author: JACKSON, Presiding Judge:

text:
    2002 UT App 256
    STATE of Utah, Plaintiff and Appellee, v. Lester GONZALES, Defendant and Appellant.
    No. 20010270-CA.
    Court of Appeals of Utah.
    Aug. 1, 2002.

      Barbara King Lachmar, Logan, Todd A. Utzinger, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kris C. Leonard, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, GREENWOOD, and ORME.
   OPINION

JACKSON, Presiding Judge:

T1 Defendant Lester Gonzales (Lester) appeals from a conviction of manslaughter, a second degree felony, in violation of Utah Code Ann. § 765-205 (1999). We affirm.

BACKGROUND

12 At approximately 1:00 a.m. on July 24, 1999, Martin Baz (Martin) and Rolando La-gunas left a party where they had been drinking. As Martin and Rolando left the party, Lester and his brother Edwin Gonzales (Edwin) approached Martin and Rolando. Lester and Edwin had also been drinking. After a short conversation, Martin left to retrieve his bicycle, which had been stored in a nearby stairwell. Edwin approached Martin, and they began speaking again. While they spoke, Lester returned to the conversation. Martin insulted Lester, calling him a erude name.

T3 An argument then ensued, during which Martin criticized Lester's ability to speak English Lester punched Martin in the face, knocking him to the ground. Edwin and Lester began kicking Martin, until Rolando pulled Edwin from the fight. Edwin struggled with Rolando while Lester continued kicking Martin in the head "with all of his strength" several times. Two witnesses saw Lester kicking Martin until Martin's eyes rolled back in his head and his breathing became labored.

T4 Officer Chad Carpenter of the Logan City Police Department responded to an emergency call and found Martin lying in a driveway. Shortly thereafter, Martin died. He had a blood-alcohol level of .23. The medical examiner found multiple bruises and abrasions on Martin's body, especially around the head and face, caused by Lester's forceful blows. The blows, combined with Martin's intoxication, caused his death.

T5 Edwin pleaded guilty to manslaughter, under an accomplice liability theory. Lester was charged with first-degree murder and pleaded not guilty. After the State rested its case at trial, it requested an instruction allowing the jury to consider finding Lester guilty as an accomplice to murder. The court denied this request because the State had offered no evidence warranting such an instruction. However, the court stated that it might consider an accomplice liability instruction if Lester introduced enough evidence supporting accomplice liability during the presentation of his defense. Lester had hoped to introduce testimony of Edwin's primary responsibility for the crime, thus exculpating himself under a theory of mistaken identity. However, Lester chose not to introduce that evidence because he believed it would provide the necessary foundation for an accomplice liability instruction. At oral argument, Lester's counsel characterized the threat of an accomplice liability instruction as a sort of "Hobson's choice," forcing him to choose between presenting his theory of mistaken identity and exposing himself to accomplice liability on the one hand, and foregoing the mistaken identity defense and exposing himself to principal liability on the other hand.

T6 Lester ultimately chose not to introduce evidence supporting a mistaken identity theory, hoping to avoid the threat of accomplice liability altogether. When the trial court instructed the jury, however, it issued a causation instruction that stated:

In considering whether the Defendant "caused" another's death, you need not find that the Defendant's conduct was the sole factor in producing the death. A Defendant causes the death of another if he or she was a substantial factor in bringing about the death even if it can be shown that some other factor also contributed in a substantial degree to the death. However, in order for the Defendant to be found guilty, the other factors also contributing to the death must have been foreseeable.

Lester's counsel objected to this instruction, arguing that it amounted to a disguised accomplice liability instruction, and that Lester had no notice in the information of possible exposure to accomplice liability. The trial court overruled the objection, and the jury ultimately convicted Lester of manslaughter, a lesser included offense.

ISSUES AND STANDARDS OF REVIEW

T7 Lester challenges the trial court's rejection of his claim that due process required the State to provide notice in the information of its intent to pursue accomplice liability. "Whether an information provides sufficient notice is a question of law. Accordingly, we review this question for correctness." State v. Preece, 971 P.2d 1, 4 (Utah Ct.App.1998). Further, Lester challenges the trial court's causation instruction, arguing that "it was the functional equivalent of an accomplice liability instruction." "Determining the propriety of the instructions submitted to the jury presents a question of law, and we therefore review the trial court's instructions under a correction of error standard." Ames v. Maas, 846 P.2d 468, 471 (Utah Ct.App.1998). We will affirm the jury instructions when, taken as a whole, they " 'fairly instruct the jury on the law applicable to the case. " Id (citation omitted).

ANALYSIS

I. Sufficiency of the Information

18 First, we address Lester's challenge to the trial court's denial of his claim that due process required the State to provide notice in the information of the State's intention to pursue an accomplice lability theory at trial. Lester argues on appeal that the State's failure to include notice in the information of its intention to pursue accomplice liability prejudiced his ability to properly present his planned defense of mistaken identity, and thus violated his due process rights.

T9 We conclude that no error occurred when accomplice liability was not mentioned in the State's information. Further, Lester had adequate notice of the charges against him. Lester was tried and convicted as a principal. The State did not pursue accomplice liability at trial nor in the jury instructions. When the State asked for a jury instruction regarding accomplice liability, the court denied the request because the State had not presented any evidence warranting one. Contrary to Lester's challenge, however, the court ruled in Lester's favor on this issue because the State did not vary from the charges contained in the information. In essence, Lester seeks relief based on lack of notice of a prosecution theory that was never brought to the jury's attention. We find it unreasonable to require the State to give notice, at a stage as early as the filing of an information, of all possible theories that might arise, including those that do not become part of the State's case. See State v. Davis, 963 S.W.2d 317, 326 (Mo.Ct.App.1997) (holding due process does not require State to reveal all potential theories of prosecution's case in information or indictment).

[ 10 Rule 4(b) of the Utah Rules of Criminal Procedure requires only that an information "charge the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute or by stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge." Utah R.Crim. P. 4(b). Our supreme court has stated that an information is "legally sufficient even if it consists of nothing more than an extremely summary statement of the charge." State v. Bell, 770 P.2d 100, 104 (Utah 1988); see also State v. Snyder, 932 P.2d 120, 127 (Utah Ct.App.1997) (holding information is sufficient so long as it enables defendant to understand charge against him).

{11 Here, the information provided to Lester contained the charge of murder, the name of the victim, the date and place of the crime, and the relevant text of the homicide statute, Utah Code Ann. § 76-5-205. Thus, we conclude the information satisfied the constitutional requirements for adequate notice of the charges against him and that no error occurred. See Utah Const. art. I, § 12 ("In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him [and] to have a copy thereof. . . .").

112 At oral argument, Lester presented for the first time the contention that an accomplice liability instruction would be unfair because it represents a charge completely separate from principal liability for murder. We do not agree that accomplice Tiability is a separate offense from principal liability such that it would require specific notice. It is well settled that accomplices incur the same lability as principals. See Utah Code Ann. § 76-2-202 (1999) (stating that an accomplice "shall be criminally liable as a party for such conduct"); State v. Comish, 560 P.2d 1134, 1136 (Utah 1977) (holding an accomplice can be charged with same offense as principal defendant). Thus, a person charged with a crime has adequate notice of the possibility of accomplice liability being raised at trial because conviction of accomplice and principal liability do not require proof of different elements or proof of different quality. See id. (accomplice may be charged with same crime as principal). Here, Lester was specifically forewarned that the judge might give the jury an accomplice liability instruction should evidence supporting one be introduced, thus satisfying the requirement that the instruction, if given, not prejudice the defendant. See State v. Hansen, 734 P.2d 421, 428 (Utah 1986) (court may give any instruction supported by the evidence so long as defendant is not prejudiced).

