State v. Jimenez-Wiss

2015 UT App 36
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
EILEEN JIMENEZ-WISS,
Defendant and Appellant.

Opinion
No. 20130546-CA
Filed February 20, 2015

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 121908271

Joan C. Watt and Caleb J. Cunningham, Attorneys
for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which
JUDGES J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN
concurred.

PEARCE, Judge:

¶1 Eileen Jimenez-Wiss appeals her conviction for driving
under the influence (DUI). The district court enhanced Jimenez-
Wiss’s conviction to a third degree felony based on her two prior
DUI convictions during the previous decade. Jimenez-Wiss argues
that her second DUI conviction was obtained in violation of her
right to counsel and that the district court erred when it relied on
that conviction to enhance her offense. We conclude that the State
did not meet its burden of establishing that Jimenez-Wiss
knowingly and intelligently waived her right to counsel before
State v. Jimenez-Wiss

pleading guilty to her second DUI charge. We therefore vacate
Jimenez-Wiss’s felony conviction and remand this matter for
further proceedings.

BACKGROUND

¶2 In 2003, Jimenez-Wiss pleaded guilty, in justice court, to her
first DUI offense, a class B misdemeanor. Counsel represented her
at the plea hearing. In 2008, Jimenez-Wiss pleaded guilty, again in
justice court, to her second DUI offense, also a class B
misdemeanor. She was not represented by counsel at the 2008 plea
hearing, and her conviction resulted in a suspended fifty-day jail
sentence. Jimenez-Wiss did not pursue a direct appeal in either
case.

¶3 In August 2012, Jimenez-Wiss was arrested for a third DUI
offense after she sideswiped a moving vehicle. The other driver
reported a hit-and-run. Several minutes later, an officer stopped
Jimenez-Wiss and administered field sobriety tests, which she
failed. A breath test determined that Jimenez-Wiss had a blood
alcohol content of .33 grams of alcohol per deciliter of blood. The
State charged Jimenez-Wiss with DUI, enhanced to a third degree
felony because she had two prior DUI convictions within the
previous ten years.1 See Utah Code Ann. § 41-6a-503(2)(b)
(LexisNexis 2014).

¶4 Jimenez-Wiss moved to strike the felony enhancement,
arguing that her 2008 DUI conviction had been obtained in
violation of her right to counsel. In support of the motion, Jimenez-

1. The State also charged her with four misdemeanor offenses for
failing to report a property-damage accident, driving as an alcohol-
restricted driver with a measurable amount of alcohol in her
system, failing to stay in one lane, and having an open container of
alcohol in her vehicle. These charges were dismissed pursuant to
the plea agreement in this case.

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State v. Jimenez-Wiss

Wiss submitted a copy of a document from her 2008 plea hearing:
a preprinted form, which she had been given prior to entering her
plea, entitled “Request to Call Case” (the Plea Document). Jimenez-
Wiss argued that the Plea Document demonstrated that she had
not waived her right to have counsel present when she entered her
guilty plea.

¶5 The first page of the four-page Plea Document was largely
dedicated to establishing (1) whether an attorney represented
Jimenez-Wiss; (2) whether she desired to have counsel appointed;
and (3) whether she wanted to waive her right to counsel. Jimenez-
Wiss wrote her name on the first page and checked a box
indicating, “My case is scheduled to be heard today.”

¶6 The first page of the form provided Jimenez-Wiss with three
options and directed her to “[c]heck one.” The first option stated,
“I am represented by an attorney” and provided a line to write her
attorney’s name. The second option indicated, “I believe that I
qualify for a court appointed attorney and request that the Court
appoint an attorney to represent me” and included instructions to
fill out an Affidavit of Indigency. The third option provided, “I do
not wish to be represented by an attorney” and instructed, “Sign
Waiver of Counsel.” Jimenez-Wiss did not check any of the options.

