State v. Ford

2008 UT 66
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Solomon Lee Ford, 	Nos. 20060720
Plaintiff and Appellee, 	20070587
v.
F I L E D
State of Utah,
Defendant and Appellant. 	September 16, 2008
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Third District, Salt Lake
The Honorable John Paul Kennedy
No. 050909964
Attorneys: 	Kimberly Neville, Troy L. Booher, Emily Smith,
Katherine Carreau, Salt Lake City, for petitioner
Mark L. Shurtleff, Att’y Gen., Thomas Brunker, Asst.
Att’y Gen., Salt Lake City, for respondent
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On Certification from the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This appeal poses two questions. 	First, whether, in
1993, court commissioners were authorized to conduct preliminary
hearings binding defendants over for trial. 	Second, whether
defendants who succeed in vacating their convictions in a post-
conviction relief proceeding are entitled to paid counsel to
represent them during the State’s appeal. 	We hold that court
commissioners were entitled to conduct preliminary hearings
binding defendants over for trial in 1993. 	We also hold that
impecunious defendants who are granted post-conviction relief
from their sentences are entitled to paid counsel if the State
decides to appeal the district court’s grant of relief.
BACKGROUND
¶2 	On August 19, 1993, Solomon Lee Ford (Ford) was charged
by information with possession of a dangerous weapon and
aggravated assault. 	On September 9, 1993, a court commissioner
conducted a preliminary hearing and bound Ford over for trial.
Ford was acquitted of the assault charge but convicted by a jury

Nos. 20060720, 20070587 	2
of possession of a dangerous weapon, a second degree felony, and
was sentenced to serve not less than one year nor more than
fifteen years in the Utah State Prison. 	Ford served thirteen
years; during that time he filed four post-conviction requests
for relief.
¶3 	In his fourth post-conviction relief request, the
district court determined that Ford was improperly bound over for
trial by a court commissioner who lacked judicial authority to
conduct preliminary hearings. 	The district court explained:
“The problem which is alleged here is that the Legislature acting
alone could not authorize Commissioners to function as
magistrates presiding over preliminary hearings.” 	The district
court analyzed the issue in three parts, “(1) whether a
Commissioner in 1993 had authority to preside over a preliminary
hearing; (2) if the Commissioner did not have such authority,
whether the bindover was lawful; and (3) if the bindover was not
lawful, did the district court have jurisdiction to try the
Petitioner for the alleged crimes” or did Ford “knowingly,
intelligently, and voluntarily waive[] his constitutional right
to a preliminary hearing before a properly authorized
magistrate.” 	The district court found that Ford was “wrongfully
bound over for trial and the trial court was without jurisdiction
to try him.”
¶4 	Because Ford was impecunious, the district court
appointed the Salt Lake Legal Defenders Association (LDA) to
represent Ford 	while the court considered whether Ford was
entitled to immediate release or only to a new trial. 	Ford’s
conviction was vacated, and he was released from prison. 	The
State appealed. 	The district court and the court of appeals
denied the State’s motions to keep Ford incarcerated until the
outcome of the appeal was determined.
¶5 	LDA had a conflict and was unable to represent Ford on
appeal. 	The district court granted LDA’s motion to substitute
counsel, but it failed to indicate whether substituted counsel
would be pro bono or paid. 	The State argued that the appointment
had to be pro bono. 	Ford’s current counsel filed a motion to
replace the substituted counsel and argued that under the
Indigent Defense Act, the United States Constitution, and the
Utah Constitution, Ford’s counsel was entitled to compensation.
The district court granted Ford’s motion for paid counsel to
represent him on appeal and entered an order to that effect.
Under the Indigent Defense Act, the district court found:
“Because it is the State, not Mr. Ford, that has chosen to appeal
the Court’s ruling and challenge the current status quo, the
appeal is not a discretionary proceeding as to Mr. Ford.
Therefore, Mr. Ford is entitled to paid counsel to defend against
the State’s appeal under 77-32-301(6).” 	Under the Utah

