                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2015 UT 6

                                   IN THE

      S UPREME C OURT OF THE S TATE OF U TAH
                             STATE OF UTAH ,
                                Appellee,
                                      v.
                     CURTIS MICHAEL ALLGIER,
                            Appellant.

                             No. 20130021
                        Filed January 23, 2015

                     Third District, Salt Lake
                 The Honorable Paul G. Maughan
                         No. 071904711

                                Attorneys:
Robert L. Stott, Christopher D. Ballard, Salt Lake City, for appellee
Craig L. Pankratz, David M. Corbett, Salt Lake City, for appellant

     PER CURIAM :
     ¶1 This matter is before the court on a motion to withdraw
filed by the appellant’s appellate counsel. We grant the motion and
conclude that the appellant has repeatedly engaged in extreme
dilatory, disruptive, and threatening conduct that constitutes a
forfeiture of his right to counsel for the limited remainder of the
proceedings on appeal.
     ¶2 In 2007, Curtis Michael Allgier was charged with
aggravated murder, a capital offense. He also was charged with
disarming a police officer, aggravated escape, and aggravated
robbery. Mr. Allgier received appointed counsel from the Salt Lake
Legal Defender Association (LDA). On multiple occasions over the
course of the next three and a half years, LDA moved for permission
to withdraw as Mr. Allgier’s counsel. The district court eventually
granted the motion and appointed new counsel. Prior to trial, Mr.
Allgier apparently became dissatisfied with his new counsel and
filed a motion to represent himself. He eventually entered into a
plea agreement and received a sentence of life without the
possibility of parole. When the sentence was entered, the record did
not include any timely motion to withdraw the plea.
                          STATE v. ALLGIER
                        Opinion of the Court

     ¶3 Mr. Allgier appealed, and the district court appointed LDA
to represent him on appeal. LDA filed a notice that it had a conflict
of interest and referred the case to an attorney not affiliated with its
office. Less than a month after that attorney had entered his
appearance, Mr. Allgier filed a pro se motion to remand for
appointment of new counsel. Shortly thereafter, his appointed
attorney filed a motion to withdraw based on a claimed “irreparable
breakdown in the attorney client relationship.” The State opposed
the motion, and the attorney provided a reply to the response that
included further information regarding the reasons for his motion.
He explained that Mr. Allgier had filed a bar complaint against him
and had stated “it [would] get very ugly” for the attorney if he did
not file a motion to withdraw. Mr. Allgier’s bar complaint further
stated that he was “trying to be nice, but [would] resort to other
means of removal if [the attorney thought] he could sell [Mr. Allgier]
out. . . . he don’t want to learn how much I don’t give a damn.” The
attorney was understandably reluctant to specifically divulge any
threats Mr. Allgier had directed at him within the context of
otherwise privileged attorney-client communications, but his
motion to withdraw nonetheless indicated he had received “rather
more intense communications directly from [Mr. Allgier]” and that
the bar complaint’s “less than veiled threats . . . are tempered and
mild by comparison.” A few days later, Mr. Allgier filed a pro se
pleading entitled “Defendant/Appellant’s response to [his
attorney’s] cowardly response to State’s response.” The pleading
included allegations that the attorney had a conflict of interest
arising from the referral by LDA, asserted that the attorney had
refused to raise issues that Mr. Allgier had demanded that he
present on appeal, and stated that Mr. Allgier would accept only
female counsel.
     ¶4 This court issued the following order in response to the
attorney’s motion to withdraw:
       The motion is granted. The Court nonetheless
       expresses concern about the possibility of
       manipulation of the judicial process and will carefully
       scrutinize any future motion by counsel to withdraw
       or by the Appellant to disqualify counsel. This matter
       is temporarily remanded to the district court for
       appointment of new counsel.
The district court appointed two new attorneys to represent Mr.
Allgier on appeal. Within a few weeks, he filed yet another pro se
motion to remove his new counsel. That motion stated that Mr.

