State v. Lucke

2025 UT App 49

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SCOTT NICHOLAS LUCKE,
Appellant.

Opinion
No. 20230428-CA
Filed April 10, 2025

First District Court, Logan Department
The Honorable Spencer D. Walsh
No. 221100020

Debra M. Nelson, Benjamin Miller, and Dylan
Carlson, Attorneys for Appellant
Derek E. Brown and Ginger Jarvis,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.

TENNEY, Judge:

¶1 Scott Lucke’s ex-wife obtained a civil stalking injunction
that prohibited him from contacting her. After he later texted her,
she reported him to police. Lucke was subsequently charged with
stalking. Before trial, Lucke waived his right to counsel, and at the
close of trial, the jury convicted him as charged. On appeal, and
with the benefit of appellate counsel, Lucke argues that the district
court did not ensure that he knowingly and intelligently waived
his right to counsel, and he further argues that the record itself
contains no indication that his waiver was knowing and
voluntary. We agree, and we further agree that this amounted to
State v. Lucke

structural error. We accordingly vacate Lucke’s conviction and
remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 Lucke and his ex-wife (Ex-Wife) were married for about
three years. They have one child (Child) together. When Child
was five years old, Lucke relinquished his parental rights, thereby
allowing Ex-Wife’s new husband to adopt her.

¶3 In August 2021, Ex-Wife obtained a temporary civil
stalking injunction against Lucke. The injunction included a no-
contact order that prohibited Lucke from contacting Ex-Wife or
Child by “phone, text, mail, [or] email” for a period of three
years. 1

¶4 In November 2021, Lucke texted Ex-Wife. The two engaged
in the following text exchange:

Lucke: On my way home from Salt Lake, figured I
would try to call you . . . talk to [Child]

Ex-Wife: Not sure you received it, but we have a 3
year protection order against you. Please don’t
contact me again in any way or I’ll report it.

Lucke: I did, had the opportunity to contest it, but I
chose not to contest it for several reasons . . . the
biggest being why? Loved how you lied and said I
was trying to enter your house and refused to leave
. . . hilarious . . . but there is a chance we’ll bump into
each other in Idaho and then what?

1. The injunction also prohibited Lucke from contacting Ex-Wife’s
new husband or the children that she’d since had with her new
husband.

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State v. Lucke

¶5 Ex-Wife reported this contact to law enforcement, and the
State later charged Lucke with one count of stalking, a third-
degree felony. 2 At his arraignment, Lucke pled not guilty.

¶6 Lucke represented himself during the preliminary hearing.
As part of its case, the State called and examined a deputy
(Deputy) who had investigated Lucke’s case. When Lucke cross-
examined Deputy, he asked only two questions for which the
court did not sustain an objection. After the State rested, Lucke
told the court that he wanted to call Ex-Wife and Child to testify.
But when the court asked Lucke if he had subpoenaed them,
Lucke said that he had not and that he wasn’t aware that he could.
The court then directed the parties to present closing arguments.
After those concluded, the court asked Lucke, “Do you want to
see if you qualify for a court-appointed attorney?” Lucke said that
he did not. When the court asked why, Lucke responded, “So they
can hold my hand and sign me away?” The court responded by
telling Lucke that an attorney could “give [him] legal advice.”

¶7 The court moved on to the question of whether the State
had presented sufficient evidence to bind Lucke over for trial on
the stalking charge. The court concluded that the State had.

¶8 The court then asked Lucke whether he was working and
whether he had property or assets, presumably in an attempt to
ascertain whether Lucke would qualify for a court-appointed
attorney. The court and Lucke then had the following exchange:

2. Lucke was charged with violating Utah Code section 76-5-106.5.
Under that provision, an actor is guilty of stalking “if the actor
intentionally or knowingly” violates “a stalking injunction,” Utah
Code § 76-5-106.5(2)(b)(i), and the offense becomes a third-degree
felony if the actor “has been . . . a cohabitant . . . of the victim,” id.
§ 76-5-106.5(3)(b)(v). The stalking statute has been amended since
Lucke’s trial, but because there were no substantive changes to
the elements of the charge, we cite the current version for
convenience.

20230428-CA 3 2025 UT App 49
State v. Lucke

Court: Okay. Why wouldn’t you want an attorney
who has been to law school, who understands the
rules of evidence, the law, who understands your
rights under the Constitution—

Lucke: I understand slavery, dude.

Court: Okay.

Lucke: I’ve been through the system twice.

Court: All right.

Lucke: Okay. I understand it. I understand what
you want.

Court: I don’t want anything—

Lucke: And I’m not going to be scared into picking
left or right, because no decision is my decision.