113 Next, we address Lester's argument that he was prejudiced by lack of notice of the possibility of accomplice liability being introduced at trial. The State never altered its theory of principal liability. If the State had changed its theory of the case, applicable precedent protects Lester by providing for a continuance when necessary to tailor a defense to meet the State's amended theory.

[Djefendant did not request a continuance in order to remedy the alleged prejudice and, therefore, waived his right to complain on appeal. "[Wlhenever the prosecution changes its position, a defendant may seek a continuance ... [but] the fallure of a defendant to seek a continuance negates any claim of surprise and amounts to a waiver of any claim of variance [in the State's theory)." Defendant's failure to request a continuance is fatal to his claim, and accordingly, we affirm the trial court's decision.

State v. Wilson, 771 P.2d 1077, 1085 (Utah Ct.App.1989) (second and third alterations in original) (citation omitted); accord State v. Fulton, 742 P.2d 1208, 1215-16 (Utah 1987).

(14 Lester did not request a continuance. At oral argument, Lester's counsel stated that he did not request a continuance because he did not need more time to prepare his defense. Instead, he asserted that the alleged change of position by the State thwarted his ability to present his desired defense of mistaken identity. The right to adequate notice in the information does not implicate a defendant's right to present a desired defense. Rather, it protects a defendant's ability to "prepare to meet the prosecution's changed position." State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987) (emphasis added). "However, onee a continuance is granted and the defendant is allowed sufficient time to prepare a defense, the prejudice is obviated. ..." Id. Thus, a claim of inadequate notice in the information does not impact the right Lester claims was violated. Accordingly, we affirm the trial court's ruling regarding the sufficiency of the information.

II. The Causation Instruction

T15 Finally, we address Lester's claim that he was prejudiced by the issuance of the causation instruction to the jury. The instruction allowed the jury to convict Lester even if "some other factor also contributed in a substantial degree to the death." Lester argues that he was unfairly prejudiced by this instruction because "it allowed the State to argue accomplice liability without having given defendant notice of its intention to do so prior to trial."

116 Generally, when an instruction correctly states the law and does not unfairly prejudice the defendant, there is no error. See State v. Hansen, 734 P.2d 421, 428 (Utah 1986) ("It is the duty of the judge to instruct the jury on relevant law .... [even] over the objection of the defendant's counsel"). We affirm Lester's conviction because he has not shown prejudice arising from the way the jury understood the instruction or acted pursuant to it. See id.

T17 Lester's entire argument regarding the causation instruction rests on his claim of prejudice. He asserts that the instruction enabled the State to argue accomplice Hability, even though the information did not allege accomplice liability, the court refused the State's request for an accomplice liability instruction, and Lester himself refrained from introducing evidence that would prompt the court to revisit that ruling.

T18 Lester's argument does not persuade us. The State did not mention any connection between Lester's participation in Martin's death and this instruction. Rather, it connected Martin's intoxication to his death when explaining the meaning of the instruction. Further, Lester's own counsel referred to Martin's intoxication as "something that contributed to [Martin's] death." (Emphasis added.)

{19 Finally, Lester argues that the instruction "allowed the State to argue accomplice liability," but he fails to point us to any argument actually made by the State that suggested accomplice liability to the jury. Significantly, the court removed from the original proposed causation instruction language specifically addressing another human actor.

1 20 In sum, as the State points out,

the jury had no knowledge of any issue relating to accomplice liability.... [Alny mention of that theory occurred outside the jury's presence. Consequently, even if the instruction could be read by counsel as relating to an accomplice lability theory, it could not have been interpreted that way by the jury in this case. ...

We agree. Lester offers us no basis on which to conclude that the instruction unfairly prejudiced him by confusing the jury or giving them an improper alternative to principal liability. He wants us to assume prejudice, but all he proposes is a speculative and isolated hypothetical interpretation of the instruction. See generally State v. Kirkwood, 2002 UT App 128, 47 P.8d 111 (stating speculative assignments of error not supported by the record do not constitute grounds for reversal). He urges us to overturn the jury conviction without demonstrating that the "instructions and circumstances of the case" confused the jury into interpreting the instruction as he hypothesizes. Ames v. Maas, 846 P.2d 468, 474 (Utah Ct.App.1998). We conclude that Lester did not ineur unfair prejudice stemming from the causation instruction.

121 Moreover, the causation instruction was a correct statement of the law. A defendant's acts may be found to be the proximate cause of the victim's death even if the victim "actually died as a result of the combination of [the defendant's acts] plus some other contributing factor." State v. Hamblin, 676 P.2d 376, 379 (Utah 1983); accord Wren v. State, 5T7T P.2d 285, 240 (Utah 1978). The unchallenged evidence shows that although Martin's intoxication played a significant part in his death, he would not have died but for the beating he received. Thus, the instruction "state[d] the law correctly," Hansen, 734 P.2d at 428, regarding "relevant law," id., because Martin's intoxication was not the sole cause of death, nor did it supersede Lester's liability for punching and kicking Martin. Accordingly, we conclude that the trial court correctly gave the jury instruction.

CONCLUSION

1 22 Lester received sufficient notice of the charges against him when the information charged him as a principal to murder. He has not demonstrated error or unfair prejudice arising from the causation instruction. Accordingly, we affirm his conviction.

23 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . Lester originally raised a third issue regarding the trial court's refusal to take judicial notice of Edwin's guilty plea to manslaughter. Before oral argument, however, Lester filed a waiver of the issue, and thus we do not address it.

      . In his brief, Lester rested his main argument of law on a line of cases from Nevada, which requires accomplice liability to appear in the information. See State v. Eighth Judicial Dist. Ct., 116 Nev. 374, 997 P.2d 126 (2000) (State sought to amend information to add aiding and abetting theory on morning of trial); Wright v. State, 101 Nev. 269, 701 P.2d 743 (1985) (State actively pursued aiding and abetting theory without giving defendant notice in information); Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983) (same). The Nevada rule comprises a single-state minority position. However, the Nevada rule itself is limited to situations where the state has sought to gain advantage over the defendant by concealing or vacillating in its theory of the case. See Randolph v. State, 36 P.3d 424, 429 (Nev.2001) (limiting Barren). Thus the Nevada rule would be inapplicable here in any event.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2002 UT App 297
    STATE of Utah, Plaintiff and Appellee, v. Joseph B. SCHULTZ, Defendant and Appellant.
    No. 20010908-CA.
    Court of Appeals of Utah.
    Sept. 19, 2002.

      J. Thomas Bowen, Midvale, for Appellant.
    Mark L. Shurfleff; Atty. Gen., and Sharel S. Reber, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., BENCH, and DAVIS, JJ.
   OPINION

DAVIS, Judge:

11 Defendant Joseph B. Schultz (Schultz) challenges the trial court's denial of his motion to set aside a civil judgment to enforce restitution and to quash a writ of garnishment filed by the victim. We reverse.

BACKGROUND

T2 On October 17, 1983, Schultz was sentenced to the Utah State Prison. Approximately five-and-one-half years later, the Utah Board of Pardons and Parole (Board) ordered that Schultz be released on parole effective October 26, 1998. In September 1993, the Board concluded at a Special Attention Review that as a condition of Schultz's parole he was to pay restitution in an amount "TBD" (to be determined). Prior to his release, the Board ordered that Schultz's parole agreement be amended to include the restitution. Schultz assented to the special condition in the parole agreement that he would "[play restitution of $TBD CASE #" by specifically initialing the restitution provision in his parole agreement.