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Allgier “refuse[d] these quacks forced upon [him],” and demanded
that a new appointment of counsel be made by a different district
court judge. Mr. Allgier claimed that his new counsel had refused
to communicate with him, but he admitted that one of them had
attempted to meet with him and that he had refused to do so
because the timing of the visit was during his recreation hour. And,
he again complained that his new counsel had refused to raise all the
issues that he desired to present on appeal.
     ¶5 This court denied Mr. Allgier’s motion on August 28, 2013.
That order noted the concerns expressed by the prior order and
stated:
       Any further motions seeking to disqualify counsel or
       for counsel to withdraw initially will be reviewed by
       the Court to ascertain whether they adequately allege
       and document a substantial basis to warrant the
       disqualification or withdrawal of counsel. Neither
       Appellant’s counsel, nor the Appellee, will be
       obligated to respond to any such motion unless this
       Court requests a response. Absent any action by the
       Court, such a motion will be deemed denied within
       fourteen days of its receipt.
Mr. Allgier subsequently filed three more pro se motions to remove
counsel that violated the requirements of the court’s directive that
any such motion be supported by adequately documented
allegations. Those motions consistently referred to counsel in
demeaning and derogatory terms, and they were hostile and
threatening in tone. The following statement in one of the motions
is typical of the allegations: “they [Mr. Allgier’s appointed
attorneys] are the dumbest ass clowns I’ve ever had the EXTREME
dishonorable displeasure of being forced to know were even
somehow on the planet, let alone incompetently and ineffectively
misrepresented by[,] and NEVER . . . will they have the honor of
being in my Aryan GOD presence or having any kind of contact
with me period!!” The motion also included a copy of a letter that
one of the attorneys had sent to Mr. Allgier, which detailed efforts
he had made to research and advance legitimate arguments on
appeal. The copy of the letter provided to the court was covered
with Mr. Allgier’s scathing and hostile handwritten notes, some of
which apparently reflected a belief that his attorneys were required
to raise any arguments he desired even after being informed that




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                           STATE v. ALLGIER
                        Opinion of the Court

those arguments were contrary to established law.1 The court
reviewed the motions and could not discern any credible or
adequately documented ground for disqualification of counsel.
Accordingly, it declined to take any action on those motions, and
they were deemed denied by the terms of its August 28 order.
     ¶6 Mr. Allgier’s new counsel filed motions to supplement the
record and to remand for a hearing pursuant to rule 23B of the Rules
of Appellate Procedure. The motion to supplement was granted in
part and the rule 23B motion was deferred until plenary review. The
motion to supplement resulted in an order from this court that
directed the Department of Corrections, the Attorney General’s
Office, and the district court to attempt to verify whether Mr. Allgier
had filed a timely motion to withdraw his plea.2




   1
     In their own motion to withdraw, the attorneys redacted the
letter to avoid disclosure of privileged communications. Needless
to say, Mr. Allgier’s attachment of the letter to a pleading filed in the
public appellate record of this case waived the privilege with respect
to that letter.
   2
     The motion to supplement ultimately was denied, but it
discredited Mr. Allgier’s repeated allegations that his attorneys have
been dilatory and have refused to communicate with him. First,
despite the absence of any indication in the record that a timely
motion to withdraw the plea had been filed, the motion to supple-
ment demonstrated new counsel was aware of Mr. Allgier’s claim
that he had filed such a motion. Second, the motion resulted in an
order from this court directing that a search for the alleged motion
to withdraw the appeal be conducted. If credible documentation of
the motion to withdraw had been discovered, it likely would have
resulted in a remand to require the district court to consider that
motion. The filing of the rule 23B motion also is inconsistent with
the picture painted by Mr. Allgier’s allegations of dilatory conduct.
Such motions require appellate defense counsel to discover grounds
for claims of ineffective assistance of trial counsel that are not
apparent in the record and otherwise would not be susceptible to
review on appeal. While the mere filing of such a motion does not
constitute a guarantee of appellate counsel’s diligence, any attorney
who is truly uninterested in a client’s welfare would have little
motivation to devote the time and effort necessary to research and
prepare one.

