State v. Bridgewaters

2025 UT App 184

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSHUA RYAN BRIDGEWATERS,
Appellant.

Amended Opinion *
No. 20221065-CA
Filed December 11, 2025

Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 171404503

Robert T. Denny, Attorney for Appellant
Derek E. Brown and Lindsey Wheeler,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 Leading up to his criminal trial, Joshua Ryan Bridgewaters
made multiple requests to represent himself. The trial court
denied his final request without determining whether
Bridgewaters’s express waiver of his right to counsel was
knowing and intelligent. Instead, the court appears to have based

* This Amended Opinion replaces the Opinion in Case No.
20221065-CA issued on October 30, 2025. After that opinion
issued, the appellee filed a petition for rehearing, and we called
for a response. We grant the petition and issue this revised
opinion, which contains modifications to paragraphs 29 and 32 to
clarify that the decision of whether to appoint standby counsel is
within the sound discretion of the district court.
State v. Bridgewaters

its denial of Bridgewaters’s request on a determination that
Bridgewaters was making the request to delay trial. Accordingly,
the court required Bridgewaters to be represented by counsel at
trial, where a jury found Bridgewaters guilty of manslaughter and
witness tampering.

¶2 Bridgewaters now appeals the denial of his request to
represent himself at trial. We conclude that absent forfeiture or an
implied waiver of the right to self-representation, denial of a
defendant’s explicit request to proceed pro se constitutes error
when the court fails to root that denial in a finding that the request
was not knowingly and intelligently made. We further conclude
that a defendant cannot impliedly waive the right to self-
representation through dilatory tactics or other similar
misconduct unless the court first warns the defendant that such
misconduct will constitute a waiver. Here, because the court
denied Bridgewaters’s request without finding that it was not
knowingly and intelligently made, and because the court failed to
warn Bridgewaters that his use of self-representation as a
mechanism for delay would result in a waiver, the court erred by
denying Bridgewaters’s request. We therefore vacate
Bridgewaters’s convictions and remand for a new trial.

BACKGROUND

¶3 Bridgewaters was charged with murder, obstruction of
justice, and witness tampering, all in connection with the death of
his girlfriend.

¶4 Bridgewaters’s trial was originally scheduled for October
2018. But it was repeatedly rescheduled for various reasons,
including the State’s request for a continuance, delays associated
with the COVID-19 pandemic, cancellation by the court, conflicts
with or changes in counsel not of Bridgewaters’s doing, and
changes in counsel at Bridgewaters’s behest. Trial was eventually
held in September 2022.

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State v. Bridgewaters

¶5 Before trial, Bridgewaters repeatedly requested to
represent himself. On June 21, 2021, the court received a
handwritten letter from Bridgewaters requesting “a hearing . . .
regarding [his then] current counsel and how [he] would like to
proceed as for the best of [his] interest.” The court held a hearing
on July 8, 2021, at which Bridgewaters’s attorney stated, “I believe
[Bridgewaters] still wants to go forward with just representing
himself.” The court noted that Bridgewaters had gone through
several attorneys already due to a history of him becoming “very
anxious . . . on the eve of trial,” prompting him to switch counsel.
The court said that if Bridgewaters proceeded pro se, it would
appoint standby counsel because otherwise Bridgewaters might
do something during trial that would “cause the whole thing to
have to start over again.” The court sought and received
Bridgewaters’s acknowledgement that the charges he was facing
were very serious. The court also highlighted some risks of
proceeding pro se and instructed Bridgewaters that the court
would not be able to engage in discussions with him about trial
strategy. Despite the court telling Bridgewaters it was “an
enormously bad idea” for him—or anyone—to self-represent,
Bridgewaters said he wanted to exercise his “constitutional right
. . . to go pro se.” The court then ordered Bridgewaters’s attorney
to serve as standby counsel, although the court made no specific
finding that Bridgewaters had knowingly and intelligently
waived his right to counsel.

¶6 A couple of weeks later, at a hearing on July 20, 2021, at
which Bridgewaters was not present, the prosecutor informed the
court that he would be leaving the district attorney’s office and
joining the same firm as Bridgewaters’s standby counsel, which
would create a conflict. The court noted that Bridgewaters had
“expressed some desire to . . . represent himself,” but it did not
resolve the issue of Bridgewaters’s representation at that time.
Instead, the court scheduled a status hearing for the following
month to give Bridgewaters’s standby counsel an opportunity to
inform Bridgewaters of the impending conflict, and to give
Bridgewaters some time to “think[] about it.”

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State v. Bridgewaters

¶7 On the date of the scheduled status hearing, the prosecutor
filed a motion for leave to withdraw, which was granted the same
day, and the contemplated status hearing was continued.
Subsequently, the status hearing was continued four additional
times. In the meantime, the court ordered Bridgewaters’s standby
counsel to withdraw, and it appointed new counsel “to represent
[Bridgewaters] in all future proceedings.” On September 27, 2021,
the newly appointed attorney entered an appearance on behalf of
Bridgewaters. The status hearing was then held on October 28,
2021.

