Opinion
No. 63398-8-I.
September 13, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-07599-7, Jeffrey M. Ramsdell, J., entered March 25, 2009.
Affirmed by unpublished opinion per Leach, J., concurred in by Dwyer, C.J., and Cox, J.
Jason W. Sandberg appeals his felony conviction for failing to register as a sex offender. He contends that the trial court erroneously granted his request to waive his right to assistance of counsel and proceed to trial pro se. Because he unequivocally and timely requested to proceed to trial pro se, we affirm.
Background
Because of Sandberg's prior convictions for third degree rape of a child and failure to register as a sex offender, RCW 9A.44.130 requires that he register as a sex offender. On May 16, 2008, Sandberg reported to the King County Sheriff's Office but refused to complete the sex offender registration change of address form. He also failed to report back to the sheriff's office between May 19 and July 17 of 2008. He was charged with one felony count of failure to register as a sex offender.
Subsection (1)(a) provides, "Any adult . . . residing whether or not the person has a fixed residence . . . in this state who has been found to have committed or has been convicted of any sex offense . . . shall register with the county sheriff for the county of the person's residence."
On the day of trial, Sandberg moved to dismiss on the grounds that his speedy trial rights had been violated. The court denied the motion. Sandberg then moved to proceed pro se, prompting the following colloquy:
THE COURT: Let me ask you this: Have you ever studied law before?
MR. SANDBERG: No, Your Honor.
THE COURT: Okay. Have you ever represent[ed] yourself or anyone else in a criminal action?
MR. SANDBERG: Right now I am, yes.
THE COURT: Okay. Besides today?
MR. SANDBERG: Yes.
THE COURT: Have you ever represented yourself in a trial before? Tell me a little bit about that.
MR. SANDBERG: I'm pro se on my `06 cause number.
THE COURT: Okay. What charge is that?
MR. SANDBERG: Failure to register.
. . . .
THE COURT: Do you want to help me understand better?
MR. SJURSEN: Yes. Your Honor, I believe there's a motion to withdraw his plea. He is representing himself on that.
George Sjursen was Sandberg's appointed counsel.
George Sjursen was Sandberg's appointed counsel.
. . . .
THE COURT: Okay, all right. Let me ask you this. I'm going to ask the State, if I can, and I realize you may not be the prosecutor, but you can actually state what the charges are. Go ahead.
MS. MCCULLOCH: I do know. I'm familiar with the case, Your Honor.
THE COURT: All right, thank you.
MS. MCCULLOCH: And his other case as well. Your Honor, the charge in this matter is failure to register as a sex offender, in that he did fail to report weekly as required for a person who has been registered as homeless.
THE COURT: And can you tell me what the standard range is if he were to be found guilty.
MR. SJURSEN: I believe it's 14 to 18 months, Your Honor.
. . . .
THE COURT: Okay. And sir, can you tell me what the maximum penalty is for that charge.
MR. SANDBERG: Five years, $10,000 fine.
. . . .
THE COURT: All right, excellent. All right, and you understand that if in fact you are going to be representing yourself, the trial court cannot in any way tell you how to try your case, cannot give you any kind of legal advice or any direction in that?
MR. SANDBERG: That's right, I understand that, Your Honor. I fully understand that. I just want to say the only reason why I'm asking to go pro se, Your Honor, is because I feel — I'm not disputing the facts of the case of the failure to register. What I'm disputing is my side of the story. That's why my lawyer, I've been trying to tell for months, I'm not disputing the fact of the failure to register. But there was something that happened, and he won't present the defense, and I have a right to.
. . . .
THE COURT: I want to make sure that you fully understand what it means to have you represent yourself before I can actually grant your request. Are you familiar with the rules of evidence?
MR. SANDBERG: Most of it, yes.
THE COURT: Can you tell me how that has come about.
MR. SANDBERG: I got — I got rules of evidence in the law books and everything. I mean, I'm not a lawyer, Your Honor. I know where you're going with this. But I feel that I want to represent myself. I feel that my due process rights already have been violated. I want to represent myself. Like I said on record, you know what I mean — you know what, that's my — he's not representing me. Now if you want to say you can't go pro se and you want to give me new counsel, well then that's fine. But I want to present a defense, and he's not doing that.
