author:
GREENWOOD, Judge:
      JACKSON, Judge

text:
    2004 UT App 94
    Benjamin Frank LUCERO, Petitioner and Appellant, v. Sheriff Aaron D. KENNARD, Chief Paul Cunningham, Salt Lake County Jail, and Murray City Justice Court, Respondents and Appellees.
    No. 20020984-CA.
    Court of Appeals of Utah.
    April 1, 2004.

      Heather Brereton and Joan C.'Watt, Salt Lake City, for Appellant.
    Karl L. Hendrickson and Scott Daniels, Salt Lake City, for Appellees.
    Before Judges GREENWOOD, JACKSON, and ORME.
   OPINION

GREENWOOD, Judge:

¶ 1 Benjamin Frank Lucero (Petitioner) appeals the district court’s dismissal of his petition for post-conviction relief. He argues that while he was before the Murray City Justice Court (Justice Court), he was not properly advised of his constitutional right to counsel, and consequently did not knowingly and voluntarily waive his right to counsel before pleading guilty to driving under the influence of alcohol (DUI) in violation of Utah Code Annotated section 41-6-44 (Supp. 2003). Petitioner argues that the record in the Justice Court is insufficient to allow a determination of whether the required eolio-quy between the Justice Court and Petitioner occurred and that the trial court should not have considered evidence outside the record.

¶2 The Justice Court responds by first arguing that neither the district court nor this court has jurisdiction to hear this ease because Petitioner failed to file a timely appeal to the district court for a trial de novo. The Justice Court further argues that if there is jurisdiction there was sufficient evidence on the record and through proffered and sworn testimony, for the district court to conclude that Petitioner was advised of his rights, and properly waived his right to counsel. We affirm the district court’s decision, but on other grounds.

BACKGROUND

¶ 3 Petitioner was charged in the Justice Court with DUI, a class B misdemeanor, in violation of Utah Code Annotated section 41-6-44 (Supp.2003), and improper usage of lanes, a class C misdemeanor, in violation of Utah Code Annotated section 41-6-61 (1998). At a bench trial, Petitioner appeared pro se. After pleading guilty to DUI, the charge of improper usage of lanes was dismissed. On June 4, 2002, Petitioner was sentenced to a jail term of 180 days, ordered to pay a fine, and placed on probation for eighteen months. Petitioner did not file an appeal of his conviction to the district court within the thirty days required by law. See Utah Code Ann. § 78-5-120(1) (2002). However, on August 1, 2002, Petitioner filed, in the Third District Court, a Petition for Posb-Conviction Relief or, in the alternative, Motion to Correct Illegally Imposed Sentence under Rules 65B and 65C of the Utah Rules of Civil Procedure. This petition sought an extraordinary writ granting his immediate release on the grounds that Petitioner was not represented by counsel, had not waived his right to counsel, and was sentenced in violation of the Sixth Amendment.

¶ 4 The Justice Court held a review hearing on September 10, 2002, where it suspended Petitioner’s remaining jail sentence and released him from custody. Six days later, in the Third District Court, a hearing took place on Petitioner’s petition for post-conviction relief. At this hearing, rather than challenging his plea or conviction, Petitioner requested that his suspended sentence be vacated.

¶ 5 After testimony from Petitioner, proffered testimony of the Justice Court judge, and submission of affidavit testimony of two Justice Court clerks, the district court entered Findings of Fact and Conclusions of Law stating that Petitioner knowingly and voluntarily waived his right to be represented by counsel when he entered his plea. Petitioner filed a timely appeal to this court for review of the district court’s order.

ISSUES AND STANDARD OF REVIEW

¶ 6 Petitioner challenges the district court’s dismissal of his petition for post-conviction relief, claiming the record was insufficient. The Justice Court asserts the district court lacked jurisdiction to consider the petition. In addition, the Justice Court argues the district court properly found no violation of Petitioner’s Sixth Amendment rights. “We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court’s conclusions of law.” Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467.

ANALYSIS

I. Appellate Review of Justice Courts

¶7 We first discuss the Justice Court’s argument that the district court lacked jurisdiction to hear the petition because Petitioner did not first appeal to the district court for a trial de novo. Rule 65C(g)(l) of the Utah Rules of Civil Procedure directs the district court, upon receiving a petition for post-conviction relief, to first review the petition to ensure that the claims have not been previously adjudicated, or that the claims are not frivolous. If the court finds that the petition is not properly raised, the court is required to summarily dismiss the claims. See Utah R. Civ. P. 65C(g)(l). Additionally, Utah Code Annotated section 78-35a-106(l)(c) (2002) precludes post-conviction relief when a claim “could have been but was not raised at trial or on appeal.” Id. In Hutchings v. State, 2003 UT 52, ¶ 14, 84 P.3d 1150, the Utah Supreme Court noted that rule 65C complements section 78-35a-106 and is “designed to balance the ‘requirements of fairness and due process against the public’s interest in the efficient adjudication ... of post-conviction relief cases.’ ” Id. (quoting Utah R. Civ. P. 650(g)(1)). Therefore, a district court has jurisdiction over a petition for post-conviction relief in order to determine its procedural correctness.

¶ 8 In this case, it is unclear from the record whether the district court conducted this preliminary review required by rule 65C. It is clear, however, that the district court did not summarily dismiss the petition under rule 65C, but held a hearing on the merits, received evidence, and entered its Findings of Fact and Conclusions of Law dismissing the petition. As a result, the district court correctly assumed jurisdiction over Petitioner’s petition. The remaining question is whether the district court should have summarily dismissed the petition for failure to comply with rule 65C and section 78-35a-106.

¶ 9 The Justice Court argues that Petitioner was required to pursue a direct appeal before seeking post-conviction relief. The Utah Constitution provides: “In criminal prosecutions the accused shall have ... the right to appeal in all cases.” Utah Const, art. I, § 12. For criminal cases originating in justice courts, a defendant is provided an appeal through “a trial de novo in the district court.” Utah Code Ann. § 78-5-120(1) (2002). In a trial de novo, the district court is “not acting in a typical appellate capacity.” State v. Hinson, 966 P.2d 273, 276 (Utah Ct.App.1998). Because justice courts are not courts of record, “the ‘appeal’ does not involve a review of the justice court proceedings.” Id. at 275. Through a trial de novo in the district court, “the parties essentially get a fresh start,” and the case is tried again as if it originated there. Dean v. Henriod, 1999 UT App 50,¶ 9, 975 P.2d 946 (quotations and citation omitted). The district court’s judgment after trial de novo is final and may not be appealed either to this court or the Utah Supreme Court absent an issue regarding the constitutionality of a statute or ordinance. See Utah Code Ann. § 78-5-120(7); Hinson, 966 P.2d at 276. “[I]n Utah, ... it is settled that the right to an ‘appeal’ from a court not of record is satisfied by provision for a trial de novo in a court of record.” City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990).

¶ 10 In this case, after being sentenced, Petitioner chose not to appeal his plea or conviction to the district court for a trial de novo. It is clear, however, that a trial de novo would have remedied any constitutional defects suffered by Petitioner in the Justice Court. Instead, nearly two months after sentencing in the Justice Court, Petitioner filed his Petition for PosMDonviction Relief with the district court.

¶ 11 “A petition for post-conviction relief is a collateral attack on a conviction and sentence and is not a substitute for direct appellate review.” Rudolph v. Galetka, 2002 UT 7,¶ 5, 43 P.3d 467. The Post Conviction Remedies Act, Utah Code Annotated sections 78-35a-101 to -110 (2002), precludes post-conviction relief when a claim “could have been but was not raised at trial or on appeal.” Utah Code Ann. § 78-35a-106(l)(c). The Utah Supreme Court has reiterated this prohibition, but with one exception. “[I]ssues that were not addressed on direct appeal but could have been raised may not be raised for the first time in a post-conviction relief proceeding absent unusual circumstances.” Rudolph, 2002 UT 7, at ¶ 5, 43 P.3d 467 (emphasis added). The supreme court further defined unusual circumstances as those that “show that there was an obvious injustice or a substantial and prejudicial denial of a constitutional right.” Carter v. Galetka, 2001 UT 96,¶ 15, 44 P.3d 626 (quotations and citation omitted); see also Webster v. Jones, 587 P.2d 528, 530 (Utah 1978) (stating that exigent circumstances exist where there “has been such unfairness or failure to accord due process of law that it would be wholly unconscionable not to re-examine the conviction” (footnote omitted)).