T3 Schultz paid nothing, and on October 23, 1996, two days before his sentence and parole were to terminate, a restitution hearing was held. The hearing officer determined that a full parole revocation hearing before the Board would be required because of Schultz's failure to pay restitution. At that time, Schultz's parole termination date was suspended. The Board then issued an arrest warrant on the ground that the failure to pay restitution was a parole violation and released Schultz on his own recognizance pending a parole violation hearing. However, the Board never held a formal hearing concerning whether Schultz violated his parole by failing to pay restitution.

14 The Board did, however, conduct a Special Attention Hearing on April 22, 1997, where it established that Schultz's sentence and parole would be terminated effective August 4, 1997. The Board's hearing decision, issued August 5, 1997, included a "[rlequest for restitution ... to be forwarded to the Sentencing Court." Two days later, an amount of restitution-$3,798.48-was caleu-lated and approved by the Board. A copy of the hearing results was mailed to Schultz on August 15, 1997.

T5 On September 8, 1997, the Board issued and signed an order of restitution for Schultz to pay $3,798.48 to the victim. The trial court signed and approved the restitution order on September 17, 1997. In March 2001, after an application was submitted by the victim, the Second District Court issued a writ of continuing garnishment to be imposed against the wages of Schultz. Schultz filed an objection to the garnishment and a motion to set aside the civil monetary judgment, which the court ultimately denied.

ISSUE AND STANDARD OF REVIEW

T6 Schultz challenges the trial court's denial of his motion to set aside judgment by contending that the Board's original restitution order, dated September 8, 1997, and signed by the court on September 17, 1997, was invalid because the Board did not have jurisdiction to issue the order since the Board had terminated his sentence and parole effective August 4, 1997. "[Blecause the paramount issue in this case is a question of statutory construction," whether the Board had jurisdiction to issue the restitution order is a question of law reviewed for correctness. Taghipour v. Jerez, 2002 UT 74, ¶ 8, 52 P.3d 1252.

ANALYSIS

7 Schultz argues that the Board's restitution order was ineffective because the Board's jurisdiction ended when his sentence and parole were terminated on August 4, 1997. The jurisdiction of the Board extends to all "persons committed to serve sentences in class A misdemeanor cases at penal or correctional facilities which are under the jurisdiction of the Department of Corree-tions, and all felony cases except treason or impeachment or as otherwise limited by law." Utah Code Ann. § T7-27-5(1)(a) (Supp. 2002). Further, the Board's jurisdiction over offenders subject to pardon or parole and offenders having their sentences commuted or terminated includes "any offender committed to a penal or correctional facility under the jurisdiction of the Department of Corrections for a felony or class A misdemeanor." Id. § 77-27-9(1)(a) (1999). Thus, the Board has jurisdiction over any offender committed to serve a sentence at a state penal or correctional facility for a class A misdemeanor or felony, with exceptions, and any offender on parole.

T8 An action to terminate a prison sentence and parole supervision is within the exclusive authority of the Board. See id. § Ti-27-5(1);, see also State v. Schreuder, 712 P.2d 264, 277 (Utah 1985). In addition, there is no question that the Board has independent authority to impose restitution. See Utah Code Ann. § 77-27-5(1); see also Monson v. Carver, 928 P.2d 1017, 1025 (Utah 1996); Stilling v. Utah Bd. of Pardons & Parole, 933 P.2d 391, 392 (Utah Ct.App.1997). The Board also has the authority to "impose any court order for restitution." Utah Code Ann. $ 77-27-6(2) (Supp.2002). However, once a defendant is terminated from parole and outstanding restitution remains, the matter is "referred to the district court for civil collection remedies." Id. § 77-27-6(4). Thus, at the time a defendant's sentence and parole are terminated, the Board must "forward a restitution order to the sentencing court to be entered on the judgment docket." Id. Although the statute does not expressly provide a deadline for submitting a restitution order to the sentencing court, we conclude that the restitution order must be executed prior to the termination of a sentence and parole. Otherwise, the Board could indefinitely extend its authority to those no longer under its jurisdiction.

19 Simply put, the Board cannot enforce parole conditions after the termination of a defendant's sentence and parole supervision. "If the Board could assert jurisdiction over a former parolee at any time after formal termination from parole, ... a person whose sentence had been formally terminated could be subject to the Board's jurisdiction for an indefinite time." Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1153 (Utah 1995). In Petersen, the Utah Supreme Court recognized that statutory provisions governing the Board's authority to incarcerate an offender for a parole violation are not "unlimited." Id. In addition, the purpose behind limiting the time for revocation to the statutory parole period was to "set a certain time after which a parolee is freed from the jurisdiction of the Board and allowed to resume a normal life." Id. Also, the court acknowledged that the legislature "did not intend that a person whose sentence ended by termination of his parole should be indefinitely subject to the Board's jurisdiction, possibly for the remainder of his life." Id.

110 Furthermore, in the analogous situation of a court's jurisdiction over a probationer, Utah courts have recognized that a trial court loses authority to take action (Le. revoke probation) after the expiration of the probation period set by statute. See Smith v. Cook, 803 P.2d 788, 795 (Utah 1990) (holding jurisdiction is maintained if notice of revocation proceeding is given to probationer within probation period); State v. Green, 757 P.2d 462, 464 (Utah 1988) (noting that defendants "would be left in a perpetual state of limbo" by having probation appear to be terminated but being subject to a continued term of fictional supervision); State v. Rawlings, 893 P.2d 1063, 1069 (Utah Ct.App.1995) (stating that court lacks authority to extend probation period if no notice or hearing is provided within probation period).

111 In this case, the Board decided that a restitution order should be issued after holding a Special Attention Hearing on April 22, 1997. The Board executed the restitution order for the outstanding restitution amount of $3,798.48 on September 8, 1997, over a month after Schultz's sentence and parole were terminated. The trial judge signed the order on September 17, 1997, in accordance with Utah Code Aun. § 77-27-6(4).

{12 It is undisputed that the Board had jurisdiction over Schultz until his sentence and parole were terminated on August 4, 1997. However, by the time the Board issued the restitution order, Schultz was no longer an "offender committed to a penal or correctional facility" or an offender on parole. Utah Code Ann. § 77-27-9(1)(3). Thus, the Board did not have jurisdiction over Schultz at the time it forwarded the restitution order to the sentencing court to be entered as a civil judgment.

1 13 Also, Schultz was not immediately notified, nor was a hearing held to determine that restitution grounded on a past termination order would be enforced after the termination of his sentence and parole. The restitution hearing in October 1996 would not constitute sufficient notice or hearing because that hearing resulted in a determination to have the Board hold a full parole revocation hearing. The Board never held such a hearing, and, six months later, the Board decided to terminate Schultz's sentence and parole. Furthermore, there is nothing in the record that indicates Schultz was actually notified prior to the termination of his sentence and parole that, as a result of the Special Attention Hearing in April 1997, the restitution order was to be issued.

14 The Board could have easily issued and forwarded the restitution order to be entered into the judgment docket of the sentencing court prior to the termination of Schultz's sentence and parole. However, under the cireumstances, the restitution order was issued when the Board no longer had jurisdiction over Schultz. Therefore, the order has no effect. Because the Board had no jurisdiction to issue the restitution order, the sentencing court also did not have jurisdiction to enter the restitution order as an enforceable civil judgment.

T15 The State contends that the Board had issued the order of restitution while Schultz was under its jurisdiction when it concluded at the April 22, 1997 Special Attention Hearing that restitution was to be imposed. We disagree. As a result of the hearing, the Board concluded that Schultz's sentence and parole would be terminated effective August 4, 1997. The Board also recommended that a civil judgment be entered against Schultz for payment of restitution owed. The decision from the hearing was not an order of restitution, as evidenced by the actual restitution order issued by the Board on September 8, 1997. If the hearing results could be deemed an official order, as argued by the State, then the Board would have simply forwarded the hearing results to the trial court for entry as a judgment. In addition, the Special Attention Hearing decision merely stated that a request for restitution would be forwarded to the sentencing court, not that the results constituted a formal order of restitution.