¶8 Bridgewaters’s new attorney filed, among other things, a
motion to dismiss, and on March 29, 2022, the court held an
evidentiary hearing on that motion. During that hearing,
Bridgewaters’s new attorney questioned various witnesses,
presented arguments on the motion to dismiss, and responded to
counterarguments from the State. After hearing those arguments,
the court denied the motion to dismiss and set a trial date of
September 6, 2022, with jury selection to begin on August 31, 2022.
Bridgewaters’s new attorney then discussed jury instructions and
the voir dire process with the court.

¶9 After the business of the hearing was complete, the court
asked if there was anything else that needed to be addressed. At
that point, Bridgewaters himself spoke up, and the following
exchange occurred:

[Bridgewaters]: . . . I know, Judge . . . , you’re very
opposed to this and very against it, but I am just not
comfortable going forward with [my attorney]. . . . I
mean, for the record, I’m a United States citizen,
correct? Right?

[Bridgewaters’s counsel]: I believe so.

[Bridgewaters]: Okay. I have constitutional rights,
correct?

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[The State]: Goes without saying.

[Bridgewaters]: Okay. Including the right to be
represented by counsel[;] therefore, I am declining
counsel. I want to be pro se. I would like to keep my
trial date set on the computer or on your calendar,
. . . and that’s that.

....

[The court]: . . . I’m happy to do this again, Mr.
Bridgewaters. And you’re correct that I think it’s a
horribly unwise choice to make—

[Bridgewaters]: It is.

[The court]: —to navigate the rules and procedure
with what’s at stake. A person to do that on their
own, I think it’s the most foolish thing a person can
do. . . .

....

. . . [I]f we were to go through [a] Frampton[1]
colloquy[,] . . . I’d have to make a finding that you’re
knowingly and intelligently waiving the right to
counsel.

There’s quite a bit of case law about the first
part about that, about the knowingly. There’s
shockingly little said about the intelligent part of
that because I think what’s unspoken is that we

1. In State v. Frampton, 737 P.2d 183 (Utah 1987), our supreme court
endorsed a model colloquy for trial courts to use in determining
whether a defendant is knowingly and voluntarily waiving the
right to counsel. See id. at 187 n.12.

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State v. Bridgewaters

agree that it’s unwise and that anyone who walks in
would agree that it’s unwise to do it. So how could
that be intelligent and what finding it’s made as to
intelligence?

I think what normally happens is judges go
[through] the colloquy and if a person strongly
wants to represent themselves, unless the [j]udge
has a sense that they’re going . . . to be disruptive in
[c]ourt, not follow [c]ourt orders, unless they’re
thinking that, I think they mostly allow folks to
represent themselves. I don’t think it makes a whole
lot of sense.

. . . What’s the purpose to asking all those
questions if the automatic answer from the [c]ourt
in every case is, Well, go ahead and represent
yourself? Then why would we even bother asking
the questions?

[Bridgewaters]: I’ve been sitting here for five years
trying to get to that.

[The court]: . . . So if we go through that Frampton
colloquy, I don’t have any doubt this is what you
want to do. This is what you say you want to do. The
intelligent part would be this. If you represent
yourself, you necessarily waive any ineffective
assistance of counsel claims that might happen. So
if you make any mistake along the way as far as how
to proceed and those mistakes actually hurt you and
hurt you in the case, you’ve waived all those issues.
You have no ability to appeal any of that and you
have no recourse.

So is a person intelligently making that
decision? I don’t know. And I don’t know that the

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State v. Bridgewaters

colloquy really helps me make a finding on that
point. That’s why I’m previewing this to you now
because I want you to think about that, whether
you’re really truly willing to waive all of those
potential appellate issues because that’s what you’d
be doing if you represent yourself.

The court then offered to set a hearing to “go through [the
Frampton] colloquy.” Bridgewaters said that he wanted such a
hearing, and the court scheduled one for April 14, 2022.

¶10 At the April 14, 2022 hearing, the court and Bridgewaters
had the following discussion:

[The court]: We’ve gone through the colloquy
before.[2] And in the [c]ourt’s view, the purpose of
the Frampton colloquy . . . is to—if a person is asking

2. The court’s mention of a prior Frampton colloquy appears to be
a reference to the hearing on July 8, 2021, where Bridgewaters
asked to proceed pro se and the court highlighted some of the
risks of doing so and instructed Bridgewaters that it would not be
able to engage in discussions with him about trial strategy if he
chose to represent himself. The record, including the minutes of
the various hearings below, indicates that the only other time
prior to March 29, 2022, when Bridgewaters requested to proceed
pro se—and, thus, the only other time the court would have had
occasion to conduct a Frampton colloquy—was at a hearing on
February 8, 2019. According to the transcript of that hearing,
however, the court told Bridgewaters then that it was “not going
to go through all the different questions [it] would normally go
through if a person wanted to represent themselves.” Instead, it
asked Bridgewaters if he would accept new appointed counsel,
Bridgewaters said he would, and the court appointed new
counsel. Thus, the only Frampton-like colloquy prior to the hearing
on April 14, 2022, to which the court could have been referring
appears to be the one on July 8, 2021.