¶ 12 Petitioner argues that his inability to have the Justice Court’s denial of counsel reviewed by the district court on a direct appeal is unique and presents “unusual circumstances” with an “obvious injustice or a substantial and prejudicial denial of a constitutional right” warranting review. Carter, 2001 UT 96 at ¶ 15, 44 P.3d 626 (quotations and citations omitted). However, we are not persuaded that Petitioner, in fact, suffered from an obvious injustice. To the contrary, the structure of Utah’s justice court system ensures that when a defendant believes he or she has been deprived of a constitutional right by a justice court, that individual is entitled to a new trial in the district court. See Utah Code Ann. § 78-5-120(1) (2002); Henriod, 1999 UT App 50 at ¶ 9, 975 P.2d 946. Voluntarily eschewing the opportunity to remedy a constitutional violation through a trial de novo does not create unusual circumstances permitting a petition for post-conviction relief. By rejecting a trial de novo, Petitioner acceded to any undesired result of the Justice Court’s sentence. Therefore, we hold that Petitioner did not suffer a “substantial and prejudicial denial of a constitutional right,” Carter, 2001 UT 96 at ¶ 15, 44 P.3d 626 (quotations and citations omitted), because he had the opportunity to remedy his alleged denial of counsel, and chose not to pursue that opportunity. Because we conclude that the unusual circumstances exception does not apply in this case, Petitioner was precluded under Utah Code Annotated section 78-35a~106 from obtaining relief through a petition for post-conviction relief. Given our holding that the district court should have dismissed Petitioner’s petition for post-conviction relief and our disposition of this case on that ground, we do not address the correctness of the trial court’s findings and conclusions.

CONCLUSION

¶ 13 Petitioner failed to file a timely appeal to the district court for a trial de novo. A trial de novo would have remedied any constitutional violations Petitioner may have suffered in the Justice Court. After obtaining counsel, or properly waiving his right to counsel, Petitioner could have either pleaded guilty again, or challenged the charges in a trial. Defendant has not demonstrated unusual circumstances consisting of “an obvious injustice or substantial prejudicial denial of a constitutional right.” Carter, 2001 UT 96 at ¶ 15, 44 P.3d 626. Thus, he has not established an exception to the rule prohibiting post-conviction relief when the petitioner has not first sought relief by direct appeal. We accordingly affirm the result of the district court, but for the reasons explained above.

¶ 14 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.

JACKSON, Judge

(dissenting):

¶ 15 I respectfully dissent from the majority’s opinion.

I. The District Court’s Jurisdiction to Hear a Petition for Extraordinary Relief

¶ 16 It is unquestionably true that a defendant’s right to appeal a justice court conviction to a district court for a trial de novo satisfies the various state and federal constitutional guarantees relating to due process and the right to appeal. See, e.g., North v. Russell, 427 U.S. 328, 337, 96 S.Ct. 2709, 2713, 49 L.Ed.2d 534 (1976); City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990). The question before us, however, is not one of constitutional propriety, but is instead a question of statutory interpretation. Specifically, the question of whether the district court had jurisdiction to hear Lucero’s petition for post-conviction relief hinges upon our reconciliation of two different statutory provisions. The first is Utah Code Annotated section 78-5-120 (Supp.2002), which dictates the manner by which defendants can appeal justice court convictions. That section is entitled “Appeals from justice court,” and provides that, “[i]n a criminal case, a defendant is entitled to a trial de novo in the district court.” Id. § 78-5-120(1). The second is Utah Code Annotated section 78-35a-106 (1996), which establishes the means by which a defendant can petition for post-conviction relief under the Post^Conviction Remedies Act. See generally Utah Code Ann. §§ 78-35a-106 to -110 (1996). Section 78-35a-106(l) states that “[a] person is not eligible for relief under this chapter upon any ground that: (a) may still be raised on direct appeal or by a post-trial motion.” (Emphasis added.) The question before us, then, is whether a trial de novo qualifies as a “direct appeal.” Id. The majority concludes that it does, and therefore rules that Lucero’s failure to file for a trial de novo precludes him from petitioning for post-conviction relief under the Post-Conviction Remedies Act. I disagree.

¶ 17 I first examine the meaning of the phrase “direct appeal.” There is no provision in the Post-Conviction Remedies Act that specifically defines what constitutes a “direct appeal” for purposes of section 78-35a-106, nor is there a provision anywhere in the Utah Code defining that specific phrase for purposes of any other particular statutory scheme. Accordingly, we must interpret the meaning of this phrase using the accepted rules of statutory interpretation. “When interpreting statutes, we determine the statute’s meaning by first looking to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.” Dick Simon Trucking, Inc. v. Utah State Tax Comm’n, 2004 UT 11,¶ 17, 84 P.3d 1197. As I see it, a party receives a “direct appeal” when an appellate tribunal conducts a case-specific, ruling-specific review of the lower court proceedings. This understanding comports with the limited discussion that this phrase has received in various Utah courts. See, e.g., Collins v. Sandy City Bd. of Adjustment, 2002 UT 77,¶¶ 18-19, 52 P.3d 1267 (referring to a “direct appeal” as a “direct review”); see also State v. Hamilton, 2003 UT 22,¶ 25, 70 P.3d 111 (distinguishing “direct appeals” from collateral attacks). Accordingly, Utah courts have used the phrase “direct appeal” to refer to a variety of situations in which appellate tribunals undertook a case-specific, ruling-specific review of the proceedings below. See, e.g., Hutchings v. State, 2003 UT 52,¶ 16, 84 P.3d 1150 (referring to an appellate review of a probation revocation as a “direct appeal”); Thomas v. State, 2002 UT 128,¶ 6, 63 P.3d 672 (stating that such issues as the validity of a search warrant, the admissibility of a confession, and the correctness of a bindover order are reviewable on “direct appeal”); Salazar v. Utah State Prison, 852 P.2d 988, 991 n. 6 (Utah 1993) (referring to an appellate review of a denial of a motion to withdraw a guilty plea as a “direct appeal”). Applied to the present ease, a trial de novo would therefore only constitute a “direct appeal” of the justice court conviction if it provided the district court with the opportunity to conduct a case-specific, ruling-specific review of the justice court proceedings.

¶ 18 I now turn to the scope of review provided by a “trial de novó.” In Pledger v. Cox, the Utah Supreme Court noted that “[t]he words ‘de novo’ ... have at least two possible interpretations when applied to judicial review ...: ‘(1) A complete retrial upon new evidence; and (2) a trial upon the record made before the lower tribunal.’ ” 626 P.2d 415, 416 (Utah 1981) (quoting Denver & R.G.W.R. Co. v. Public Serv. Comm’n, 98 Utah 431, 436, 100 P.2d 552 (1940)). Though “[t]he meaning of ‘trial de novo’ in each statute is obviously dictated by the wording and context of the statute in which it appears,” id., a trial de novo that is conducted following a defendant’s justice court conviction follows the first definition — that of a “complete retrial upon new evidence.” Id. This comports with the definition offered by Black’s Law Dictionary, wherein “trial de novo” is defined as “[a] new trial on the entire case — that is, on both questions of fact and issues of law.” Black’s Law Dictionary 1512 (7th ed. deluxe 1999). Thus, “[bjecause a justice of the peace court in this state is not a court of record, an appeal from that court is by way of a trial de novo in the district court, rather than a review of the justice’s rulings.” Wisden v. District Ct., 694 P.2d 605, 606 (Utah 1984).

¶ 19 Because it acts “as if there had been no trial in the first instance,” Black’s Law Dictionary. 1512 (7th ed. deluxe 1999), a district court conducting a trial de novo “is not confined to the record before the justice court and need not defer to the justice court’s findings and determinations. The district court neither reverses nor affirms the judgment of the justice court, but renders a new, distinct, and independent judgment.” State v. Hinson, 966 P.2d 273, 276 (Utah Ct.App.1998). When a district court conducts a trial de novo review of a justice court conviction, “the case [stands] precisely as it would have at that stage of the proceedings if it had begun in that court in the first instance.” Id.; accord Dean v. Henriod, 1999 UT App 50,¶ 9 n. 1, 975 P.2d 946.

¶ 20 When confronted with possible statutory conflicts that might preclude a defendant from seeking post-conviction relief, “any ambiguity that may exist ... should be resolved in favor of a criminal defendant.” Smith v. Cook, 803 P.2d 788, 791 (Utah 1990). Against this backdrop, I think that the majority’s decision to deny Lucero post-conviction relief based on his failure to request a trial de novo is simply incorrect. Had Luce-ro requested a trial de novo, the district court would have been required to act as if “the proceedings had begun in that court in the first instance.” Hinson, 966 P.2d at 276. As such, Lucero would not have had the opportunity to focus his “appeal” on the particular legal conclusions or factual findings of the justice court that he believed were erroneous. Lucero’s trial de novo would not have been a framed, particularized proceeding that was directed at the review of specific alleged errors; instead, the district court conducting the trial de novo would have acted as a broad, general tribunal that would have examined the charges anew. Insofar as this avenue of appeal would simply not have given Lucero the opportunity to directly challenge any alleged errors below, I think it clear that the trial de novo cannot be regarded as a “direct appeal.”

