State v. Horrocks

2025 UT App 157

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RYAN L. HORROCKS,
Appellant.

Opinion
No. 20230322-CA
Filed October 30, 2025

Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 191800621

Ramon Ortiz, Debra M. Nelson, Benjamin Miller, and
Wendy M. Brown, Attorneys for Appellant
Derek E. Brown and Connor Nelson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

HARRIS, Judge:

¶1 Ryan L. Horrocks was caught on camera taking stripped
copper wire from a business, and he was later charged with third-
degree-felony theft. Horrocks represented himself at trial, after he
fired his appointed counsel and was unable to hire a private
attorney. At the end of the trial, the jury convicted him as charged.
Horrocks now appeals that conviction, asserting that he did not
ever actually waive his right to counsel and that, even if he did,
any such waiver was not knowing and voluntary. We find merit
in Horrocks’s arguments, and we therefore vacate his conviction
and remand this case to the trial court for further proceedings.
State v. Horrocks

BACKGROUND 1

¶2 In the early morning hours, while it was still dark outside,
a person entered the outdoor premises of a business (the
Business), took buckets containing stripped copper wire, and
loaded those buckets into his truck. The Business had previously
installed a motion sensor camera, and that camera captured
images of the person taking the buckets of wire. In those images,
the person had a tattoo on his back and shoulders that said
“Horrocks”; the tattoo could be seen through the person’s tank
top. Horrocks eventually stipulated that he was the person who
could be seen in the images.

¶3 The State later charged Horrocks with one count of theft;
the State charged it as a third-degree felony, rather than as a
misdemeanor, because Horrocks had “prior convictions for theft.”
At his initial appearance in the case, the court determined that
Horrocks was indigent and appointed counsel (Counsel) to
represent him. The case was eventually scheduled for trial, but

1. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,
2024 UT App 86, n.1, 551 P.3d 416 (cleaned up). Recognizing,
however, that our reversal of Horrocks’s conviction causes the
presumption of innocence to reattach, see Betterman v. Montana,
578 U.S. 437, 441 n.2 (2016) (observing that “upon renewed
prosecution following a defendant’s successful appeal,” the
defendant “again enjoys the presumption of innocence”), we
apply this standard somewhat guardedly here. Specifically,
concerning the facts surrounding the charged crime, we identify
the evidence that supports the verdict, while refraining from
characterizing the alleged criminal conduct as established fact.

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State v. Horrocks

Horrocks—who had been out of custody—failed to appear for the
trial, and the court issued a warrant for his arrest.

¶4 Horrocks did appear at a hearing a few weeks later. At that
hearing, the court told Horrocks that he would be taken into
custody for his failure to appear at the scheduled trial. For his
part, Horrocks told the court he wanted to “fire” Counsel and hire
his own attorney, apparently because his relationship with
Counsel had deteriorated. The court explained to Horrocks that
the decision to fire an appointed attorney was not entirely up to
him, but told Horrocks that, while in custody, he could make
arrangements to hire his own attorney.

¶5 At Horrocks’s next appearance some two weeks later,
Counsel was present, and Horrocks had not yet hired a different
attorney. Horrocks explained to the court that he had been unable
to “do anything from the jailhouse” to hire an attorney. The court
offered to “appoint an attorney to represent” Horrocks, an offer
Horrocks apparently interpreted as having Counsel represent
him, and Horrocks responded that he’d rather “represent
[him]self.” The court then engaged in the following colloquy (the
Partial Colloquy) with Horrocks:

Q: You can represent yourself if you want—

A: I do.

Q: —but I’ve got to ask you a bunch of questions
about that.

A: Okay.

Q: Have you, Mr. Horrocks, ever represented
yourself before in a criminal case?

A: Yes.

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State v. Horrocks

Q: In a felony case?

A: No.

Q: Okay. You understand a felony case, this case
has a possible . . . prison sentence [of zero] to five
years?

A: Yes, sir.

Q: And you’re going to be treated the same as
anybody else, meaning not—let me rephrase
that. There are rules of procedure and evidence
that apply in court cases that go to jury, okay?

A: Copy.

