State v. Waterfield|

2014 UT App 67
_________________________________________________________
THE U TAH COURT OF A PPEALS
STATE OF U TAH,
Plaintiff and Appellee,
v.
BRYAN WATERFIELD,
Defendant and Appellant.
Memorandum Decision
No. 20120333‐CA
Filed March 20, 2014
Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 061700802
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Michelle I. Young, Attorneys
for Appellee
J UDGE J OHN A. P EARCE authored this Memorandum Decision, in
which J UDGES G REGORY K. ORME and MICHELE M. C HRISTIANSEN
concurred.
PEARCE, Judge:
¶1 	Bryan Waterfield previously appealed to this court in State
v. Waterfield (Waterfield I), 2011 UT App 27, 248 P.3d 57. There, we
affirmed the sentence entered by the district court but remanded
for 	the 	limited 	purpose 	of 	definitively 	resolving 	objections
Waterfield had raised regarding his presentence investigation
report (the PSI Report). Id. ¶¶ 4, 7, 11. Waterfield now appeals the
district court’s resolution of that issue, claiming that on remand the
district court erred in (1) failing to inquire about his expressed
dissatisfaction with counsel; (2) finding he knowingly, intelligently,
and voluntarily waived his right to counsel; (3) failing to address
his objections to the PSI Report; and (4) not revisiting his sentence,

State v. Waterfield
which he claims was pronounced in reliance on the incomplete PSI
Report.1 We affirm.
¶2 	In his prior appeal, Waterfield complained “that the district
court failed to address adequately the ‘numerous objections’ he
made” to the PSI Report. Id. ¶ 8. We agreed that the district court
had not satisfied “its duty to resolve objections to the PSI [Report]
on the record.” Id. ¶ 9; see also Utah Code Ann. § 77‐18‐1(6)(a)
(LexisNexis Supp. 2010); State v. Jaeger, 1999 UT 1, ¶ 44, 973 P.2d
404 	(requiring 	a 	sentencing 	judge 	“to 	consider 	the 	party’s
objections to the report [and] make findings on the record as to
whether the information objected to is accurate”). Accordingly, we
remanded to the district court “for the limited purpose of resolving
[Waterfield’s] 	objections 	to 	the 	PSI 	[Report] 	that 	were 	not
adequately 	addressed 	on 	the 	record 	by 	the 	district 	court.”
Waterfield I, 2011 UT App 27, ¶ 11.2
¶3 	On 	remand, 	Waterfield 	was 	initially 	represented 	by
appointed counsel. The State stipulated to amendments in the PSI
Report in response to objections raised by Waterfield’s counsel.
Nevertheless, Waterfield complained about his attorney to the
court in three pro se motions. In Waterfield’s first motion, he
alleged that his counsel had “zero communication” with him and
Waterfield requested that he be allowed to proceed pro se. In his
second motion, Waterfield complained that a letter his counsel had
sent him created a conflict of interest. 3 Waterfield stated that he
1 Waterfield is represented by new counsel on appeal.
2 The judge who presided over Waterfield’s trial and
sentencing retired in 2010; on remand, Waterfield’s case was
assigned to a different judge.
3 Waterfield attached the letter to the motion. In the letter,
Waterfield’s counsel discussed two in‐person meetings with
Waterfield, the tension between Waterfield’s desire for speedy
resolution and his counsel’s need for preparation time, and
(continued...)
20120333‐CA 	2014 UT App 67	2

State v. Waterfield
was “prepared to continue pro‐se” but also requested “new
defense counsel appointed from outside of the entire Second
District due to an existing conflict of interest with every legal
defender within the Second District.”4 Waterfield’s third motion
raised “the issue of a new conflict of interest with [the same]
appointed 	defense 	counsel”; 	specifically, 	that 	counsel’s
correspondence with Waterfield contained “many demoralizing
meritless remarks . . . that reflect his inability to fairly work the
issues on objection.” The third motion also stated, “Though the
Defendant has a right to counsel, if no counsel is appointed from
outside of the . . . Second District, the Defendant then wishes to
proceed pro‐se.”
¶4 	At a hearing on the motions, the district court stated, “Mr.