¶ 21 As I see it, the plain language of the statutory scheme thus provides a defendant who has been convicted in a justice court proceeding with two separate avenues of relief. First, the defendant can exercise his statutory right to file for a trial de novo. The advantages of this course would be clear: though the defendant would not have the opportunity to have the trial court review any potential errors that occurred below, the defendant would have the opportunity under this fresh start to try and persuade a new finder of fact of his or her innocence. Should the defendant choose not to file for a trial de novo, however, the defendant is still allowed to petition a district court for post-conviction relief under the Post^Conviction Remedies Act. In this hearing, the trial court would have the authority to directly review the proceedings in the justice court to determine whether any constitutional error occurred. In this case, Lucero properly and validly chose the second option, and the trial court correctly determined that it did have jurisdiction to hear the merits of Lucero’s petition for post-conviction relief. I would accordingly conclude that the majority’s reversal of that threshold determination is in error.

II. Lucero’s Petition for Post Conviction Relief

¶ 22 Because of my conclusion that Lucero did have a right to petition for post-conviction relief, I think that we are obligated to review the district court’s determination that Lucero’s waiver of the right to counsel at the justice court proceeding was constitutionally valid. Having reviewed the record and the applicable law, I would conclude that Lucero did not validly waive his right to counsel and that the district court’s denial of Lucero’s petition for post-conviction relief should ae-cordingly be reversed.

¶ 23 “The right to have the assistance of counsel in a criminal trial is a fundamental constitutional right which must be jealously protected by the trial court.” State v. Heaton, 958 P.2d 911, 917 (Utah 1998). “Because of the importance of the right to counsel and the heavy burden placed upon the trial court to protect this right, there is a presumption against waiver, and doubts concerning waiver must be resolved in the defendant’s favor.” Id. However, because the right to assistance of counsel is “personal in nature,” State v. Frampton, 737 P.2d 183, 187 (Utah 1987), the right “may be waived by a competent accused if the waiver is ‘knowingly and intelligently’ made.” Id. (citation omitted); see also State v. Bakalov, 849 P.2d 629, 633 (Utah Ct.App.1993). Further, the relevant Utah cases establish that there is a distinction between the “knowingly” and the “intelligently” prongs of the waiver test.

“Intelligent” in this context means “only that the defendant has been provided with adequate information on which to make his or her self-representation choice. Because such a choice is seldom, if ever, a wise one, ‘intelligent’ does not carry that meaning here.” “Knowing” refers to a defendant’s competence to waive the right to counsel, similar to a defendant’s competence to stand trial....

State, v. McDonald, 922 P.2d 776, 779 (Utah Ct.App.1996) (citations omitted).

¶24 Before determining that a defendant has knowingly and intelligently waived his or her right to counsel, a trial court has an affirmative duty to “conduct a thorough inquiry of the defendant” in order to ensure “that the defendant’s waiver of counsel is knowingly, intelligently, and voluntarily made.” Heaton, 958 P.2d at 918. Though a colloquy on the record is not required, see State v. Valencia, 2001 UT App 159,¶¶ 20-22, 27 P.3d 573, it is “the preferred method of ascertaining the validity of a waiver because it insures that defendants understand the risks of self-representation.” Frampton, 737 P.2d at 187. “Where there is no colloquy, [appellate courts] ‘will look at any evidence in the record’ ” created in the district court in order to ascertain whether the district court has fulfilled its duty of inquiry. Valencia, 2001 UT App 159 at ¶ 22, 27 P.3d 573 (quoting Frampton, 737 P.2d at 188).

¶ 25 In explaining the contours of this required inquiry, the United States Supreme Court has stated that the defendant “should be made aware of the dangers and disadvantages of self-representation” prior to the trial court’s acceptance of a waiver of the right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1974). In accordance with the United States Supreme Court’s unquestioned authority over questions of federal constitutional law, Utah courts have long enforced the Faretta directive as part of the Sixth Amendment analysis. See Heaton, 958 P.2d at 918; Frampton, 737 P.2d at 188; State v. Ruple, 631 P.2d 874, 875-76 (Utah 1981); State v. Dominguez, 564 P.2d 768, 769-70 (Utah 1977); State v. Petty, 2001 UT App 396,¶ 8, 38 P.3d 998; Valencia, 2001 UT App 159 at ¶22, 27 P.3d 573; McDonald, 922 P.2d at 779; Bakalov, 849 P.2d at 633.

¶26 The proper scope of the Faretta directive was recently addressed by the United States Supreme Court in Iowa v. Tovar, 541 U.S. -, -, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). In Tovar, the defendant was arrested for operating a motor vehicle while under the influence of alcohol. See id. at -, 124 S.Ct. at 1383. An intoxilyzer test administered the night of the defendant’s arrest showed that he had a blood alcohol level that was well above the legal limit. See id. At his arraignment, the defendant informed the court that he wished to waive his right to counsel and that he wished to plead guilty. See id. at-, 124 S.Ct. at 1384. The court accordingly conducted a plea colloquy in which the court explained that the defendant had the right to be represented at trial by an attorney who “could help [the defendant] select a jury, question and cross-examine the State’s witnesses, present evidence, if any, in [his] behalf, and make arguments to the judge and jury on [his] behalf.” Id. at -, 124 S.Ct. at 1384. (second and third alterations in original). After receiving this and other warnings, the defendant affirmed his wish to waive his right to counsel and to plead guilty. See id. at -, 124 S.Ct. at 1385.

¶ 27 Several years later, the defendant was arrested for a third DUI offense, and accordingly sought to challenge his prior guilty plea as a means of avoiding a recidivist sentence enhancement. See id. at-, 124 S.Ct. at 1385-1386. After proceeding through the lower Iowa courts, the Iowa Supreme Court ruled that the original waiver was constitutionally invalid due to the fact that the defendant had not been informed of “the dangers of self-representation.” Id. at -, 124 S.Ct. at 1387 (quotations and citation omitted).

¶ 28 On appeal, however, the United States Supreme Court reversed. See id. at -, 124 S.Ct. at 1390. In reversing, the Court held that “[t]he information a defendant must possess in order to make an intelligent election ... will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Id. at -, 124 S.Ct. at 1387 (emphasis added). While the Faretta directive is still required before a court accepts a waiver of counsel before trial, see id. at -, 124 S.Ct. at 1387-1388, “at the earlier stages of the criminal process, a less searching or formal colloquy may suffice.” Id. at -, 124 S.Ct. at 1388. Quoting prior precedent, the Court explained that “[w]e require less rigorous warnings pretrial ... not because pretrial proceedings are ‘less important’ than trial, but because, at that stage, ‘the full dangers and disadvantages of self-representation ... are less substantial and more obvious to an accused than they are at trial.’ ” Id. at -, 124 S.Ct. at 1388 (quotations and citations omitted).

¶29 Endorsing a “pragmatic approach to the waiver question,” id. at -, 124 S.Ct. at 1388 (quotations and citations omitted), the Court ultimately concluded that the inquiry must rest on “the particular facts and circumstances” of each ease. See id. at -, 124 S.Ct. at 1382. Analyzing the Tovar litigation, the Court concluded that there was not a “realistic” “prospect” that a “meritorious defense” would have existed for Tovar at trial or that the defendant could have pled “to a lesser charge.” Id. at -, 124 S.Ct. at 1390. Because “the admonitions at issue might confuse or mislead a defendant [in such a scenario] more than they would inform him,” id., the Court ultimately concluded that the lower court did not err by failing to inform Tovar of the dangers and disadvantages of self-representation.

¶ 30 Counsel for the Murray City Justice Court argues that Tovar mandates affir-mance in the present case. I disagree with that proposition. While it may be true that Tovar will require a reexamination of our “dangers and disadvantages” jurisprudence, at least as applied to waivers at a plea hearing, the facts of the present case do not require such a reexamination here. As discussed above, the Tovar ruling was expressly predicated on the unquestioned evidence that Tovar would have had no “realistic” alternatives to pleading guilty. Id. at -, 124 S.Ct. at 1390. Further, the trial court in Tovar did conduct an on-record colloquy in which the court advised Tovar of some of the advantages that having an attorney would have offered. See id. at —, 124 S.Ct. at 1384. In the present case, however, there is a complete absence of evidence from which we could similarly conclude that Lucero lacked a realistic prospect of success at trial or in negotiations with prosecutors. There is likewise no evidence that Lucero was informed by the justice court of any of the advantages of having counsel present at the hearing. Our supreme court has previously held that “there is a presumption against waiver.” Heaton, 958 P.2d at 917. Given this presumption, I think that we are obligated to conclude that Lucero was not informed of how the right to counsel would have applied “in general in the circumstances,” Tovar, — U.S. at —, 124 S.Ct. at 1389 (emphasis omitted), and that Lucero’s waiver of the right to counsel was thus invalid. As such, I would reverse the district court’s dismissal of Lucero’s petition for post-conviction relief.