3 	Nos. 20060720, 20070587
Constitution, the district court also found: 	“Because Mr. Ford
faces prison if the State is successful on appeal, the State’s
appeal is functionally equivalent to an original criminal
prosecution and the right to counsel attaches.” 	Finally, under
the United States Constitution, the district court found:
“[W]here a first appeal of right is successful, and the State
petitions for discretionary review, the right to counsel does
attach because the proceeding is not discretionary as to the
person whose liberty interest is in jeopardy.”
ANALYSIS
I. 	STANDARD OF REVIEW
¶6 	We review the district court’s order granting Ford
post-conviction relief for correctness. 	See Wickham v. Galetka,
2002 UT 72, ¶ 7, 61 P.3d 978. 	The district court’s order
appointing paid counsel to represent Ford in post-conviction
proceedings implicates issues of statutory and constitutional
interpretation that we also review for correctness. 	See Duke v.
Graham, 2007 UT 31, ¶ 7, 158 P.3d 540 (citing MacFarlane v. State
Tax Comm’n, 2006 UT 25, ¶ 9, 134 P.3d 1116 (discussing statutory
interpretation); Grand County v. Emery County, 2002 UT 57, ¶ 6,
52 P.3d 1148 (discussing state constitutional interpretation)).
II. 	BINDOVER BY COMMISSIONER
¶7 	The district court vacated Ford’s conviction, holding
that the court commissioner who bound Ford over for trial lacked
authority to do so, and therefore the district court had not had
jurisdiction to try him. 	The district court apparently assumed
that a bindover order constituted a core judicial function, and
it ultimately concluded that under Salt Lake City v. Ohms, a
commissioner could not properly enter such an order. 	881 P.2d
844, 853 (Utah 1994). 	We disagree with the first premise, making
an analysis under Ohms unnecessary.
¶8 	In State v. Humphrey, we outlined the procedure for
binding defendants over for trial:
By the bindover order, the magistrate
requires the defendant to answer the
information in the district court. 	The
information is then transferred to the
district court, permitting that court to take
original jurisdiction of the matter. 	At that
point, the district court has the inherent
authority and the obligation to determine
whether its original jurisdiction has been
properly invoked. 	In doing so, the district

Nos. 20060720, 20070587 	4
court need show no deference to the
magistrate’s legal conclusion, implicit in
the bindover order, that the matter may
proceed to trial in district court, but may
conduct its own review of the order.
823 P.2d 464, 465-66 (Utah 1991) (citations, internal quotation
marks, and footnote omitted).
¶9 	Article I, section 13 of the Utah Constitution gives
“magistrates” the duty to conduct preliminary hearings.
“Offenses heretofore required to be prosecuted by indictment,
shall be prosecuted by information after examination and
commitment by a magistrate, unless the examination be waived by
the accused with the consent of the State, or by indictment, with
or without such examination and commitment.” 	Utah Const. art. I,
§ 13 (emphasis added); see also Utah Code Ann. § 78-7-17.5 (1992)
(giving magistrates the authority to “conduct a preliminary
examination to determine probable cause”). 	The Utah Constitution
does not define a magistrate. 	At the time of Ford’s preliminary
hearing and conviction, the Utah Legislature defined a magistrate
as “a justice or judge of a court of record or not of record or a
commissioner of such a court appointed in accordance with Section
78-3-31.” 	Utah Code Ann. § 77-1-3(4) (Supp. 1992).
Commissioners at the time were appointed by the Judicial Council
and a majority of the district court judges in the district to
which the commissioner would be assigned. 	Id. § 78-3-31(2)(a)
(1992). 	Commissioners were required to “comply with applicable
constitutional and statutory provisions, court rules and
procedures, and rules of the Judicial Council,” and “comply with
the Code of Judicial Conduct to the same extent as full-time
judges.” 	Id. § 78-3-31(5)(a)-(b).
¶10 	In reviewing a 1991 statutory amendment that authorized
court commissioners to “accept pleas of guilty or no contest,
impose sentence, and enter final judgment in misdemeanor cases,”
and “conduct a jury or nonjury misdemeanor trial in accordance
with law,” Utah Code Ann. § 78-3-31(6)(a) (1992), this court
declared that commissioners were unable to perform “core judicial
functions such as entering final orders and judgments or imposing
sentence.” 	Salt Lake City v. Ohms, 881 P.2d 844, 852 n.17 (Utah
1994). 	However, this court did not invalidate the service of
commissioners:
Court commissioners have provided a valuable
service to the judiciary for over thirty
years pursuant to constitutionally valid
statutes. 	They have conducted fact-finding
hearings, held pretrial conferences, made
recommendations to judges, and provided