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State v. Bridgewaters

to represent themselves and they don’t fully grasp
or understand what that really means[—then the]
purpose of going through the questions is to try to
have a lightbulb come on inside their mind and have
them gain some awareness that maybe this is a lot
more complicated than I think it’s going to be. I
haven’t studied the law. I am not familiar with the
Rules of Evidence. I’m not familiar with criminal
procedure. I’m not familiar with courtroom
procedure. I’m maybe not even sure how I would
get my own testimony properly before the [c]ourt
and before the jury.

So when you go through the Frampton
colloquy, as you ask questions, oftentimes, you have
a person say, you know what, maybe this isn’t a
good idea. In fact, we did this, you and I, one time
previously, and you acquiesced and said, You know
what, I will have counsel.[3]

Now, you’ve asked to do this again. And I
don’t know if it makes any sense to go all the way
through the colloquy again. What I’d like to know
from you, Mr. Bridgewaters, is why, at this point, do
you think you would be better served—facing a
first-degree felony murder charge with a possibility
of the remainder of your natural days in prison[—]
why do you think you would be better off handling
the matter on your own without the assistance of
somebody trained in law?

3. The court appears to have been conflating what occurred at the
February 8, 2019 hearing with what occurred at the July 8, 2021
hearing. See supra note 2.

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State v. Bridgewaters

[Bridgewaters]: Well, because I’m 100 percent
innocent, and I feel better representing myself.

[The court]: Hold on right there.

[Bridgewaters]: Okay.

[The court]: I take what you said very, very
seriously. And if a person is 100 percent innocent,
that is exactly the [person] who needs the help of a
lawyer, who’s trained, [who] knows all the rules
and the process. And that would be the biggest
travesty of justice if there were a person who was
100 percent innocent that didn’t have the benefit of
an attorney. And you’re asking to go forward
without an attorney. Does that make any sense?

[Bridgewaters]: I mean, it does. Absolutely.

[The court]: Okay. All right. To the [c]ourt, it does
not, and I will not allow it.

[Bridgewaters]: Okay. Well, I have to find an
attorney then. I mean, are you going to appoint me
a new attorney?

[The court]: You have appointed counsel.

[Bridgewaters]: Well, that’s my constitutional right
to represent myself.

[The court]: It is your right to represent yourself, but
it’s not without limits. And there’s . . . a pattern of
delay, and I’m not going to allow you to once again
change counsel, which would cause further delay to
the case. You’re not allowed to prejudice the case.

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State v. Bridgewaters

Shortly thereafter, the court also said, “When we get close to trial,
this is . . . your mechanism for delaying the proceeding.”
Bridgewaters contended that the trial was still five months away
and that he was “ready to go by [him]self.” He then reiterated that
he wanted to represent himself and did not want counsel. The
court denied his request.

¶11 The case proceeded to a jury trial as scheduled, during
which Bridgewaters was represented by appointed counsel. The
jury was instructed on the charged offenses of murder,
obstruction of justice, and witness tampering, as well as on the
offense of manslaughter as a lesser-included offense of murder.
The jury convicted Bridgewaters of manslaughter and witness
tampering. Bridgewaters now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Bridgewaters asserts that the trial court violated his right
to self-representation when it denied his motion to proceed pro se
“without determining whether he could ‘knowingly’ and
‘intelligently’ do so.” “A trial court’s factual findings regarding
whether the defendant knowingly and intelligently waived the
right to counsel will not be overturned unless they are clearly
erroneous. However, this court will apply a correction of error
standard to determine whether the trial court applied the proper
legal standard in reaching its decision to deny self-
representation.” State v. Bakalov, 849 P.2d 629, 634 (Utah Ct. App.
1993) (cleaned up), aff’d in part, vacated in part, 862 P.2d 1354 (Utah
1993) (per curiam). 4

4. Bridgewaters also asserts a claim of ineffective assistance of
counsel. Because we reverse his conviction on the basis of the
violation of his right to self-representation, we need not address
his ineffective assistance claim.

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State v. Bridgewaters

ANALYSIS

¶13 Under both the United States Constitution and the Utah
Constitution, a criminal defendant has the right to counsel. U.S.
Const. amend. VI; Utah Const. art. I, § 12. However, a defendant
may waive this right and choose, instead, to assert the right of self-
representation. Faretta v. California, 422 U.S. 806, 821 (1975) (“The
Sixth Amendment, when naturally read, . . . implies a right of self-
representation.”); State v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716
(“Defendants also have the right to waive their right to counsel.”).

¶14 Bridgewaters contends that he waived his right to counsel
and that the trial court erred by denying his request to proceed
pro se without addressing whether his attempt to exercise the
right to self-representation was knowing and intelligent. The State
counters by pointing to the trial court’s finding that Bridgewaters
was using his request to proceed pro se as a “mechanism for
delaying the proceeding.” The State asserts that “by weaponizing
his right” to self-representation to delay trial, Bridgewaters
“failed to show that he could knowingly and intelligently waive
his right to counsel.”