      . Under Utah Code Annotated section 78-5-101 (2002), justice courts are courts "not of record.”

      . The Justice Court likewise argues that this court does not have jurisdiction over this case. However, the court of appeals has jurisdiction to review a district court’s denial of a petition for post-conviction relief pursuant to Utah Code Annotated section 78-2a-3(2)(f) (2002). See also Utah R. Civ. P. 65C(o).

      . Petitioner argues that because the Justice Court did not raise this issue before the district court, it is now barred because it would constitute an alternative ground for affirmance not apparent on the record nor sustainable by the factual findings. See State v. Topanotes, 2003 UT 30,¶ 9, 76 P.3d 1159. However, "|j']urisdictional issues may be raised for the first time on appeal.” State In Interest of R.N.J., 908 P.2d 345, 347 (Utah Ct.App.1995). Moreover, Petitioner's argument is moot because we have determined the district court had jurisdiction.

      . Through his post-conviction relief petition, Petitioner does not challenge the Justice Court plea or conviction. Instead, for reasons not apparent to this court, he seeks only a dismissal of the remaining suspended sentence.

      . The Justice Court also argues that Petitioner should be precluded from bringing a petition for post-conviction relief because he did not explain why he failed to take a direct appeal. In support of this argument, it cites Summers v. Cook, 759 P.2d 341, 343 (Utah Ct.App.1988), and Wells v. Shulsen, 747 P.2d 1043, 1044 (Utah 1987), where the courts held that in addition to showing an obvious injustice, the defendants were required to explain why they did not take a direct appeal. However, Summers and Wells were both decided prior to the enactment of the Post Conviction Remedies Act, Utah Code Annotated sections 78-35a-101 to -110 (2002), which does not require such an initial showing of why a direct appeal was not taken. We note that even though a defendant is not required to explain why he did not bring a direct appeal, such an explanation may be helpful in showing extraordinary circumstances.

      . Black’s Law Dictionary defines a "direct appeal” as "[a]n appeal from a trial court’s decision directly to the jurisdiction’s highest court, thus bypassing review by an intermediate appellate court.” Black's Law Dictionary 94 (7th ed. deluxe 1999). A review of the Utah cases, however, indicates that this strict definition is not followed by our courts. In Pascual v. Carver, for example, the Utah Supreme Court referred to the defendant’s prior appeal, which had been heard in the Utah Court of Appeals, as a "direct appeal” of the conviction. 876 P.2d 364, 366 (Utah 1994). Similarly, in State v. Lara, we referred to an appeal of a bindover order that was heard in this court as a "direct appeal.” 2003 UT App 318,¶ 20, 79 P.3d 951.

      . Given this construct, Utah courts have insisted that though a district court exercises its "appellate jurisdiction" when conducting a trial de novo, State v. Hudecek, 965 P.2d 1069, 1071 (Utah Ct.App.1998), the trials de novo that are held before the district courts must not be characterized in the same manner as a standard appeal which is held before the court of appeals or supreme court. In State v. Hinson, this court clearly drew this distinction, therein declaring that certain rules governing a case filed “[i]n a conventional appeal environment
      ... [have] no place in an appeal from a justice court judgment.” 966 P.2d 273, 275-76 (Utah Ct.App.1998). Similarly, we emphasized in Dean v. Henriod that there is a distinction between a "traditional appeal” and "an appeal from justice court.” 1999 UT App 50,¶ 9 n. 1, 975 P.2d 946. Thus, when a district court conducts a trial de novo, the district court is "not acting in a typical appellate capacity.” Hinson, 966 P.2d at 276. In a related context, the Utah Supreme Court has declared that, because a district court has the authority to make findings of fact in its trial de novo review of Industrial Commission decisions, the district court should be viewed "as an independent fact finder and not as an intermediate appellate court.” University of Utah v. Industrial Comm’n, 736 P.2d 630, 633 (Utah 1987) (emphasis omitted).

      . There is some confusion as to whether Murray City Justice Court’s argument is predicated on Utah Code Annotated section 78-35a-106(l)(a) (1996) (precluding relief under the Post Conviction Remedies Act where the petition is based on a ground that "may still be raised on direct appeal") or whether it is instead predicated on Utah Code Annotated section 78-35a-106(l)(c) (1996) (precluding relief under the Post Conviction Remedies Act where the petition is based on a ground that "could have been but was not raised at trial or on appeal”). Though Murray City Justice Court’s brief did not specify which of these subsections its argument was predicated on, the brief did directly discuss Utah Code Annotated section 78-35a-102(l) (1996), which states that relief is appropriate where a defendant has "exhausted all other legal remedies, including a direct appeal.” (Emphasis added.) Given this reference, and given the repeated references throughout the remainder of the brief to Lucero’s failure to exercise his rights to a "direct appeal,” I think it clear that any specific argument arising under Utah Code Annotated section 78-35a-106(l)(c) is not properly before us.
      Even were we to consider the subtle differences embodied by section 78-35a-106(l)(c), however, I think that the result here would be the same. As discussed above, though the trial de novo is considered to be the form by which a defendant can "appeal” his or her justice court conviction, it is still nevertheless true that the district court conducting the trial de novo cannot consider any particular claims of error that might have arisen below. Thus, insofar as the defendant in such circumstances cannot "raise” any issues in his "appeal,” I think that the result under either section 78-35a-106(l)(a) or section 78-35a-106(l)(c) would be the same.

      . At oral argument, Murray City Justice Court argued that allowing defendants who are convicted in justice court to have two separate avenues of appellate relief is unnecessary and duplicative. This concern, however, is misplaced. Instead, I think that there is a certain degree of logic present in allowing a defendant to bypass the trial de novo stage and instead directly appeal for post-conviction relief. The financial costs and emotional tolls that are involved in having to prepare for and go through a trial de novo can be heavy. In situations where a defendant has suffered a clear constitutional wrong at the justice court level, it would seem patently unjust to require the defendant to pay for and endure a full trial before allowing the defendant any access to direct appellate review. Instead, I think that our statutory scheme is wise in allowing defendants in such situations to immediately petition a court for redress under the Post Conviction Remedies Act, while at the same time allowing defendants who are willing to proceed to trial the opportunity to pursue that course of action instead. Regardless, I again note that this appears to be the statutorily created system. Thus, I see no option but to conclude that, as presently constituted, the Utah Code does allow a defendant to choose between these two different forms of relief.

      . In its brief and again at oral argument, counsel for Lucero asserted that, insofar as justice court proceedings are not conducted on the record, our review of this case should be limited to the information contained in the justice court docket or filings. The cases state, however, that an appellate court reviewing a waiver of that right must be able to look at “ 'any evidence in the record' " in order to determine whether the right was properly waived. State v. Valencia, 2001 UT App 159,¶ 22, 27 P.3d 573 (emphasis added) (quoting State v. Frampton, 737 P.2d 183, 188 (Utah 1987)); accord State v. Heaton, 958 P.2d 911, 919 (Utah 1998); State v. McDonald, 922 P.2d 776, 780 (Utah Ct.App.1996).
      Similarly, I also note my disagreement with Lucero’s assertion that the trial court in this case should not have received testimony from witnesses in its efforts to ascertain whether the waiver proceedings at the justice court were constitutionally valid. Irl State v. Gutierrez, the defendant sought to challenge the application of a repeat offender DUI enhancement statute to his case, therein arguing that his prior convictions were each invalid. See 2003 UT App 95,¶¶ 2-5, 68 P.3d 1035. As part of his challenge, the defendant argued that one of his prior guilty pleas, entered at a justice court, had been involuntary. See id. at ¶ 9. In upholding the use of the justice court guilty plea by the trial court, we concluded that Gutierrez had failed to prove involuntariness. See id. at ¶ 12. Addressing Gutierrez’s concerns about how he could have established such proof where the justice court keeps no official record, we noted that "Gutierrez could have produced testimony from those who were present regarding the taking of, his plea, the court’s docket sheet, or other affirmative evidence.” Id. In spite of this clear holding, Lucero suggests that there is a distinction between the trial court’s use of such testimony for purposes of sentence enhancement and for use when the trial court reviews a petition for post-conviction relief. I disagree with that attempted distinction. In both situations, the trial court is simply exercising its authority to review the lower proceedings in order to determine whether they were constitutionally valid. Given the important nature of this solemn responsibility, I see no reason why the trial court should be limited in its ability to inquire as to what occurred in the justice court proceedings. Accordingly, I would conclude that the trial court’s use of testimony and extrinsic evidence in this case was proper.