116 The language of the decision clearly shows that Schultz's sentence and parole termination were the result of the hearing held in April. The hearing decision reads as follows:

Terminate sentence and parole effective 08/04/97. OTHER: Request for restitution of $3798.48 is to be forwarded to the Sentencing Court for a Civil Judgement.

The decision indicates that the result of the hearing was to terminate Schultz's sentence and parole and, separately, a "request" that a restitution order be submitted to the sentencing court. Although the decision of the April 1997 Special Attention Hearing was not formally issued until August 5, 1997, this had no impact on the fact that the termination of Schultz's parole and sentence became effective on August 4, 1997, or the fact that the restitution order was not issued and forwarded to the trial court until September 8, 1997, after the Board had lost jurisdiction.

117 The State also argues that the restitution order "relates back" to the Special Attention Hearing on April 22, 1997. We do not consider this an appropriate case to, in effect, deem the September 8, 1997 restitution order nunc pro tune. Nune pro tune orders may be used to correct an omission or error. See Southwick v. Leone, 860 P.2d 973, 973 (Utah Ct.App.1993). In this case, there was no omission or error that was being corrected by the Board when it issued a restitution order for the sentencing court to impose a civil judgment against Schultz. In addition, the Board "cannot cireumvent [the termination of Schultz's sentence and parole] and bootstrap its authority to act simply by issuing a nunc pro tune order relating back" to when he was under the Board's jurisdiction. Id.; see also In re Daoud, 16 Cal.3d 879, 129 Cal.Rptr. 673, 549 P.2d 145, 147 (1976) (stating that a court cannot revive lapsed jurisdiction after expiration of probation by issuing nune pro tune order). Thus, the Board cannot revive its jurisdiction over Schultz merely by claiming that the order relates back to the Special Attention Hearing where the Board concluded that a request for restitution was to be forwarded to the sentencing court. |

18 In sum, the Board has statutory authority to submit to the sentencing court a restitution order to be entered on the judgment docket so that restitution can continue to be collected after the Board no longer has jurisdiction. See Utah Code Ann. § T7-27-6. However, once an offender's parole and sentence have been terminated, the Board loses jurisdiction to take that action.

CONCLUSION

«119 We conclude that the jurisdiction of the Board extends to actions taken against an offender that has committed a class A misdemeanor or felony who is serving a sentence in a penal or correctional facility or is on parole, with certain statutory exceptions. In addition, the Board has the authority to issue restitution orders. However, such orders must be issued while an offender is under its jurisdiction. In this case, the Board issued the restitution order after the termination of Schultz's sentence and parole. At that time, the Board no longer had jurisdiction over Schultz. Therefore, the sentencing court's entry of the order on its judgment docket is equally invalid.

120 Accordingly, we reverse the trial court's denial of Schultz's motion to set aside the civil judgment to enforce restitution.

{21 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

22 I CONCUR IN THE RESULT ONLY: RUSSELL W. BENCH, Judge.

      . Because we hold that the Board did not have jurisdiction over Schultz at the time the restitution order was issued, we need not address the issues of whether the Board failed to follow the statutory requirements for imposing restitution or whether the victim may enforce a restitution order issued by the Board and by the trial court.

      . For convenience, we cite to the most recent version of the Uiah Code. There has been no significant change to the statute that would affect our analysis.

      . We also reject the State's argument that the parole agreement itself was an order. The parole agreement imposed conditions for parole supervision, one of which was restitution. However, once Schultz's parole and sentence were terminated on August 4, 1997, the agreement was no longer summarily enforceable under Utah Code Ann. § 77-27-6(4) (Supp.2002). Also, the parole agreement was not an order of restitution, as evidenced by the Board's formal order submitted to the trial court on September 8, 1997. If the agreement was considered to be an order, the Board would have simply forwarded the agreement to be entered as a civil judgment.


author: BENCH, Judge:

text:
    2002 UT App 299
    STATE of Utah, Plaintiff and Appellee, v. Lance Allan POOLER, Defendant and Appellant.
    No. 20010623-CA.
    Court of Appeals of Utah.
    Sept. 19, 2002.
    J. Franklin Allred and L. Clark Donaldson, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kris C. Leonard, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before Judges BENCH, ORME, and THORNE.
   OPINION

BENCH, Judge:

11 Defendant appeals his conviction for one felony count of driving under the influence of alcohol. We affirm.

BACKGROUND

12 In August 2000, Defendant was charged with driving under the influence of alcohol (DUI), which was enhanced to a third degree felony because of two prior DUI convictions in justice court, one in 1996 and one in 1997. See Utah Code Ann. § 41-6-44 (1998). The State produced evidence of the prior convictions, which Defendant moved to strike, claiming that (1) they were not supported by proof of compliance with the notification of enhancement requirements under section 41-6-44; and (2) they did not prove compliance with plea requirements of rule 11 of the Utah Rules of Criminal Procedure.

13 The trial court ruled that it lacked jurisdiction to determine whether Defendant's 1996 and 1997 convictions were constitutionally infirm or whether the courts in those cases had complied with rule 11. After the denial of his motion, Defendant entered a conditional guilty plea and now appeals.

ISSUE AND STANDARD OF REVIEW

T4 Defendant argues that the trial court improperly admitted evidence of his two pri- or DUI convictions for enhancement purposes without first holding an evidentiary hearing on whether he was afforded his constitutional right to counsel in the prior proceedings. We review a trial court's factual findings for clear error and its conclusions of law for correctness. See State v. Pena, 869 P.2d 932, 985-36 (Utah 1994).

ANALYSIS

1 5 The supreme court's decision in State v. Triptow, 770 P.2d 146 (Utah 1989), addresses the requirements for the use of prior convie-tions for enhancement purposes. Although Triptow deals with the use of prior offenses to designate the defendant as a habitual criminal, the reasoning is applicable to the present case. See id. at 146.

16 In Triptow, the court analyzed approaches used by different jurisdictions in resolving the question of "who bears the burden of proof on the issue of representation or waiver of counsel in prior proceedings leading to a conviction that is used to increase the penalty in a subsequent prosecution?" Id. at 148. The court then concluded that, in Utah, the State bears the initial burden of "proving the prior conviction, sentencing, and commitment." Id. at 149. The previous judgment of conviction is thereafter "entitled to a presumption of regularity, including a presumption that the defendant was represented by counsel." Id. After the State has introduced evidence of the prior conviction, the burden shifts to the defendant "to raise the issue and produce some evidence that he or she was not represented by counsel and did not knowingly waive counsel." Id. When the presumption of regularity is rebutted by the defendant, the State must prove by a preponderance of the evidence that the "defendant was in fact represented or knowingly waived representation." Id.

T7 In this case, the State met its initial burden by introducing record evidence of Defendant's two prior DUI convictions, which are entitled to a presumption of regularity. Defendant did not present or proffer any evidence specifying the irregularities that he now claims. Instead, Defendant merely argues that it is the State's burden to prove that the prior proceedings complied with all constitutional requirements. Because Defendant failed to provide "some evidence" to rebut the initial presumption, the trial court could presume the regularity of the proceedings. Id. Thus, we conclude that the prior convictions were properly used for enbancement purposes.

CONCLUSION

[ 8 The State properly introduced evidence of Defendant's two prior DUI convictions. Thereafter, Defendant failed to introduce any evidence that the prior convictions were entered without the benefit of counsel or without a voluntary waiver of counsel. Therefore, the trial court could presume the regularity of the proceedings and correctly denied Defendant's motion to strike the prior convictions.

'I 9 Accordingly, we affirm.