¶15 Our analysis of the parties’ foregoing arguments proceeds
in two parts. First, we review the relevant principles that govern
a defendant’s waiver of the right to counsel and concomitant
invocation of the right to self-representation. We then apply those
principles to the facts at hand. Our resulting conclusion is that
Bridgewaters unequivocally invoked his right to self-
representation and that the trial court erred by denying
Bridgewaters’s request without first finding that he could not
knowingly and intelligently exercise the right to proceed pro se.

¶16 Second, we set forth the principles that govern a
defendant’s waiver or forfeiture of the right to self-representation.
We then apply those principles to the facts of this case, including
the court’s finding that Bridgewaters was invoking the right to
self-representation as a “mechanism for delaying the
proceeding.” Our resulting conclusion on this front is that this

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State v. Bridgewaters

finding does not support a determination that Bridgewaters
waived his right to self-representation, because the court did not
first warn Bridgewaters that such dilatory tactics would constitute
a waiver of that right.

¶17 Based on the foregoing conclusions, we ultimately vacate
Bridgewaters’s convictions and remand this matter for a new trial.

I. Waiver of the Right to Counsel

¶18 “Courts have recognized three methods pursuant to which
a defendant may give up [the] constitutional right to the
assistance of counsel: [true] waiver, forfeiture, and waiver by
conduct.” State v. Pedockie, 2006 UT 28, ¶ 27, 137 P.3d 716. “True
waiver is the most common method by which defendants forsake
their right to counsel.” Id. ¶ 28. And it is the method Bridgewaters
contends he employed here.

¶19 A true waiver of the right to counsel “typically occurs
when a defendant affirmatively requests permission to proceed
pro se.” Id. In fact, to effect a true waiver, the defendant must
“clearly and unequivocally request self-representation.” Id.
(cleaned up). Once the defendant clearly and unequivocally
requests self-representation, “[i]t is the trial court’s duty to
determine whether the defendant does in fact understand the
rights being waived and the potential consequences.” State v.
Bakalov, 849 P.2d 629, 636 (Utah Ct. App. 1993), aff’d in part, vacated
in part, 862 P.2d 1354 (Utah 1993) (per curiam). “[U]nless [the] trial
court appropriately finds that [the] defendant has not knowingly
and intelligently chosen self-representation, it must honor that
defendant’s choice.” Id. at 634.

¶20 Bridgewaters contends that he clearly and unequivocally
requested self-representation and that the trial court erred by
denying his request without finding that he could not knowingly
and intelligently exercise that right. Bridgewaters’s argument is
well taken.

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State v. Bridgewaters

A. Clear and Unequivocal Request to Proceed Pro Se

¶21 At the March 29, 2022 hearing, Bridgewaters identified his
constitutional right to counsel and then said, “I am declining
counsel. I want to be pro se.” The court expressed its skepticism
as to whether Bridgewaters or any other criminal defendant could
intelligently waive the right to counsel because proceeding
without counsel is “unwise and . . . anyone . . . would agree that
it’s unwise.” But the court nevertheless told Bridgewaters that it
would hold a hearing to go through a Frampton colloquy if
Bridgewaters wanted it to. Bridgewaters said that he did, and a
hearing for that purpose was set.

¶22 At the subsequent hearing, held on April 14, 2022,
Bridgewaters maintained his desire to represent himself. When
the court asked him why he thought he “would be better off
handling the matter on [his] own,” Bridgewaters said that he “felt
better representing himself.” After the court then stated that it
would not allow Bridgewaters to represent himself, Bridgewaters
said, “Well, that’s my constitutional right to represent myself.”
And he continued to insist that he wanted to represent himself
and did not want counsel. Thus, Bridgewaters satisfied the
requirement of making a clear and unequivocal request to
represent himself.

¶23 The State asserts that Bridgewaters “did not unequivocally
communicate to the court that he wanted to exercise his right to
self-representation.” Essentially, the State argues that because
Bridgewaters had “flipflopped” in the past as to whether he
wanted to proceed pro se and “flipflop[ped] again at the [April
14, 2022] hearing,” the court could reasonably determine that he
was not making a clear and unequivocal request. The State’s
argument is unpersuasive for at least three reasons.

¶24 First, regardless of what Bridgewaters said at previous
hearings, if he made a clear and unequivocal request at the March
29, 2022 and April 14, 2022 hearings, the court had a duty—absent
a prior warning to Bridgewaters that a subsequent flipflop would

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State v. Bridgewaters

be deemed a waiver of the right to proceed pro se, see infra ¶¶ 36‒
45—to determine whether Bridgewaters’s waiver of his right to
counsel was valid. Second, the court expressly determined at the
March 29, 2022 hearing that Bridgewaters had made a clear and
unequivocal request to proceed pro se, saying, “I don’t have any
doubt this is what you want to do. This is what you say you want
to do.” Third, contrary to the State’s assertion, Bridgewaters did
not flipflop at the April 14, 2022 hearing. Although at one point
he said that he had “to find an attorney” and asked whether the
court was “going to appoint [him] a new attorney,” viewed in
context, those statements were not an indication that
Bridgewaters had changed his mind about proceeding pro se.
Instead, they were expressions of a fallback position in response
to the court’s near-immediate refusal to allow Bridgewaters to
represent himself. As the hearing went on, Bridgewaters
repeatedly reaffirmed his principal desire to proceed pro se. For
these reasons, we are not persuaded that Bridgewaters’s request
to proceed pro se was anything other than clear and unequivocal.

