Opinion
No. 59838-4-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-08776-1, Catherine D. Shaffer, J., entered March 21, 2007.
Affirmed by unpublished per curiam opinion.
Leonard Blatt appeals the denial of his application for a writ of habeas corpus, contending that municipal court judges deprived him of his right to counsel during his trial for driving without a license and obstructing a police officer. We hold that Blatt unequivocally waived his right to representation by counsel at trial and that a pretrial judge's premature discharge of Blatt's appointed counsel before completing the waiver colloquy did not prejudice Blatt. We do not address Blatt's additional nonconstitutional claim of ineffective assistance by his standby counsel because he did not raise the claim in his petition for the writ and it is therefore outside the scope of relief available here. Blatt's pro se supplemental arguments also fail. We affirm.
On February 7, 2006, Seattle Police officer Mark Wong observed a van drive through an intersection from a turn only lane. Officer Wong stopped the van and spoke with the driver, Leonard Blatt. Blatt gave his name but could not provide a driver's license or other identification. As Officer Wong returned to his car to confirm Blatt's identity, Blatt escaped on foot. Officer Wong learned that Blatt had no driver's license.
The City of Seattle charged Blatt with driving without a license and obstructing an officer. The matter came on for pretrial hearing on December 11, 2006. Appointed counsel Hope Baldwin represented Blatt. Despite the hearing's limited purpose of determining whether the matter would proceed by trial, plea, or continuance, Blatt attempted to raise other issues.
Blatt argued that jurors licensed to drive were "voting constituents of the plaintiff corporation." He stated that the court lacked authority because it could sit only in admiralty, equity or common law, and contended Seattle municipal judges should recuse themselves because he was suing them over an earlier arrest. Blatt also argued he could not be prosecuted because he pleaded "demur" rather that not guilty, and took issue with emblems of the City of Seattle and State of Washington in the courtroom. As he advanced these and other theories, Blatt instructed Ms. Baldwin not to speak for him.
Clerk's Papers at 61-62.
The prosecutor objected to Blatt's pro se arguments because Ms. Baldwin was counsel of record. Blatt responded by denying that he was represented and denying he had ever requested counsel.
The court told Blatt that he had the choice of allowing present counsel to represent him, hiring other counsel, or representing himself. Blatt rejected these choices, demanding instead "assistance of counsel." According to him, "assistance of counsel" would not involve appointed counsel speaking for him. Blatt also argued that he could not represent himself because "I am myself." When the court attempted to inquire into Blatt's education and knowledge of the law, Blatt responded that the City could not prosecute him as it had unclean hands. His position was based on the assertion that the City would not prosecute women for falsely claiming domestic violence. Following these remarks, the court authorized Ms. Baldwin to withdraw from the case. The parties then went off the record to complete paperwork.
Clerk's Papers at 74.
When the parties went back on the record, it appears that the prosecutor began questioning Blatt, using a form utilized to provide warnings for defendants waiving counsel. The court resumed questioning from this form after the prosecutor stopped asking questions. The questioning included information about the disadvantages of self-representation, the need to follow technical rules, and the applicable penalties. Blatt refused to answer questions or engage in the colloquy in a responsive way. The court noted that Blatt refused to sign the warnings form and made a finding that Blatt waived his right to counsel.
Trial began several weeks later before another judge of the municipal court. Blatt was present and explained that he had discharged Ms. Baldwin because attorney representation would vitiate his demur. Blatt also asserted that neither the pretrial nor trial judges had timely filed their oaths of office, which he argued rendered them incompetent to rule and even guilty of criminal acts.
Ms. Baldwin arrived in court as Blatt continued with similar arguments. The court asked if she could provide assistance to Blatt. Blatt agreed to accept Ms. Baldwin's assistance as long as she did not try to represent him. The court suggested Blatt confer with Ms. Baldwin outside the courtroom. Instead, Blatt questioned her in court about the court's rulings on his jurisdictional arguments to make a record, he said, for appeal. Ms. Baldwin's answers were not to Blatt's satisfaction, and he pronounced her incompetent. The court, nonetheless, suggested Blatt use the upcoming half-hour recess to either obtain Ms. Baldwin's advice about jury selection or decide if he wanted her to conduct it for him.
After the recess, Ms. Baldwin told the court she had tried to consult with Blatt about jury selection and the jury trial process. Blatt refused her advice. Ms. Baldwin sought guidance from the court as to her proper role, citing case authority she believed pertinent to the situation. The court questioned Blatt about the situation. He confirmed that he did not want Ms. Baldwin's opinions or advice, believed her incompetent, and accused her of wanting to serve him to the prosecution on a platter. When the court asked if he was discharging Ms. Baldwin, he said no, he just was saying she was not assisting him. The court then excused Ms. Baldwin.
See State v. Silva, 108 Wn. App. 536, 31 P.3d 729 (2001).