T 10 WE CONCUR: GREGORY K. ORME and WILLIAM A. THORNE JR., Judges.


author: HILL, Chief Justice.

text:
    2002 WY 158
    JAG, Appellant (Respondent/Obligor), v. STATE of Wyoming, DEPARTMENT OF FAMILY SERVICES, DIVISION OF PUBLIC ASSISTANCE AND SOCIAL SERVICES; State of Wyoming, ex rel., MB, minor child, Appellees (Petitioners), and WLC, n/k/a WLB, Appellee (Respondent/Obligee).
    No. C-01-4.
    Supreme Court of Wyoming.
    Oct. 21, 2002.
    Representing Appellant: Pro Se.
    Representing Appellee State of Wyoming: Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Sue Chatfield, Assistant Attorney General.
    Representing Appellee WLC n/lk/a WLB: Pro Se.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   HILL, Chief Justice.

[T1] Appellant JAG seeks review of the district court's Judgment and Order which established his paternity of a child (the Child), awarded judgment for past child support to the date of the Child's birth, ordered future child support, and provided for visitation. The other parties to this appeal are WLC (a/k/a WLB and WLS), who we will refer to as Mother, and the State of Wyoming acting through the Department of Family Services, Child Support Enforcement, which we shall refer to as the State. JAG is appearing pro se. Mother did not participate in the appeal.

[12] We will affirm in part and reverse in part and remand to the district court for further proceedings consistent with this opinion. The district court's order establishing JAG to be father of the Child and awarding future support will be affirmed. That portion of the order directing the payment of retroactive support will be reversed.

ISSUES

[13] JAG sets out these issues in his brief:

A. Did the court deny JAG his right to due process, by not excepting the applicable laws that should bar WLB, appellee, from attempting to recover arrearages by equitable estoppel and laches?
B. To preclude enforcement of some or all arrearages, the obligor must present evidence establishing full or part defense. Did the district court err by not allowing JAG the special rule of evidence to present 1987 court orders?
C. Did the court err in calculating the amount of child support due? Shouldn't the court consider all minor children who are in need of support?
D. Change of cireumstances, requiring modification.

The State abbreviates the issues to these two matters:

I. Did the district court correctly determine paternity and order retroactive and future child support in the appropriate amount?
II. Does the doctrine of laches prohibit Child Support Enforcement's petition for paternity and child support in this case?

FACTS AND PROCEEDINGS BELOW

[T4] From the limited record available we are able to discern at least some of the factual background of this case. The Child who is the subject of these proceedings was born May 5, 1985. The Child is now over seventeen years of age. The Child was conceived in the state of Ohio in 1984. Mother moved to Wyoming not knowing she was pregnant. JAG has never resided in Wyoming and does not appear to have had any contact with the State of Wyoming other than his limited appearance in this lawsuit. In the years since 1985, JAG married and is the father of three young children. ~

[15] The State initiated its first attempt to establish JAG's paternity on August 25, 1986. That action was initiated under the Uniform Reciprocal Enforcement of Support Act. Wyo. Stat. Aun. §§ 20-4-101-138 (Mi-chie 1977 and Cum.Supp.1986). In the record of that case, there appears a document denominated as "Testimony," wherein Mother indicated that JAG gave her a gift of $50.00 in June of 1986. In addition, Mother indicated that JAG's mother sent the Child a birthday card. The information contained in this "Testimony" further indicated that JAG was aware that he was the father of the Child. Notice of that action was served on JAG, and all parties had JAG's address in Ohio. On September 4, 1987, an assistant district attorney in Natrona County filed a motion to dismiss the action, stating: "[The initiating party, Department of Public Assistance and Social Services, has terminated their case and requests dismissal of this action, and the matter is therefore not within the jurisdiction of the Court." The action was dismissed by the Wyoming district court

on September 4, 1987. The matter was also dismissed by the Ohio Common Pleas Court on August 1, 1988, because "there has been no action on this matter by the State of Wyoming."

[T6] On March 10, 1998, a virtually identical action was reinitiated by the State, although this second suit was filed under Wyo. Stat. Ann. §§ 20-6-101-401 (Michie 1987 and Cum.Supp.1992) and Wyo. Stat. Ann. §§ 14-2-101-319 (Michie 1986 and Supp. 1992). By order entered on January 13, 1994, that action was dismissed for the asserted reason that the State was unable to secure service on JAG. JAG asserts in his brief that he was still residing in the same community and the failure of a process server to find him could not be attributed to him.

[17] On April 22, 1998, a third petition to establish paternity and child support was filed in the district court. This petition relied on the same statutory grounds as the 1993 petition. On December 16, 1998, an untitled document mailed to the district court by JAG was filed. It contained this information:

At this time, I[JAG], am denying that I am the paternal father to "minor child".... I am requesting a genetic blood test. A DNA laboratory in the State of Ohio has been contacted regarding this matter. I am requesting for the convenience of the "Mother" ... "minor child" ... alleged "paternal father" ..., that the DNA testing take place through this laboratory. The number is 1-800-611-5728.

JAG filed no other papers in the form of an answer to the petition.

[T8] On May 10, 2001, an informal paternity hearing was held but it was not reported. It appears to be uncontroverted that JAG participated in that hearing by telephone and without the assistance of counsel. In an order entered on May 16, 2001, the district court: Denied JAG's oral motion for continuance, determined that based upon paternity testing JAG was the father of Child, awarded custody of Child to Mother, ordered JAG to pay temporary child support of $169.00 a month, ordered reasonable visitation in JAG, ordered the parties to submit financial affidavits within 830 days, and entered judgment in favor of the State in the amount of $239.00 for filing and service fees and costs of genetic testing. On September 5, 2001, a final order was entered, and it contained the following provisions: JAG is the father of the Child, Mother awarded unassigned retroactive presumptive child support of $30,152.60, and the State awarded assigned retroactive presumptive child support of $2,705.40, as well as expenses of $207.06, genetic testing costs of $174.00, and service and filing fees of $65.00, and JAG was ordered to pay future support. An income withholding order was issued by the clerk of district court requiring JAG's employer to withhold $200.00 for support per month, and $200.00 in arrears per month. There is no order of the district court setting the arrears payment at $200.00 per month nor is there any indication in the record of how that $200.00 is to be divided between the unassigned and assigned arrearages.

INTRODUCTION

[T 9] 'We include a brief introduction so as to clarify two matters. First, JAG does not contest the jurisdiction of the district court over his person in this appeal, and he did not do so below. However, because the district court's in personam jurisdiction over JAG appears to be in question, we find it prudent to resolve that issue both for clarity in this case, as well as for future cases which may have to tackle this same sort of cireumstance.

[T10] Second, we want to note that JAG does not challenge the finding of paternity or his obligation to pay child support until his son reaches the age of majority or is otherwise emancipated. (There is no evidence in the record that the Child is impaired and, therefore, eligible for support beyond his minority.) JAG only challenges the district court's decision to require him to pay the arrearages.

JURISDICTION

[T11l] The question of jurisdiction arises because JAG was not served in Wyoming nor did he have any contacts with Wyoming. The Child was not conceived in Wyoming. There was no basis for jurisdiction in Wyoming unless JAG agreed to it or blundered into it. As we shall conclude at the end of this section, he did blunder into it, but we think it prudent to discuss the matter in some detail because the question is a very close one, given: (1) The very limited "appearances" JAG made in the district court; (2) the fact that he was not represented by counsel; (3) that no record was made of the hearings; and (4) that Wyoming statutes contemplate that cases such as this one be prosecuted under Wyo. Stat. Ann. §§ 20-4-139-194 (LexisNexis 2001) (Uniform Interstate Family Support Act which supplanted the Uniform Reciprocal Enforcement of Support Act which was the basis for the initial proceedings in this case).