B. Determination Regarding the Validity of the Waiver

¶25 The second step for a true waiver of the right to counsel is
a determination by the court that the waiver is valid. “When a
defendant requests to proceed pro se, [the] waiver will be valid
only if [the defendant] acts knowingly and intelligently . . . .” State
v. Pedockie, 2006 UT 28, ¶ 29, 137 P.3d 716. In determining whether
the defendant’s waiver is knowing and intelligent, the court
should make the defendant “aware of the dangers and
disadvantages of self-representation, so that the record will
establish that [the defendant] knows what [the defendant] is
doing and [the] choice is made with eyes open.” State v. Frampton,
737 P.2d 183, 187 (Utah 1987) (cleaned up). “Generally, this
information can only be elicited after penetrating questioning by
the trial court. Therefore, a colloquy on the record between the
court and the accused is the preferred method of ascertaining the
validity of a waiver because it [e]nsures that defendants
understand the risks of self-representation.” Id. Our supreme
court has indicated that “[t]he sixteen-point colloquy found in

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State v. Bridgewaters

State v. Frampton establishes a sound framework for efficient and
complete questioning.” Pedockie, 2006 UT 28, ¶ 42 (footnote
omitted). And “[w]hile a waiver colloquy need not follow this
precise script,” State v. Patton, 2023 UT App 33, ¶ 14, 528 P.3d 1249,
“our supreme court has urged and strongly recommended trial
courts to employ the full Frampton colloquy,” id. ¶ 14 n.5 (cleaned
up).

¶26 Here, after Bridgewaters made his unequivocal request,
the trial court was obligated to determine whether he was
knowingly and intelligently waiving his right to counsel,
preferably by conducting a full Frampton colloquy. See Pedockie,
2006 UT 28, ¶ 42. The court’s repeated references to the Frampton
colloquy demonstrate that the court was aware of this obligation.
But the trial court did not complete the process. 5 At the April 14,
2022 hearing, which the court scheduled in order to perform the
Frampton colloquy, the court’s inquiry fell far short of what was
required. 6 After explaining the purpose of the Frampton colloquy,

5. The State asserts that Bridgewaters has not produced an
adequate record on appeal because various hearing transcripts
were not requested and included in the appellate record. As
indicated in footnote 2 above, however, the appellate record
contains the transcripts of the only hearings during which
Bridgewaters requested to proceed pro se. The record is therefore
sufficient for us to determine that the court erred in not fulfilling
its duty to determine if Bridgewaters’s waiver was valid.

6. The State emphasizes that the court had apparently engaged in
a Frampton colloquy with Bridgewaters previously. But again, as
reflected in footnote 2 above, the previous colloquy to which the
court referred was not a full Frampton colloquy. And, more
importantly, the result of that colloquy was not a finding that
Bridgewaters could not knowingly and intelligently waive the
right to counsel. Rather, after that prior colloquy, the court
allowed Bridgewaters to proceed pro se—at least for a time—by
ordering his then-current counsel to instead assume the role of
standby counsel.

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the court asked Bridgewaters the single question of why he
thought he would be better off handling the matter on his own.
When Bridgewaters asserted his innocence and said he felt more
comfortable representing himself than proceeding with counsel,
the court replied that someone who is innocent needs the
assistance of counsel. The court then said, “And you’re asking to
go forward without an attorney. Does that make any sense?”
Bridgewaters replied, “I mean, it does. Absolutely.” And the court
responded, “To the [c]ourt, it does not, and I will not allow it.”
This exchange was inadequate to determine the validity of
Bridgewaters’s waiver. Moreover, the court made no specific
findings that Bridgewaters’s waiver was not knowing and
intelligent. Instead, it denied Bridgewaters’s request because the
request did not “make any sense” to the court. 7

¶27 One way to interpret the court’s April 8, 2022 declaration
that proceeding without an attorney did not “make any sense” is
to construe it—particularly in light of the court’s statements at the
March 29, 2022 hearing—as a determination that no defendant,
including Bridgewaters, could ever intelligently waive the right
to counsel. At the March 29, 2022 hearing, the court expressed its
categorical view that proceeding without counsel is “unwise and
that anyone . . . would agree that it’s unwise.” It then asked, “So
how could that be intelligent . . . ?” And it further stated that it did
not know whether “the [Frampton] colloquy really helps [in]
mak[ing] a finding on that point.” Against that backdrop, the
court then said at the April 14, 2022 hearing that Bridgewaters’s

7. The trial court also denied Bridgewaters’s request because it
found that Bridgewaters was using his request for self-
representation as a “mechanism for delaying the proceeding.”
The State contends that “by weaponizing his right to delay trial,
[Bridgewaters] failed to show that he could knowingly and
intelligently waive his right to counsel.” We disagree that dilatory
conduct, standing alone, evidences an inability to knowingly and
intelligently waive the right to counsel. We therefore do not
address this basis for the court’s ruling in this part of our analysis;
we address it in Part II of our analysis.

