State v. Thompson

2024 UT App 138

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
WESLEY WADE THOMPSON,
Appellant.

Per Curiam Opinion
No. 20230426-CA
Filed October 3, 2024

Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 201903785

Wesley Wade Thompson, Appellant Pro Se
Sean D. Reyes and Andrew F. Peterson,
Attorneys for Appellee

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and JOHN D. LUTHY.

PER CURIAM:

¶1 Wesley Wade Thompson appeals certain issues that he
preserved when he entered a conditional guilty plea. This matter
is before the court on Thompson’s renewed motion for substitute
counsel on appeal. Thompson’s first motion asserted unspecified
disagreements between him and his appellate counsel (Appellate
Counsel). Thompson was permitted to renew the motion for
substitute counsel if necessary after Appellate Counsel lodged a
brief addressing the issues Thompson preserved for appeal.

¶2 Thompson first filed a motion for substitute counsel in
December 2023, indicating that he disagreed with Appellate
Counsel’s strategy and that Appellate Counsel was not following
Thompson’s instructions. Because the disagreements were
State v. Thompson

unspecified, this court denied the motion “without prejudice to
the filing of a motion to substitute counsel more specifically
identifying the disputes that may warrant new counsel.” Our
order stated that “Thompson will have the opportunity to
specifically identify what might be disagreements or difficulties
that would support substitution of counsel.” Appellate Counsel
lodged a brief, and Thompson had the opportunity to review that
brief and specifically identify grounds for substitute counsel.
Thompson renewed his motion to substitute counsel, stating some
disagreements with the brief. He has not, however, identified
grounds that constitute good cause for substituting counsel.

¶3 An appellant “cannot be forced to proceed with
incompetent counsel or counsel having a conflict of interests.”
State v. Bakalov, 1999 UT 45, ¶ 20, 979 P.2d 799. However, an
appellant does not have an immutable right to counsel of his
choice. See id. “While an indigent [appellant] has a right to have
counsel appointed to represent him, he does not have a
constitutional right to a lawyer other than the one appointed,
absent good cause.” State v. Pursifell, 746 P.2d 270, 272 (Utah Ct.
App. 1987) (citation omitted). “Substitution of counsel is
mandatory when [an appellant] has demonstrated good
cause . . . .” Id. at 274. “It is well established that to warrant
substitution of counsel, [an appellant] must show good cause,
such as a conflict of interest, a complete breakdown in
communication or an irreconcilable conflict . . . .” State v. Lovell,
1999 UT 40, ¶ 31, 984 P.2d 382 (cleaned up).

¶4 Thompson has not shown good cause for substitute
appellate counsel. He has failed to show that Appellate Counsel
is not qualified or not impartial, or that there is a complete
breakdown in communication or an irreconcilable conflict. He
identifies perceived deficiencies in the brief lodged by Appellate
Counsel, including that some arguments were not fully
developed and that Appellate Counsel has not addressed every
issue that Thompson wants to address. However, the lodged brief

20230426-CA 2 2024 UT App 138
State v. Thompson

capably addresses significant issues preserved for appeal in the
posture of a conditional guilty plea and uses essentially the entire
permissible word count for briefs under our appellate rules.

¶5 Moreover, disagreements about which issues to raise on
appeal and how to brief them do not constitute the sort of
“irreconcilable conflict” that requires a substitution of appellate
counsel. Even at the trial stage of a criminal case, “good cause for
substitution of counsel cannot be determined solely according to
the subjective standard of what the defendant perceives.”
Pursifell, 746 P.2d at 274 (cleaned up). And “a disagreement
between a defendant and [the defendant’s] attorney about a
defense strategy does not rise to the level of good cause.” State v.
Hale, 2006 UT App 434U, para. 13, cert. denied, 168 P.3d 339 (Utah
2007). Then, “[c]onsidering [a defendant’s] change in position
from defendant to appellant,” a person’s “autonomy interests that
survive a felony conviction” become even “less compelling” on
appeal. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist.,
528 U.S. 152, 163 (2000). This is largely because almost all
decisions to be made on appeal qualify as defense strategy
decisions over which counsel, not the client, has ultimate control.
Thus, as our supreme court has explained, “appellate counsel is
not obligated to raise every nonfrivolous issue on appeal and may
‘winnow out’ weaker claims in order to focus effectively on those
more likely to prevail.” Lafferty v. State, 2007 UT 73, ¶ 49, 175 P.3d
530 (cleaned up), overruled on other grounds by McCloud v. State,
2021 UT 51, 496 P.3d 179.

¶6 Because Thompson has failed to show that Appellate
Counsel is not qualified or not impartial, that there has been a
complete breakdown in communication, or that the subjects over
which Thompson and Appellate Counsel disagree are something
other than the type of strategy decisions that Thompson lacks the
right to control, Thompson’s renewed motion for substitute
counsel is denied.

20230426-CA 3 2024 UT App 138