Waterfield has in fact filed a motion to essentially have someone
else appointed [to represent him] which . . . I’m not going to do in
this matter.” The court then stated that if Waterfield wished to
proceed pro se, it would first have to ask Waterfield “a number of
questions.” After Waterfield answered those questions, the district
court granted his motion to proceed pro se, informed him that he
could file additional objections to the PSI Report,5 and scheduled
an evidentiary hearing to address his objections. At the evidentiary
hearing, the district court ordered several changes to the PSI Report
on the basis of Waterfield’s objections but also rejected a number
of Waterfield’s proposed modifications. Waterfield appeals from
several of the district court’s decisions.
3 (...continued)
strategy for the upcoming hearing. The letter also expressed, in
blunt terms, counsel’s exasperation with Waterfield.
4 It appears that during the course of these proceedings,
Waterfield has been represented by at least six different attor‐
neys and has raised complaints about many of them.
5 Waterfield took advantage of this opportunity.
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State v. Waterfield
I. Right to Counsel
¶5 	The State asserts that we need not reach the merits of
Waterfield’s first two contentions—concerning the waiver of his
right to counsel and the district court’s failure to inquire into his
dissatisfaction with appointed counsel—because Waterfield had no
Sixth Amendment right to counsel during the evidentiary hearing
regarding the PSI Report.
¶6 	The State notes that a defendant has a constitutional right to
counsel only at critical stages of criminal proceedings where
incarceration is a possibility. United States v. Wade, 388 U.S. 218, 227
(1967); Orem City v. Bergstrom, 1999 UT App 350, ¶ 8, 992 P.2d 991.
The State argues that although “[s]entencing is a critical stage of a
criminal proceeding at which a defendant is entitled to the effective
assistance of counsel,” State v. Casarez, 656 P.2d 1005, 1007 (Utah
1982), Waterfield’s PSI Report hearing was not such a critical stage.
The State appears to contend that a defendant has no constitutional
right to counsel where, as here, the sentence has been pronounced
and upheld on appeal and the effects of correcting a presentence
investigation report are limited to its possible bearing on future
parole and probation decisions.
¶7 	The State draws an analogy between the PSI Report hearing
and probation revocation hearings. The State argues that “even
though there might be some risk of confinement” at a probation
revocation hearing, “defendants do not have a Sixth Amendment
right to counsel” at such proceedings. The State relies on two cases
for this proposition: Gagnon v. Scarpelli, 411 U.S. 778 (1973), and
State v. Byington, 936 P.2d 1112 (Utah Ct. App. 1997). Although
these cases suggest that the Sixth Amendment may not require
counsel at all probation revocation hearings, Scarpelli and Byington
are less definitive than the State represents because due process
principles may require counsel in some circumstances. In Scarpelli,
the Supreme Court held that “[a]lthough the presence and
participation of counsel will probably be both undesirable and
constitutionally unnecessary in most revocation hearings, there will
remain 	certain 	cases 	in 	which 	fundamental 	fairness—the
touchstone of due process—will require that the State provide at its
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State v. Waterfield
expense counsel for indigent probationers or parolees.”6 411 U.S.
at 790.
¶8 	In Byington, we explained that “[t]he assistance of counsel at
a probation revocation hearing is constitutionally guaranteed only
in certain circumstances.” 936 P.2d at 1115; see also id. at 1114–17
(holding that a defendant was not constitutionally entitled to
counsel at a probation revocation hearing when he admitted to
violating the terms of his probation and refused the district court’s
offer to appoint counsel). Quoting Scarpelli, we noted that counsel
should be provided in probation revocation hearings where the
probationer makes a “‘timely and colorable claim (i) that he has not
committed the alleged [probation violation]; or (ii) that, even if the
violation is . . . uncontested, there are substantial reasons which
justified 	or 	mitigated 	the 	violation 	and 	make 	revocation
inappropriate, and that the reasons are complex or otherwise
difficult to develop or present.’” Id. at 1115 (quoting Scarpelli, 411
U.S. at 790).
¶9 	We therefore do not accept the State’s premise that a
constitutional right to counsel can never exist at a probation
revocation hearing.7 Nor do we accept the State’s invitation to hold
that there is never a right to counsel at a hearing on a presentence
6 The Supreme Court also noted, “In every case in which a
request for counsel at a preliminary or final hearing is refused,
the grounds for refusal should be stated succinctly in the re‐
cord.” Gagnon v. Scarpelli, 411 U.S. 778, 791 (1973). Here, the
district court did not state the grounds for refusing Waterfield’s
request for substitute counsel.