[112] Wyo. Stat. Ann. § 204-142 (Lexis Nexis 2001) provides:

§ 20-4-142. Basis for jurisdiction over nonresident.
(a) In a proceeding to establish, enforce, or modify a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
() The individual is personally served with notice within the state;
(ii) The individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(iii) The individual resided with the child in this state;
(Giv) The individual resided in this state and provided prenatal expenses or support for the child;
(v) The child resides in this state as a result of the act or directives of the individual;
(vi) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
(vii) The individual asserted parentage in this state pursuant to W.S. 14-2-101 through 14-2-120;
(vill) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

(Emphasis added.)

[113] In order for a court to acquire jurisdiction over a defendant, that defendant must be properly served or must "voluntarily" appear. A judgment entered without the court having jurisdiction is null and void. A defendant may waive his right to challenge a court's jurisdiction. Such a challenge should be made at the defendant's soonest opportunity. Failure to timely broach the issue with the court may result in waiver of that defense. Most importantly for this case, where a defendant appears voluntarily, without questioning the court's personal jurisdiction, that appearance is the equivalent of proper service of process. Matter of Adoption of MSVW, 965 P.2d 1158, 1162 (Wyo.1998); and see Ostermillier v. Spurr, 968 P.2d 940, 943 (Wyo.1998) (consent to court's jurisdiction for one purpose may result in court's jurisdiction for any related purpose). We have held that a party will be deemed to have appeared in an action, even though no formal pleadings have been entered, when contacts between the parties clearly demonstrate an intent to defend. Sanford v. Arjay Oil Company, 686 P.2d 566, 571 (Wyo.1984); also see Hochhalter v. Great Western Enterprises, 708 P.2d 666, 670-72 (Wyo.1985).

[T 14] Very recently we provided this further summary of our review responsibilities under cireumstances such as these:

Our standard of review for jurisdictional issues, including sufficiency of process, should be familiar to every litigant. The Wyoming Supreme Court "has the inherent power, and the duty, to address jurisdictional defects on appeal even though they have not been called to our attention by a litigant." Robbins v. South Cheyenne Water and Sewage Dist., 792 P.2d 1380, 1384 (Wyo.1990). "The first and fundamental question on every appeal is that of jurisdiction; this question cannot be waived; it is open for consideration by the reviewing court whenever it is raised by any party, or it may be raised by the court of its own motion." Gardner v. Walker, 373 P.2d 598, 599 (Wyo.1962). When a lower court acts without jurisdiction, this court will notice the defect and have jurisdiction on appeal, not on the merits, but merely for the purpose of correcting the error of the lower court in maintaining the suit. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 832, 80 L.Ed. 1263, reh'g denied 298 U.S. 692, 56 S.Ct. 951, 80 L.Ed. 1410 (1986).
Gookin v. State Farm Fire and Cas. Ins. Co., 826 P.2d 229, 232 (Wyo.1992). Service of process must strictly comply with the requirements set forth in W.R.C.P. 4. MN v. CS, 908 P2d 414, 415 (Wyo.1995). Proper service of process is a necessary condition precedent to the acquisition of personal jurisdiction under the Wyoming and federal Constitutions. Wyo. Const. art. 1, § 6; U.S. Const. amend. XIV, § 1; Gookin, 826 P.2d at 232.

CRB v. State, Department. of Family Services, 974 P.2d 931, 934 (Wyo.1999).

[115] In this case, JAG was served with process in Ohio. He filed a written response denying paternity. He was given notice of the hearing and he appeared, albeit by telephone. On this basis, we conclude that the district court did have jurisdiction to decide all issues relevant to the paternity proceedings, including all issues regarding child support and arrearages.

ARREARAGES

Standard of Review

[T16] 'We have had occasion to visit a very similar issue recently. In Whitt v. State ex rel. Wright, 2001 WY 128, ¶ 10-15, 36 P.3d 617, 11 10-15 (Wyo.2001), we held:

[110] This Court has consistently held that Wyo. Stat, Ann. § 14-2-204(d) does not refer to expenses actually incurred, but rather is much broader. The State brought this case in the name of the children. Thus, the focus is not on the amount assigned to the State, but rather on the amount the appellant owes to his children. In Holtz v. State ex rel. Houston, 847 P.2d 972, 977 (Wyo.1993), we stated:
It seems reasonably clear that the statutes contemplate provisions in the judgment for more than recovery of "expenses incurred." (In this case, AFDC funds.) ... Likewise, there is not a provision that limits the state (if it is the petitioner) to expenses incurred.
Further, in Thomas v. Thomas, 983 P.2d 717, 720 (Wyo.1999), this Court stated:
The language of the statute leads to the clear inference that the legislature intended and recognized that child support would be collected retroactively in cases where a parent has abandoned a child and refused to participate in the support of the child.
Thus, the appellant owes his children reasonable support from the date of their birth,. This brings us to the key issue in this case.
BACK CHILD SUPPORT
[T11l The appellant's primary contention is that the State did not meet its burden of proof that he owed back child support in the amount of $18,322.65. Again, the appellant acknowledges his parental obligations and that they relate back to the date of birth of his children. He argues, however, that the back child support amount of $18,822.65 is unsupported by the evidence.
[112] While the findings of a trial judge concerning conclusions of law and disposition of the issues are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Shores v. Lindsey, 591 P.2d 895, 899 (Wyo.1979). Because this Court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Id. On appeal, findings of fact are not set aside unless they are clearly erroneous. Id. " 'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.! " Cross v. Berg Lumber Co., 7 P.3d 922, 928 (Wyo.2000) (quoting Hopper v. All Pet Animal Clinic, Inc., 861 P2d 531, 538-39 (Wyo.1993)). The appellant bears the burden of persuading the appellate court that a finding is erroncous. Cross, 7 P.3d at 928 (quoting Hopper, 861 P.2d at 538-89).
[113] At the end of the June 8, 2000, hearing, the DFS attorney informed the district court that he could at that time provide to the appellant's attorney "an AFDH which shows the AFDC, what we used to call Aid for Dependent Children, paid to the mother." He was ordered to do so and complied. The district court then ordered counsel 'to prepare and submit their income and child support calculations, and a final hearing was scheduled. DFS's calculations with attachments and appellant's calculations and exhibits are both in the record.
[114] In establishing the amount of back child support owed, the State attempted to determine the income of both parents for previous years and then applied the current child support guidelines to establish the amount of support owed. Neither parent could give complete and accurate information regarding income for the previous years for which child support was owed. The State imputed income to the parents for the time periods for which they could not supply accurate and complete information.
[T15] Unfortunately, the record does not disclose any factual basis for the amount of income imputed by the State. For instance, while a hearing was held, no questions were asked of Wright regarding her prior employment history. Certain periods of imputed income for Wright seem to represent minimum wage for a forty-hour work week. There simply is no factual basis to support that such imputed income was reasonable for Wright over the time periods at issue. Thus, we are compelled to remand this case to the district court for an evidentiary hearing so the State can establish a factual basis for its computations.

[T 17] In this case we have even less information than was available in the Whitt case. Wyoming statutes require that an evidentia-ry record be made in the course of establishing child support:

§ 20-2-308. Financial affidavits required; financial reporting.
(a) No order establishing or modifying a child support obligation shall be entered unless financial affidavits on a form approved by the Wyoming supreme court which fully discloses the financial status of the parties have been filed, or the court has held a hearing and testimony has been received.
(b) Financial affidavits of the parties shall be supported with documentation of both current and past earnings. Suitable documentation of current earnings includes but is not limited to pay stubs, employer statements, or receipts and expenses if self-employed. Documentation of current earnings shall be supplemented with copies of the most recent tax return to provide verification of earnings over a longer period.
(c) The court may require, or the parents may agree, to exchange financial and other appropriate information once a year or less often, by regular mail, for the purpose of analyzing the propriety of modification of court ordered child support.