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waiver of the right to counsel did not “make any sense” because
Bridgewaters claimed innocence and a defendant claiming
innocence “is exactly the person who needs the help of a lawyer,
who’s trained, [who] knows all the rules and the process.”

¶28 To the extent that the court’s denial of Bridgewaters’s
request to proceed pro se was based on a determination that no
defendant can ever intelligently waive the right to counsel
because any intelligent person would understand that criminal
defendants—especially those who maintain their factual
innocence—are worse off without the help of an attorney, the
court misunderstood and misapplied the law. “Consideration of
the defendant’s best interests is not relevant to the determination
of whether or not a knowing and intelligent waiver has been
made.” State v. Bakalov, 849 P.2d 629, 633 (Utah Ct. App. 1993),
aff’d in part, vacated in part, 862 P.2d 1354 (Utah 1993) (per curiam).
Rather, the standard “is whether the defendant, with adequate
intelligence and knowledge about the potential ramifications,
voluntarily chooses self-representation.” Id.; see also Faretta v.
California, 422 U.S. 806, 834 (1975) (“It is undeniable that in most
criminal prosecutions defendants could better defend with
counsel’s guidance than by their own unskilled efforts. But where
the defendant will not voluntarily accept representation by
counsel, the potential advantage of a lawyer’s training and
experience can be realized, if at all, only imperfectly.”).

¶29 Our caselaw is clear that the preferred course when a
defendant validly waives the right to counsel but the court
“harbors serious reservations about the ability of [the] defendant[]
to effectively [self-]represent” is for the court to exercise its
discretion and appoint standby counsel “to aid the accused if and
when the accused requests help, and to be available to represent
the accused in the event that termination of the defendant’s self-
representation is necessary.” Bakalov, 849 P.2d at 637 (cleaned up).
The court did not take this approach. Instead, it denied
Bridgewaters the right to self-representation without making
specific findings as to whether his invocation of the right was
valid. This was error.

20221065-CA 17 2025 UT App 184
State v. Bridgewaters

¶30 In sum, the trial court (1) did not conduct an adequate
Frampton colloquy; (2) apparently determined, mistakenly, that
Bridgewaters’s waiver of the right to counsel was not intelligent
because the assistance of counsel is so obviously in a defendant’s
best interest that its waiver can never be an intelligent choice; and
(3) denied Bridgewaters’s request to proceed pro se without
making the specific required findings regarding whether his
choice to represent himself was knowing and intelligent.

¶31 The trial court in State v. Bakalov, 849 P.2d 629 (Utah Ct.
App. 1993), aff’d in part, vacated in part, 862 P.2d 1354 (Utah 1993)
(per curiam), made the same mistakes. Specifically, like the trial
court here, the trial court in Bakalov did not conduct an adequate
“colloquy with [the defendant] informing him of the potential
consequences of his decision.” Id. at 636. Additionally, “although
the court ultimately found that [the defendant] would not be able
to knowingly and intelligently waive his right to counsel, the
underlying factual findings indicate[d] that the court reached this
conclusion through an approach analogous to the paternalistic
best interest standard” we have disavowed. Id. (cleaned up). And
the record in Bakalov, as here, was “devoid of specific findings
[that] relate[d] to whether [the defendant’s] choice to represent
himself was intelligent and knowing.” Id.

¶32 Because the circumstances here mirror those in Bakalov in
every relevant respect, we apply the same remedy here as was
ultimately applied there:

The case is reversed and remanded for a new trial at
which [Bridgewaters] may exercise his
constitutional right to represent himself if he
voluntarily, knowingly, and intelligently chooses to
do so. The trial court is directed to conduct a
colloquy on the record between the court and
[Bridgewaters] to insure that he understands the
risks of self-representation and thereby waives his
constitutional right to assistance of counsel. The
court is also [encouraged] to appoint standby

20221065-CA 18 2025 UT App 184
State v. Bridgewaters

counsel to preserve [Bridgewaters’s] right to self-
representation and to preclude subsequent claims of
lack of waiver or ineffective assistance of counsel.

State v. Bakalov, 862 P.2d 1354, 1355 (Utah 1993) (per curiam). 8

8. In State v. Pedockie, 2006 UT 28, 137 P.3d 716, the supreme court
clarified, “regarding appellate review in cases involving waiver
of the right to counsel,” that, with or without a Frampton colloquy
on the record, “a reviewing court should review the record de
novo to determine whether the defendant knowingly and
intelligently waived [the] right to counsel.” Id. ¶¶ 42‒45.
However, Pedockie appears focused on cases involving “the
almost inevitable challenge to the waiver [of the right to counsel]
by [a] defendant who proceeds pro se and is subsequently
convicted,” id. ¶ 42 (emphasis added) (cleaned up); see also id.
¶ 45, not on cases such as this one, where the defendant is denied
the right to proceed pro se. In cases where the defendant proceeds
pro se, there is typically a trial court finding that the defendant,
either expressly or through conduct, knowingly and intelligently
waived the right to counsel. Thus, while the appellate court’s
review of that determination is de novo, it is not made in the first
instance. See generally Richmond v. Bateman, 2024 UT App 103, ¶ 31,
554 P.3d 341 (“We are mindful that we are a court of review, not
of first view.” (cleaned up)). Bakalov, on the other hand, is unique
in that it appears to be the only reported Utah case addressing a
defendant’s challenge to the trial court’s denial of the right to
proceed pro se. Given Bakalov’s and Pedockie’s contrasting
postures as well as Bakalov’s explicit rationale regarding the
difficulty of retrospective recreation of the circumstances existing
prior to trial, see State v. Bakalov, 862 P.2d 1354, 1355 (Utah 1993)
(per curiam) (“The circumstances existing prior to [the
defendant’s] trial cannot be recreated. The trial court never
advised [the defendant] of the dangers and disadvantages of self-
representation and thus could not then or now assess his
responses to that advice.” (cleaned up)), we are not convinced that
(continued…)