7 The State also cites a Tenth Circuit Court of Appeals case
for the proposition that routine post‐conviction presentence
interviews are not critical stages of proceedings. However, that
case was withdrawn and reissued without the holding cited by
the State. Compare United States v. Rogers, 899 F.2d 917, 919 n.7
(10th Cir. 1990), with United States v. Rogers, 921 F.2d 975, 978 n.7
(10th Cir. 1990).
20120333‐CA 	2014 UT App 67	5

State v. Waterfield
investigation report that occurs after the sentence has been
imposed. Instead, we assume without deciding that Waterfield was
entitled to counsel at the hearing on the PSI Report.
II. Failure to Inquire into Dissatisfaction with Counsel
¶10 	Waterfield contends that he was denied his right to counsel
when the district court failed to inquire into his dissatisfaction with
appointed counsel. We review “[w]hether a trial court should have
inquired 	further 	into 	a 	defendant’s 	dissatisfaction 	with
counsel . . . for an abuse of discretion.” State v. Hall, 2013 UT App
4, ¶ 8, 294 P.3d 632. But we determine as a matter of law whether
a trial court’s refusal to appoint substitute counsel violated a
defendant’s Sixth Amendment right to counsel. State v. Alvarez‐
Delvalle, 2012 UT App 96, ¶ 2, 275 P.3d 279.
¶11 	This court has previously held that when a defendant
expresses dissatisfaction with counsel, the trial court has an
affirmative obligation to investigate:
[W]hen dissatisfaction is expressed, the court must
make some reasonable, non‐suggestive efforts to
determine the nature of the defendant’s complaints
and 	to 	apprise 	itself 	of 	the 	facts 	necessary 	to
determine whether the defendant’s relationship with
his or her appointed attorney has deteriorated to the
point that sound discretion requires substitution or
even 	to 	such 	an 	extent 	that 	his 	or 	her 	Sixth
Amendment right to counsel would be violated but
for substitution.
State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App. 1987). Here, the
district 	court 	summarily 	dismissed 	Waterfield’s 	motion 	for
substitute counsel without conducting a Pursifell inquiry.
¶12 	In State v. Vessey, we addressed the consequences of a trial
court’s failure to investigate a defendant’s request for new counsel.
967 P.2d 960, 962–64 (Utah Ct. App. 1998). There, we held that such
failure was per se error requiring remand for the trial court to
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State v. Waterfield
“determine if defendant’s complaint about his appointed counsel
justified the appointment of substitute counsel.” Id. at 964.
¶13 	The Utah Supreme Court later analyzed a similar scenario
in State v. Lovell, 1999 UT 40, 984 P.2d 382. In Lovell, the defendant
sent a letter to the court before trial, stating that he wanted to
proceed pro se and claiming that his appointed counsel had a
conflict of interest. Id. ¶ 14. The trial court failed to undertake a
Pursifell inquiry. Id. ¶ 27. The supreme court stated that “the trial
court should have addressed [the defendant’s] letter on the
record.” 	Id. 	Nevertheless, 	the 	supreme 	court 	affirmed 	the
defendant’s convictions. Id. ¶ 47. The Lovell court did not expressly
address Vessey but concluded that the trial court’s failure to
conduct a Pursifell inquiry did not merit remand, because “the
failure to inquire was not harmful to [the defendant] given the
circumstances of [that] case.” Id. ¶ 27.
¶14 	The Lovell court reasoned that insofar as the letter could be
interpreted as a request for substitute counsel, the defendant had
not shown good cause for substitution of counsel, “such as a
conflict of interest, a complete breakdown in communication or an
irreconcilable conflict,” and therefore had no constitutional right to
substitute counsel. Id. ¶ 31 (citation and internal quotation marks
omitted). The court also noted that “the record [did] not show that
failure to substitute counsel resulted in an apparently unjust
verdict.” Id. ¶ 33. For these reasons, the supreme court held that
“the failure to inquire was harmless error.” Id. ¶ 35.