Q: And if the State objects that some of your
evidence is not admissible because it’s hearsay
or whatever the basis may be, then I will
evaluate that on the same basis as if the objection
were made with an attorney or not and whether
you’re—and I don’t represent you, I sit here to
call balls and strikes. Okay? Do you understand
that?

A: I do, yeah.

Q: What’s the highest level of school you
completed?

A: Twelfth grade.

Q: Twelfth grade?

A: Yes, Your Honor.

20230322-CA 4 2025 UT App 157
State v. Horrocks

Q: What kind of work do you do? What’s your
occupation? The reason I ask is I’m just trying to
figure out what familiarity you have with
procedures and written procedures and
following—

A: I’m pretty—I’ve read a lot of law books.

Q: So you have—

A: —concerning me, you know.

Q: —some experience reading cases and—

A: Oh, yeah.

Q: —understanding cases? You understand that if
there are motions in limine, anything to exclude
evidence, you would have to raise those issues
with me?

A: Sure.

Q: Okay.

¶6 Horrocks then mentioned that he had still not “read a
discovery yet,” and he explained that he had decided not to show
up for his first trial date because he felt unprepared. The court
stated that if Horrocks was “not going to be represented by
counsel,” then the court would make sure that Horrocks was
provided with discovery. But Horrocks told the court that he
wanted “to hire an attorney,” and that he had “two pickup trucks”
he was willing to sell to pay legal fees but that he couldn’t “do
anything from a jail cell.” The court asked Horrocks how long he
thought it would take for him to hire an attorney, and Horrocks
said he didn’t know but that he’d “get right on it” if he were
released. The court then agreed to release Horrocks so that he

20230322-CA 5 2025 UT App 157
State v. Horrocks

could hire an attorney, and it scheduled a review hearing to take
place in four weeks.

¶7 At the review hearing, Horrocks explained that he had not
yet been able to hire an attorney. He told the court, “It’s looking
like I’ll represent myself.” Again, the court explained that he
could proceed with an appointed attorney, but Horrocks stated
that he had “money in the markets,” apparently implying that he
might no longer qualify for an appointed attorney. The court
asked Horrocks how long it would take for him to hire an
attorney, and Horrocks said he thought he could make the hire by
July 18. The court then said, “I’ll give you until July 18th,” and it
scheduled another review hearing for that date.

¶8 At the July 18 hearing, the court asked Horrocks about his
efforts to retain counsel, and Horrocks replied, “It’s looking like
I’m riding solo.” The court again inquired about Horrocks’s
financial status, but after Horrocks told the court what his
monthly income was, the court offered its view that Horrocks
didn’t “qualify for court-appointed counsel.” In response,
Horrocks stated, “No, I got to represent myself. I don’t think I can
pay a lawyer enough to help me.” The court then said, “All right,”
and it proceeded to set a scheduling conference at which a trial
date would be set. Horrocks then told the court that he still had
not reviewed the discovery in the case, and he complained that
Counsel had not sent it to him even after a request. The court told
Horrocks to “[j]ust make a request to the State,” and Horrocks
responded by asking, “Who’s the State?” The court explained that
“the State” is “the prosecutor.”

¶9 A jury trial took place a few months later. For the most part,
Horrocks represented himself throughout the trial, although he
“was assisted in chambers” during the jury selection process by a
volunteer attorney. Before trial began, the court discussed the case
with Horrocks and the prosecutor, and Horrocks indicated that he
would be calling his brother-in-law (Witness), who Horrocks

20230322-CA 6 2025 UT App 157
State v. Horrocks

represented was “an electrical wire expert.” Horrocks explained
that Witness would testify, among other things, about the “value
of wire.” The State and the court explained to Horrocks that the
theft count had been charged as a felony because Horrocks had
prior theft convictions and not because the wire had a certain
value, and that therefore “the value of the property doesn’t
matter.” Horrocks appeared surprised by this explanation, and he
responded by stating, “Wow.” But the court did not prevent
Horrocks from calling Witness, stating, “I don’t know that it’s
going to be relevant, but if you want to call [Witness] and [the
State] has no objection, I’ll let you ask him.”