Court: Okay. What I’m trying to communicate to
you, okay, Mr. Lucke, is that the impression I get is
that you feel you don’t trust the system. You feel
very upset about your experience maybe in the past
with the courts. Obviously today, I can appreciate
that. Some people are frustrated by the system.

What I’m trying to communicate to you is
you haven’t been to law school. A public defender
has been to law school. He can provide you with
legal counsel. He can help you ask questions. He can
help you prepare a defense. So I don’t know why
you wouldn’t want the assistance of an attorney,
even if maybe your experience in the past hasn’t
been what you’d hope for. Don’t you want the Court
to appoint counsel to help represent you?

20230428-CA 4 2025 UT App 49
State v. Lucke

Lucke: No.

Court: Okay. Do you know what’s going to happen
potentially at a jury trial if we have a jury here and
you start popping off—

Lucke: I’m already dead, dude, I don’t care.

Court: Okay.

Lucke: I don’t care.

Court: If you start popping off and saying the “F”
word and getting really upset and you don’t know
the rules of evidence. Like today you tried to get into
some topics that weren’t proper. I think it could
really help you to have an attorney sit with you,
help guide you. All right.

So do you want me to appoint counsel to
represent you?

Lucke: No.

Unidentified female: Yes.

Court: Okay. So is this your mom here? Okay. You
ever heard of the term that mother knows best?
Yeah.

Lucke: No.

Court: Okay. Pretty good advice. Moms have a lot
of experience. They know their kids pretty well.

Lucke: Right.

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State v. Lucke

Court: And I think she thinks it would be in your
best interest to appoint counsel. All right. So what
we’ll do is I want . . . to give you a chance to sit on it
and think about it a little bit. Okay.

Lucke: That’s the thing, I don’t think.

Court: Okay.

Lucke: I don’t think anymore.

Court: Well, that’s why it would be important to
have an attorney to help you.

Lucke: I’m sure it would. I’m sure you think it
would.

Court: All right.

Lucke: It won’t.

Court: All right.

The court then moved on, set Lucke’s case for a pretrial
conference, and said that it would “address [his] attorney
situation” then.

¶9 The record does not contain a transcript of Lucke’s first
pretrial conference. During a second pretrial conference, the court
and Lucke had another exchange about whether Lucke would be
represented by counsel. The court told Lucke that although he had
“the right to represent” himself, “it’s never a bad idea to have
someone who is trained in the law, who understands the rules of
evidence and procedure to at the very least consult with, even if
you don’t want them actively asking the questions in your case.”
The court then asked Lucke if he had “reconsidered [his] position
to want to represent” himself, to which Lucke responded, “No, I
haven’t quite done that yet.”

20230428-CA 6 2025 UT App 49
State v. Lucke

¶10 At a later pretrial conference, Lucke indicated that he had
not hired an attorney and did not plan on hiring one. The court
explained to Lucke,

Now, you’ve never gone to law school. It still may
be a good idea, especially on a third-degree felony
where you could be facing the potential of prison,
for you to hire your own attorney. But if you’re
choosing to represent yourself, that’s your
prerogative. You can do so under the United States
Constitution.

Lucke responded by asking the court whether he would be
allowed to call Ex-Wife and Child as witnesses. The court said, “I
can’t give you legal advice. But, yeah, you can subpoena any
individuals that you’d like to come testify.”

¶11 At his final pretrial conference, Lucke indicated that he had
filed subpoenas for both Ex-Wife and Child. The State objected to
Lucke’s subpoena of Child, arguing that she could not testify to
anything “relevant to the[] allegations” because she “wasn’t even
there, and she wasn’t a witness to any of what was going on.”
During his response to that objection, Lucke made several
comments about how the court “entrap[s] people.” In response,
the court “caution[ed]” Lucke that it’s “[n]ever a good idea to
personally attack the judge in front of the jury.” The court also
warned Lucke not to swear in the courtroom, and it then quashed
his subpoena for Child. 3

¶12 The court then addressed Lucke’s attorney situation again,
and the following exchange occurred:

Court: Mr. Lucke, I really think you’re making a
mistake by not having an attorney represent you at
your jury trial. Now, I’ve told you that at every

3. During various proceedings, Lucke had used profanity in his
remarks to the court.

20230428-CA 7 2025 UT App 49
State v. Lucke

hearing we’ve had from the beginning of this case. I
told you I’d appoint a public defender, and I’m still
willing to do that.

Would you like to be appointed a public
defender to help you out with your case?

Lucke: No.

Court: Why not?

Lucke: Because he’s not going to represent me. He’s
going to represent his perception of me. Just like you
aren’t judging me. You’re judging your perception
of me.

Court: Okay.

