State v. Graham, 291 P.3d 243

Defendant was charged in August 2008 with two counts of unlawful sexual activity with a minor.
Trial proceeded as a bench trial after Defendant waived his right to a jury trial; two different attorneys appeared for Defendant during trial.
First counsel and Defendant clashed over trial strategy and subpoenaing witnesses; Defendant requested removal and later chose to represent himself after the waiver.
Defendant signed a waiver of counsel after a on-record colloquy; standby counsel (first appointed) remained available, and later second counsel was appointed as standby and then acted as actual counsel during the second phase of trial.
The court found Defendant guilty on both counts; credibility given to the minor witness over Defendant; competency evaluated prior to trial; appellate counsel later challenged the convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the waiver of counsel knowing and voluntary?	Waiver occurred after proper colloquy; voluntary and informed.	Waiver may have been tainted by conflict and coercive circumstances.	Waiver was knowing and voluntary.
Did first counsel’s alleged conflict of interest yield ineffective assistance, requiring reversal or relief?	No actual conflict; no prejudice established.	There was an actual conflict or significant conflict that presumptively affected performance.	No presumption of prejudice; no ineffective assistance from first counsel.
Was second counsel ineffective for failing to file a motion for mistrial based on Day 1 conduct?	No ineffectiveness; decision informed by Rule 11 concerns and lack of basis for mistrial.	Second counsel should have filed a mistrial motion.	Second counsel was not ineffective.

Faretta v. California, 422 U.S. 806 (U.S. 1975) (right to self-representation; warnings about dangers of proceeding pro se)
State v. Pedockie, 137 P.3d 716 (Utah 2006) (three methods to waive right to counsel; express waiver requires knowing, intelligent decision)
State v. Arguelles, 63 P.3d 731 (Utah 2003) (no absolute right to counsel of own choosing; court may offer alternatives)
State v. Bakalov, 979 P.2d 799 (Utah 1999) (choice between competent appointed counsel and pro se does not itself render waiver involuntary)
Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (actual conflict of interest requires showing that conflict adversely affected performance)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (deficient performance and prejudice required for ineffective assistance of counsel)
Gardner v. Holden, 888 P.2d 608 (Utah 1994) (actual prejudice not presumed from personality clash; must show adverse effect on performance)
State v. Scales, 946 P.2d 377 (Utah Ct. App. 1997) (strong presumption of reasonable professional conduct; need to show no tactical basis for actions)
State v. Clark, 89 P.3d 162 (Utah 2004) (ineffective assistance standard; no prejudice without lack of conceivable tactical basis)