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                        Opinion of the Court

     ¶7 Mr. Allgier’s new counsel also filed the principal brief on
appeal. The State filed its responsive brief. Then new counsel filed
this motion to withdraw. The motion to withdraw is based on
assertions that are very similar to the motion to withdraw filed by
Mr. Allgier’s first appellate attorney. The motion states that an
irreparable breakdown in the attorney client relationship has
occurred, that Mr. Allgier has refused to communicate with new
counsel, and that Mr. Allgier has ordered the Department of
Corrections to remove new counsel from his visiting list and to
refuse delivery of correspondence sent by new counsel. It also avers
that Mr. Allgier has “leveled threats against counsel,” including
statements that “he knows how to find people outside of prison,”
and has mailed documents to one of his new attorneys’ home
address, which has never been provided to Mr. Allgier. The motion
also states that “to avoid revealing confidential information, and in
order to prevent potential prejudice to Mr. Allgier, counsel will not
share any additional information with the Court unless the Court
specifically requests additional information.”
    ¶8 We directed the State to respond to the motion. That
response concedes that counsel should be permitted to withdraw
based on Mr. Allgier’s “persistent threats to his appointed counsel
and his pattern of disruptive behavior.” But it also argues Mr.
Allgier has forfeited his right to counsel at this late stage of the
appellate proceedings.
     ¶9 Attorneys who are appointed to represent criminal
defendants perform an indispensable service to the administration
of the criminal justice system. Without those attorneys, many
defendants would be deprived of significant constitutional rights.
At least some of those defendants may be very difficult to work with
and unwilling to accept responsibility for their own actions. Some
defendants may mistakenly assume that they are entitled to the
appointed counsel of their choosing, and having not been given their
preference, they become resentful toward the appointed attorney.
This is work that warrants gratitude from a client, yet it is work that
actually may receive less gratitude, and doing it may require an
exceptionally thick skin. But appointed defense attorneys should
not be required to fear for their own safety or that of their
professional associates or families.
     ¶10 As we have previously observed, forfeiture is a drastic
measure. Thus, a defendant must engage in extreme conduct
involving dilatory or abusive behavior before it may be imposed.
See State v. Pedockie, 2006 UT 28, ¶ 32, 137 P.3d 716. We conclude that

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                          STATE v. ALLGIER
                        Opinion of the Court

making threats to the welfare of appointed counsel may constitute
extreme conduct justifying a forfeiture of counsel. Whether a
particular course of threatening behavior merits forfeiture will vary
according to the particular case. And even when conduct
legitimately could be viewed as a forfeiture, courts may err on the
side of solicitude to the right to counsel and permit a substitution of
counsel. Indeed, notwithstanding Mr. Allgier’s threats to his prior
appellate counsel, which might have merited a forfeiture of his right
to counsel, this court elected to allow him another opportunity to
collaborate with new counsel in prosecuting his appeal.
     ¶11 We acknowledge that many of the cases involving a
forfeiture of counsel may have involved somewhat more extreme
conduct (at least more extreme than the conduct of which we are
presently aware in this case),3 but most of those cases involved
forfeitures during trial proceedings. One case of forfeiture on appeal
involved a specific death threat, but the forfeiture in that case
resulted in the loss of any assistance on appeal. See United States v.
Thompson, 335 F.3d 782, 784 (8th Cir. 2003). The defendant failed to
file his brief and the appeal was dismissed, with the consequence
that he was precluded in a subsequent appeal from raising any
arguments he could have presented in the first appeal. Id. at 785. As
explained below, the potential consequences, if any, of a loss of
counsel in this case are far less severe. We accordingly agree with
the Supreme Judicial Court of Massachusetts that the circumstances
warranting a determination of forfeiture may vary according to the
procedural context. See Commonwealth v. Means, 907 N.E.2d 646,
659–61 (Mass. 2009), and the cases cited therein. Although the right
to counsel persists throughout trial and the first direct appeal of
right, the consequences of deeming that right forfeited plainly vary
according to the stage of the proceedings. A forfeiture shortly after
the commencement of trial without a declaration of mistrial could
have a severe impact on the defendant’s opportunity to rely on the
presumption of innocence and to avoid a conviction in the first
instance. An appeal presents a narrower opportunity for a
defendant who has pled or been found guilty to challenge isolated
aspects of the trial proceedings. Appellate proceedings are also far




   3
     The court is reluctant to seek further and more specific informa-
tion regarding threats to counsel because it is concerned that action
might further endanger counsel.