Lucke: I don’t think people understand—

Court: I’m not the smartest guy ever, but I don’t
understand what that means.

Okay. So when I say “appoint an attorney,”
that means that they know the rules of the evidence.
They know the rules of the procedure. They know
how to question witnesses really well. And so he
could advocate on your behalf. He can meet with
you, strategize with you.

Lucke: No.

Court: You sure?

Lucke: No.

Court: All right. So if you’re going to represent
yourself, I’m going to require that you follow certain

20230428-CA 8 2025 UT App 49
State v. Lucke

rules of decorum in the courtroom. And you’ve
been pretty good today, not perfect. One, is you
can’t be dropping the “F” word in the courtroom.
We’re not going to be doing that. Two, is when I’m
speaking or when someone else is speaking, you
have to let us speak and you’ll be given a turn to
speak. So there has to be order in the courtroom. We
can’t be talking over one another. All right.

¶13 The court then discussed voir dire and jury instructions
with Lucke. After Lucke expressed some concern about how the
jury pool would be selected, the court said,

Mr. Lucke, I’m not going [to] sit here and argue with
you. I’m trying to be very polite to you and, frankly,
this gives me a little bit of concern about how our
jury trial is going to go.

If there’s going to be back and forth arguing
with the Court, I’ve had this happen one other time
with a pro se individual, and I showed a lot of
patience. But he wouldn’t stop talking when he was
supposed to and the rules allow me to remove you
from the courtroom. If that were to happen, then,
you know, I’m going to—it’s going to be difficult.
Because I think I need to probably appoint standby
counsel, a public defender, to not be involved in
your case at all unless you get kicked out of your
own jury trial. Because I’m going to kick you out if
you’re not going to follow the rules.

So do you want me to appoint standby
counsel or are you going to . . . .

Lucke responded, “You can. You can do whatever you want.” The
court appointed standby counsel.

20230428-CA 9 2025 UT App 49
State v. Lucke

¶14 Lucke’s case went to trial in March 2023. At the beginning,
Lucke indicated that he wanted his standby counsel to help him
with jury selection, and when the court asked if Lucke wanted
further assistance from standby counsel, Lucke said, “Oh, let’s
wing it. Let’s just see how it unfolds.” The court refused to ask
several voir dire questions that Lucke personally proposed, and
standby counsel did occasionally assist Lucke with some aspects
of jury selection. On the State’s motion, the court also excluded
several of Lucke’s proposed exhibits as irrelevant.

¶15 In its opening statement at trial, the State characterized this
as “a simple case,” explaining that Lucke “was ordered by a court
not to violate the stalking injunction and not to contact [Ex-Wife]
and he did so.” Lucke gave his own opening statement. He said,
in the entirety,

I guess the evidence is just going to show that I
wanted to say good-bye. That I love my kid more
than a piece of paper. They found the one thing I
couldn’t not do, and they made it a felony. They
used my kid as bait. That’s what the evidence is
going to show. A trap. Couldn’t make it 90 days.
Yeah.

When the court then asked Lucke if he had “more to say,” Lucke
responded, “No. You’ve taken everything else.”

¶16 The State’s first witness was Ex-Wife. Ex-Wife testified
about her relationship with Lucke, about obtaining the stalking
injunction against Lucke in August 2021, and about receiving the
text from Lucke in November of that year. When Lucke arose to
begin his cross-examination of her, his first words were, “Say
happy birthday.” The court interjected and told Lucke to “[m]ove
on” to his first question. Lucke then asked Ex-Wife several
questions, but the State successfully objected to many of them on
relevance grounds. Standby counsel stepped in and asked Ex-
Wife seven questions. When Lucke then attempted to ask Ex-Wife

20230428-CA 10 2025 UT App 49
State v. Lucke

a few more questions, the State made successful objections to
nearly all of them.

¶17 The State’s second witness was Deputy. Deputy testified
about interviewing both Ex-Wife and Lucke about the alleged
violation of the stalking injunction. On cross-examination, Lucke
and standby counsel each asked Deputy a few questions.

¶18 At the outset of its closing argument, the State reiterated its
contention that this was a “simple and straightforward” case. The
State then reviewed the elements of the offense and explained
how the evidence satisfied the elements. When it was time for his
closing, Lucke said that he had “nothing,” and he also indicated
that he did not want standby counsel to give a closing argument
on his behalf. He instead referred the jury back to his opening
statement. The case was then submitted to the jury. And at the
close of deliberations, the jury found Lucke guilty as charged.