¶15 	Here, as in Lovell, there is nothing in the record to suggest an
irreconcilable conflict or a complete breakdown of communication
between Waterfield and his counsel. The letter attached to the
second motion was written by Waterfield’s then‐counsel and
conveys 	his 	exasperation 	with 	Waterfield’s 	demands, 	thus
demonstrating that the lines of communication were open, albeit
strained. The letter recited that counsel had spent three hours
meeting with Waterfield in person so that Waterfield could
“explain each and every complaint [he] had about the PSI [Report]”
and, in a subsequent meeting, had spent another two‐and‐a‐half
hours “meeting with [Waterfield] in person so that [he] could
20120333‐CA 	2014 UT App 67	7

State v. Waterfield
explain each and every ongoing concern [he] had about the report
notwithstanding the corrections that . . . [Adult Probation and
Parole] had agreed to make.” And while the tone of the letter was
at times intemperate, the resulting inference—that counsel was
frustrated—does not rise to the level of an irreconcilable conflict. 8
Indeed, even after he sent the letter, Waterfield’s counsel filed
extensive 	objections 	on 	his 	client’s 	behalf 	and 	negotiated
modifications to the PSI Report with the State. On appeal,
Waterfield does not point to any additional information the district
court would have learned had it inquired into his dissatisfaction,
let alone any information that might have led it to conclude that
there existed an irreconcilable conflict or a complete breakdown in
communication. Accordingly, Waterfield has not shown that good
cause existed to warrant substitution of counsel.
¶16 	Furthermore, we see no indication, and Waterfield does not
argue, that the PSI Report would have been further amended had
substitute counsel been appointed. See id. His appointed attorney
filed 	an 	eleven‐page 	memorandum 	detailing 	Waterfield’s
objections to the PSI Report and noting that “Mr. Waterfield may
have additional objections that he may need to articulate to the
Court in person.” After the district court granted Waterfield’s
motion to proceed pro se, Waterfield filed further objections to the
PSI Report. The court addressed those objections one by one during
an evidentiary hearing. At the end of that hearing, Waterfield
seemingly agreed with the court that the hearing had “take[n] care
of this matter with this Court and the motions that have been filed
heretofore.” Thus, we conclude that the district court’s failure to
8 Waterfield makes no attempt to explain how the differ‐
ences of opinion between himself and counsel created a conflict
that could not be reconciled. Cf. State v. Scales, 946 P.2d 377,
382–83 (Utah Ct. App. 1997) (holding that even “intense animos‐
ity” between a defendant and appointed counsel did not consti‐
tute good cause for substitution of counsel, because “[t]o result
in the denial of a defendant’s right to counsel, such animosity
may not be based solely on the defendant’s illegitimate com‐
plaints or subjective perception of events”).
20120333‐CA 	2014 UT App 67	8

State v. Waterfield
inquire into Waterfield’s expressions of dissatisfaction with counsel
was harmless error.
¶17 	Because Waterfield has not shown that good cause existed
to warrant substitution of counsel, and because he has not shown
that any harm resulted, we hold that the district court’s error in
failing to conduct a Pursifell inquiry did not violate Waterfield’s
Sixth Amendment right to counsel. 9
III. Waiver of the Right to Counsel
¶18 	Waterfield next contends that the district court failed to
adequately determine whether he “knowingly, intelligently, and
voluntarily waived his right to counsel.” He claims this failure
constitutes plain error. The plain error standard of review requires
an appellant to show the existence of a harmful error that should
have been obvious to the district court. State v. Dunn, 850 P.2d 1201,
1208–09 (Utah 1993).
¶19 	When a defendant elects to represent himself, the trial court
should make him “aware 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.” Faretta v.
California, 422 U.S. 806, 835 (1975) (citation and internal quotation
marks omitted). Thus, when a defendant attempts to waive his
right to counsel, “it is the trial court’s duty to determine if this
waiver is a voluntary one which is knowingly and intelligently
9 We stress, however, that “when a defendant expresses
dissatisfaction with counsel, a trial court must make some rea‐
sonable, non‐suggestive efforts to determine the nature of the
defendant’s complaints.” State v. Lovell, 1999 UT 40, ¶ 27, 984
P.2d 382 (emphasis added) (citation and internal quotation
marks omitted). As the Vessey court noted, “pretrial scrutiny not
only reduces the likelihood of a post conviction ineffective
assistance claim, but also creates a record that reviewing courts
can rely upon when an ineffectiveness issue is raised on appeal.”
