Opinion
No. 61254-9-I.
April 6, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-03489-3, Dean Scott Lum, J., entered February 8, 2008.
Affirmed by unpublished per curiam opinion.
A jury convicted Undra Dabney of bail jumping after he did not appear in court for a scheduling hearing. In support of this charge, the State offered four documents, two of which Dabney signed acknowledging that he was required to appear for a future court date. Because this evidence, viewed in the light most favorable to the State, permitted a rational trier of fact to find that Dabney knew he had to appear in court, we affirm his conviction. We also hold that the trial court did not abuse its discretion by denying Dabney's motion to proceed pro se. A reasonable judge could have found that the delay caused by his day-of-trial request outweighed his interest in representing himself. And Dabney's argument in his statement of additional grounds that he received ineffective assistance is not supported by the record. We affirm.
FACTS
The State charged Undra Dabney with possession of cocaine on May 17, 2007. On June 14, 2007, the trial court released Dabney on his own recognizance and ordered him to appear for a case scheduling hearing on July 12, 2007. Dabney did not appear, and the trial court ordered the King County superior court clerk to issue a bench warrant for his arrest. The clerk issued the warrant that day.
With Dabney back in custody, the trial court set a trial date. After two continuances and an omnibus hearing, the case was scheduled for trial on December 3, 2007. The State filed an amended information charging Dabney with possession of cocaine and bail jumping. Dabney moved to proceed pro se for the first time on December 3, 2007. The criminal presiding judge told him:
It's a little late. You've already got sent out to trial.
[Dabney]: Well, see, the thing is, is that my attorney seems to have some problem — well, he was having some problem contacting the medical officials, my probation officers. My whole case is wrapped up with you guys. But he's been having a problem doing it. And so again — I mean, from the start, I just feel the case was easy enough to be dealt with.
THE COURT: Well, the Court has to consider the timeliness of when a motion to proceed pro se is brought. Being brought on the day of trial is not considered timely under case law. If you had this problem from the onset, it should have been brought — has it ever been brought before, Counsel?
[COUNSEL]: No, Your Honor.
THE COURT: Motion's denied. You'll go back to Judge Lum.
[Dabney]: Me and him don't get along, though.
THE COURT: We're done.
Dabney renewed his motion to proceed pro se before the trial judge:
I felt this case was minimal enough for me to be able to do that. My probation officer, my medical reports — all the people who have been tied to this case haven't been reached. Even the medical reports aren't here.
All this stuff I thought would make this easier ain't been done, and I figured I could do a better job myself. I mean, because all the people who are familiar with my case — I have been through C-Cap, and I got a probation officer. Everybody connected with this case aren't here. They aren't here.
And I got in contact with him, and the guy in jail, who is an advocate who acquainted himself with my illness, and the attorney said he spoke with the guy, and he said he didn't talk to him.
And I don't know but they offered that service for people like me, to get this kind of stuff out of the way. And how can the information be exchanged if the guy says he talked to the attorney and the attorney says he didn't. And I felt if I was going to lose out like that, I was going to act pro se because the guy is right here to be talked to.
The trial court judge denied the motion as untimely. After presenting its cocaine possession case, the State offered four documents and called a witness in support of the bail jumping charge. The June 14, 2007 conditions of release for defendant stated that failure to appear for court hearings constitutes the crime of bail jumping. Dabney, or someone purporting to be him, signed the document on the signature of defendant line. A June 14, 2007 order set the case scheduling hearing for July 12, 2007, at 9:00 and stated that failure to appear would result in an arrest warrant and bail jumping charges. Dabney's lawyer signed this order, and there was a check next to the box indicating that the defendant was in custody. Like the conditions of release, the case scheduling order also had a signature by a person purporting to be Dabney above the line for the defendant's signature. Both signatures look similar and begin with a "U." The State also offered the bench warrant order and the bench warrant.
The State dismissed the cocaine possession charge at sentencing because the jury did not convict Dabney.
The State called Lynette Hynden, the King County superior court clerk's case information services manager, to explain the documents to the jury. Hynden did not know whether Dabney had received either verbal or written notice of the July 12, 2007 hearing. There was apparently no record of the June 14, 2007 proceeding, and Hynden did not know who signed the "signature of the defendant" line. Dabney's counsel asserted in his closing argument that the State had not offered evidence that the signatures on the documents were Dabney's. The jury convicted Dabney of bail jumping. He appeals from the judgment and sentence.
Dabney's counsel also argued that the prosecutor did not prove that the date of the hearing had not been added after the order setting the scheduling hearing was signed.
DECISION
Bail Jumping
Dabney argues that the State failed to produce sufficient evidence that he knew he was required to appear for his July 12, 2007 hearing. The State must prove each element of the charged crime beyond a reasonable doubt. In assessing a claim for insufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. "A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences therefrom." Circumstantial evidence is as reliable as direct evidence. We defer to the trier of the fact on the persuasiveness of the evidence.
State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995).