20221065-CA 19 2025 UT App 184
State v. Bridgewaters

¶33 Before remand, however, we address the trial court’s
second basis for denying Bridgewaters’s request to represent
himself at trial.

II. Forfeiture and Waiver of the Right to Self-representation

¶34 We next consider the trial court’s other basis for denying
Bridgewaters’s request to represent himself at trial—namely, its
finding that Bridgewaters was using the request for self-
representation as a “mechanism for delaying the proceeding.” We
view the court’s reliance on this rationale as a determination that
Bridgewaters, through his conduct, relinquished his right to
represent himself.

¶35 We begin our review of this determination by outlining the
law on when a defendant loses the right to counsel through
conduct. We then apply that law to the right of self-
representation. Finally, we analyze whether Bridgewaters gave
up the right of self-representation through his conduct. We
conclude that he did not.

¶36 Independent of true waiver, there are two other “methods
pursuant to which a defendant may give up [the] constitutional
right to the assistance of counsel: . . . forfeiture[] and waiver by
conduct.” State v. Pedockie, 2006 UT 28, ¶ 27, 137 P.3d 716.

¶37 First, “forfeiture results in the loss of a right regardless of
the defendant’s knowledge thereof and irrespective of whether
the defendant intended to relinquish the right.” Id. ¶ 31 (cleaned
up). “A defendant may be deemed to have forfeited [the] right to
counsel when [the defendant] engages in extremely dilatory

Pedockie’s mandate for an appellate determination—based on a de
novo review of the record—as to whether the defendant’s
invocation of the right to self-representation was knowing and
intelligent is applicable here. Instead, we believe that reversal is
merited solely on the basis of the trial court’s failure to make the
required findings in the first instance.

20221065-CA 20 2025 UT App 184
State v. Bridgewaters

conduct or abusive behavior, such as physically assaulting
counsel.” Id. ¶ 32 (cleaned up). And “[w]hen circumstances are
egregious enough to constitute forfeiture, a court need not
determine whether a defendant understands the risks of self-
representation or warn [the defendant] that [the defendant] will
lose [the] right to counsel.” Id. “But because of [forfeiture’s]
drastic nature, a defendant must engage in extreme conduct
before forfeiture may be imposed.” Id.

¶38 Second, “waiver by conduct, often referred to as implied
waiver,” applies “once a defendant has been warned that [the
defendant] will lose [the defendant’s] attorney if [the defendant]
engages in dilatory tactics,” such that “any misconduct thereafter
may be treated as an implied request to proceed pro se and thus,
as a waiver of the right to counsel.” Id. ¶ 33 (cleaned up). Our
supreme court has explained,

The conduct required to give rise to an implied
waiver does not have to be as extreme as that
required for forfeiture. And unlike the situation in
cases of true waiver, a defendant need not intend to
relinquish the right to counsel. But the defendant
must have been warned that continuation of the
unacceptable conduct will result in a waiver of the
right to counsel.

Id. (cleaned up).

¶39 We acknowledge that the foregoing descriptions of
forfeiture and waiver by conduct were made within the context of
a defendant giving up the right to counsel, rather than in the
context of a defendant giving up the right to proceed pro se.
Nevertheless, these principles apply in the latter context as well.
The United States Supreme Court and Utah’s appellate courts
have consistently recognized that the right to represent oneself is
an implied right connected with the right to counsel. See Faretta v.
California, 422 U.S. 806, 814 (1975) (“The Sixth Amendment right
to the assistance of counsel implicitly embodies a correlative right

20221065-CA 21 2025 UT App 184
State v. Bridgewaters

to dispense with a lawyer’s help.” (cleaned up)); State v. Patton,
2023 UT App 33, ¶ 12, 528 P.3d 1249 (“The right to be represented
by counsel . . . also implicitly carries with it the right of self-
representation.” (cleaned up)). Because these rights originate and
operate together, the protections and presumptions applicable to
the right to counsel also generally apply to the right to represent
oneself. See State v. Bakalov, 849 P.2d 629, 632 (Utah Ct. App. 1993)
(“[T]his right [to self-representation] must be protected in harmony
with the Sixth Amendment’s guarantee to the assistance of
counsel.” (emphasis added)), aff’d in part, vacated in part, 862 P.2d
1354 (Utah 1993) (per curiam). Accordingly, the protections
against giving up the right to counsel through conduct apply to
giving up the right to proceed pro se.