THE COURT: You have indicated to the Court, and I think you have every right to represent yourself. But before I can grant that request, the law requires me to ask you these questions. Then the law requires me to make a determination that you are unequivocally asking to represent yourself, that you fully understand and know what you're doing, that you fully understand the consequences of representing yourself, that you understand that the rules of evidence will govern, any evidence will govern you at trial. The rules of criminal procedure will also govern as well.
It's my obligation to make sure that you understand that. It's my obligation to strongly recommend that you not represent yourself. You have counsel. You've talked about this before. You understand you don't have the right to choose any attorney. If you want to represent yourself, that's something that you have every right to do. But you will be responsible assuming this goes to trial to doing jury voir dire, jury selection, to follow all the rules. The Court will not be in a position to give you any kind of legal advice. If in fact you are found guilty, it's important that you understand what all the consequences are, which the State has just articulated to you what that might be.
So I am simply making sure that in light of the penalty and in light of the charges and based on whatever information you have in terms of how to proceed to trial, that you fully understand what that means and that you are fully and completely and unequivocally wanting to go to trial. That's all I'm asking you.
MR. SANDBERG: Well, Your Honor, I just want to address the Court. If my lawyer would go with the defense like you just said on the record, as a defendant, I have the right to present any defense to trial. I mean, I told him months ago this is the defense I want to use. You know, he doesn't even say — there's no dispute about the failure to register. The point is what happened, and he knows that. He won't go out there. 15 hours of investigation services, 15 hours. And the State's — I mean, he can't even get a hold of the State's witnesses for some reason. I say why don't you get a subpoena.
THE COURT: The real issue that I'm addressing right now is whether or not it is your desire. You came out here, you've asked the Court to go pro se. I'm simply wanting to make sure that you understand what that means and that you have the ability to do so. Even if you don't, that you fully do understand and that you are adamant that this is what you want to do. My question is: Is this what you want to do? Do you want to represent yourself?
MR. SANDBERG: That's right, Your Honor.
THE COURT: All right. And do you want standby counsel?
MR. SANDBERG: Yes.
THE COURT: All right. Then I am going to find that you have knowingly, voluntarily and unequivocally waived your right to counsel, that this is what you wish to do, that you are aware of the nature of the charges, the maximum penalty. You're aware of what the standard range might be. You have indicated that you're currently representing yourself in another matter. Therefor[e] I will make that finding. I am, counsel, going to appoint you as standby counsel. It's important that you understand that does not mean he is your attorney per se, but he is there to assist you in any way that he can.
Sandberg subsequently moved for a continuance, which the court granted.
In a subsequent hearing the court again inquired about Sandberg's commitment to proceeding pro se:
THE COURT: All right. Mr. Sandberg, let me ask you a few questions. Is it still your intention, and I know you have been in front of me on a number of occasions, as well, to go pro se?"
SANDBERG: Of course. I am not giving that right up.
THE COURT: All right. I want to make sure. I know that you were very strong in your opinion —
SANDBERG: Oh, yes.
THE COURT: — before this court before, but once again, I just want to make sure that that is still your desire.
Sandberg eventually stipulated to a bench trial, and the court found him guilty of failing to register as sex offender.
He appeals the court's decision to grant his demand to proceed to trial pro se.
Standard of Review
We review for an abuse of discretion a trial court's decision to grant a defendant's motion to waive his right to assistance of counsel and to proceed to trial pro se.
State v. Modica, 136 Wn. App. 434, 442, 149 P.3d 446 (2006) (holding that the trial court did not abuse discretion in granting criminal defendant's motion to proceed to trial pro se), aff'd, 164 Wn.2d 83, 186 P.3d 1062 (2008).
Analysis
Sandberg argues that his request to proceed pro se was equivocal and therefore invalid. We disagree.
U.S. Const. amends. VI and XIV and the Wash. Const. art. I, § 22 guarantee criminal defendants the right to counsel and the right to self-representation. A waiver of the right to counsel must be made knowingly, voluntarily, and intelligently. A demand to proceed to trial pro se must be stated unequivocally in the context of the record as a whole. Notably, a request to proceed pro se as an alternative to substitution of new counsel does not by itself make an otherwise unequivocal request equivocal.
Modica, 136 Wn. App. at 440-41.
City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984).
State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991); Modica, 136 Wn. App. at 441 (citing State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995)).
State v. Stenson, 132 Wn.2d 668, 740-41, 940 P.2d 1239 (1997).