¶19 Before sentencing, Adult Probation and Parole prepared a
presentence investigation report. There, the investigator opined
that Lucke “appear[ed] to be suffering from some sort of mental
health issue that would be apparent to most reasonable
individuals” and that Lucke “appear[ed] to be in desperate need
of a mental health evaluation.” At the subsequent sentencing
hearing, Lucke made a number of seemingly irrational
statements. Among other things, he told the court:

I was 12,345 days old when I experienced death
while meditating. I haven’t had a thought since. It’s
been 1,111 days since that happened. I am 13,456
days old.

I am what I’ve always been, a divine mirror
of God. God doesn’t judge anybody, because he is
your heartbeat. Yeah, you feel it? You wouldn’t
know God if he bit you on the ass.

20230428-CA 11 2025 UT App 49
State v. Lucke

After Lucke concluded his statement, the court told Lucke that it
thought he was “struggling with some mental health things.” The
court imposed a sentence of zero to five years in prison, and it also
issued a permanent stalking injunction. Appellate counsel
subsequently appeared and filed a notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶20 Through appellate counsel, Lucke argues that the district
court erred “when it found [that] Lucke had knowingly and
intelligently waived his right to counsel after a truncated
colloquy.” The question of whether a defendant “voluntarily,
knowingly, and intelligently waived his right to counsel is a
mixed question of law and fact. While we review questions of law
for correctness, a trial court’s factual findings may be reversed on
appeal only if they are clearly erroneous.” State v. Pedockie, 2006
UT 28, ¶ 23, 137 P.3d 716 (quotation simplified). “In the absence
of a colloquy, we review the record de novo to determine whether
the defendant knowingly and intelligently waived [the] right to
counsel.” State v. West, 2023 UT App 61, ¶ 17, 532 P.3d 114.

ANALYSIS

¶21 “The Sixth Amendment to the United States Constitution
guarantees a defendant’s right to representation throughout his
or her criminal trial,” which includes “an indigent defendant’s
right to appointed counsel, as well as the right to waive
representation and proceed pro se.” State v. Petty, 2001 UT App
396, ¶ 5, 38 P.3d 998. But if a defendant waives the right to counsel
and elects to proceed pro se, “it is the trial court’s duty to
determine if this waiver is a voluntary one which is knowingly
and intelligently made.” State v. Patton, 2023 UT App 33, ¶ 12, 528
P.3d 1249 (quotation simplified). Thus, “before permitting a
defendant to self-represent, a trial court should ensure that the
waiver of counsel is voluntary, knowing, and intelligent.” State v.
West, 2023 UT App 61, ¶ 27, 532 P.3d 114 (quotation simplified).

20230428-CA 12 2025 UT App 49
State v. Lucke

“In making this determination, the defendant should be made
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.” State v. Frampton, 737 P.2d 183,
187 (Utah 1987) (quotation simplified).

¶22 Our cases set out two paths under which a court can find
that a defendant’s waiver was knowing and intelligent. First, “a
colloquy on the record [is] the preferred method of determining
whether a defendant is aware of the[] risks” of proceeding pro se.
State v. Pedockie, 2006 UT 28, ¶ 42, 137 P.3d 716. Second, “[a]bsent
a colloquy on the record, a reviewing court should review the
record de novo to determine whether the defendant knowingly
and intelligently waived his right to counsel.” Id. ¶ 45.

¶23 On appeal, Lucke argues that there was not an adequate
colloquy and that the record likewise does not establish that he
knowingly and intelligently waived his right to counsel. He
further argues that we should reverse on this basis alone without
requiring an additional showing of prejudice. We agree on all
fronts. 4

4. As we’ve previously recognized, there’s something of a conflict
in our supreme court’s cases as to how courts should assess such
claims. In State v. Frampton, the court said that where a “defendant
expressly decline[s] an offer of counsel by the trial judge, he has
the burden of showing by a preponderance of the evidence that
he did not [knowingly and intelligently] waive this right.” 737
P.2d 183, 187 (Utah 1987). But more recently, in State v. Pedockie,
the court said that “considering the strong presumption against
waiver and the fundamental nature of the right to counsel, any
doubts must be resolved in favor of the defendant.” 2006 UT 28,
¶ 45, 137 P.3d 716. We’ve recognized this tension before. See, e.g.,
State v. West, 2023 UT App 61, ¶ 29 n.5, 532 P.3d 114; State v. Patton,
2023 UT App 33, ¶ 22 n.6, 528 P.3d 1249; State v. Bozarth, 2021 UT
App 117, ¶ 41 n.1, 501 P.3d 116. In this appeal, we believe that the
(continued…)

20230428-CA 13 2025 UT App 49
State v. Lucke

A. Knowing and Intelligent Waiver

1. The Colloquy

¶24 “The best way to ascertain if a defendant has the requisite
knowledge of the legal mire [he] wishes to wade into is for a court
to engage in penetrating questioning on the record.” West, 2023
UT App 61, ¶ 31 (quotation simplified). In Frampton, our supreme
court set forth a sixteen-point colloquy that’s designed for this
very purpose. See 737 P.2d at 187 n.12. And the supreme court has
since held that this colloquy “establishes a sound framework for
efficient and complete questioning.” Pedockie, 2006 UT 28, ¶ 42; see
also West, 2023 UT App 61, ¶ 31 (“Such questioning is the
encouraged practice for courts, utilizing Frampton’s sixteen-point
guide as a framework to ensure a defendant is making the
decision to proceed pro se knowingly and intelligently.”
(quotation simplified)).