¶40 Nevertheless, we note that there is a practical difference in
the invocation of these rights. The right to counsel applies
automatically, without invocation, “at all critical stages of a
criminal proceeding,” State v. Jamieson, 2021 UT App 3, ¶ 31, 480
P.3d 363, particularly where a defendant faces imprisonment, see
State v. Von Ferguson, 2007 UT 1, ¶¶ 14–29, 169 P.3d 423. In
contrast, the right to represent oneself is accessed, as described
above, through a clear and unequivocal request. This difference
matters. Because a defendant accesses the right to self-
representation only after a valid waiver of the right to counsel, a
court may properly find forfeiture or waiver by conduct of the
right to self-representation only after the court has, at some prior
point, determined that the defendant had validly waived the right
to counsel and allowed the defendant to proceed pro se.

¶41 In this case, the court had previously permitted
Bridgewaters to proceed pro se by ordering his then-attorney to
serve as standby counsel. After this, however, that standby
counsel was conflicted out, and a new attorney was appointed
with no indication that the new attorney would be acting as
standby counsel. Indeed, the new attorney acted in the capacity of
counsel at the hearing on March 29, 2022, by questioning
witnesses, presenting arguments, responding to objections and
counterarguments, and discussing jury instructions and voir dire.

20221065-CA 22 2025 UT App 184
State v. Bridgewaters

Thus, Bridgewaters was not proceeding pro se at that hearing or
at the hearing on April 14, 2022. But because the court had
previously allowed Bridgewaters to proceed pro se, we will assess
whether forfeiture or waiver by conduct of the right of self-
representation applies.

¶42 For Bridgewaters to have forfeited his right to proceed pro
se, he would have had to engage in “extremely dilatory conduct
or abusive behavior.” State v. Pedockie, 2006 UT 28, ¶ 32, 137 P.3d
716 (cleaned up). The State has not asserted that Bridgewaters
engaged in conduct so extreme that his right to represent himself
was forfeited, nor do we believe that he did. Therefore,
Bridgewaters did not forfeit his right to represent himself.

¶43 The trial court did find, however, that Bridgewaters was
using his request to proceed pro se as a “mechanism of delay,”
and it determined that it was “not going to allow that to happen.”
As noted, this finding and rationale were, in effect, a
determination that Bridgewaters impliedly waived his right to
represent himself by his conduct. But the requirements for waiver
by conduct are not met here. Before a defendant’s waiver can be
implied, “the defendant must have been warned that continuation
of the unacceptable conduct will result in a waiver of the right.”
Id. ¶ 33.

¶44 At the hearing on July 8, 2021, the court noted that
Bridgewaters had gone through several attorneys due to a history
of him becoming “very anxious . . . on the eve of trial,” prompting
him to switch counsel. Then, at the April 14, 2022 hearing, the
court said, “There’s a pattern of delay, and I’m not going to allow
you to once again change counsel, which would cause further
delay to the case. You’re not allowed to prejudice the case.” But in
neither situation did the trial court warn Bridgewaters that
continuing that behavior would result in a waiver of his right to
proceed pro se. Moreover, when the court expressed its concern
about delay on April 14, 2022, Bridgewaters stated that he was
prepared to proceed with trial as scheduled. Accordingly, waiver
by conduct does not apply here because the court did not warn

20221065-CA 23 2025 UT App 184
State v. Bridgewaters

Bridgewaters and then rely on the continuation of problematic
behavior to determine that Bridgewaters had impliedly waived
his right to represent himself.

¶45 We do not mean to suggest that a trial court is at the mercy
of a defendant’s repeated flipflops between wanting to be
represented by counsel and wanting to proceed pro se. We simply
repeat that for a defendant to be deemed to have waived either of
those rights through dilatory conduct, “the defendant must [first]
have been warned that continuation of the unacceptable conduct
will result in a waiver.” Id. At the hearing on April 14, 2022, when
Bridgewaters asked to represent himself at trial (which was then
scheduled for nearly six months away), the court could have
warned Bridgewaters that if he changed his mind and again
requested to be represented by counsel, he would not be allowed
another chance at self-representation. Likewise, the court could
have warned him that it would not reschedule the trial if
Bridgewaters changed his mind and again requested counsel. But
because the court issued no warning before April 14, 2022, it could
not restrict Bridgewaters’s exercise of the right to self-
representation on the basis of dilatory conduct on that day. See id.

CONCLUSION

¶46 After Bridgewaters clearly and unequivocally invoked his
right to self-representation, the trial court made no specific
findings as to whether his invocation of that right was knowing
and intelligent and instead required him to be represented at trial.
This was error. The court’s determination that Bridgewaters
waived his right to self-representation through dilatory conduct
was also error where Bridgewaters received no warning that such
conduct would constitute a waiver. Accordingly, we vacate
Bridgewaters’s convictions and remand this matter for a new
trial—or such other proceedings as may be appropriate—
consistent with our directions as stated above.

20221065-CA 24 2025 UT App 184