State v. Vessey, 967 P.2d 960, 964 (Utah Ct. App. 1998).
20120333‐CA 	2014 UT App 67	9

State v. Waterfield
made.” State v. Frampton, 737 P.2d 183, 187 (Utah 1987). “[A]
colloquy on the record between the court and the [defendant] is the
preferred method of ascertaining the validity of a waiver because
it 	[ensures] 	that 	defendants 	understand 	the 	risks 	of 	self‐
representation.” Id.
¶20 	Waterfield acknowledges that the district court conducted
a colloquy but claims it was inadequate because it did not conform
precisely to the Frampton court’s guidance concerning a proper
colloquy. 10 That guidance is not, however, a script that must be
recited verbatim. The Utah Supreme Court stressed that the model
questions were “a guide” to “the most efficient means by which
appeals may be limited.” Id. at 187 & n.12. The court also noted
that, even “absent such a colloquy, [an appellate court] will look at
any evidence in the record which shows a defendant’s actual
awareness 	of 	the 	risks 	of 	proceeding 	pro 	se.” 	Id. 	at 	188.
Accordingly, the guidance provided in Frampton is not mandatory
and its phrasing not talismanic. Nevertheless, Waterfield points to
several parts of the colloquy in his case that differed from the
questions enumerated in Frampton and argues that the failure to
follow that guidance rendered the district court unable to ascertain
whether his waiver was knowing, intelligent, and voluntary.
¶21 	Waterfield first asserts that the district court did not
determine whether he understood “the possible importance of the
PSI [Report]” to future pardon or parole proceedings. He argues
that the court erred in not asking three specific questions from
Frampton. Those questions ask the defendant (1) if he understands
the crimes with which he has been charged, (2) if he understands
10 The guidance is provided in an essentially‐verbatim
block quote from a federal bench book. State v. Frampton, 737
P.2d 183, 187 n.12 (Utah 1987) (quoting Federal Judicial Center,
Bench Book for United States District Court Judges §§ 1.02‐2 to ‐5
(3d ed. 1986)). For brevity and convenience, we cite to Frampton’s
footnote twelve without noting the omission of citations and
internal quotation marks.
20120333‐CA 	2014 UT App 67	10

State v. Waterfield
the maximum penalty for each crime, and (3) if he understands that
the court could order consecutive sentences. Id. at 187 n.12.
¶22 	Here, 	Waterfield 	had 	already 	pleaded 	guilty, 	been
sentenced, and had his sentence reviewed and upheld on appeal.
He therefore already knew the crimes with which he had been
charged, knew what sentence had been imposed, and knew
whether the court had ordered consecutive sentences. Additionally,
the district court asked him, “Do you understand the convictions
that have been entered in this particular matter against you and
what they consist of?” and “Do you understand the gravity of those
and the seriousness of those?” Waterfield answered affirmatively
to both questions. Moreover, it is hard to see how Waterfield could
plausibly argue that he was unaware of the parole and probation
consequences of the PSI Report when his case was remanded
specifically “because the statements in [the PSI Report] may be
utilized in future settings, such as parole hearings.” Waterfield I,
2011 UT App 27, ¶ 11, 248 P.3d 57.
¶23 	Waterfield next asserts that the district court failed to
determine whether he understood that the Utah Rules of Evidence
would apply to the evidentiary hearing. Two questions from
Frampton are pertinent: “Are you familiar with the . . . Rules of
Evidence?” and “You realize, do you not, that the . . . Rules of
Evidence govern what evidence may or may not be introduced at
trial and, in representing yourself, you must abide by those rules?”
Frampton, 737 P.2d at 187 n.12 (ellipses in original). Here, the
district court asked Waterfield whether he was “familiar with the
Utah Rules of Evidence at all”; Waterfield responded that he had
“read through them before” but did not currently have a copy. The
district court then asked Waterfield if he realized “that the Utah
Rule[s] of Evidence [were] going to apply to the proceedings.”
Waterfield replied that he understood that “they’re going to
apply.” On appeal, Waterfield does not explain how this portion of
the colloquy was inadequate or how the court was prevented from
determining 	that 	his 	waiver 	was 	knowing, 	voluntary, 	and
intelligent. Nor do we see how it was inadequate.