      . Counsel for Murray City Justice Court points us to language in McDonald, wherein we stated that "a recommendation by the court against self-representation is not necessary for a defendant to intelligently waive the right to counsel.” 922 P.2d at 785. Murray City Justice Court argues that this language obviates the duty of inquiry discussed above. I disagree. A careful reading of the precedent discussed above indicates that the trial court's specific duty here is to ensure that the defendant understands the "dangers and disadvantages " of self-representation. Heaton, 958 P.2d at 918 (emphasis added); accord McDonald, 922 P.2d at 779. Though subtle, there is a clear distinction between a rule requiring the court to inform a defendant of the dangers and disadvantages of self-representation and one requiring the court to take the further step of actually advising the defendant not to represent himself or herself. The former is simply a fulfillment of the court's duty to ensure that the defendant has the proper information; the latter would put the trial court into the role of advisor to the defendant, a role that would clearly be impermissible. As discussed below, a subsequent decision by the United States Supreme Court may indicate that a warning of the dangers and disadvantages of self-representation is not required at all stages of litigation. However, I would stress here that our statement in McDonald regarding the lack of a "recommendation” requirement does not remove the duty of inquiry from trial courts before accepting a counsel waiver at the trial setting.

      . Though Tovar was concededly decided after the events at issue here took place, it is a “long standing traditional rule ... that the law established by a court decision applies both prospectively and retrospectively, even when the decision overrules prior case law.” Carter v. Galetka, 2001 UT 96,¶ 26, 44 P.3d 626 (quotations and citations omitted).


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2004 UT App 96
    STATE of Utah, Plaintiff and Appellee, v. Troy Stephen HECHTLE, Defendant and Appellant.
    No. 20020543 CA.
    Court of Appeals of Utah.
    April 1, 2004.

      Gregory Saunders, St. George, for Appellant.
    Scott Garrett, Iron County Atty., Cedar City, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge:

¶ 1 On June 17, 2002, following the trial court’s denial of his motion to suppress evidence, Troy Stephen Hechtle pleaded guilty to speeding, and entered a conditional guilty plea to driving with any measurable controlled substance in the body, unlawful possession of a controlled substance, and possession of drug paraphernalia. He now appeals.

BACKGROUND

¶2 On February 11, 2001, Hechtle was driving northbound on Interstate 15 outside Cedar City, Utah. Trooper Brian Bairett was patrolling in the area and determined that Hechtle was driving at over 88 miles per hour — well above the posted speed limit. Consequently, the trooper pulled Hechtle over. As the trooper approached Hechtle’s vehicle, he noted that in addition to Hechtle, the car contained .two other people — one in the front passenger seat, and the other in the rear seat area. He then noticed both Hech-tle and his front seat passenger light cigarettes. When he got to the car and began speaking with Hechtle, the trooper noticed two or three air fresheners in the car.

¶ 3 The trooper testified that the presence of multiple air fresheners, coupled with the occupants’ act of lighting cigarettes on his approach, aroused in him a suspicion that Hechtle may have been attempting to mask other odors. Nonetheless, the trooper ignored his suspicions, informed Hechtle of the reason for the traffic stop, and asked him for his license and registration. However, as the encounter progressed the trooper’s suspicions heightened because Hechtle was “being overly helpful with the situation.” As described by the trooper: ‘When people are overly helpful and want their ticket and they want to leave, they have something they are trying to hide.”

¶ 4 The trooper took Hechtle’s license and registration and proceeded back to his patrol car to complete the ticket and check for warrants. Hechtle proved to be free of outstanding warrants; however, as the trooper completed the speeding ticket, he noticed that Hechtle had a corrective lens restriction on his license. The trooper returned to Hechtle’s vehicle and asked Hechtle if he was wearing either prescription sunglasses or contact lenses as required by his license. Hechtle explained that he had recently undergone vision correction surgery and as he offered this explanation he pulled his sunglasses away from his eyes. Without the sunglasses interfering, the trooper was able to see that Heehtle’s eyes were “very red, very glassy.” They also “had a droop to them,” and the pupils were dilated. Consequently, the trooper “knew that [Hechtle] was probably using marijuana” and asked Hechtle to stick out his tongue. Hechtle complied. The trooper noted that Hechtle’s tongue was “very green” with “blisters all over the back of it.” This information “confirmed” to the trooper that Hechtle had been smoking marijuana.

¶ 5 The trooper further testified that he asked Hechtle to step out of the car to conduct field sobriety tests. However, immediately after Hechtle exited the car, the trooper frisked him. During the frisk, the trooper felt the outline of a small marijuana pipe in Hechtle’s jacket pocket and asked Hechtle to remove it. After Hechtle complied, the trooper read him his Miranda rights and placed him under arrest. Hechtle then admitted to smoking marijuana earlier in the day. During the subsequent search incident to the arrest, the trooper discovered a small amount of marijuana in the car. As a result, Heehtle was charged with speeding, possession of paraphernalia, possession of a controlled substance, and driving with any measurable controlled substance in the body.

¶ 6 After the State filed charges, Heehtle filed a motion to suppress all evidence discovered as a result of the trooper’s frisk. Specifically, Heehtle argued that the trooper had no reason to perform the frisk, and absent the frisk the trooper would not have discovered either the marijuana or the pipe, nor would Heehtle have confessed to recent consumption. The State responded and a hearing was held. Trooper Bairett and Heehtle both testified at the hearing. Although the trooper’s testimony reflected the aforementioned facts, he further testified that he had decided to arrest Heehtle before asking him to get out of the car, and as such, he knew that he would soon thereafter be searching Hechtle’s car. He also testified that although he was not a drug recognition examiner (DRE), he had attended several classes taught by DREs, as well as other classes focused on drug interdiction.

¶7 Following the hearing, the trial court issued findings of fact and conclusions of law. The court concluded that Heehtle had been under arrest at the time of the frisk. Therefore, the frisk was a search incident to arrest. The court further found that sufficient probable cause existed to support the arrest. Consequently, all of the evidence that resulted from the search was admissible, including Heehtle’s confession. The court did not, however, draw any conclusions concerning whether the circumstances supported a Terry frisk or whether the trooper would have inevitably discovered the evidence had the trooper not searched Heehtle. Heehtle then pleaded guilty to all of the charges, while reserving his right to appeal the trial court’s ruling on the suppression issue. He now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 Heehtle argues that the trial court erred in denying his motion to suppress. Ordinarily, “[i]f a case involves a mixed question of fact and law, we afford some measure of discretion to the district court’s application of the law. The measure of discretion afforded varies, however, according to the issue being reviewed.” State v. Hansen, 2002 UT 125,¶ 26, 63 P.3d 650 (footnote and citations omitted). “When a case involves the reasonableness of a search and seizure, ‘we afford little discretion to the district court because there must be statewide standards that guide law enforcement and prosecutorial officials.’ ” State v. Warren, 2003 UT 36,¶ 12, 78 P.3d 590 (quoting Hansen, 2002 UT 125 at ¶ 26, 63 P.3d 650). “ ‘State-wide standards also help ensure different trial judges will reach the same legal conclusion in cases that have little factual difference.’ ” Id. (quoting Hansen, 2002 UT 125 at ¶ 26, 63 P.3d 650).

ANALYSIS

¶ 9 Heehtle argues that the trial court erred in concluding that the trooper had probable cause to believe that Heehtle was driving with any measurable controlled substance in his body at the time that the trooper searched him. Consequently, Hech-tle argues, the trial court erred in concluding that the frisk was a search incident to a lawful arrest. “A search of an arrestee’s person is valid without a warrant, despite the fact that it shortly precedes the arrest, ‘so long as the arrest and the search are substantially contemporaneous,’ ” State v. Chansamone, 2003 UT App 107,¶ 11, 69 P.3d 293 (quoting State v. Banks, 720 P.2d 1380, 1383— 84 (Utah 1986)), and the arrest is lawful; viz., “supported by probable cause and authorized by statute.” State v. Trane, 2002 UT 97,¶ 25, 57 P.3d 1052.