¶25 We’ve stated that compliance with the Frampton colloquy
is “not mandatory,” State v. Bozarth, 2021 UT App 117, ¶ 41, 501
P.3d 116, and that its questions are “not talismanic,” State v.
Waterfield, 2014 UT App 67, ¶ 20, 322 P.3d 1194. But even so, our
supreme court has explained that this colloquy is the “preferred
method” of ascertaining whether the defendant is “aware of the
dangers and disadvantages of self-representation.” Pedockie, 2006
UT 28, ¶ 42 (quotation simplified); accord West, 2023 UT App 61,
¶ 32 n.6. The reason for this is that, by design, the colloquy
provides both the defendant and the court with the necessary

outcome would be the same under either rubric. But in light of the
apparent conflict in the standards, we’ll “again take the liberty to
suggest that the better, and far clearer, rule would be that where
a trial court fails to employ a Frampton colloquy, the presumption
is that waiver did not occur and the burden would be placed on
the State to prove otherwise.” West, 2023 UT App 61, ¶ 29 n.5
(quotation simplified).

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State v. Lucke

information to determine that the defendant’s waiver of counsel
was indeed knowing and intelligent.

¶26 One difficulty arises in situations in which a court asks
some, but not all, of the questions. Our appellate cases haven’t
settled on a magic number of questions that must be asked for a
colloquy to be deemed sufficient, but we have expressed some
wariness if the district court engaged in only a “partial colloquy.”
State v. Lee, 2024 UT App 2, ¶ 10, 542 P.3d 974. And in several
cases, our appellate courts have reversed where a district court
had asked some, but not all, of the questions. See, e.g., id. (holding
that “the colloquy was inadequate” where it “addressed only two
of Frampton’s recommended questions”); West, 2023 UT App 61,
¶¶ 36, 39 (holding that the defendant’s waiver of counsel was not
knowing and intelligent even though the district court warned her
that “she may have put herself at a disadvantage”); Patton, 2023
UT App 33, ¶¶ 17, 21 (same).

¶27 The question of “whether a knowing and intelligent waiver
has been made turns upon the particular facts and circumstances
surrounding each case.” Frampton, 737 P.2d at 188. And in the case
before us here, it’s clear enough that the colloquy was indeed a
partial one. Of the sixteen items in the Frampton colloquy, the
district court did address some of them in some form. For
example, the court told Lucke, “[Y]ou haven’t been to law school.
A public defender has been to law school.” The court informed
Lucke that it couldn’t “give [him] legal advice.” The court warned
Lucke that it thought he was “making a mistake by not having an
attorney represent [him].” The court asked Lucke if he wanted
standby counsel appointed, and it appointed a public defender to
act as standby counsel. 5 These all correspond with items from the
Frampton colloquy.

5. While Lucke did get some assistance from standby counsel,
we’ve previously rejected the argument that the “presence of
standby counsel is a significant safeguard that may offset the
(continued…)

20230428-CA 15 2025 UT App 49
State v. Lucke

¶28 But there were many items from the Frampton colloquy that
the court did not cover in any form at all. The district court did
not ask Lucke if he had ever represented himself or anyone else in
a criminal action. It did not warn Lucke of the particular
maximum punishment he faced if convicted. It did not advise
Lucke that if he chose to testify, he would have to proceed
question by question. And of particular significance, in our view,
it did not ever ask Lucke if his decision was entirely voluntary.
Indeed, the court never actually made a finding on the record that
Lucke had knowingly and voluntarily waived his right to
counsel—i.e., that he knew “what he [was] doing and his choice
[was] made with eyes open.” Id. at 187 (quotation simplified).

