Opinion
No. 37957-1-II.
Filed: September 9, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-00337-1, Robert L. Harris, J., entered June 5, 2008.
Affirmed by unpublished opinion per Arm-strong, J., concurred in by Penoyar, A.C.J., and Houghton, J.
Unpublished Opinion
Charles R. Bilyeu seeks a new sentencing hearing, arguing that the trial court erred by denying him his constitutional right to represent himself at his resentencing hearing. Because Bilyeu did not unequivocally ask to represent himself, the trial court did not err in denying the request. We affirm.
FACTS
On February 22, 2007, the police arrested Bilyeu for heroin possession and using drug paraphernalia. On that date, Bilyeu identified himself as Roger, his brother. Under this false identity, Bilyeu entered into a plea agreement on March 14, 2007. Based on his brother Roger's offender score of zero, Bilyeu agreed to plead guilty to one count of possession of a controlled substance with zero to six months of incarceration. On March 14, 2007, the trial court accepted the guilty plea and sentenced Bilyeu to 45 days' confinement.
When Roger Bilyeu discovered that his brother had used his identity, he notified the police department. The trial court then granted the State's motion to vacate Bilyeu's previous judgment, changed the documents to reflect Bilyeu's true personal information, and resentenced Bilyeu based on his correct offender score. At that hearing, Bilyeu moved to withdraw his guilty plea. After that motion was denied, the trial court discussed appointing attorney Robert Vukanovich to represent Bilyeu in the resentencing hearing. Bilyeu objected:
In a separate proceeding, the State charged Bilyeu with and convicted him of identity theft, forgery, and criminal impersonation for his fraud on the court.
Vukanovich served as Bilyeu's counsel in the identity theft, forgery, and criminal impersonation proceedings.
[THE DEFENDANT]: I've — I've tried to fire him three times already, Your Honor. I don't need Mr. Vukanovich to do nothing [sic] for me anyhow . . .
I would object to that, Your Honor. Mr. Vukanovich has done absolutely nothing. He — when I had a jury trial with him, but the witnesses get up there and then he would just sit there and look at the ceiling, basically, he wouldn't even pay attention to what's [sic] going on.
He's — he's — he's — he's totally out of line. I — I wouldn't even been [sic] found guilty on account of him.
He even told the jury that I was guilty of — and I'm sitting there saying not guilty, and he even told the jury himself that I was guilty. And — and — and that raises a big conflict on — on — on (indiscernible).
I wouldn't — I'd rather represent myself.
Report of Proceedings (May 28, 2008) at 23-24. The trial court nonetheless appointed Vukanovich to represent Bilyeu at the resentencing.
In a later hearing, Bilyeu admitted that he lied about his identity in the previous sentencing hearing. The court sentenced him to 13 months' confinement based on his correct offender score of 7.
ANALYSIS
Both the Washington State Constitution and United States Constitution give a defendant the right to waive counsel and represent himself in a criminal proceeding. State v. Woods, 143 Wn.2d 561, 585, 23 P.3d 1046 (2001); U.S. Const. amend. VI; Wash. Const. art. I, § 22. To exercise the right, the defendant must unequivocally request to proceed pro se. Woods, 143 Wn.2d at 586. Requiring an unequivocal request protects the trial court from manipulative indecisiveness by the defendant regarding representation. State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). We review a trial court's decision to deny self-representation for an abuse of discretion. State v. Hemenway, 122 Wn. App. 787, 792, 95 P.3d 408 (2004).
Bilyeu argues that he unequivocally asked to represent himself and that the trial court should have instructed him on the risks of self-representation, clarified his understanding of those risks, and then allowed him to decide whether or not he still wished to proceed pro se. Bilyeu's statement during the hearing, however, was not an unequivocal request to represent himself. Rather, the statement was more Bilyeu's expression of anger about Vukanovich's representation of him in prior proceedings. And although Bilyeu did say that he would rather represent himself, he did so only after listing his attorney's many perceived flaws during the trial. Although Bilyeu was unequivocal in his condemnation of the attorney, he was not unequivocal in asking to represent himself. See Woods, 143 Wn.2d at 587 (holding that defendant's request to represent himself was not unequivocal because it "merely revealed the defendant's displeasure with his counsel's request to continue the trial for a lengthy period of time") and State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995) (request to proceed pro se denied because it was only an "expression of frustration" with defense counsel's request for a continuance, not an unequivocal assertion). The trial court did not err in appointing attorney Vukanovich to represent Bilyeu at the resentencing.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and PENOYAR, A.C.J., concur.