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State v. Waterfield
¶24 	Waterfield also asserts that the court failed to determine
whether his decision to proceed pro se was entirely voluntary.
Frampton suggests that a trial court ask the defendant whether, in
light of all the difficulties of self‐representation, the defendant still
wishes to proceed pro se and whether that decision is “entirely
voluntary.” State v. Frampton, 737 P.2d 183, 187 n.12 (Utah 1987).
Here, the district court opined that Waterfield would be better
represented by counsel and then asked Waterfield, “[I]s it still your
desire to represent yourself in this matter?” Waterfield replied, “It
is, your Honor.” The district court did not specifically ask whether
that decision was voluntary. However, Waterfield’s motions and
actions exhibit the hallmarks of voluntariness. See id. at 188
(“[A]bsent such a colloquy, [an appellate court] will look at any
evidence in the record which shows a defendant’s actual awareness
of the risks of proceeding pro se.”). His first motion requested that
he be allowed to proceed pro se and did not request substitute
counsel. His second motion requested substitute counsel from
outside the Second District but also stated that he was prepared to
proceed pro se. Waterfield’s third motion assumed that he had a
right to counsel but stated that he wished to proceed pro se if he
could not have substitute counsel from outside the Second District.
The court asked him at both the beginning and the end of the
colloquy whether it was still his desire to proceed pro se and, at
both times, Waterfield stated that it was. The record demonstrates
that it was Waterfield’s strong and voluntary desire to proceed pro
se.
¶25 	Waterfield further asserts that the district court should have
“strongly urge[d]” him not to proceed pro se. Again, he relies on
Frampton, which suggests that the court should then “say to the
defendant something to this effect”:
I must advise you that in my opinion you would be
far better defended by a trained lawyer than you can
be by yourself. I think it is unwise of you to try to
represent yourself. You are not familiar with the law.
You are not familiar with court procedure. You are
not familiar with the Rules of Evidence. I would
strongly urge you not to try to represent yourself.
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State v. Waterfield
Id. at 187 n.12. Here, the district court stated that, in its opinion,
Waterfield “would be far better defended by a trained lawyer”; that
it was “unwise, quite frankly,” for Waterfield to continue pro se;
and that Waterfield was not sufficiently “familiar with the law, . . .
court procedures, the Utah Rules of Evidence, or the Utah Rules of
Criminal Procedure.” It then asked Waterfield, “[I]n light of that,
is it still your desire to represent yourself in this matter?”
Waterfield replied, “It is, your Honor.” This portion of the colloquy
sufficiently tracks the form and content of the relevant admonition
from Frampton. See id.
¶26 	Waterfield next asserts that the district court “failed to
consider the appointment of standby counsel.” The guidance in
Frampton states that a trial court “should consider the appointment
of standby counsel to assist the defendant.” Id. The record here
does not indicate whether the district court did so. As we have
noted, the questions in Frampton are not mandatory. Moreover,
Waterfield does not explain how failure to consider standby
counsel inhibited the district court’s ability to determine whether
Waterfield’s waiver was knowing, intelligent, and voluntary.
¶27 	Waterfield further argues that his waiver was not “entirely
voluntary,” because the district court had already refused to
appoint substitute counsel. He thus claims that “the court was
precluded from and did not find that [Waterfield] had knowingly
and voluntarily waived his right to counsel.” The district court had
refused to substitute counsel immediately before conducting the
waiver colloquy and was therefore aware of the resulting potential
to place Waterfield in a position of having to choose between
proceeding with counsel with whom he believed he had a conflict
or proceeding pro se. See State v. Pursifell, 746 P.2d 270 (Utah Ct.
App. 1987); see also State v. Bakalov, 1999 UT 45, ¶ 20, 979 P.2d 799.
Although we have cautioned against saddling defendants with a
choice between ineffective counsel and no counsel at all, that is not
the case presented here. As we have noted above, supra ¶¶ 15–17,
Waterfield has not demonstrated that good cause—such as a
conflict of interest, a complete breakdown in communication or an
irreconcilable 	conflict—existed 	for 	substitution 	of 	counsel.
Moreover, prior to the denial of substitute counsel, Waterfield had
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State v. Waterfield
made two requests to proceed pro se and had informed the court
that he was prepared to do so. On this record, we conclude that the
district court could find that Waterfield’s waiver was voluntary.