¶10 A few minutes later, the court discussed jury instructions
with the parties. Horrocks again indicated that he wanted to
present evidence regarding the value of the stolen wire, and the
court again responded that the value of the wire was irrelevant to
whether Horrocks was guilty of the charged crime and that the
value of the wire would become relevant only if Horrocks were
convicted and the court were setting a restitution amount.

¶11 After jury selection was completed, the court gave
preliminary instructions to the jury, and both parties gave an
opening statement. Horrocks’s opening statement was limited to
the following:

This case is from [three years ago]. I’m not going to
get into why it’s taken so long. But [the State] is
going to show you some pictures of me with clear
evidence of me trespassing and dumpster diving,
but no clear evidence of me stealing anything from
[the Business].

And I just want to convey to you all that I’ve
always been accountable and I’ve had my troubles
and if this was a trespassing case, I’d stand here and
I’d say guilty and I’d go to jail or whatever. I just—
but I don’t know. I just follow the evidence because

20230322-CA 7 2025 UT App 157
State v. Horrocks

this is a third-degree—it started out a burglary—
. . . . But I [don’t] think the [State] can prove that
there’s evidence of me stealing from [the Business].
Thank you.

¶12 After opening statements, the State called two witnesses in
support of its case. The first witness, an employee of the Business,
explained that he had set up the camera, and he identified what
was shown in the images it captured. The second witness was a
police officer, and he testified about his involvement in the
investigation. Horrocks briefly cross-examined both witnesses,
but he lodged no objections and did not ever mention the rules of
evidence or criminal procedure. The court also admitted
seventeen photographs that contained images captured by the
camera, and Horrocks agreed that he was the person who could
be seen in those photographs.

¶13 Horrocks did not present any evidence on his behalf, either
from himself or from Witness.

¶14 After the evidence was presented, the court gave
additional instructions to the jury, and both the State and
Horrocks made closing arguments. After deliberation, the jury
convicted Horrocks as charged. The court later sentenced
Horrocks to prison for up to five years but suspended that
sentence and placed Horrocks on probation, with conditions.

ISSUE AND STANDARD OF REVIEW

¶15 Horrocks now appeals his conviction, asserting that he
never waived his right to counsel and that, even if he did, any
such waiver was not knowing and voluntary.2 Whether a

2. In his brief, Horrocks also asserts that the trial court committed
plain error by sending an improper verdict form to the jury. But
(continued…)

20230322-CA 8 2025 UT App 157
State v. Horrocks

defendant “voluntarily, knowingly, and intelligently waived [the]
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
(cleaned up). “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

¶16 The issue Horrocks raises presents three sub-issues, which
we discuss in turn. First, we assess whether Horrocks ever
voluntarily waived his right to counsel. Second, we examine
whether, on this record, any waiver Horrocks might have made
can be considered knowing and voluntary. And finally, we
consider the State’s argument that, even if Horrocks did not make
a voluntary, knowing, and intelligent waiver of his right to
counsel, any error should be considered harmless.

A. Voluntary Waiver

¶17 “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,” and it requires defendants
to “clearly and unequivocally request self-representation in order
to waive their right to counsel.” Id. ¶ 28 (cleaned up). On “the
opposite end of the spectrum,” “a defendant may be deemed to
have forfeited [the] right to counsel when [the defendant] engages
in extremely dilatory conduct or abusive behavior, such as

given our resolution of the other issue Horrocks raises, we need
not address this one.

20230322-CA 9 2025 UT App 157
State v. Horrocks

physically assaulting counsel.” Id. ¶¶ 31–32 (cleaned up). Lastly,
waiver by conduct—“often referred to as implied waiver”—
occurs “once a defendant has been warned that [the defendant]
will lose [the defendant’s] attorney if [the defendant] engages in
dilatory tactics.” Id. ¶ 33 (cleaned up). In such situations, “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.
(cleaned up). “Unlike forfeiture, waiver by conduct must be
knowing and intelligent in that a defendant must have been aware
of the dangers and disadvantages of self-representation at the
time of the waiver.” State v. Montes, 2019 UT App 74, ¶ 22, 442
P.3d 1247 (cleaned up). Horrocks and the State agree that neither
true waiver nor forfeiture is at issue here, but the State asserts that
Horrocks, through his actions, impliedly waived his right to
counsel. The record, however, does not support this contention.