When a criminal defendant makes an unequivocal demand to proceed pro se, "the trial court . . . assume[s] responsibility for assuring that decisions regarding self-representation are made with at least minimal knowledge of what the task entails." A trial court typically accomplishes this by conducting a colloquy with the defendant on the record. "This colloquy should include a discussion about the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of the accused's defense."
Acrey, 103 Wn.2d at 210.
Acrey, 103 Wn.2d at 211.
Modica, 136 Wn. App. at 441.
The record in this case shows that Sandberg decisively and unequivocally requested to proceed pro se. After Sandberg indicated his desire for self-representation, the court asked whether Sandberg understood the nature of the charge and the possible maximum penalty associated with it. It cautioned him against exercising his right to self-representation, warned him that it would be unable to give him legal advice, and informed him that the normal rules of evidence and criminal procedure would apply. The court explained that it had "to make a determination that [he was] unequivocally asking to represent [himself]" and that he "fully underst[ood] the consequences of [his decision]." When asked after this colloquy and in subsequent hearings if he still wished to proceed pro se, Sandberg answered in the affirmative. The trial court sufficiently established the validity of Sandberg's waiver of the right to counsel and demand to proceed pro se.
Sandberg disagrees, asserting that his request was equivocal for two reasons: that he made it as an alternative to a request for substitution of new counsel and that he expressed his preference for defense counsel to present his defense. These arguments are unavailing.
First, the case upon which Sandberg relies, State v. Stenson, is factually distinguishable. There, the defendant, charged with aggravated murder in a case where the State sought a sentence of death, orally moved to proceed pro se only after the trial court denied his primary motion to substitute counsel. Stenson stated, "I would formally make a motion then that I be able to allow [sic] to represent myself. I do not want to do this but the court and the counsel that I currently have force me to do this." The trial court denied this motion. In a pleading drafted by Stenson filed several days later, he requested the appointment of new lead counsel and other relief but did not ask to represent himself. Our Supreme Court agreed that Stenson's request was equivocal, observing that
132 Wn.2d 668, 940 P.2d 1239 (1997).
Stenson, 132 Wn.2d at 739 (alteration in original).
almost all of the conversation between the trial judge and the Defendant concerned his wish for different counsel. He repeatedly discussed which new counsel should be assigned. He explained he had contacted a number of attorneys and had asked for permission to talk with his newly-selected counsel. He told the trial court he did not want to represent himself but that the court and his counsel had forced him to do that. More importantly, the Defendant did not refute the trial court's final conclusion that he "really [did] not want to proceed without counsel."
Stenson, 132 Wn.2d at 742 (alteration in original).
Stenson, 132 Wn.2d at 742 (alteration in original).
In this case, Sandberg's request for new counsel does not compare to the lengthy and detailed discussions Stenson had with the court regarding different counsel. Sandberg only vaguely referenced substituting counsel well after he made his pro se demand. In addition, the defendant in Stenson prefaced his pro se demand with "I do not want to do this." Sandberg, conversely, repeatedly affirmed his unwavering desire to proceed pro se both in the initial colloquy and in subsequent hearings.
Second, dissatisfaction with defense counsel's performance does not indicate ambivalence when a criminal defendant's demand to proceed pro se is otherwise clearly made. For instance, inState v. DeWeese, our Supreme Court held that a defendant's request to proceed pro se was unequivocal despite being motivated by the defendant's frustration with the attorney's performance.
117 Wn.2d 369, 378, 816 P.2d 1 (1991) (defendant's remarks that he had no choice but to represent himself rather than remain with appointed counsel did not amount to equivocation).
Similarly, we conclude that Sandberg unequivocally demanded to proceed to trial pro se.
Sandberg raises several additional issues in his three-page statement of additional grounds. These include general allegations that he was denied an opportunity to interview witnesses and denied access to legal resources needed for his self-representation. Sandberg also asserts that his offender score was miscalculated too high. While a defendant is not required to cite to the record or authority for his statement of additional grounds, "this court is not required to search the record to find support for the defendant's claims." Here, Sandberg does not sufficiently explain the factual basis for his claims to allow for any meaningful review.
State v. Meneses, 149 Wn. App. 707, 716, 205 P.3d 916 (2009), aff'd, No. 83172-6, 2010 WL 3341263 (Wash. August 26, 2010).
Conclusion
Because Sandberg unequivocally demanded to proceed pro se, the trial court did not abuse its discretion in granting his request.
Affirmed.
We concur.