5 	Nos. 20060720, 20070587
counseling and other worthwhile functions.
However, over that thirty-year period,
commissioners were never allowed to perform
ultimate or core judicial functions such as
entering final orders and judgments or
imposing sentence. 	In every case,
commissioner actions led to recommendations
which resulted in final review and signature
by a judge.
Id. 	Whether an action is a core judicial function is based on
whether “the commissioners’ actions are reviewable by a judge
[and] ultimate judicial power remains with the judge.” 	State v.
Thomas, 961 P.2d 299, 302 (Utah 1998) (holding that the issuance
of a search warrant constituted a core judicial function). 	So
long as the commissioner’s actions are reviewed and the
commissioner does not exercise ultimate judicial authority, his
or her actions are not core judicial functions. 	Id.
¶11 	Unlike the district court, we conclude that binding a
defendant over to the district court for trial does not
constitute a core judicial function. 	“[O]ur statutory provisions
make an unmistakable distinction between the functions and powers
of a judicial officer acting as magistrate and one acting as
judge of a court.” 	Humphrey, 823 P.2d at 467. 	“‘A preliminary
hearing is not a trial, and a magistrate . . . does not sit as a
judge of a court and exercises none of the powers of a judge
. . . .’” 	Id. (quoting Van Dam v. Morris, 571 P.2d 1325, 1327
(Utah 1977)).
¶12 	Ford argues that State v. Jaeger, 886 P.2d 53 (Utah
1994), stands for the proposition that when a magistrate refuses
to bind a defendant over for trial and instead dismisses the
information, the magistrate’s order is final and appealable, thus
qualifying the bindover decision as a core judicial function.
However, Jaeger distinguished between dismissals, which it deemed
to be subject to appeal, and bindover orders, which it described
as “interlocutory.” 	It made no assessment of the character of
either type of order as part of a core judicial function: 	“The
magistrate’s decision to bind over is interlocutory; it keeps the
case alive and on track. 	As such, the magistrate decides nothing
more than that the case will proceed.” 	Jaeger, 886 P.2d at 55.
As noted in Humphrey, that decision has no final preclusive
effect. 	823 P.2d at 467-68. 	The district court has plenary
authority to decide the jurisdictional question differently and
quash the bindover order.
¶13 	The commissioner who conducted the preliminary hearing
and bound Ford over for trial had the authority to determine that
the evidence to convict Ford was adequate to proceed to trial.

Nos. 20060720, 20070587 	6
The commissioner was not acting in a core judicial function, and
Ford’s bindover hearing was proper.
III. 	PAID COUNSEL
¶14 	We agree with Ford that in a post-conviction
proceeding, when an indigent defendant has succeeded in a vacatur
of his or her conviction, and the State chooses to appeal that
vacatur, the defendant should be entitled to the assistance of
paid counsel on appeal pursuant to the Indigent Defense Act, the
Utah Constitution, and the United States Constitution.
A. 	Indigent Defense Act
¶15 	The Indigent Defense Act requires that legal counsel be
provided “for each indigent who faces the substantial probability
of the deprivation of the indigent’s liberty.” 	Utah Code Ann.
§ 77-32-301(1) (2003). 	For the constitutional reasons explained
below, we agree with Ford that the State’s appeal after Ford
received post-conviction relief created a “substantial
probability of the deprivation of [Ford’s] liberty.” 	We also
agree with Ford that the Post Conviction Remedies Act does not
conflict with the Indigent Defense Act. 	Cf. Utah Code Ann.
§ 78B-9-109 (2008), with Utah Code Ann. § 77-32-301(1) (2003).
The Post Conviction Remedies Act provides that a court may
appoint counsel on a pro bono basis to represent defendants on
post-conviction petitions for relief. 	Id. § 78B-9-109(1). 	The
Act indicates such appointment should occur at the request of the
petitioner, and where an evidentiary hearing would be required or
the “petition involves complicated issues of law or fact that
require the assistance of counsel for proper adjudication.” 	Id.
§ 78B-9-109(2). 	Ford is no longer petitioning for post-
conviction relief. 	He has already been granted such relief.
Ford is now defending his grant of post-conviction relief against
the State’s appeal. 	Ford is defending his liberty interest and
is therefore entitled to counsel under the Indigent Defense Act.
B. 	Utah Constitution
¶16 	Article I, section 7 of the Utah Constitution provides,
“No person shall be deprived of life, liberty or property,
without due process of law.” 	Article I, section 12 gives the
accused the right to counsel. 	In State v. Eichler, 483 P.2d 887,
889 (Utah 1971), this court held that impecunious defendants were
entitled to court-appointed counsel at probation revocation
hearings. 	We stated:
It is in accordance with the assurance of the
Utah State Constitution that an accused be
provided with the assistance of counsel at