¶7 The next section of the first page was titled “Waiver of
Counsel for Today’s Hearing.” Directly beneath the title was the
instruction, “Fill out if you are not and/or do not wish to be
represented by a lawyer.” The next five paragraphs contained a
number of sentences, most of which began, “I understand.” These
paragraphs included representations that “I understand that I have
a right to consult with an attorney during each phase of my
criminal case” and “I fully understand that there are risks
associated with representing myself and acknowledge that I have
been advised of those risks.” At the end of the waiver section,
which filled the remainder of the Plea Document’s first page, there
was a line for the defendant’s signature. Jimenez-Wiss did not sign.

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State v. Jimenez-Wiss

¶8 The second page of the Plea Document was titled,
“Defendant’s Waiver of Constitutional Rights.” This section
identified and described the constitutional rights that the defendant
would need to waive to enter a guilty plea. The defendant was
asked to acknowledge and waive each right individually by
initialing next to each right.

¶9 Among these rights was the right to counsel. Following the
description of the right to counsel, the form requested additional
information and gave the defendant two options for providing that
information:

A) I waive my right to counsel, I have done so
knowingly, intelligently, and voluntarily for the
following reasons: [three lines provided to allow the
defendant to specify the reasons]
....
B) If I have not waived my right to counsel, my
attorney is [blank line to identify counsel]. My
attorney and I have fully discussed this statement,
my rights, and the consequences of my guilty (or no
contest) plea(s).

Jimenez-Wiss initialed next to the language explaining her right to
counsel, as she did next to each of the other enumerated rights.
Jimenez-Wiss did not, however, describe any reason for waiving
her right to counsel under subsection A, identify her counsel in
subsection B, or make any other indication that she was selecting
one option over the other.

¶10 The final two pages of the Plea Document explained the
consequences of entering a guilty plea. The defendant could check
a box next to her plea and “freely make [a] statement of specific
facts comprising elements of each offense” in the space provided.
Jimenez-Wiss checked the box indicating a guilty plea but did not
provide any facts regarding the elements.

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State v. Jimenez-Wiss

¶11 The final section of the Plea Document was titled
“Defendant’s Certification of Voluntariness” and required Jimenez-
Wiss to state her age and education level. This section also required
her to certify, among other things, that she was “entering the plea
of [her] own free will and choice” and was not under the influence
of drugs or intoxicants that would impair her judgment. Jimenez-
Wiss indicated her age and that she had attended school through
the “16” grade, with the parenthetical notation “B.S. degree.”2 The
certification also stated that the defendant swore “under penalty of
perjury that each statement [in the Plea Document] is true.”
Jimenez-Wiss signed the certification.

¶12 Neither Jimenez-Wiss nor the State presented any evidence
other than the Plea Document to support or oppose Jimenez-Wiss’s
motion to strike the enhancement. The district court entertained
oral argument on the motion. Jimenez-Wiss argued that the
unsigned waiver of counsel on the first page of the Plea Document
indicated that she had not waived her right to have the assistance
of counsel at the plea hearing. The State countered that the
remainder of the form—and particularly Jimenez-Wiss’s initial on
the second page acknowledging her right to counsel—adequately
demonstrated that her decision to proceed without counsel was
knowing and intelligent.

¶13 The district court agreed with Jimenez-Wiss that the missing
signature on the first page of the Plea Document constituted some
evidence that she did not waive her right to counsel knowingly and
intelligently, thereby shifting the burden to the State to prove by a
preponderance of the evidence that she had done so. The district
court found that the State had shouldered that burden, stating,

The reasonable inference regarding the defendant’s
initials on page two of the document is that the
defendant was indicating her intent to waive her

2. We presume that Jimenez-Wiss was indicating that she had
received a Bachelor of Science degree.

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State v. Jimenez-Wiss

right to Counsel. This inference is supported by the
statement “I waive my right to:” that is immediately
above the list of constitutional rights. This inference
is further supported by the statement on page two of
the document following the list of rights and initials
that “I understand that by entering a guilty plea or
no contest, I am giving up these constitutional
rights.”