¶18 Before a defendant will be deemed to have voluntarily
waived the right to counsel through conduct, “the trial court must
warn the defendant of the specific conduct that will give rise to
the waiver of [the] right to counsel.” Pedockie, 2006 UT 28, ¶ 37.
“In other words, when a trial court believes that a defendant’s
conduct is unacceptable and will result in a waiver of [the] right
to counsel, the court must warn the defendant that continuation
of the unacceptable conduct will be treated as an implied request
to proceed pro se and, thus, as a waiver of the right to counsel.”
Id. And any such warning “must be explicit so that a defendant
clearly understands both the nature of the unacceptable conduct
and the implications of any such future conduct.” Id.

¶19 In Pedockie, for instance, our supreme court found that the
defendant “did not voluntarily waive his right to counsel through
his conduct” because the warnings he received were not explicit
enough. Id. ¶ 47. In that case, “the trial judge warned [the
defendant] that he would need to either accept [counsel’s] advice,
represent himself, or get his own attorney,” but stated that the
defendant had a right to appointed counsel even after he fired his

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State v. Horrocks

attorney. Id. ¶ 48. Once the defendant fired another appointed
attorney, the court scolded the defendant and told him that he
“would need to hire a private attorney or proceed pro se.” Id. ¶ 49.
Even after these warnings, “the trial judge agreed to appoint the
public defender’s office for the third time.” Id. Importantly, “the
trial judge never warned [the defendant] of the conduct that
would give rise to an implied waiver of his right to appointed
counsel.” Id. Under the circumstances, our supreme court
concluded that the warnings given were “inconsistent and
confusing” and were therefore not enough to render the
defendant’s actions equivalent to an implied waiver. Id. ¶ 47.

¶20 In similar cases, we have followed suit and held that when
a defendant is not given a sufficiently explicit warning, that
defendant cannot have been deemed to have impliedly waived
the right to counsel through conduct. See, e.g., Montes, 2019 UT
App 74, ¶ 26 (holding that a defendant did not impliedly waive
the right to counsel where the court told him “to choose whether
to represent himself or accept [the appointed counsel’s]
representation” but did not tell him that he would lose his right
to counsel if he did not choose); State v. Houston, 2006 UT App 437,
¶ 10, 147 P.3d 543 (holding that a defendant did not impliedly
waive his right to counsel where the trial court “did not explicitly
advise [the defendant] that his failure to [obtain counsel or submit
an affidavit of indigency] would result in pro se representation”).

¶21 By contrast, we have upheld a trial court’s determination
of implied waiver when the court’s warning was sufficiently
explicit. For instance, in State v. Santonio, “the trial court
repeatedly expressed its frustration with [the defendant’s]
dilatory behavior in obtaining counsel, urged him to obtain
counsel, and warned him that he might have to proceed pro se if
he did not obtain counsel.” 2011 UT App 385, ¶ 16, 265 P.3d 822
(cleaned up). Later, the court told the defendant that, “by [his]
actions, [he] may deprive [him]self of” the right to counsel. Id.
And after a continuance, the court gave an additional warning

20230322-CA 11 2025 UT App 157
State v. Horrocks

“that, in light of [the previous] warning, the court intended to go
forward” with the hearing on the scheduled date “regardless of
whether [the defendant] had obtained an attorney by that time.”
Id. Under those circumstances, we affirmed the trial court’s
determination that the defendant had waived his right to counsel
through conduct, holding that the court’s “meticulous warnings,
coupled with [the defendant’s] continued failure to obtain
counsel,” established an implied waiver. Id.