Wyo. Stat. Aun. § 20-2-808 (LexisNexis 2001).

[T18] In so holding, we deem it prudent to note that JAG had some responsibility to provide information to the district court so that the child support issues could be resolved. However, the district court must ensure that proceedings to establish paternity are reported, so that a transcript of those proceedings will be available in the event of an appeal. This is so whether or not the noncustodial parent is represented by counsel, but a fortiori where counsel does not represent the noncustodial parent. We are not faced with a situation where a noneusto-dial parent refused to cooperate in the child support calculation process, thus making the development of a coherent record impossible. Rather, we view these proceedings as a failure of the district court and the State to be attentive to the need for a record suitable for the purpose of meaningful review on appeal. Thus, we are compelled to remand this case to the district court for an evidentiary hearing so that an adequate factual record can be made with respect to arrearages.

LACHES, EQUITABLE ESTOPPEL, ETC.

[T19] JAG contends that the district court erred in not denying Mother's and State's claims for child support arrearages on the basis of laches and equitable estoppel, as well as other related theories. JAG's argument is that although Mother filed suit in 1986 seeking a declaration of his paternity, the dismissal of that action should relieve him of the "notice" of paternity it might otherwise have implied. In addition, the action was not finally seen through to a finish until September 5, 2001. The State defends against this assertion by noting that JAG did not raise it below and contending that it cannot be considered on appeal. The State also contends that our precedents establish that child support is not subject to any form of waiver.

[T20] Because this case must be remanded for further proceedings to make a record, and because the dilatoriness of the State and Mother is a factor in the child support equation in this case, we will respond briefly to this issue. The State contends that the delay was caused because the State was unable to locate JAG. JAG contends that he was always at a location known to Mother and State, and that the failure to obtain service cannot be attributed to him, and the record bears out JAG's position. JAG contends that the real reason for the dismissals is that Mother married on two occasions and asked that the earlier petitions be dismissed so as not to "stress" those relationships with the paternity action. We have held that laches does not apply to an action to recover adjudicated child support arrearages. Hammond v. Hammond, 14 P.3d 199, 201-3 (Wyo.2000); Hollingshead v. Hollingshead, 942 P.2d 1104, 1106-8 (Wyo.1997); also see Whitt, 36 P.3d at 622-23 (collecting cases). We have held that laches cannot bar a separate paternity action by a child. Matter of Paternity of SDM, 882 P.2d 1217, 1220-25 (Wyo.1994). In this case, paternity and child support were not adjudicated until September of 2001, when the Child was sixteen years of age. In a case with somewhat similar facts we held that it was not an abuse of discretion for a district court to award $50.00 a month in back child support retroactive to the date of the child's birth. Ellison v. Walter ex rel. Waiter, 834 P.2d 680, 683-85 (Wyo.1992).

[T21] This subject is exhaustively annotated at: Jeffery W. Santema, Liability of Father for Retroactive Child Support on Judicial Determination of Paternity, 87 A.L.R.5th 861 (2001). Our case law to date has not dealt with the many variables that may occur in paternity actions with respect to retroactive support. With the information provided by the cited annotation, and the cases cited therein, district courts and par-tics will be guided in the resolution of such questions as they arise. Also see In re Paternity of IC, 971 P.2d 603, 608 (Wyo.1999) (within district court's discretion to limit retroactive support where legitimate basis exists to do so); Hasty v. Hasty, 828 P.2d 94, 98-100 (Wyo.1992) (children born afterward must at least be considered by district court ). On remand, the district court should address the issue to the extent that a party raises it.

CONCLUSION

[122] The order of the district court is affirmed in part and reversed in part. That portion of the district court's order establishing JAG to be the father of the Child is affirmed, as is the determination of future support. The district court's order with respect to retroactive support is reversed, and the matter is remanded to the district court for further proceedings consistent with this opinion.

      . Proceedings in paternity matters are confidential. Wyo. Stat. Ann. § 14-2-117 (LexisNexis 2001). The foremost purpose of confidentiality is to protect the minor children involved from the stigma of public disclosure. The parents are afforded confidentiality also so as to safeguard the confidentiality intended most directly for the protection of the child.

      . In this regard we also direct the parties', as well as the district court's, attention to this statute:
      § 14-2-116. Free transcript for appeal.
      (a) Repealed by Laws 1993, ch. 198, § 2.
      (b) If a party is financially unable to pay the cost of a transcript, the court shall furnish on request a transcript for purposes of appeal.
      Wyo. Stat. Ann. § 14-2-116 (LexisNexis 2001). Although JAG did not ask that a court reporter be present for proceedings in this paternity case, this statute requires that such proceedings be reported. If the proceedings are not reported, then it becomes an impossibility for "a party" to
      make such a request for the appeal, if there is one. Clearly, this statute is a legislative decision that paternity proceedings are too important to be decided on anything less than a complete record. Our decisions have also demonstrated a strong preference for complete records in cases such as this. In a proceeding to establish paternity, the proceedings with respect to child support are to be conducted pursuant to Title 20. Wyo. Stat. Ann. § 14-2-113(d) (LexisNexis 2001).

      . The materials available for this appeal indicate that the district court may have considered the children born afterward, but the record does not reflect that.


author: VOIGT, Justice.

text:
    2002 WY 164
    Roy WILKIE, Petitioner, v. The STATE of Wyoming, Respondent.
    No. 01-218.
    Supreme Court of Wyoming.
    Oct. 31, 2002.
    Representing Petitioner: Mike Cornia, Eiv-anston, WY.
    Representing Respondent: Hoke MacMil-lan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Cheyenne, WY.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[T1] Petitioner, Roy Wilkie (Wilkie), was charged on June 22, 2000, with one count of domestic battery. After a jury found Wilkie guilty, the Cireuait Court of the Third Judicial District, Sweetwater County, sentenced him to six months incarceration with all but four days suspended and placed him on supervised probation for one year. Wilkie appealed his conviction to the district court, which affirmed the cireuit court. Wilkie then filed a Petition for Writ of Review with this Court. We reverse because Wilkie was denied his constitutional right to counsel in the circuit court.

ISSUE

[12] While Wilkie presents seven issues on appeal, the resolution of one of those issues renders the others moot. Therefore, we address only the issue of whether Wilkie was denied his right to counsel.

FACTS

[13] Wilkie was charged with domestic battery for touching a household member in a rude, insolent, or angry manner in violation of Wyo. Stat. Ann. § 6-2-501(b) (Lexis 1999). He represented himself pro se at his jury trial because of an unusual exchange with the circuit court at arraignment that left him without counsel. Concerning whether Wilkie would have an attorney, the following dialogue took place:

THE COURT: Do you intend to represent yourself, hire your own attorney or ask the Court to consider the appointment of the Public Defender to represent you?
MR. WILKIE: I'm going to have to represent myself.
THE COURT: Before a Judge or a Jury?
MR. WILKIE: Jury.
THE COURT: Every tried a Jury Trial before?
MR. WILKIE: No, I haven't.
THE COURT: Understand that while it's your right to do that, you're responsible to do the same things that lawyers do when they represent clients and the Court will hold you to the same standard of knowledge, expertise and skill that it holds any lawyer to? Still wish to represent yourself before a jury, Mr. Wilkie?
MR. WILKIE: Well, they're not going to let me get an appointed lawyer because I make too much money, but I really don't make that much money (unintelligible).
THE COURT: Well, that's not my (unintelligible). How much you making a month at Von's Plumbing?
MR. WILKIE: About a thousand a month.
THE COURT: Youre right. You will sign a waiver of your right to be tried by a, with assistance of Counsel; Prose [sic] Jury. So ordered.