¶29 Moreover, it’s not clear that what occurred here was even
a meaningful colloquy at all. The term “colloquy” is commonly
understood to refer to a “conversation” or a “dialogue.” 6
Consistent with this definition, Frampton and its progeny
contemplate that the district court will engage in a two-way
interaction with the defendant. Frampton observed that as a
district court seeks to comply with its “duty to determine if [the]
waiver is a voluntary one which is knowingly and intelligently
made,” the “information” at issue can “generally . . . only be
elicited after penetrating questioning” from the court. Id.
Consistent with this directive, we note that most (though not all)
of the items in the Frampton colloquy are explicitly phrased as
questions. See id. at 187 n.12. And subsequent cases have
reiterated this point. See, e.g., Pedockie, 2006 UT 28, ¶ 42
(contemplating that the court will engage in “efficient and
complete questioning” of the defendant); West, 2023 UT App 61,
¶ 36 (noting that the “court simply mentioned” that the defendant
“may have put herself at a disadvantage, with no other discussion
or explanation” (emphasis added)); Patton, 2023 UT App 33, ¶ 16

deficiencies in the colloquy.” State v. Petty, 2001 UT App 396, ¶ 9
n.4, 38 P.3d 998. So too here.

6. Colloquy, Merriam-Webster, https://www.merriam-
webster.com/dictionary/colloquy [https://perma.cc/NJ3K-3VSX].

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State v. Lucke

(noting that “the court engaged in no questioning that could be
considered penetrating to determine [the defendant’s] level of
understanding about the risks he was accepting and the benefits
he was forfeiting” (quotation simplified)).

¶30 Again, the question before the district court was whether
Lucke’s waiver of counsel was knowing and intelligent, which
required the court to have some sense from Lucke that he
understood the right that he was waiving (i.e., the right to the
assistance of counsel) and the various risks of proceeding pro se.
Here, the court did address some of the items from the Frampton
colloquy at various pretrial conferences. But in each instance, the
court did not engage in a two-way interaction that was
characterized by questions and answers. And without receiving
answers from Lucke, the court had no meaningful basis for
ascertaining whether Lucke actually understood both the right he
was waiving and the risks of proceeding along this path.

¶31 In short, given the district court’s failure to address many
of the items from the Frampton colloquy, as well as its failure to
ask questions and then receive answers in an effort to gauge
Lucke’s understanding, the colloquy that did occur does not
support the conclusion that Lucke’s waiver was knowing and
intelligent. 7

7. We recognize the high burden that is placed on the shoulders
of our district courts, which must deal with any manner of legal
questions on a daily basis. But even so, a defendant’s
constitutional right to counsel must be protected, and the way that
this is done is by ensuring that any waiver of that right is knowing
and intelligent.
Our supreme court has accordingly referred to the
Frampton colloquy as being “the most efficient means by which
appeals may be limited.” Frampton, 737 P.2d at 187. To forestall
appeals such as this one, we again “encourage trial courts to keep
a prepared Frampton waiver-of-counsel colloquy script at the
(continued…)

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State v. Lucke

2. The Record

¶32 Even without an adequate colloquy, we may still “review
the record de novo to determine whether the defendant
knowingly and intelligently waived his right to counsel.” Pedockie,
2006 UT 28, ¶ 45. However, “reviewing courts will rarely find a
valid waiver of the right to counsel absent a colloquy.” Id.

¶33 A few cases show how this plays out. In Frampton, the
supreme court held that “the record adequately support[ed] the
conclusion that defendant knowingly and intelligently waived the
right to representation by counsel.” 737 P.2d at 189. This was so
because the defendant “had previously been to trial twice before
on the same charge” and was represented by counsel at his first
trial, and because various exchanges from the record showed that
the defendant “knew he faced a felony charge,” was “aware of the
penalty he could be subjected to if found guilty,” and was aware
of the technical rules of procedure. Id. In Bozarth, this court
similarly held that “the record demonstrate[d]” that the
defendant “understood the value of counsel and was well aware
of the risks of proceeding pro se,” where standby counsel had told
the court that the defendant was “cognizant of what his rights”
were and was “more educated in the law than other people,”
where the district court “confirmed” that the defendant knew that
he would be required to comply with the rules of procedure, and
where the defendant “clearly stated that he understood the
implications of” his decision to proceed without counsel. 2021 UT
App 117, ¶¶ 9, 42, 47 (quotation simplified).

¶34 Here, the record does not demonstrate that Lucke
knowingly and intelligently waived his right to counsel. As noted,
there was no actual finding from the district court that Lucke had
knowingly and intelligently waived his right to counsel. And
unlike the defendants in Frampton and Bozarth, Lucke “took no
action prior to trial that demonstrate[d] an awareness of the

ready on the bench, for use when the occasion arises.” Patton, 2023
UT App 33, ¶ 14 n.5.