¶22 Here, though, the facts are much more analogous to
Pedockie, Montes, and Houston than they are to Santonio. The key
fact in the caselaw appears to be whether the trial court expressly
warned the defendant that if the defendant took (or did not take)
a certain action by a certain date, the defendant would be deemed
to have waived the right to counsel. In this case, no such express
warning was ever given: the trial court never told Horrocks that,
if he failed to obtain private counsel by a certain date, he would
be deemed to have waived his right to counsel. The closest the
court came was when it told Horrocks that it would “give [him]
until July 18th.” But in context, this statement was merely meant
to convey that Horrocks would have at least until the date of the
next hearing—which the court simultaneously scheduled for July
18—to find an attorney. Significantly, the court never told
Horrocks that there would be meaningful consequences if he
failed to obtain a lawyer by that date. In short, the record simply
does not contain the sort of express warning upon which a
determination of implied waiver can be based.

¶23 For these reasons, we reject the State’s assertion that
Horrocks made an implied waiver, through conduct, of his right
to counsel. And because the parties agree that there was no true
waiver or forfeiture, we conclude that Horrocks did not ever
voluntarily waive his right to counsel.

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State v. Horrocks

B. Knowing and Intelligent Waiver

¶24 Moreover, even if we could somehow construe Horrocks’s
behavior or statements as indicating a voluntary desire to
represent himself, the record does not support the conclusion that
any such waiver of his right to counsel was knowingly and
intelligently made. For a waiver to be valid, it must be knowing
and intelligent, and this is true regardless of whether the waiver
is express or implied. See State v. Frampton, 737 P.2d 183, 187 (Utah
1987) (true waiver); Pedockie, 2006 UT 28, ¶ 36 (implied waiver).

¶25 “Our cases set out two paths under which a court can find
that a defendant’s waiver was knowing and intelligent.” State v.
Lucke, 2025 UT App 49, ¶ 22, 569 P.3d 238, cert. granted, Sept. 19,
2025 (No. 20250519). “First, a colloquy on the record is the
preferred method of determining whether a defendant is aware of
the risks of proceeding pro se.” Id. (cleaned up); see also State v.
West, 2023 UT App 61, ¶ 31, 532 P.3d 114 (“The best way to
ascertain if a defendant has the requisite knowledge of the legal
mire [the defendant] wishes to wade into is for a court to engage
in penetrating questioning on the record.” (cleaned up)). And our
supreme court has noted that “the sixteen-point colloquy found
in State v. Frampton establishes a sound framework for efficient
and complete questioning” while also providing “the reviewing
court with an objective basis for review upon the almost inevitable
challenge to the waiver by the defendant who proceeds pro se and
is subsequently convicted.” Pedockie, 2006 UT 28, ¶ 42 (cleaned
up). If a complete Frampton colloquy is given, then a defendant is
usually deemed to have made a knowing and intelligent waiver.
See Lucke, 2025 UT App 49, ¶ 25 (stating that the Frampton colloquy
“provides both the defendant and the court with the necessary
information to determine that the defendant’s waiver of counsel
was indeed knowing and intelligent”).

¶26 It is undisputed that the trial court in this case did not
provide Horrocks with a complete Frampton colloquy. As in Lucke,

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State v. Horrocks

the trial court here asked “some, but not all, of the questions.” Id.
¶ 26. For instance, in the Partial Colloquy, the court asked
Horrocks whether he had represented himself in a criminal case
before; whether he understood that the maximum sentence for the
charged third-degree felony was a prison term of up to five years;
and whether he understood that he would be expected to know
the rules of evidence and procedure. But the court did not ask
Horrocks other important questions contained in the Frampton
colloquy, such as whether he understood how to present his own
testimony. See Frampton, 737 P.2d at 187 n.12. And perhaps most
significantly, the court made no attempt to advise Horrocks that
he would be better off with an attorney and that it would be
unwise for him to proceed pro se. See id. (noting that an important
part of the colloquy is for the court to “advise” the defendant that
the defendant “would be far better defended by a trained lawyer”
than by proceeding pro se, and that it would be “unwise” for the
defendant to proceed pro se (cleaned up)).

¶27 We agree with Horrocks that the Partial Colloquy was not
the sort of “penetrating questioning” envisioned by Frampton, see
id. at 187, and that it did not shed sufficient light on Horrocks’s
“level of understanding about the risks he was accepting and the
benefits he was forfeiting,” see State v. Patton, 2023 UT App 33,
¶ 16, 528 P.3d 1249. As we did in Lucke, we here conclude that,
based solely on the Partial Colloquy, “the court had no
meaningful basis for ascertaining whether [Horrocks] actually
understood both the right he was waiving and the risks of
proceeding along” the path of self-representation. See 2025 UT
App 49, ¶ 30.