The district court also reasoned that Jimenez-Wiss’s level of
education supported an additional inference that she understood
the Plea Document and knew that entering a guilty plea would
waive her rights. Finally, the district court concluded that “[t]he
defendant’s signature on page four of the document indicates an
acceptance of the entire document, including the sections indicating
a waiver of her right to Counsel on pages one and two of the
document.”

¶14 In light of these conclusions, the district court used Jimenez-
Wiss’s 2008 guilty plea as a prior offense to enhance her 2012 DUI
offense to a third degree felony. Jimenez-Wiss eventually pleaded
guilty to the third degree felony offense, reserving the right to
challenge the district court’s enhancement ruling on appeal. See
generally State v. Sery, 758 P.2d 935, 939 (Utah Ct. App. 1988)
(recognizing conditional guilty pleas).

ISSUE AND STANDARD OF REVIEW

¶15 Jimenez-Wiss contends that the district court erroneously
concluded that she had knowingly and intelligently waived her
right to the assistance of counsel at her 2008 plea hearing. Whether
a defendant “voluntarily, knowingly, and intelligently” waived the
right to counsel is “a mixed question of law and fact.” State v.
Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716. We review the district
court’s “factual findings for clear error, and its legal conclusions for
correctness.” State v. Vancleave, 2001 UT App 228, ¶ 5, 29 P.3d 680.

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Here, the factual record consists solely of the contents of Jimenez-
Wiss’s 2008 Plea Document. The district court’s determinations
based on that document constitute conclusions of law, which we
review for correctness. Cf. State v. Barrett, 2006 UT App 417, ¶ 4, 147
P.3d 491 (reviewing trial court’s Miranda-waiver determination for
correctness when it was based solely on a transcript); Hamby v.
Jacobson, 769 P.2d 273, 278 (Utah Ct. App. 1989) (“[W]hen the
evidence consists only of proffers to the trial court, the appellate
court is in as good a position to review the proffer as was the trial
court, as no assessment of witness credibility occurred below.”
(citation and internal quotation marks omitted)).

ANALYSIS

¶16 The Sixth Amendment to the United States Constitution
generally guarantees criminal defendants the right to counsel,
which “is essential to protect the fundamental right to a fair trial”
and “thus ‘plays a crucial role in the adversarial system.’” State v.
Perry, 899 P.2d 1232, 1239 (Utah Ct. App. 1995) (quoting Strickland
v. Washington, 466 U.S. 668, 685 (1984)). A prior conviction may not
be used to enhance a criminal charge if that conviction was
obtained in violation of the defendant’s right to counsel. See State
v. Ferguson, 2007 UT 1, ¶¶ 14–27, 169 P.3d 423 (reviewing United
States Supreme Court cases involving the right to counsel).
Jimenez-Wiss argues that her 2008 DUI conviction was obtained in
violation of her Sixth Amendment rights because she was not
represented by counsel at her plea hearing, she did not knowingly
and intelligently waive her right to counsel, and her plea resulted
in a suspended term of incarceration. See id. ¶ 27. For these reasons,
she argues that the district court erred when it denied her motion
to strike the felony enhancement of her 2012 DUI offense.

¶17 Convictions—even uncounseled convictions, such as
Jimenez-Wiss’s 2008 DUI conviction—“are entitled to a
presumption of regularity.” Id. ¶ 32. However, because of the
critical importance of the right to counsel, the presumption does

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State v. Jimenez-Wiss

not extend to a waiver of the right to counsel absent some evidence
that the defendant affirmatively waived that right. See Lucero v.
Kennard, 2005 UT 79, ¶ 25, 125 P.3d 917. To balance these
competing interests, the Utah Supreme Court has adopted a
“burden-shifting framework” to evaluate claims that a prior
conviction resulted from “deprivation of counsel.” Peterson v.
Kennard, 2008 UT 90, ¶¶ 25–27, 201 P.3d 956; see also Ferguson, 2007
UT 1, ¶¶ 30–41; State v. Triptow, 770 P.2d 146, 149 (Utah 1989).