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State v. Lucke

responsibilities of pro se representation.” Patton, 2023 UT App 33,
¶ 27. While Lucke did file pretrial subpoenas for Ex-Wife and
Child, little else beyond this demonstrates that he had any
understanding of the rights and responsibilities that would be his
if he proceeded to trial without representation. Lucke attempted
to ask irrelevant questions during voir dire, unsuccessfully tried
calling a witness (Child) who had no knowledge of the events in
question, and asked many irrelevant questions during cross-
examination of the State’s two witnesses. During his opening
statement, Lucke essentially admitted to the offense when he said,
“They found the one thing I couldn’t not do, and they made it a
felony.” Throughout the trial, Lucke made no objections and
never mentioned the rules of evidence or criminal procedure. And
Lucke did not give a closing argument.

¶35 In short, given that there was not an adequate colloquy, we
may find a valid waiver only if our review of the record shows
that Lucke “understood the seriousness of the charges and knew
the possible maximum penalty” and that he was also “aware of
the existence of technical rules and that presenting a defense is not
just a matter of telling one’s story.” Lee, 2024 UT App 2, ¶ 11
(quotation simplified). Because the record does not demonstrate
this, we conclude that Lucke’s waiver of the right to counsel was
not knowing and intelligent. 8

8. At oral argument, the State repeatedly suggested that Utah’s
caselaw has essentially gone off track and focused on the wrong
question. In the State’s view, instead of asking whether the
defendant knowingly and intelligently waived the right to
counsel, as Frampton and its progeny do, appellate courts should
instead view such cases through the prism of a defendant’s right
to self-representation. We’re not convinced that these questions
are all that different. Rather, they seem to be two sides of the same
constitutional coin—a defendant has the right to both self-
representation and the assistance of counsel, and the exercise of
one typically contemplates the waiver of the other.
(continued…)

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State v. Lucke

B. Prejudice

¶36 We next turn to the question of whether Lucke was
prejudiced. As an initial matter, we note that Lucke argues that
his “invalid waiver of counsel amounted to structural error for
which prejudice is presumed.” We agree.

¶37 A structural error is one that “affect[s] the framework
within which the trial proceeds.” State v. Reece, 2015 UT 45, ¶ 34,
349 P.3d 712 (quotation simplified). Because “the effects of [this
kind of] error are simply too hard to measure or cannot be
ascertained,” State v. Montes, 2019 UT App 74, ¶ 32, 442 P.3d 1247
(quotation simplified), “we presume that a structural error
affected the outcome of the case and do not require the defendant

In terms of the relationship between the two, the United
States Supreme Court has held that because a self-representing
defendant typically “relinquishes . . . many of the traditional
benefits associated with the right to counsel,” “in order to
represent himself, the accused must knowingly and intelligently
forgo those relinquished benefits.” Faretta v. California, 422 U.S.
806, 835 (1975) (quotation simplified). In light of this, the Supreme
Court then held that such a defendant “should be made 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.” Id. (quotation simplified).
Our supreme court echoed this perspective in Frampton,
concluding that a district court has a “duty to determine” that a
waiver of counsel was indeed “knowingly and intelligently
made.” 737 P.2d at 187. Frampton has been the law in Utah since
1987, and cases from both our supreme court and this court have
repeatedly applied and enforced that requirement ever since. We
are bound by our supreme court’s precedents, and we are likewise
bound by our own cases. See Sterling Fiduciaries LLC v. JPMorgan
Chase Bank NA, 2017 UT App 135, ¶ 14, 402 P.3d 130; Ortega v.
Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18. For the
reasons set forth above, we conclude that the district court did not
fulfill its duty in this case.

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State v. Lucke

to show prejudice,” Reece, 2015 UT 45, ¶ 34. “The United States
Supreme Court has found structural errors only in a very limited
class of cases.” State v. Bunker, 2019 UT App 118, ¶ 10, 446 P.3d
153 (quotation simplified); see also Washington v. Recuenco, 548 U.S.
212, 218 (2006) (“Only in rare cases has this Court held that an
error is structural, and thus requires automatic reversal.”
(emphasis added)). “Examples of such errors include mistakes in
reasonable doubt instructions, the complete denial of counsel at a
critical stage of a criminal proceeding, racial discrimination in jury
selection, lack of an impartial trial judge, denial of the right to a
public trial, and the failure to instruct the jury on the basic
elements of an offense.” Reece, 2015 UT 45, ¶ 34 (quotation
simplified).

¶38 In past cases, Utah’s appellate courts have not explicitly
considered whether a district court’s failure to ensure that a
defendant’s waiver of the right to counsel was knowing and
intelligent constituted structural error. But the cases have acted as
if it does. In a number of cases, after concluding that there was
such an error, Utah’s appellate courts have then reversed
convictions or sentences without any discussion of prejudice at
all. See, e.g., Pedockie, 2006 UT 28, ¶ 52; Lee, 2024 UT App 2, ¶ 19;
West, 2023 UT App 61, ¶ 40; Patton, 2023 UT App 33, ¶ 31; Petty,
2001 UT App 396, ¶ 12.