¶28 The second possible path under which a court might find a
knowing and intelligent waiver, even where no complete
colloquy is present, involves an examination of the entire record.
See Pedockie, 2006 UT 28, ¶ 45 (stating that, even when the trial
court does not conduct a sufficient colloquy, “a reviewing court
should review the record de novo to determine whether the

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State v. Horrocks

defendant knowingly and intelligently waived [the] right to
counsel”); Lucke, 2025 UT App 49, ¶ 32 (“Even without an
adequate colloquy, we may still review the record de novo to
determine whether the defendant knowingly and intelligently
waived [the] right to counsel.” (cleaned up)). But our supreme
court has noted that, “considering the strong presumption against
waiver and the fundamental nature of the right to counsel, any
doubts” that arise during the examination of the entire record
“must be resolved in favor of the defendant.” 3 Pedockie, 2006 UT
28, ¶ 45. And in this same vein, the supreme court has stated that
it “anticipate[s] that reviewing courts will rarely find a valid
waiver of the right to counsel absent a colloquy.” Id. After
reviewing the record as a whole, 4 we conclude that this case is not

3. As we have noted previously, “there’s something of a conflict
in our supreme court’s cases” on this point. See State v. Lucke, 2025
UT App 49, ¶ 23 n.4, 569 P.3d 238, cert. granted, Sept. 19, 2025 (No.
20250519). In State v. Frampton, the court said that where a
“defendant expressly decline[s] an offer of counsel by the trial
judge, [the defendant] has the burden of showing by a
preponderance of the evidence that [the defendant] did not
[knowingly and intelligently] waive this right.” 737 P.2d 183, 187
(Utah 1987). But in State v. Pedockie, the court included the
“resolved in favor of the defendant” language. 2006 UT 28, ¶ 45,
137 P.3d 716. In this appeal, we believe that the outcome would
be the same under either rubric. But we cite the Pedockie language
here, in text, because it is the most recent pronouncement on this
point from our supreme court.

4. There is an inconsistency in our caselaw regarding whether the
record to be examined here consists only of the record up to the
point of the purported waiver, or whether it consists of the entire
record (including actions that occurred after the purported
waiver). Compare Frampton, 737 P.2d at 188 (“Even absent such a
colloquy, however, this [c]ourt will look at any evidence in the
(continued…)

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State v. Horrocks

one of those presumably rare cases in which the record indicates
that a defendant who was not provided a proper colloquy
nevertheless made a knowing and intelligent waiver.

¶29 On a few occasions, Utah’s appellate courts have
concluded that, despite the lack of a proper colloquy, the record
contained enough evidence to show that the defendant
nevertheless made a knowing and intelligent waiver of the right
to counsel. One such case was Frampton itself, a case in which the
defendant had already been to trial twice before on the same
charge. See 737 P.2d at 189. The first time, he had been represented
by counsel, and the case “resulted in a hung jury.” Id. The second
time, he had represented himself, and the case ended in a mistrial.
Id. During that second trial, the court had carefully explained the
charges and possible penalties to the defendant, and “the judge
truly accorded [the] defendant every courtesy by explaining
applicable procedure and giving [him] extremely wide latitude in
conducting his defense.” Id. Under those unique circumstances,
our supreme court held that “the record adequately support[ed]
the conclusion that [the] defendant knowingly and intelligently
waived the right to representation by counsel.” Id.

¶30 Similarly, in State v. Bozarth, this court concluded that,
despite the lack of a proper colloquy, the record indicated that the
defendant made a knowing and intelligent waiver of his right to
counsel. 2021 UT App 117, ¶¶ 40–50, 501 P.3d 116. In that case, the
court appointed standby counsel to assist the defendant “on a
limited basis,” id. ¶ 10, and we noted that the “record [was] replete

record which shows a defendant’s actual awareness of the risks of
proceeding pro se.”), with Pedockie, 2006 UT 28, ¶ 50 (considering
the record “at the time of the alleged waiver”). But we need not
resolve that inconsistency here, because even examining the entire
record, including conduct that occurred after the purported
waiver, there is insufficient indication that Horrocks made a
waiver that was knowing and intelligent.