¶18 “[T]he State may satisfy its initial burden of establishing the
validity of [a prior] conviction by producing a certified copy of the
conviction.” Ferguson, 2007 UT 1, ¶ 34.3 Once the initial
presumption of validity of the prior conviction is established, the
burden shifts to the defendant to “present ‘some evidence that he
. . . was not represented by counsel and did not knowingly waive
counsel.’” Id. ¶ 40 (quoting Triptow, 770 P.2d at 149). To protect the
defendant’s right to counsel, defendants are required to present
only a “minimal amount of rebuttal evidence.” Id. A defendant’s
“own testimony that he [or she] did not waive [the] right to counsel
is sufficient for this purpose.” Id. ¶ 41. Once a defendant
successfully rebuts the presumption of regularity, “the burden then
shifts to the State to demonstrate by a preponderance of the
evidence that [the defendant] knowingly waived his [or her] right
to counsel.” Id.

¶19 Here, the district court evaluated Jimenez-Wiss’s 2008
conviction under that burden-shifting framework. The district
court did not expressly conclude that the State had established that
Jimenez-Wiss’s 2008 DUI conviction was entitled to the
presumption of regularity. However, Jimenez-Wiss submitted a
certified copy of that conviction, and the district court implicitly

3. However, “unless there is some evidence that the defendant
affirmatively acquiesced to the waiver of counsel,” a district court
may not presume that a defendant intended to proceed without the
benefit of counsel. Lucero v. Kennard, 2005 UT 79, ¶ 25, 125 P.3d 917.

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applied the presumption when it proceeded to consider Jimenez-
Wiss’s rebuttal evidence. Jimenez-Wiss does not challenge the
district court’s application of the presumption of regularity to her
2008 conviction.

¶20 The district court then evaluated the only evidence before
it—the Plea Document—and concluded that “[t]he missing
signature on page one of the document constitutes some evidence
that the defendant did not knowingly and intelligently waive her
right to Counsel prior to pleading guilty to [DUI] on September 18,
2008.” In light of this evidence, the district court concluded that
Jimenez-Wiss had successfully rebutted the presumption of
regularity and shifted the burden back to the State to prove by a
preponderance of the evidence that she had validly waived her
right to counsel.4

¶21 Finally, the district court concluded that the State had met
its burden of establishing that Jimenez-Wiss had knowingly and
intelligently waived counsel. The district court relied on Jimenez-
Wiss’s initials next to the right to counsel on page two of the Plea
Document to infer that she knowingly waived that right. The court
found further support for its conclusion in the list of other
constitutional rights that Jimenez-Wiss acknowledged waiving,
Jimenez-Wiss’s education level, and her signature at the end of the
Plea Document stating that she had read and understood the entire
document and was certifying her statements therein as true.

¶22 Because we lack a transcript of the plea hearing, we are
deprived of what the Utah Supreme Court has recognized as the

4. Jimenez-Wiss did not support her motion to strike the felony
enhancement with a personal affidavit describing what occurred at
the plea hearing. The only evidence in the record speaking to any
decision to proceed without counsel is the Plea Document. The
State does not contend that the district court erred by finding that
this evidence was sufficient to rebut the presumption of regularity,
and we offer no opinion on that topic.

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preferred method for assessing whether a waiver of counsel is
knowing: an on-the-record colloquy. See State v. Pedockie, 2006 UT
28, ¶ 42, 137 P.3d 716. Although a colloquy is not constitutionally
required, the supreme court anticipated that “reviewing courts will
rarely find a valid waiver of the right to counsel absent a colloquy.”
Id. ¶ 45. In this case, we also lack an affidavit from Jimenez-Wiss,
or anyone else present at the plea hearing, describing what
occurred. See, e.g., State v. Ferguson, 2007 UT 1, ¶¶ 40–41, 169 P.3d
423 (acknowledging that a defendant’s own testimony that he did
not knowingly waive his right to counsel is sufficient to shift the
burden to the State to demonstrate that the waiver was knowing).
Thus, we must now divine what happened at the 2008 hearing
based upon (1) the fact that Jimenez-Wiss entered a plea without
counsel present and (2) the contents of the Plea Document. With
little visibility into what actually occurred in 2008, we are left to
proceed by inference.