¶ 10 As required by the Fourth Amendment, to justify a warrantless arrest “an officer must have probable cause ... ‘to believe that the suspect has committed or is committing an offense.’ ” Id. at ¶ 26 (citation omitted). Probable cause determinations are reviewed under an “ ‘objective standard: whether from the facts known to the officer, and the inferences [that can] fairly ... be drawn therefrom, a reasonable and prudent person in [the officer’s] position would be justified in believing that the suspect had committed the offense’ ” for which he was arrested. Id. at ¶ 27 (alterations in original) (quoting State v. Cole, 674 P.2d 119, 125 (Utah 1983) (additional citations omitted)). In other words, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. -, 124 S.Ct. 795, 800, 157 L.Ed.2d 769 (2003) (citation omitted).

¶ 11 However, we do not examine these facts in isolation, but rather, we examine the totality of the circumstances to determine whether “ ‘a prudent person, or one of reasonable caution [would believe, based upon the] circumstances shown, that the suspect has committed, is committing, or is about to commit’ ” the offense for which he is arrested. Chansamone, 2003 UT App 107 at ¶ 11, 69 P.3d 293 (quoting Trane, 2002 UT 97 at ¶ 27, 57 P.3d 1052).

¶ 12 Here, the trooper arrested Hechtle for a violation of Utah Code Annotated section 41-6-44.6 (1998). Section 41-6-44.6 provides, in pertinent part;

In cases not amounting to a violation of Section 44-6-44 [ (Driving under the influence of alcohol, drugs, or with specified or unsafe blood alcohol concentration) ], a person may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person’s body.
A peace officer may, without a warrant, arrest a person for a violation of this section when the officer has probable cause to believe the violation has occurred, although not in the officer’s presence, and if the officer has probable cause to believe that the violation was committed by the person.

Utah Code Ann. § 41-6-44.6(2), (5). In the instant case, the encounter began when Trooper Bairett stopped Hechtle for speeding, not for driving under the influence, or even for erratic driving. As the trooper approached the car, he noticed Hechtle and his front seat passenger light cigarettes. Then, after he asked the occupants to extinguish their cigarettes and began to explain to Hechtle the reason for the traffic stop, the trooper noticed two or three air fresheners in the passenger compartment. The trooper further noticed that Hechtle was being very helpful during the stop. Finally, after writing the ticket and determining that Hechtle had no outstanding warrants, the trooper asked Hechtle whether he was complying with the corrective lens restriction on his license. Hechtle informed the trooper that his vision had been surgically corrected and he removed his sunglasses. The trooper then noticed that Hechtle’s eyes were red, droopy, and watery, and that his pupils were dilated. Consequently, the trooper asked Hechtle to stick out his tongue, whereupon the trooper saw that Hechtle’s tongue was green with blistering toward the back.

¶ 13 The State argues that these circumstances, when coupled with Trooper Bairett’s training and experience, are sufficient to support a probable cause determination. We disagree. Admittedly, the presence of multiple air fresheners has been accepted as a factor that can support, when viewed in conjunction with other factors, the existence of a reasonable suspicion of drug use or transportation. See United States v. Mondragon Farias, 43 F.Supp.2d 1276, 1283 (D.Utah 1999) (noting that “air freshener[s] coupled with other indicia of criminal activity supports a reasonable brief inquiry for purposes of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)”). We further acknowledge that the condition of Hechtle’s eyes at the time of the stop also supports the trooper’s belief that Heehtle may have been engaged in criminal activity. We note, however, that the State has presented nothing, no scientific studies and no case law or other authority, to support the reliability of the trooper’s concern regarding the condition of Hechtle’s tongue. Cf. State v. Wheeler, No. 24397 — 1—II, 100 Wash.App. 1062, 2000 WL 646511, *2 n. 2, 2000 Wash.App. LEXIS 779, *7 n. 2 (Wash.Ct.App. May 19, 2000) (“Although we assume the officer’s assertion to be true for the purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue.”).

¶ 14 In contrast, however, there are a number of factors weighing against finding probable cause to believe that Heehtle was driving with any measurable amount of controlled substance in his body. First, the trooper stopped Heehtle for speeding and nothing in the record suggests that the trooper had reason to believe that Heehtle was driving erratically, or that Heehtle was driving while impaired. Second, Heehtle cooperated with the trooper and was, in fact, “very helpful” during the encounter. Contrary to the trooper’s assumptions, helpfulness during the traffic stop does not, normally, qualify as an indicia of criminal behavior and does not contribute to the development of probable cause. Cf State v. Warren, 2003 UT 36,¶ 32, 78 P.3d 590 (stating that “cooperative behavior” and “willing compliance” weigh against the reasonability of a frisk). Third, the trooper noted no visible drug paraphernalia, no signs of recent drug use, and no odor of marijuana emanating from either the car or from Heehtle. Finally, assuming the trooper’s suspicions of drug use may have been reasonable given the circumstances, he did nothing to confirm his suspicions. The trooper performed no field sobriety tests and made no attempt to involve a certified DRE to validate his suspicions.

¶ 15 Taken as a whole, the facts articulated by the trooper weigh against finding that probable cause existed to support the arrest. Although the presence of multiple air fresheners and other masking agents, as well as the condition of Hechtle’s eyes, are certainly suggestive of possible drug use, they do not alone create probable cause. Furthermore, we are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dis-positive proof of marijuana use.

¶ 16 Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute. Moreover, the record does not reflect that the trooper provided the court with answers to these questions. Consequently, we are left with the conclusion that the trooper arrested Hechtle on a hunch. The trooper’s mere suspicion that Hechtle had, at some point in the past, ingested marijuana, is insufficient to support the trial court’s determination that the trooper had probable cause to arrest Hechtle for driving with any measurable amount of controlled substance in his body. See State v. Wheeler, No. 24397-1-II, 100 Wash.App. 1062, 2000 WL 646511, **2-3, 2000 Wash.App. LEXIS 779, **7-9 (Wash.Ct.App. May 19, 2000).

¶ 17 Although we are cognizant of the difficulties and dangers encountered daily by police officers, and we fully acknowledge an officer’s ability and right to draw upon his training and skills when making decisions in the field, in the absence of validation, such as an examination by a certified DRE or the application of relevant field sobriety tests, we conclude that in this instance the trooper’s suspicions were insufficient to establish probable cause.

CONCLUSION

¶ 18 The totality of the circumstances articulated by the trooper do not support a conclusion that his arrest of Hechtle was supported by probable cause. Absent probable cause, the seizure and subsequent search were unlawful, and all of the evidence realized as a result must be suppressed. Accordingly, we reverse the trial court’s order and remand, directing the trial court to grant Hechtle’s motion to suppress.

¶ 19 WE CONCUR: JAMES Z. DAVIS and PAMELA T. GREENWOOD, Judges.

      . " 'We recite the facts in the "light most favorable to the trial court’s findings from the suppression hearing.” ' ” State v. Collins, 2002 UT App 253,¶ 2, 53 P.3d 953 (quoting State v. Giron, 943 P.2d 1114, 1115 (Utah Ct.App.1997) (additional citations omitted)), cert. denied, 63 P.3d 104 (Utah 2003).

      . Hechtle's plea of guilty to the speeding charge was unconditional. Thus, the outcome of this appeal has no impact on his speeding conviction.

      . The State argues that Trooper Bairett’s experience and training are extraordinary and through his experience and training the trooper is extremely knowledgeable about "drugs and drug-related offenses.” Although this may be true, the trooper is not a certified drug recognition examiner (DRE) and does not possess the training or background that entitles an officer to that title. As stated by the Washington Supreme Court:
      To be certified as a DRE, an officer must complete a three-phase program of instruction. First, the officer must attend a 16-hour 'preschool,' which involves an overview of the DRE program, and instruction on the seven drug categories and basic drug terminology. Second, the officer must complete a 56-hour DRE school program. This program consists of 30 modules of instruction, including an overview of the development and validation of the drug evaluation process, and sessions on each drug category. In addition to classroom instruction, the program requires practical field training. Additionally, the officer must pass a written examination before beginning the next phase of training. Finally the officer begins certification training. Certification requires the officer participate in a minimum of 12 complete examinations under the supervision of a trained DRE instructor. Of those 12 evaluations, the officer must identify an individual under the influence of at least 3 of the 7 drug categories. The officer is required to obtain a minimum 75 percent toxicological corroboration rate. The officer must then pass another written examination and a separate skills demonstration examination performed in front of two DRE instructors before he or she becomes certified as a DRE. Finally, the officer must maintain an up-to-date resume or curriculum vitae.
      Additionally, a DRE must be recertified every two years. During that time period, the DRE is required to conduct four hands-on evaluations and to attend eight hours of in-service training.