As jurors were brought into the courtroom, Blatt attempted to hand the judge a notice of lien on her property. He announced that the proceedings were unfair and said he would leave. Blatt briefly left, then returned and said he would repeat saying that the proceedings were unfair and would not participate. Blatt began disrupting voir dire proceedings. He was removed from the courtroom and taken to a nearby holding area. When the court asked that Blatt be returned to the courtroom, an officer reported that Blatt refused and demanded to be dragged into the courtroom. Blatt eventually returned on his own, only to renew his disruptive behavior. He was again moved to the holding area. At each juncture during trial, the court inquired if Blatt wanted to return, but he refused.
A jury found him guilty, as charged. The court sentenced him.
Blatt petitioned for a writ of habeas corpus, arguing that the municipal court judges deprived him of his right to counsel at trial. A superior court judge denied the writ.
This appeal follows.
Unequivocal Waiver of the Right to Counsel
We review de novo the denial of a habeas corpus petition. A habeas petitioner must show prejudice resulting from constitutional error. The sole issue raised in Blatt's petition was whether the municipal court forced him to proceed to trial pro se without a valid waiver of his right to counsel. Accordingly, we must determine whether the trial court abused its discretion in finding a waiver.
In re Pers. Restraint of Becker, 96 Wn. App. 902, 905, 982 P.2d 639 (1999), aff'd, 143 Wn.2d 491, 20 P.3d 409 (2001).
In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103 (1982).
State v. Sinclair, 46 Wn. App. 433, 437, 730 P.2d 742 (1986).
Blatt first contends that the municipal court erred by finding a waiver because he never expressed an unequivocal desire to proceed without counsel. We disagree.
The Sixth and Fourteenth Amendments to the United States Constitution afford a defendant the right to assistance of counsel. A defendant also has a right to self-representation, albeit of lesser magnitude than the right to counsel. Because of the tension between these two rights, a defendant wishing to proceed pro se must make an unequivocal request to proceed without counsel and the trial court must ensure that the waiver of counsel is knowing, voluntary, and intelligent. There is a strong presumption against waiver of counsel. In deciding whether there is a waiver, we view the record as a whole.
Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
State v. DeWeese, 117 Wn.2d 369, 376-78, 816 P.2d 1 (1991).
State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982).
State v. Stenson, 132 Wn.2d 668, 741-42, 940 P.2d 1239 (1997).
Blatt argues the record shows he equivocated in his desire to discharge Ms. Baldwin. He points to his statements that he wanted "assistance of counsel" but not "representation by counsel," and his further claim that he could not represent himself. Blatt argues the record shows no more than mere dissatisfaction with counsel, which does not establish an unequivocal waiver. The record shows otherwise.
See State v. Garcia, 92 Wn.2d 647, 655, 600 P.2d 1010 (1979).
Blatt objected to the phrases "pro se" and "representing himself" not because he wanted an attorney to represent him, but because he believed it literally impossible for him to "represent" himself. As Blatt explained on the morning of trial, his actual position regarding Ms. Baldwin or any attorney representing him was consistent. He emphatically refused to allow any attorney to speak for him and demanded to make all arguments himself because he believed allowing counsel to represent him waived jurisdictional arguments. In Blatt's view, he wanted only "assistance" of counsel, which he considered entirely different from "representation" by counsel. Blatt made it clear he was not even requesting true "hybrid" representation, where both the defendant and an attorney participate in the presentation and share the duties of managing a defense. Instead, Blatt wished to control his litigation himself, with any assisting attorney relegated to the subordinate role often described as "standby counsel." Contrary to Blatt's claim in the trial court, however, there is no constitutional right to standby counsel.
See State v. Buelna, 83 Wn. App. 658, 661, 922 P.2d 1371 (1996).
DeWeese, 117 Wn.2d at 379; State v. Hightower, 36 Wn. App. 536, 541, 676 P.2d 1016 (1984).
The circumstances here are similar to cases in which courts have held that a defendant waives his right to counsel by unreasonably refusing to continue with appointed counsel after having been informed of his option to either proceed with appointed counsel or represent himself. Viewing the Page 8 record as a whole, the trial court did not abuse its discretion in finding Blatt unequivocally waived his constitutional right to representation by counsel.
See Sinclair, 46 Wn. App. at 437; United States v. Massey, 419 F.3d 1008, 1009-10 (9th Cir. 2005); Johnson v. State, 556 P.2d 1285, 1292 (Okla.Crim.App. 1976).
See State v. Hegge, 53 Wn. App. 345, 348-49, 766 P.2d 1127 (1989); see also United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995) (request to be "lead counsel" with "appointed counsel to assist" in the defense constitutes an unambiguous request to proceed pro se).
Timeliness of the Waiver Colloquy
Blatt alternatively argues that even if his waiver was unequivocal, it was not knowing, intelligent and voluntary because the necessary warnings at the pretrial hearing came after the court discharged his appointed counsel, Ms. Baldwin. We again disagree.