See Bakalov, 1999 UT 45, ¶ 20 (holding that a defendant’s decision
to proceed pro se was voluntary despite having to choose between
that course and proceeding with counsel with whom he had
expressed dissatisfaction, because the defendant had not shown
good cause for substitution of counsel).
¶28 	The colloquy conducted by the district court was sufficient
to fulfill the court’s “duty to determine if [Waterfield’s] waiver
[was] a voluntary one which [was] knowingly and intelligently
made.” Frampton, 737 P.2d at 187. We therefore hold that the
district court did not plainly err. See State v. Dunn, 850 P.2d 1201,
1208–09 (Utah 1993).
IV. Resolution of Waterfield’s Objections
¶29 	Waterfield next contends that the district court failed to
properly consider and resolve Waterfield’s objections to the PSI
Report. Specifically, he asserts that the district court “failed to make
the requisite determination of accuracy” when it refused to make
certain changes based on his objections. “Whether the trial court
properly complied with a legal duty to resolve on the record the
accuracy of contested information in sentencing reports is a
question of law that we review for correctness.” State v. Maroney,
2004 UT App 206, ¶ 23, 94 P.3d 295 (citation and internal quotation
marks omitted).
¶30 	Section 77‐18‐1(6) of the Utah Code outlines the procedure
for resolving alleged inaccuracies in presentence investigation
reports. 	Specifically, 	it 	directs 	the 	trial 	court 	to 	“make 	a
determination of relevance and accuracy on the record.” Utah Code
Ann. § 77‐18‐1(6)(a) (LexisNexis 2012); see also Waterfield I, 2011 UT
App 27, ¶ 8, 248 P.3d 57 (“The sentencing judge is required to
consider the party’s objections to the report, make findings on the
record as to whether the information objected to is accurate, and
determine on the record whether that information is relevant to the
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State v. Waterfield
issue of sentencing.” (citation and internal quotation marks
omitted)).
¶31 	Here, the district court went through Waterfield’s objections
one by one at the PSI Report evidentiary hearing. Nevertheless,
Waterfield claims that the court failed to fully address two of his
objections. Waterfield’s first allegedly unresolved objection was to
a section of the PSI Report that described his Level of Service
Inventory (LSI) score as “intensive.” The underlying numerical
score had been calculated in July 2008. At the evidentiary hearing,
Waterfield claimed he had not taken an LSI assessment in 2008. The
State explained at the hearing that defendants are not present
during follow‐up assessments because an updated LSI score is
calculated using information from Adult Probation and Parole’s
records such as criminal history, employment, drug usage, and
mental health status.11 After hearing extensively from both the State
and Waterfield, the district court ultimately declined to remove the
descriptor 	“intensive,” 	stating, 	“I 	think 	based 	on 	what 	the
[numerical] assessment was, that that is an appropriate [narrative]
term to be used there.”
¶32 	Although a trial court is required to “make a determination
of relevance and accuracy on the record,” nothing in the statute
requires the trial court to use specific words such as “relevant” or
“accurate.” See Utah Code Ann. § 77‐18‐1(6)(a). We read the district
court’s use of the word “appropriate” to mean that it found the
descriptor “intensive” to be accurate.
11 Waterfield then asked for a copy of the paperwork that
led to his LSI score. The State noted that the paperwork was
available from the Department of Corrections via a government
records request, that Waterfield’s counsel had previously made
such a request “maybe two or three months ago,” and that the
Department of Corrections had denied that request. Neither the
denial of that records request nor the district court’s decision to
proceed with the hearing in the absence of the requested docu‐
ments is at issue in this appeal.
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State v. Waterfield
¶33 	Waterfield also objected to portions of the criminal history
section of the PSI Report. The statute provides that “the court shall
make a determination of relevance and accuracy.” Id. (emphasis
added). Waterfield asserts that “the court failed to make the
requisite determination of accuracy” because, although it ruled that
his proposed changes to the report were not relevant, it did not
explicitly rule on the accuracy of the challenged section. Waterfield
does not acknowledge that the district court engaged in an
extensive review of the accuracy of Waterfield’s objections—an
exercise that consumed the next fourteen pages of the hearing
transcript. Moreover, Waterfield does not point to record evidence
that suggests the final version of the criminal history section
contained any inaccurate information; his challenge is to the form
of the district court’s ruling rather than its substance. Accordingly,
because Waterfield has not demonstrated that the PSI Report was
in any way factually inaccurate as a result of the district court’s
ruling, we can see no way in which his substantial rights were
impacted. 	See 	Utah 	R. 	Crim. 	P. 	30(a) 	(“Any 	error, 	defect,
irregularity or variance which does not affect the substantial rights
of a party shall be disregarded.”).