7 	Nos. 20060720, 20070587
every important stage of the proceedings
against him. 	Inasmuch as . . . a hearing
involves the possibility of changing the
defendant’s status from one of being at
liberty to one of being in confinement, it
does no particular violence to one’s sense of
justice that it be regarded as an important
stage of the proceeding against him at which
he should have the assistance of counsel if
he so desires.
Id. (internal quotation marks omitted). 	It does not matter
whether a successful post-conviction petitioner is actually
released from prison. 	If a court has granted a release, a
defendant is entitled to counsel if the State attempts to
“chang[e] the defendant’s status” as to that relief by any means,
including pursuing an appeal or bringing a new proceeding in
district court.
¶17 	The State’s appeal seeking reversal of the district
court’s vacatur of Ford’s conviction is the equivalent of an
effort to “chang[e Ford’s] status from one of being at liberty to
one of being in confinement,” and Ford is entitled to counsel in
defending against the State’s appeal.
C. 	United States Constitution
¶18 	The Sixth Amendment to the United States Constitution
guarantees that individuals accused of crimes have the right to
counsel. 	U.S. Const. amend. VI. 	The Fourteenth Amendment due
process and equal protection clauses provide that individuals who
cannot afford an attorney can have one appointed for them. 	U.S.
Const. amend. XIV; see also Douglas v. California, 372 U.S. 353,
356-57 (1963) (holding that defendants have a right to counsel on
appeal). 	There is also a fundamental liberty interest that
triggers the right to counsel. 	See Walker v. McLain, 768 F.2d
1181, 1183 (10th Cir. 1985) (“It is the defendant’s interest in
personal freedom, and not simply the special sixth and fourteenth
amendment right to counsel in criminal cases, which triggers the
right to appointed counsel.” (citing Lassiter v. Dep’t of Soc.
Servs. of Durham County, 452 U.S. 18, 25 (1981))).
¶19 	Ford has not argued that a right to counsel exists for
defendants seeking discretionary post-conviction relief. 	We
hold, however, that defendants who have been successful in
obtaining a vacatur of their convictions have both a liberty and
due process interest in their prospective freedom, and if the
State chooses to pursue an appeal, the right to counsel does
attach. 	In Blankenship v. Johnson, the Fifth Circuit Court of
Appeals reviewed the circumstances of a defendant who was

Nos. 20060720, 20070587 	8
convicted of aggravated robbery, acquitted on direct appeal, but
then arrested again after the State obtained a reversal of the
acquittal on a petition for discretionary review. 	118 F.3d 312,
314-15 (5th Cir. 1997). 	The Blankenship court held:
For many years, the courts have held that
indigent criminal defendants have the right
to appointed counsel in direct appeals. 	This
right arises from the Equal Protection and
Due Process Clauses. 	This right would be
impaired, however, if the state were allowed
to challenge the defendant’s successful
direct appeal without providing him with
counsel after a discretionary appeal is
granted to the state. 	The indigent criminal
defendant, unrepresented by counsel, would be
unable to defend the reversal of his
conviction in all but the most compelling
cases.
Id. at 317. 	We find the reasoning of the Fifth Circuit
persuasive. 	We also agree with the Tenth Circuit, which has
observed that “[i]t would be absurd to distinguish criminal and
civil incarceration; from the perspective of the person
incarcerated, the jail is just as bleak no matter which label is
used. . . . 	The right to counsel, as an aspect of due process,
turns not on whether a proceeding may be characterized as
‘criminal’ or ‘civil,’ but on whether the proceeding may result
in a deprivation of liberty.” 	Walker, 768 F.2d at 1183.
¶20 	Ford has a right to counsel under the United States
Constitution to defend against the State’s appeal.
CONCLUSION
¶21 	The district court’s order granting Ford post-
conviction relief is reversed and his conviction is reinstated;
its order requiring payment to Ford’s counsel on appeal is
affirmed.
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¶22 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.