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State v. Horrocks

with evidence indicating that [the defendant] understood his role
along with the limited role of standby counsel,” id. ¶ 46. Indeed,
during the hearing on counsel’s withdrawal, counsel observed
that the defendant was “more educated in the law than other
people,” that he was “cognizant of what his rights are,” and that
he knew “the law to some degree.” Id. ¶ 9. Later, while
representing himself, the defendant negotiated a plea agreement
with the State, and he agreed to plead guilty to a reduced
misdemeanor charge. Id. ¶ 18. Based on these facts, we observed
that “the record demonstrate[d] that [the defendant] understood
the value of counsel and was well aware of the risks of proceeding
pro se.” Id. ¶¶ 42, 44. And we noted that the defendant
successfully “filed numerous court documents,” “unambiguously
indicated that he understood” his responsibilities and standby
counsel’s role, “lodg[ed] objections,” and “compl[ied] with the
rules of evidence” during a hearing. Id. ¶¶ 46–48.

¶31 And more recently, in State v. Levering, we reached a
similar conclusion. 2025 UT App 111, ¶¶ 22–32, 575 P.3d 309,
petition for cert. filed, Sept. 17, 2025 (No. 20251100). In that case, the
trial court “conducted most of the Frampton colloquy,” leaving out
only “the last three questions.” Id. ¶ 24. Importantly, the court
warned the defendant that he would be “far better served if [he]
were defended by a trained lawyer rather than [him]self” and that
it would be “unwise to try and represent [him]self,” and the court
“strongly urge[d] [the defendant] not to try to represent
[him]self.” Id. ¶ 12. And we concluded that the defendant’s
awareness of the issues that would have been covered in the three
missing colloquy questions could be readily inferred from the
record as a whole. Id. ¶¶ 24–31. On that record, we concluded that
the defendant’s “waiver of his right to counsel was made
voluntarily, knowingly, and intelligently.” Id. ¶ 32.

¶32 But these cases are rare. More often, when the absence of a
full colloquy compels an examination of the complete record,
courts conclude that the record does not support the conclusion

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State v. Horrocks

that the defendant made a knowing and intelligent waiver of the
right to counsel. See, e.g., Pedockie, 2006 UT 28, ¶¶ 50–52; State v.
Lee, 2024 UT App 2, ¶¶ 11–18, 542 P.3d 974; West, 2023 UT App
61, ¶¶ 32–39; Patton, 2023 UT App 33, ¶ 31; State v. Houston, 2006
UT App 437, ¶ 11, 147 P.3d 543. Indeed, our recent Lucke case is a
good example of this. In the absence of a proper colloquy, we
examined the entire record in the case, and we concluded that the
defendant did not knowingly and intelligently waive his right to
counsel. Lucke, 2025 UT App 49, ¶¶ 32–35. Unlike the defendants
in Frampton and Bozarth, the defendant in Lucke “took no action
prior to trial that demonstrated an awareness of the
responsibilities of pro se representation.” Id. ¶ 34 (cleaned up).
Although the defendant did manage to “file pretrial subpoenas”
for two witnesses, “little else beyond this demonstrate[d] that he
had any understanding of the rights and responsibilities that
would be his if he proceeded to trial without representation.” Id.
And during trial, the defendant “attempted to ask irrelevant
questions during voir dire, unsuccessfully tried calling a witness
. . . who had no knowledge of the events in question, and asked
many irrelevant questions during cross-examination of the State’s
two witnesses.” Id. We also noted that the defendant made an
ineffectual opening statement and that, during the trial, he “made
no objections and never mentioned the rules of evidence or
criminal procedure.” Id.