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                        Opinion of the Court

less dependent on regular communication between counsel and the
defendant.
     ¶12 In this particular case, Mr. Allgier pled guilty, which
substantially reduced the available issues on appeal, and he already
has received the fundamental benefits of counsel on appeal in the
form of a brief submitted by counsel that addresses those challenges.
The only remaining stages of appellate review in which counsel
would participate are the filing of a reply brief and oral argument.
The purpose of a reply brief is to permit a response to contentions
raised by an appellee for the first time in its brief in opposition.
Consequently, in the absence of any new contentions, attorneys on
appeal legitimately may forgo the filing of a reply brief without
depriving their clients of the right to counsel. Oral argument is for
the benefit of the court. It traditionally conducts argument for cases
presented to it, but it retains the discretion to decline to conduct oral
argument when it determines that argument is not essential. Mr.
Allgier has no constitutional right to orally expound on arguments
already presented in his brief. Thus, the practical scope of any
remaining right to counsel on appeal in this particular case is much
more limited than at any other phase of the trial or appellate
proceedings. Finally, this court can take additional steps to alleviate
the consequences of the loss of counsel at this stage of the
proceedings by carefully scrutinizing any contentions that may have
been raised in the State’s brief that were not already addressed in
the initial brief on appeal.
     ¶13 We conclude that Mr. Allgier has engaged in persistent
dilatory conduct by filing multiple pro se motions that did not
contain adequate allegations and documentation of a substantial
basis to warrant the disqualification of counsel. The course of his
conduct throughout the appeal has caused delays in the appellate
proceedings. And it appears similar conduct may have caused
delays in the trial proceedings. More importantly, Mr. Allgier has
made a series of threats to multiple appointed appellate attorneys,
and his pro se pleadings provide the court with no reason to assume
that the appointment of another attorney would avoid similar
problems.4


   4
     Appointment of new counsel on appeal, even if warranted,
could generate additional complications in the briefing process. It
is unclear whether new appellate counsel may be required to adopt
the arguments of another attorney with whom they are not profes-
                                                     (continued...)

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                          STATE v. ALLGIER
                        Opinion of the Court

     ¶14 Under the unique procedural posture presented by this
appeal, where the only remaining step in the proceedings is the
filing of a reply brief, Mr. Allgier has forfeited his right to counsel
for the remainder of the appellate proceedings. He may file a pro se
reply brief within thirty days of the date he receives this decision.
That brief must comply with applicable word or page limits or it will
be refused by the Clerk of Court. Mr. Allgier should also strive to
comply with all other applicable rules to the extent he is able. The
court will not conduct oral argument. It will take this case under
advisement upon the filing of a timely reply brief or the failure to
timely file that brief.




   4
    (...continued)
sionally associated. We might be required to discard the briefs
already filed and restart briefing, or at least permit new counsel to
raise new arguments in the reply (followed by a sur-reply by the
State), in a manner that would constitute a de facto restart of the
briefing process—with no assurance that Mr. Allgier would allow
new counsel to reach the same stage of briefing that his current
counsel managed to achieve. Mr. Allgier already has made it clear
that he perceives a need for, and likely would demand, presentation
of arguments that are not susceptible to appellate review, which
could generate sources of disputes with new appellate counsel. In
any event, there is a real prospect that an attempt to appoint yet
another attorney to represent Mr. Allgier on appeal would leave him
in a worse, rather than a better, position.

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