        State v. Baity, 140 Wash.2d 1, 991 P.2d 1151, 1154 (2000) (relying upon the standards adopted by the International Association of Chiefs of Police). Furthermore, had a DRE been involved in this case, the facts before this court would, most likely, be radically different.
      To determine whether a driver is under the influence of a specific category of drugs other than alcohol, DRE’s use a 12-step procedure based on a variety of observable signs and symptoms that are known to be reliable indicators of drug impairment. All DREs, regardless of agency, use the same procedures, in the same order, on all drivers. In theory, a DRE will not reach a final decision until the entire evaluation is complete....
      When in doubt, the DRE must find the driver is not under the influence.

        Id. at 1155. However, as the Minnesota Supreme Court stated, "the protocol ... is not itself a scientific technique but rather a list of the things a prudent, trained and experienced officer should consider before formulating or expressing an opinion whether the subject is under the influence of some controlled substance.” State v. Klawitter, 518 N.W.2d 577, 584 (Minn.1994). Consequently, conclusions concerning drug use do not require a DRE so long as the officer involved is prudent, experienced, and trained and can employ proper technique in making the determination.

      . Assuming that his appeal would succeed, Hech-tle requests that we remand this case to the trial court for further proceedings concerning the reasonableness of the trooper's frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We are, however, unable to grant this request. See State v. Topanotes, 2003 UT 30,¶ 11, 76 P.3d 1159 (stating "when the State has the burden of proof and the record on appeal fails to sustain any theory of admissibility, the State 'is not entitled to a remand to put on new evidence' " (quoting State v. Hodson, 907 P.2d 1155, 1159 (Utah 1995))). Moreover, although we are empowered to affirm the trial court's decision on any ground apparent in the record and "sustainable by the factual findings of the trial court,” id. at ¶ 9, "[t]o do so, the legal ground must be 'apparent on the record' and sufficiently briefed by the appellee.” State v. Chevre, 2000 UT App 6,¶ 12, 994 P.2d 1278 (quoting State v. Montoya, 937 P.2d 145, 149-50 (Utah Ct.App.1997)). Here, the State made no effort to argue the merits of an alternative affirmance, and, instead, focused solely on the probable cause issue. Consequently, the State has abandoned the issue. Accordingly, we remand this case to the trial court with instructions that Hechtle’s motion to suppress be granted.


author: GREENWOOD, Judge:

text:
    2004 UT App 93
    STATE of Utah, Plaintiff and Appellant, v. Stacy Eileen ATENCIO, Defendant and Appellee.
    No. 20030289-CA.
    Court of Appeals of Utah.
    April 1, 2004.

      Mark L. Shurtleff, Attorney General and Christine Soltis, Assistant Attorney General, Salt Lake City, for Appellant.
    Nisa J. Sisneros and Heather Johnson, Salt Lake Legal Defender Association, Salt Lake City, for Appellee.
    Before Judges BILLINGS, GREENWOOD, and JACKSON.
   OPINION

GREENWOOD, Judge:

¶ 1 The State appeals from the trial court’s pretrial order dismissing a refiled information charging Defendant, Stacy Atencio, with endangerment of a child and various drug offenses. We reverse.

BACKGROUND

¶ 2 On February 20, 2002, the State filed an information charging Defendant with (1) two counts of unlawful possession of a controlled substance, in violation of Utah Code Annotated section 58 — 37—8(2)(a)(i) (2002); (2) unlawful possession of drug paraphernalia, in violation of Utah Code Annotated section 58-37a-5 (2002); and (3) endangerment of a child, in violation of Utah Code Annotated section 76-5-112.5 (Supp.2002). A preliminary hearing was initially scheduled for May 2002, but was continued until July 2002. Because the State’s toxicology analysis was not completed by the July preliminary hearing, the State moved for a continuance. The State’s motion was granted and the preliminary hearing was rescheduled for August 13, 2002, before Judge Anthony B. Quinn.

¶ 3 Immediately prior to the preliminary hearing, the prosecutor discovered that her case file was missing. The following exchange then took place between the prosecutor and the trial court:

THE COURT: Call your witness.
MS. TAYLOR: Well, your Honor, my file, which has my notes and the tox report and I don’t know where it’s gone.
MS. TAYLOR: And without that, there’s not much I can do.
THE COURT: Well, can the State proceed?
MS. TAYLOR: I suppose we could proceed, your Honor. The — there is a new toxicology report which defense counsel does not have. There is an old copy, which I believe (inaudible) I suppose we can proceed.

¶4 The prosecutor then called Detective James Tracy as a witness. Detective Tracy was duly sworn, and at the request of the trial court, stated his full name and spelled his last name. At this point, the following dialogue ensued:

MS. TAYLOR: Your Honor, now that I look at it, all of these [sic] Information is incorrect. The — the—at least the one that Ms. Sisneros [Defense Counsel] has; but I do not have a copy of the test results for the child — the child endangerment charge, unless you have that.
MS. SISNEROS: I — I’ve never seen that. MS. TAYLOR: That’s in the State’s file, which like I said, I don’t know where it is. It — it was here at one point, I had it here in the courtroom.
THE COURT: (Inaudible) this preliminary hearing goes forward or the case is going to be dismissed.
MS. TAYLOR: Well your Honor, I — the State would simply ask that it be dismissed without prejudice and we’ll refile it.

¶ 5 The trial court then dismissed the case. Two days later, the State refiled the information and the case was assigned to a different judge. Prior to the preliminary hearing on the refiled charges, Defendant filed a motion to dismiss and the motion was argued before Judge Stephen L. Henriod. Defendant argued that the trial court should dismiss the case because under State v. Brickey, 714 P.2d 644 (Utah 1986), there was no new or previously unavailable evidence that supported the State’s decision to refile the dismissed charges. See id. at 647. The State responded by arguing that Brickey did not apply to this case because the charges against Defendant were dismissed for failure to proceed and Brickey only applied to cases that were dismissed for insufficient evidence. See id. The trial court granted Defendant’s motion noting that Brickey required “new or previously unavailable evidence in order to refile.”

¶6 On March 31, 2002, the trial court issued an order formally dismissing the refiled charges. The State timely filed its notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶ 7 The State contends that the requirement from State v. Brickey, 714 P.2d 644 (Utah 1986), that refiled charges must be supported by “new or previously unavailable evidence,” id. at 647, does not apply when a case is dismissed for failure to proceed at a preliminary hearing. Interpretation of ease law presents a question of law which is reviewed for correctness. See State v. Morgan, 2001 UT 87,¶ 1, 34 P.3d 767.

ANALYSIS

V 8 The State maintains that the trial court erred when it dismissed the case based on the State’s failure to support the refiled charges with “new or previously unavailable evidence.” Brickey, 714 P.2d at 647. According to the State, Brickey does not apply to this case because the original charges were dismissed for failure to proceed rather than for insufficient evidence. Defendant responds by first arguing that this court should decline to review the State’s claim because the State failed to provide, as part of the record on appeal, the complete record from the first dismissed case. According to Defendant, the complete record from this case is necessary, in part, because of a factual dispute as to when the first two preliminary hearings were scheduled. Defendant further argues that even if this court considers the State’s claim, the trial court’s ruling should remain undisturbed because Defendant has already “had to return to court an inordinate number of times for the same charges, causing her unnecessary inconvenience and stress,” and because “the prosecutor ... indulged in ‘forum shopping,’ which is a recognized violation of criminal defendants’ state due process rights.”

¶ 9 Before addressing whether the trial court erred when it dismissed the refiled charges, we first consider Defendant’s threshold argument that this case should not be reviewed because the State failed to furnish the complete record from the original case. We find Defendant’s argument unpersuasive for two reasons. First, it is not supported by any legal authority. While Defendant cited State v. Cramer, 2002 UT 9, 44 P.3d 690, and State v. Rawlings, 829 P.2d 150 (Utah Ct.App.1992), both cases simply stand for the proposition that an appellate court will not review any evidence that is not part of the appellate record.

¶ 10 Second, it is undisputed that the only portion of the record from the original case considered by the trial court was the August preliminary hearing transcript that was filed as an exhibit to the State’s Memorandum in Opposition to Defendant’s Motion to Dismiss. This transcript is part of the record on appeal. See Utah R.App. P. 11(a) (defining record on appeal in part as “[t]he original papers and exhibits filed in the trial court”). Therefore, the record is sufficient for this court to consider the State’s challenge to the trial court’s ruling.