¶33 Similarly here, the record when viewed as a whole does not
support the conclusion that Horrocks made a knowing and
intelligent waiver of his right to counsel. Horrocks took no actions
prior to trial that “demonstrated an awareness of the
responsibilities of pro se representation.” Id. (cleaned up). Indeed,
Horrocks appeared not to understand the basis of the charge
pending against him, and the trial court had to explain to him—
twice—that the theft count had been charged as a felony not
because of the value of the allegedly stolen property but because
he had prior theft convictions. The court also had to explain to
him who “the State” was and how to make a request of the State.

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State v. Horrocks

The only witness that Horrocks said he wanted to call was
apparently going to testify about the value of copper wire;
Horrocks ended up not calling Witness—or anyone else—
apparently because he eventually realized, as late as the day trial
was to begin, that value didn’t matter. Horrocks’s opening
statement was ineffectual, and his cross-examination of the State’s
two witnesses was cursory. And like the defendant in Lucke,
during trial Horrocks “made no objections and never mentioned
the rules of evidence or criminal procedure.” See id. This record,
even when viewed as a whole, simply cannot support a
determination that, in the absence of a proper colloquy, Horrocks
knowingly and intelligently waived his right to counsel.

¶34 The State resists this conclusion, pointing to several things
in the record, including the following: that Horrocks was
represented by Counsel during the early stages of the case and by
a different volunteer attorney during jury selection; that Horrocks
managed to make an opening statement and cross-examine
witnesses; and that Horrocks at times told the court that he “got
it” and that he “kn[e]w what [he was] doing.” But it strikes us that
these (or similar) facts will be present in nearly all cases in which
a defendant proceeds to trial pro se, and that these facts, even
taken together, are simply not enough to overcome the “strong
presumption against waiver” and the notion that “any doubts
must be resolved in favor of the defendant.” See Pedockie, 2006 UT
28, ¶ 45.

¶35 Accordingly, for all of these reasons, we agree with
Horrocks that the record, when viewed as a whole, does not
support the conclusion that he made a knowing and voluntary
waiver of his right to counsel.

C. Prejudice

¶36 Finally, and despite the lack of any voluntary, knowing, or
intelligent waiver, the State asserts that Horrocks’s conviction can
be affirmed because any error here was harmless. As the State sees

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State v. Horrocks

it, the evidence against Horrocks was so overwhelming that not
even the most competent attorney could have persuaded the jury
to acquit Horrocks and that the presence or absence of counsel
therefore did not matter here. We acknowledge the State’s point—
after all, Horrocks was caught on video taking buckets from
Business’s premises.

¶37 But as Horrocks points out, harmless-error analysis is
inappropriate here, because any error in the process regarding the
waiver of a defendant’s right to counsel constitutes structural
error that triggers automatic reversal. Indeed, we reached this
very conclusion in Lucke. See 2025 UT App 49, ¶ 39 (“[I]f we see
no basis for concluding that a waiver of counsel was knowing and
intelligent . . ., the resultant error constitutes structural error.”).
We recognize that our supreme court has granted a petition for
certiorari in Lucke, but for now, that case represents the governing
law of the state, and no party asks us to reconsider it here. 5

¶38 Accordingly, we decline the State’s invitation to apply
harmless-error analysis in this case. The fact that Horrocks made
no voluntary, knowing, and intelligent waiver of his right to
counsel before representing himself at trial is a structural error
that requires reversal.

5. While no party asks us to reconsider Lucke, the State did file a
motion asking us to stay resolution of this appeal due to the scope
of the Utah Supreme Court’s grant of certiorari in Lucke. As
explained in its motion, the State would prefer that we hold the
issuance of this opinion until after our supreme court issues an
opinion in Lucke. But given the stage this case was in at the time
the motion was filed, a majority of this panel (Judge Oliver,
dissenting) votes to deny the State’s motion and to issue this
opinion in due course. The State’s motion is therefore denied.

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State v. Horrocks

CONCLUSION

¶39 For the reasons discussed, we conclude that Horrocks did
not voluntarily waive his right to counsel, and that any such
waiver—even if made—cannot on this record be considered
knowing and intelligent. Because of this, the trial contained a
structural error that warrants reversal, and on that basis we vacate
Horrocks’s conviction and remand this case for further
proceedings, including potentially a new trial.

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