Ordinarily, a petitioner challenging a conviction in a habeas petition bears the burden of establishing that, more likely than not, he sustained actual prejudice stemming from constitutional error. Blatt does not expressly address this burden, but appears to rely on the rule that a complete denial of counsel at trial is a "structural error" that can never be harmless. In raising such a claim of structural error on collateral attack, showing specific prejudice is not required because "the error gives rise to a conclusive presumption of prejudice."
In re Pers. Restraint of Hews, 99 Wn.2d 80, 87-88, 660 P.2d 263 (1983); Hagler, 97 Wn.2d at 826.
See State v. Frost, 160 Wn.2d 765, 779-80, 161 P.3d 361 (2007), cert. denied, 128 S. Ct. 1070 (2008).
In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992).
However, unlike a complete denial of counsel at trial, a denial of counsel that occurs at a preliminary proceeding is not a structural error and therefore is subject to a constitutional harmless error analysis. A constitutional error is harmless if the reviewing court is satisfied beyond a reasonable doubt that the outcome would have been the same in the absence of the error.
Frost, 160 Wn.2d at 782 (citing Arizona v. Fulminante, 499 U.S. 279, 306-07, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
Here, any error in the timing of the colloquy was harmless beyond a reasonable doubt because this record is devoid of any prejudice to Blatt either at this pretrial hearing or after.
Once the court allowed Ms. Baldwin to leave the pretrial hearing, the prosecutor and court proceeded directly to the colloquy, which contained the necessary information informing Blatt of the nature and classification of charges, the maximum penalty, and of the existence of technical and procedural rules that would bind him at trial. By the time the pretrial court entered its finding that Blatt waived counsel, the colloquy was complete with no indication that Blatt's position rejecting representation by an attorney had changed. There is nothing in this record indicating any prejudice to Blatt, given the limited nature of this pretrial hearing.
City of Bellevue v. Acrey, 103 Wn.2d 203, 210-11, 691 P.2d 957 (1984); Silva, 108 Wn. App. at 542.
At the scheduled trial several weeks later, Ms. Baldwin returned to court before trial actually commenced. Contrary to Blatt's contention, the trial judge explored the possibility that Ms. Baldwin would actually represent Blatt at trial, as evidenced by the court's comments about Ms. Baldwin conducting jury selection. By the time the trial judge excused Ms. Baldwin, for a second time, it was abundantly clear that, having been warned of everything necessary for a knowing, voluntary and intelligent waiver of counsel, Blatt still absolutely rejected any form of representation by counsel. Moreover, it is also obvious from our review of the record that despite his claims to the contrary, Blatt did not even want Ms. Baldwin's service as standby counsel.
In short, Blatt has failed to show any prejudice based on the timing of the colloquy in relation to discharge of counsel in this case.
Ineffective Assistance of Standby Counsel
For the first time on appeal, Blatt contends Ms. Baldwin violated her duty of loyalty as standby counsel when, on the day of trial, she disclosed that Blatt did not want her advice, desired no actual assistance from her as standby counsel and referenced the pretrial judge's earlier views on those topics. We decline to address this new claim.
First, the statutory writ of habeas corpus is an original, civil proceeding. In such a proceeding, the issues are defined by the allegations raised in the application for the writ. To allow Blatt to add an entirely new claim for relief now would deprive both the city and the superior court of the opportunity to respond to such claims in the manner provided by the habeas statute.
See RCW 7.36.030(3) (petition must specify "in what the illegality consists.").
See Honore v. State Board of Prison Terms Paroles, 77 Wn.2d 660, 663-64, 466 P.2d 485 (1970) (habeas proceeding can include introduction of new evidence).
Second, unlike in a direct appeal or even in a personal restraint petition, relief from a conviction by writ of habeas corpus is limited to supplying a remedy for the violation of constitutional rights. As noted above, there is no constitutional right to standby counsel. Moreover, in raising this claim, Blatt has not identified a manifest error affecting a constitutional right that this court could choose to exercise its discretion and consider under RAP 2.5(a)(3).
RCW 7.36.130(1); see In re Pers. Restraint of Runyan, 121 Wn.2d 432, 440, 444-45, 853 P.2d 424 (1993) (comparing constitutional and statutory habeas remedy with other post-conviction remedies).
See DeWeese, 117 Wn.2d at 379, State v. Silva, 107 Wn. App. 605, 626, 27 P.3d 663 (2001).
Pro Se Claims
Blatt has filed additional claims in a pro se statement of supplemental grounds. None warrant relief.
We have already addressed the right to counsel issue raised in the petition for the writ.
Finally, Blatt's jurisdictional claims have no basis. RCW 3.50.020, which provided the municipal court with jurisdiction to decide the charges of which he was convicted, specifies that violations of city ordinances that occur within the city's territorial limits are within the municipal court's jurisdiction. The violations here were committed within Seattle's city limits.
See Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 104, 52 P.3d 485 (2002) (A municipal court exercises the jurisdiction affirmatively granted it by the legislature.).
We affirm the denial of the writ of habeas corpus.