¶ 11 Having determined that the record on appeal is adequate, we turn to the State’s argument that the trial court erred when it dismissed the refiled charges against Defendant because there was no “new or previously unavailable evidence” to support the refiled charges. Brickey, 714 P.2d at 647. In Brickey, the defendant was charged with forcible sexual assault. See id. at 645. After a preliminary hearing, during which only the victim testified, the trial court dismissed the case because the State had failed to establish a necessary element of the crime charged. See id. The prosecutor refiled the charge and a second preliminary hearing was held before a different judge. See id. This time, the victim’s father, who was present at the first preliminary hearing, also testified. See id. After the preliminary hearing, the defendant was bound over for trial. See id. at 646.

¶ 12 On appeal, the Utah Supreme Court considered what limits the due process clause of the Utah Constitution placed on the State’s ability to refile the charge against the defendant. See id. Relying primarily on Jones v. State, 481 P.2d 169 (Okla.Crim.App.1971), the court reversed the trial court’s decision and held “that due process considerations prohibit a prosecutor from refiling criminal charges earlier dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling.” Brickey, 714 P.2d at 647 (emphasis added).

¶ 13 Despite the apparent rigidity of its holding, “Brickey does not ... indicate any intent to forbid refiling generally or preclude refiling where a defendant’s due process rights are not implicated.” State v. Morgan, 2001 UT 87,¶ 15, 34 P.3d 767. When no “potential abusive practices” on the part of the prosecution are involved, “there is no presumptive bar to refiling.” Id. at ¶ 16.

¶ 14 In Morgan, the defendant was charged with felony possession of methamphetamine with intent to distribute. See id. at ¶ 2. After the trial court determined that the arresting officer’s testimony at the preliminary hearing was insufficient to establish intent to distribute, it reduced the charge to felony possession and bound the defendant over on the reduced offense. See id. at ¶ 4. However, the trial court subsequently granted the State’s motion to dismiss the charge without prejudice thereby allowing the State to refile the original charge. See id. At the second preliminary hearing, testimony of a second police officer with significant narcotic investigation training and experience was admitted. See id. at ¶ 5. Based on this testimony, Defendant was bound over for trial as charged. See id. at ¶ 6. The Utah Supreme Court concluded that the State’s failure to call the second police officer as a witness during the first preliminary hearing “was an ‘innocent miscalculation,’ which [constituted] ‘other good cause, [Brickey, 714 P.2d at 647,] sufficient to allow the prosecutor to refile the case.” Morgan, 2001 UT 87 at ¶ 21, 34 P.3d 767.

¶ 15 In this case, there is no evidence that when the prosecutor misplaced her file, she was engaged in a “potential abusive practice[]” that would have implicated Defendant’s due process rights. Id. at ¶ 16. Although Defendant claims that under Brickey, the prosecutor was prohibited from refiling the charges absent “new or previously unavailable evidence,” Brickey, 714 P.2d at 647, this case is different from Brickey. In Brickey, the original charge was dismissed for insufficient evidence after the prosecution had presented evidence at the preliminary hearing. See id. at 645. In this case, although the preliminary hearing had technically begun and one witness had been sworn in, the prosecutor had not presented any evidence and the case was dismissed based on her inability to proceed rather than insufficient evidence.

¶ 16 In Browning v. State, 648 P.2d 1261 (Okla.Crim.App.1982), the Oklahoma Court of Appeals drew a distinction between eases that were originally dismissed because the State was unable to proceed, and cases that were originally dismissed because the State did not present sufficient evidence. In Browning, the State was unable to proceed at the defendant’s preliminary hearing due to the lack of assistant district attorneys and a jail break that had occurred the previous weekend. See id. at 1263. The charge against the defendant was refiled the next day and after a second preliminary hearing, the defendant was bound over for trial. See id. Citing Jones v. State, 481 P.2d 169 (Okla.Crim.App.1971), and two cases decided after Jones, the defendant argued that the trial court erred in allowing the case to proceed to trial because no newly discovered evidence was presented to support the refiling of the charge. See Browning, 648 P.2d at 1263. The court disagreed, noting that the cases the defendant relied upon referred “to instances where the State presented insufficient evidence at the preliminary hearing; whereas in the [defendant’s] case, the State was not ready to present evidence at the first preliminary hearing.” Id.; see also Lampe v. State, 540 P.2d 590, 595 (Okla.Crim.App.1975) (noting that refiling charges that had been twice dismissed at preliminary hearing for lack of witnesses was not a denial of due process).

¶ 17 Like Browning, this case was dismissed, not for insufficient evidence, but because the State was “not ready to present evidence at the first preliminary hearing.” Browning, 648 P.2d at 1263. Moreover, although Defendant claims that the prosecutor’s decision to end the preliminary hearing and refile the charges constituted forum shopping, it is clear that, similar to Browning, there was a good faith basis for the prosecutor’s actions: She was unable to locate her file and therefore could not present evidence at the preliminary hearing. There is no indication that the missing file was anything but “innocent.” Morgan, 2001 UT 87 at ¶ 21, 34 P.3d 767. While it is true that a different judge was assigned to the case after the charges were refíled, we are unpersuaded, absent evidence of a “potential abusive practice[ ]” on the part of the prosecution, id. at ¶ 16, that this fact alone demonstrates that the State engaged in forum shopping.

¶ 18 Similarly, we find no merit in the argument that the State was prohibited from refiling the charges because Defendant had to return to court an inordinate number of times on the same charges, thereby causing her unnecessary inconvenience and stress. The Utah Supreme Court has made it clear that “due process is not concerned with ordinary levels of inconvenience because the ‘nature of the criminal justice system necessarily inconveniences those individuals who have been accused of crimes.’ ” Id. at ¶ 22 (citation omitted). “Instead, due process ... is concerned with potential bad faith or misconduct of prosecutors.” Id. Therefore, the fact that Defendant had to go to court on several occasions is of little significance in the absence of any potential misconduct on the part of the prosecution.

¶ 19 Based on the foregoing, we conclude that the State did not abuse Defendant’s due process rights when it refiled the charges because the prosecutor did not present any evidence at the preliminary hearing and there was no evidence of prosecutorial misconduct. Therefore, the trial court erred when it ruled that the State could not refile the charges against Defendant absent new or previously unavailable evidence. See Brickey, 714 P.2d at 647.

CONCLUSION

¶ 20 Defendant’s argument that the State was required to furnish the complete record from the original case fails because the only portion of the record from the original case considered by the trial court is part of the record on appeal. Therefore, the record is sufficient for this court to consider the State’s appeal.

¶ 21 With respect to the merits of the case, we conclude that because the original charges against Defendant were dismissed for failure to proceed, rather than for insufficient evidence, the State was not required to support the refiled charges with “new or previously unavailable evidence.” Id. Accordingly, we reverse the trial court’s dismissal of the refiled charges.

¶ 22 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and NORMAN H. JACKSON, Judge.

      . In State v. Cramer, 2002 UT 9, 44 P.3d 690, the court observed that it could not consider a victim’s medical records when those medical records were not included in the appellate record. See id. at ¶ 25. Similarly, in State v. Rawlings, 829 P.2d 150 (Utah Ct.App.1992), the court noted that it was unable to consider the issues raised in the defendant’s habeas corpus petition when he failed to provide any record of the habeas corpus proceedings on appeal. See id. at 152-53.

      . In Jones v. State, 481 P.2d 169 (Okla.Crim.App.1971), the court held that
      when a magistrate at a preliminary examination rules the evidence insufficient to hold the defendant for trial, neither that magistrate nor any other magistrate should entertain another filing against the same defendant for the same offense unless the State makes an offer of additional evidence or proves other good cause to justify another preliminary examination.

        Id. at 171.

        .State v. Redd, 2001 UT 113, 37 P.3d 1160, upon which Defendant also relies, is similarly distinguishable. There, the court held that the State's failure to provide evidence on an essential element of the crime charged amounted to a "potentially abusive practice” that prohibited it from refiling the charge absent “new or previously unavailable evidence or other good cause.” Id. at V 17. However, like State v. Brickey, 714 P.2d 644 (Utah 1986), the original charge was dismissed after the State had presented evidence during a preliminary hearing. See Redd, 2001 UT 113 at ¶ 3, 37 P.3d 1160.

      . As noted earlier, the holding in Brickey was based on Jones. See Brickey, 714 P.2d at 647.

      . Forum shopping occurs when "a criminal prosecution [is] shuttled from one magistrate to another simply because a county attorney is not satisfied with the action of the magistrate in the precinct whose jurisdiction was first invoked." Brickey, 714 P.2d at 647 (quotations and citation omitted). To eliminate this practice, the Utah Supreme Court held that "when a charge is refiled, the prosecutor must, whenever possible, refile the charges before the same magistrate.” Id.