¶23 The district court examined the Plea Document and inferred
that Jimenez-Wiss’s decision to waive counsel was knowing and
intelligent. This was not an unreasonable inference. The document
thoroughly explained the right to counsel, and, in a section entitled
“Defendant’s Waiver of Constitutional Rights,” Jimenez-Wiss
initialed next to the language describing her right to counsel. That
language stated, among other things, “I know that I have the right
to be represented by an attorney and that if I cannot afford one, an
attorney will be appointed by the court at no cost to me.” The
district court noted that Jimenez-Wiss had a college degree and
therefore should have understood what she had read. The district
court also noted that Jimenez-Wiss’s signature on the last page of
the document evidenced an understanding of the information the
document contained.

¶24 However, other aspects of the Plea Document give rise to an
inference that Jimenez-Wiss did not waive her right to counsel. The
document provided Jimenez-Wiss with three opportunities to
specifically affirm that she waived her right to counsel. First, she
could have checked the line on the first page next to the sentence,

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State v. Jimenez-Wiss

“I do not wish to be represented by an attorney.” Second, she could
have signed the “Waiver of Counsel for Today’s Hearing” on the
first page. Finally, she could have described her reasons for
proceeding without counsel (or otherwise indicated that she was
electing to waive her right to counsel) in the space provided on
page two of the document.5 Jimenez-Wiss availed herself of none
of these opportunities, and these omissions create the competing
inference that Jimenez-Wiss avoided declaring that she was
waiving her right to counsel because she did not desire to waive
that right.

¶25 In State v. Pedockie, 2006 UT 28, 137 P.3d 716, the Utah
Supreme Court held 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.” Id. ¶ 45.
Further, it is the State that ultimately bears the burden of
demonstrating a defendant’s knowing and intelligent waiver of
counsel. Ferguson, 2007 UT 1, ¶ 41. We agree with Jimenez-Wiss
that, read as a whole, the Plea Document is ambiguous as to her
intentions with respect to counsel. Her failure to clearly express a
waiver of her right to counsel, despite three opportunities to do so,
raises doubt about her intentions. Under Pedockie, we must resolve
that doubt against waiver and conclude that the State failed to meet
its burden.

5. As explained above, the description of the right to counsel on the
second page of the Plea Document contemplated that, in addition
to initialing, the defendant would complete either subsection A
(and list her reasons for proceeding without counsel) or subsection
B (and name her counsel). Jimenez-Wiss did not complete either
subsection, nor did she otherwise indicate that she was electing one
option over the other. The district court concluded that Jimenez-
Wiss’s initials alone indicated a desire to waive the right to counsel,
but we cannot reach that same conclusion because of the ambiguity
inherent in Jimenez-Wiss’s failure to properly fill out the form by
completing one of the two subsections.

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State v. Jimenez-Wiss

¶26 Because the State failed to meet its burden, the district court
erred when it denied Jimenez-Wiss’s motion to strike the felony
enhancement of her 2012 offense. We therefore vacate Jimenez-
Wiss’s conviction on that offense and remand this matter for
further proceedings.

CONCLUSION

¶27 Once the district court found that Jimenez-Wiss had
produced evidence that she did not knowingly waive her right to
counsel prior to her 2008 DUI conviction, the State bore the burden
of establishing that she had waived that right. The only evidence
before the district court—the Plea Document—does not
demonstrate waiver by a preponderance of the evidence.
Moreover, the multiple omissions in the Plea Document raise
doubts concerning Jimenez-Wiss’s intentions—doubts our supreme
court has held must be resolved against a finding of waiver. The
district court therefore erred in denying Jimenez-Wiss’s motion to
strike the felony enhancement of her 2012 DUI charge. We vacate
Jimenez-Wiss’s conviction on the 2012 charge and remand this
matter for further proceedings.

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