, 2018

State of Utah, Appellee,
v.
Jonathan Denard Smith, Appellant.

         Third District Court, Salt Lake Department The Honorable James T. Blanch No. 151900912

          Amy N. Fowler, Attorney for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

          POHLMAN, JUDGE.

         ¶1 Jonathan Denard Smith appeals the sentences resulting from his guilty pleas for one count of damage to jail property, a third degree felony, and one count of attempted damage to jail property, a class A misdemeanor. He was sentenced on these two offenses without his counsel present because the district court determined that, for purposes of sentencing, Smith had voluntarily and knowingly waived his right to counsel. Smith argues that the court erred in that determination. We agree and therefore vacate Smith's sentences and remand for further proceedings.

         BACKGROUND

         ¶2 While Smith was in custody, two charges relevant to this appeal were filed against him-one for propelling a substance at an officer in January 2015, a class A misdemeanor (Case One), and one for damaging jail property in April 2015, a third degree felony (Case Two) (collectively, the Cases). After an attorney from Salt Lake Legal Defender Association (LDA) withdrew on the basis of a conflict, a second attorney was appointed as Smith's attorney for the Cases.

         ¶3 The second attorney negotiated a plea deal in which Smith would plead guilty as charged on Case Two, and the charge underlying Case One would be amended to attempted damage to jail property, a class A misdemeanor. In exchange, the State promised to dismiss another charge that it had filed against Smith and agreed to release him from custody. Smith pleaded as negotiated, and during the May 2015 plea hearing, the court accepted his plea and ordered his pre-trial release.

         ¶4 Smith was rearrested and placed in custody on other charges in mid-August 2015.[1] Another LDA attorney-Smith's third-was appointed to represent him on the new charges, but that attorney also withdrew. In late September 2015, the court arranged for conflict counsel (Attorney) to be appointed on all of Smith's cases.

         ¶5 In late October 2015, Smith, through Attorney, moved to withdraw his guilty pleas in the Cases, and the court set the matter for a hearing on November 10, 2015. The court noted that, in the event Smith's motion to withdraw his pleas was denied, "sentencing may be addressed" at the November hearing.

         ¶6 One week before the November hearing, Attorney sought to withdraw as Smith's appointed counsel on the ground that a conflict existed. Attorney asserted that during a visit to Smith at the correctional facility, Smith became "hostile and argumentative" and threatened him with physical harm. On November 5, 2015, the court granted Attorney's motion to withdraw and ordered LDA to appoint new conflict counsel. However, as of the November 10, 2015 hearing, LDA had yet to assign new counsel, and no counsel appeared on Smith's behalf. Nonetheless, the hearing proceeded.

         ¶7 The court began the hearing by explaining that, although five total cases were pending against Smith, the hearing's primary purpose was to address Smith's motion to withdraw his pleas in the Cases and, depending on the outcome of that motion, to potentially sentence him for those cases. After the court stated for the record that Attorney had withdrawn and that it had ordered LDA to appoint new counsel for Smith, the State requested that the court determine that Smith had forfeited his right to counsel for the Cases. According to the State, Smith had fired "every attorney who gives him advice he doesn't like, culminating [in] threatening physical violence against [Attorney]." In the alternative, the State requested at minimum that the court warn Smith "of the dangers of representing himself and of the behaviors that are inappropriate in interacting with future counsel" so that if Smith "continue[d] in this line of behavior, he will recognize that he is by his actions waiving his right to have an attorney going forward."

         ¶8 The court did not determine that Smith had forfeited his right to counsel for the Cases. Instead, the court outlined for the record Smith's history with counsel across the "various cases" pending against him and then attempted to have a discussion with Smith regarding his understanding about what it would mean to represent himself. The court took a comprehensive approach. It explained to Smith that if he were sentenced to the maximum punishment for all the charges filed against him in all of his five pending cases, he ...


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