¶39 Having considered the matter here, we now make explicit
what has been implicit before—namely, that if we see no basis for
concluding that a waiver of counsel was knowing and intelligent
(whether through colloquy or support from the record), the
resultant error constitutes structural error. The United States
Supreme Court has “identified three broad rationales for deeming
an error structural”: (1) “the right at issue is not designed to
protect the defendant from erroneous conviction but instead
protects some other interest,” (2) “the effects of the error are
simply too hard to measure or cannot be ascertained,” and (3) “the
error always results in fundamental unfairness.” Montes, 2019 UT
App 74, ¶¶ 30–33 (quotation simplified). The right to knowingly

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State v. Lucke

and intelligently waive counsel implicates both the second and
third rationales.

¶40 It would be exceedingly difficult for an appellate court to
retroactively measure the effects of a defendant not having had
the benefit of counsel before or during the trial. This is so because
of the wide range of decisions that counsel makes during the
investigation, planning, and presentation phases of the case.
Perhaps counsel could have made better investigation decisions,
or negotiated a favorable plea deal with the prosecutor, or made
better decisions about what defenses to run or not run at trial, or
recognized and raised valid competency concerns, or presented
the case and the defendant in a better light to the jury, or
presented the case and the defendant in a more favorable light to
the court at sentencing. Each of these decisions (or any number of
others) could set the case off on an entirely different path, so it
becomes simply too difficult to figure out how to measure the
impact that counsel may have had if counsel had been involved
in the case.

¶41 For similar reasons, it would be fundamentally unfair to
allow a defendant to go to trial without counsel without first
ensuring (whether it be by colloquy or the broader record itself)
that the defendant was knowingly and intelligently making that
choice. As the United States Supreme Court has observed in an
analogous context—namely, in the context of a defendant’s right
to counsel of his choice—“[t]he right to have the assistance of
counsel is too fundamental and absolute to allow courts to
indulge in nice calculations as to the amount of prejudice arising
from its denial.” Glasser v. United States, 315 U.S. 60, 76 (1942),
superseded on other grounds by rule as stated in Bourjaily v. United
States, 483 U.S. 171 (1987). As the Supreme Court explained in a
different case,

The right to be heard would be, in many cases, of
little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the

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State v. Lucke

science of law. If charged with crime, he is
incapable, generally, of determining for himself
whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without
the aid of counsel he may be put on trial without a
proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the
guiding hand of counsel at every step in the
proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because
he does not know how to establish his innocence.

Powell v. Alabama, 287 U.S. 45, 68–69 (1932).

¶42 We accordingly conclude that the kind of error at issue in
this case constitutes structural error. And because we held above
that the district court failed to ensure that Lucke knowingly and
intelligently waived his right to counsel, we reverse his
conviction. 9

9. Through appellate counsel, Lucke also argues that the district
court plainly erred by not ordering a competency hearing before
trial or sentencing. This was so, according to appellate counsel,
because “there was a substantial question of possible doubt”
about Lucke’s “competency to proceed,” and more specifically
about whether Lucke “possessed a ’rational and factual
understanding of the criminal proceedings against [him] and of
the punishment specified for the offense.’” (Quoting Utah Code
§ 77-15-2(2).)
When “determining whether the lower court should have
ordered a competency hearing, we consider only those facts that
were before the trial court” at the relevant time. State v. Arguelles,
(continued…)

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State v. Lucke

CONCLUSION

¶43 The district court did not conduct an adequate Frampton
colloquy, nor does the record establish that Lucke knowingly and
intelligently waived his right to counsel. We therefore vacate his
conviction and remand for further proceedings consistent with
this opinion.

2003 UT 1, ¶ 50, 63 P.3d 731 (quotation simplified). But the facts
that arguably demonstrate that Lucke was incompetent are now
several years old. And as appellate counsel acknowledged at oral
argument, competency is fluid.
We have no need to determine whether Lucke should have
been evaluated for competency before a trial whose results we’ve
now vacated. But we note that under Utah law, a court should
order a competency evaluation if “there is a substantial question
of possible doubt as to a defendant’s competency” at the relevant
time. Id. ¶ 49 (quotation simplified); see also State v. Anderson, 2024
UT App 65, ¶ 19, 549 P.3d 101, cert. denied, 554 P.3d 1098 (Utah
2024). On remand, the district court will of course be free to
consider whether a competency evaluation should now be
ordered. And in making such a determination, the court may
consider both its prior interactions with Lucke and those that
occur in any future proceedings as well.

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