¶34 	We conclude that Waterfield has not shown error in the
district court’s ruling on the description of his LSI score as
“intensive.” Waterfield has also failed to show that any harm
resulted from the district court’s failure to make an explicit
determination as to the accuracy of the criminal history section of
the PSI Report.
V. Legality of Sentence
¶35 	Finally, Waterfield contends that the district court imposed
an illegal sentence on him due to its reliance on “inaccurate and
incomplete information.” In Waterfield I, we affirmed Waterfield’s
sentence but remanded “for the limited purpose” of resolving his
objections to the PSI Report on the record. 2011 UT App 27, ¶ 11,
248 P.3d 57.
¶36 	Waterfield asserts that his sentence was “both illegal and
imposed in an illegal manner” because the PSI Report used by the
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State v. Waterfield
district court at his sentencing was incomplete. He argues that the
PSI Report was incomplete because it did not include “any findings
from any screening or any assessment.” He cites section 77‐18‐
1(5)(d) of the Utah Code, which provides that a presentence
investigation report shall include “findings from any screening and
any assessment of the offender conducted under Section 77‐18‐1.1.”
Utah Code Ann. § 77‐18‐1(5)(d) (LexisNexis 2012); see also id. § 77‐
18‐1.1(3) (“The findings from any screening and any assessment
conducted under this section shall be part of the presentence
investigation report submitted to the court before sentencing of the
offender.”).
¶37 	We note that the district court did not use the PSI Report as
part of Waterfield’s initial sentencing. See Waterfield I, 2011 UT App
27, ¶¶ 5, 8, 10 n.4. In Waterfield I, we stated that due to the
procedural history of this case, the PSI Report had become, in
essence, a “post‐sentence report” because it was prepared after the
court initially pronounced Waterfield’s sentence. Id. ¶ 10 n.4. As we
stated in Waterfield I, “we fail to see how addressing alleged
inaccuracies in what essentially was a post‐sentence report would
have somehow led to a different outcome for [Waterfield].” Id.
¶38 	Nevertheless, to the extent that the PSI Report may have
colored any sentencing decisions, we conclude that Waterfield has
failed to demonstrate that any required information was omitted
from it. Although Waterfield argues that the PSI Report neglected
to include “any findings from any screening or any assessment,” he
does not indicate what screening or assessment should have been
included. An assessment under Utah Code section 77‐18‐1.1 “has
the same meaning as in Section 41‐6a‐501.” Utah Code Ann. § 77‐
18‐1.1(1)(a). An assessment under section 41‐6a‐501 “means an in‐
depth clinical interview with a licensed mental health therapist” to
determine if the person is in need of substance‐abuse treatment or
an educational series. Id. § 41‐6a‐501 (2010).
¶39 	On 	appeal, 	Waterfield 	does 	not 	claim 	that 	he 	was
interviewed by a licensed therapist for that purpose or point us to
any 	record 	evidence 	of 	such 	an 	interview. 	Consequently,
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State v. Waterfield
Waterfield’s challenge to the legality of his sentence fails because
he has not shown that the PSI Report was incomplete. 12
¶40 	Affirmed.
12 The State asserts that principles of res judicata would
have prevented the district court from modifying the sentence,
while Waterfield contends that Utah Rule of Criminal Procedure
22(e) would have permitted the court to correct the sentence. Res
judicata applies as between multiple cases while the law of the
case doctrine applies to successive proceedings within one case.
Cf. IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26
& n.20, 196 P.3d 588 (noting that while “the law of the case
doctrine acts much like the doctrine of res judicata . . . but within
a single case,” “they should be viewed as distinct doctrines”).
However, because we conclude that the court did not rely on
“inaccurate and incomplete information,” as Waterfield alleges,
we need not address those arguments.
20120333‐CA 	2014 UT App 67	18