(Emphasis added.) Wilkie proceeded to represent himself pro se and was subsequently found guilty by a jury.

DISCUSSION

[T4] Wilkie alleges that he was denied his right to counsel as guaranteed by the Sixth Amendment of the United States Constitution and Wyo. Const. art. 1, § 10 when, at his arraignment, the circuit court did not personally advise him of his right to counsel and its discussion with him concerning attorneys left him without representation. Instead, he was given a form to read regarding his constitutional rights, which he initialed. Wilkie argues that he did not knowingly and voluntarily waive his right to counsel, and initialing the Advisement of Rights form was not a valid waiver of counsel. Constitutional issues are questions of law that we review de novo. Taylor v. State, 7 P.3d 15, 19 (Wyo.2000).

[15] This Court has followed the United States Court of Appeals for the Tenth Circuit with respect to whether a waiver of the right to counsel is voluntarily, knowingly, and intelligently made. Vargas v. State, 963 P.2d 984, 990 (Wyo.1998). First, the court determines whether a defendant voluntarily waived this right. United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir.1997), cert. denied, 528 U.S. 904, 120 S.Ct. 244, 145 L.Ed.2d 205 (1999). If it determines that the right has been voluntarily waived, the court then determines whether the defendant waived this right knowingly and intelligently. Id. In that regard, a reviewing court should indulge every reasonable presumption against waiver. Id. (quoting Baker v. Kaiser, 929 F.2d 1495, 1500 (10th Cir.1991)).

[¥6] In the instant case, proper inquiries were not made to determine whether Wilkie wanted to be represented by appointed counsel. Wyo. Stat. Ann. § 7-6-106(a) (LexisNexis 2001) requires the court at a defendant's first court appearance to determine whether the defendant is a "needy person." A needy person is defined under Wyo. Stat. Ann. § 7-6-102(a)(iv) (LexisNexis 2001) as "a person who at the time his need is determined is unable to provide for the full payment of an attorney and all other necessary expenses of representation[.]" The only evidence in the record of the circuit court's examination of Wilkie's ability to pay for counsel was the question of how much he made at Von's Plumbing.

[17] The brief question and answer session that occurred in this case cannot be construed as a voluntary waiver by Wilkie of his right to counsel. The cireuit court did not inform Wilkie that he had a right to an attorney if he could not afford one, the circuit court merely queried whether Wilkie intended to represent himself, hire an attorney, or ask the court to consider the appointment of a public defender. Wilkie clearly had the impression from someone that he made too much money to have a public defender. Indeed, Wilkie's comments-"Well, they're not going to let me get an appointed lawyer because I make too much money"-sounds as if he believed that the decision had already been made. Yet the cireuit court did not follow up on that comment to determine the source of Wilkie's information or explain to Wilkie that it was up to the court to make that decision. Further, the circuit court made no determination whether the $1,000.00 per month figure was gross or net, or if Wilkie was a needy person as defined by statute. Instead, the cireuit court simply told Wilkie, "[yjou will sign a waiver." Wilkie was not given a choice whether or not to waive anything.

[18] Wyo. Stat. Ann. § 7-6-107 (Lexis-Nexis 2001) allows for the waiver of the right to an attorney if "the court finds that the person has acted with full awareness of his rights and of the consequences of a waiver...." To determine whether the waiver has been fully informed, "the court shall consider such factors as the person's age, education, familiarity with the English language and the complexity of the crime involved." Id. (emphasis added). The circuit court did not consider any of these factors.

[19] Regarding the representation of needy persons, Wyo. Stat. Ann. § 7-6-104(a) (LexisNexis 2001) (emphasis added) provides:

The public defender shall represent as counsel any needy person who is under arrest for or formally charged with having committed a serious crime if;
(i) The defendant requests counsel; or
(ii) The court, on its own motion or otherwise, orders appointment of counsel and the defendant does not affirmatively waive or reject, on the record, the opportunity to be represented by legal counsel in the proceeding.

To determine whether a person is "needy," Wyo. Stat. Ann. § 7-6-106 states, in part:

(a) The determination of whether a person covered by W.S. 7-6-104 is a needy person shall be deferred until his first appearance in court.... Thereafter, the court shall determine, with respect to each proceeding, whether he is a needy person....
(b) In determining whether a person is a needy person ... the court shall consider the standards promulgated pursuant to W.S. 7-6-103(c)(vii).

(Emphasis added.)

[110] Wyo. Stat. Ann. § 7-6-108(c)(vii) (LexisNexis 2001) requires that the state public defender "promulgate rules and regulations in cooperation with the supreme court of Wyoming establishing standards for determining who is a needy person.... The standards shall require the person to file with the court a written affidavit under oath stating his financial assets and liabilities." (Emphasis added.) Wilkie informed the circuit court that he made only $1,000.00 per month, and did not state whether this was a gross or net figure, or what his monthly expenses were. An affidavit should have been submitted regarding his financial assets and labilities, and the cireuit court should have taken it into consideration in deciding whether Wilkie needed appointed counsel. This was not done.

[T11] Wyo. Stat. Ann. (LexisNexis 2001) states: § 7-6-105(b)

At the person's initial appearance the court shall advise any defendant who is a needy person of his right to be represented by an attorney at public expense. The court shall further explain to the needy person the possibility that he may be ordered to reimburse the state for the costs associated with his legal representation."

(Emphasis added.) We conclude that the cireuit court utterly failed to follow these statutory procedures, and did not follow any other procedures that would have ensured that Wilkie understood his right to appointment of counsel.

[112] The State contends that

a review of the record shows that [Wilkie] knowingly and voluntarily waived his right to counsel, with full awareness of his rights and the consequences of his waiver, and then chose to proceed to trial pro se. The cireuit court properly respected his decision to waive his right to counsel, as it could not have forced an attorney upon him in light of his decision to proceed pro se.

We are unable to find anything in the record to justify this contention.

CONCLUSION

[T13] The cireuit court did not make a reasonable examination into Wilkie's ability to pay for an attorney. Because we find that Wilkie did not voluntarily waive his right to counsel, we need not consider whether he knowingly and intelligently waived the right. We reverse and remand to the district court for further remand to the cireuit court for an appropriate determination of Wilkie's right to appointed counsel.

      . The issues raised were prosecutorial misconduct, the right to counsel, the admission of expert testimony, whether the State elicited an opinion as to Wilkie's guilt, speedy trial, the right to confrontation, and whether Wilkie could be sentenced both to incarceration and probation.

      . 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... and to have the Assistance of Counsel for his defence." United States Const. Amend. VL.

      . "In all criminal prosecutions the accused shall have the right to defend in person and by counsel ... to be confronted with the witnesses against him ... and to a speedy trial by an impartial jury[.]" Wyo. Const. art 1, § 10.

      . The third right described on the Advisement of Rights form reads:
      You have the right to be represented, at all stages of any criminal proceedings, by a lawyer chosen and hired by you. If you want a lawyer to represent you, but cannot afford to hire one, then you have the right to have me appoint a lawyer to represent you and be paid for by the state.

      . Of course, a defendant must "know" of his right to counsel before he can voluntarily waive that right. Nelson v. State, 934 P.2d 1238, 1241 (Wyo.1997).

      . Wilkie's comment that he was going to "have to" represent himself also should have been a "red flag" that alerted the circuit court to the fact that Wilkie did not understand his right.

      . W.R.Cr.P. 44 specifies when the right to assignment of counsel attaches, the procedures for implementing the right, and provides rules establishing the standard of indigency. See W.R.Cr.P. 44(a), (b), and (d).