State v. Gohl, 109 Wn. App. 817, 823, 37 P.3d 293 (2001), review denied, 146 Wn.2d 1012 (2002).
Id.
State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000).
"Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state . . . and who fails to appear . . . is guilty of bail jumping." In order to prove knowledge, the State must prove that the defendant was notified of the required court date before he failed to appear. In State v. Ball, the State presented sufficient evidence for the jury to find that Ball knew he was required to appear by offering both the order setting bail and releasing Ball on the condition that he appear as directed and the notice of the sentencing hearing. The State did not call any witnesses, and Ball did not contest that he had signed the documents notifying him that he was required to appear. In State v. Carver, the knowledge element was satisfied when the defendant testified that he had been given notice of his next court date. In State v. Fredrick, the prosecutor testified that the defendant signed the document notifying her of her next court date, and the evidence showed the defendant called her attorney two days after missing her court date. From that evidence, the court held that a rational trier of fact could have found that the State proved the knowledge element beyond a reasonable doubt. In State v. Bryant, the State called a superior court deputy clerk to testify that the defendant was present in court when the judge ordered him to appear at a later date and that the defendant signed an order agreeing to appear for the omnibus hearing. There, too, the court held the evidence was sufficient for a rational trier of fact to conclude that a reasonable person in the defendant's position would have known of his or her duty to appear.
State v. Fredrick, 123 Wn. App. 347, 353, 97 P.3d 47 (2004).
97 Wn. App. 534, 535-37, 987 P.2d 632 (1999). Before 2001, RCW 9A.76.170 stated in pertinent part, "[a]ny person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping."
Id.
122 Wn. App. 300, 303, 93 P.3d 947 (2004).
123 Wn. App. 347, 350, 355, 97 P.3d 47 (2004).
Id.
89 Wn. App. 857, 870, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999).
Id. at 871.
Here, the State offered the June 14, 2007 order releasing Dabney on the condition that he personally appear for court hearings to avoid committing the crime of bail jumping. And the State offered the June 14, 2007 order notifying Dabney that his case scheduling hearing was set for July 12, 2007, and that his failure to appear would result in charges of bail jumping. Dabney did not testify. The case management officer did not know whether Dabney received verbal or written notice of the date of his case scheduling hearing. And she did not know whether Dabney signed the order setting the scheduling hearing or the order releasing him. Accordingly, the evidence offered by the State in this case is less persuasive than the evidence offered in Carver, Bryant, or Frederick.
In Ball, the State relied solely on documentary evidence to prove bail jumping. This case differs slightly from Ball, where it does not appear that provenance of the signature on the document was disputed. Here, Dabney, through his attorney, asserted in closing argument that the State failed to prove the signatures on the documents were his. Although offering additional evidence linking the defendant to either the signature or the court appearance on June 14 would have been the most reliable, and preferred, way for the State to prove its case, the State does not actually have to show that the defendant signed the documents. Instead, the State must prove that the defendant had been notified of the required court date prior to his failure to appear. Here, the State produced two documents with what appeared to be the same signature. They were signed by Dabney or someone purporting to be him. The case scheduling order was signed by his lawyer and indicated that he was in custody on the date the court signed both the order releasing him and the order setting the date for his next appearance. Although Dabney had no burden to prove he was not notified, his attorney never argued that he had not been notified of his duty to appear. Because we defer to the trier of fact regarding the persuasiveness of the evidence and must view the evidence in the light most favorable to the State, we conclude that a rational trier of fact could have found from this circumstantial evidence that Dabney had knowledge of his duty to appear.
Id. at 535-37.
Fredrick, 123 Wn. App. at 353.
Motion To Proceed Pro Se
Both the federal and state constitutions guarantee defendants the right to self-representation when they unequivocally assert that right within a reasonable time before trial. We review a trial court's ruling denying a motion to proceed pro se for abuse of discretion. A "trial court's discretion lies along a continuum that corresponds with the timeliness of the request." When the request is made shortly before trial, the court must balance the defendant's interest in self-representation against society's interest in the orderly administration of justice. A trial court may deny a request to proceed pro se made shortly before trial if it finds that the motion is made for improper purposes or that granting the request would obstruct the orderly administration of justice. In the absence of substantial reasons, a late request should generally be denied, especially if granting the request may result in delaying the trial.
U.S. Const. amends VI and XIV; Wash. Const. art. I, § 22. See also Faretta v. California, 422 U.S. 806, 818-19, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991).
State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
Id. at 107 ("[B]efore trial the defendant's interest in self-representation is paramount but as the trial gets closer and once it begins, the interest in the orderly administration of justice becomes weightier."). See also State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979).
Breedlove, 79 Wn. App. at 107.
Id. at 107-08.
State v. Garcia, 92 Wn.2d 647, 656, 600 P.2d 1010 (1979).
Dabney argues that the presiding and trial court judges erred by denying his requests as untimely without explicitly finding either an improper purpose or that granting his request would obstruct the orderly administration of justice. Although pro se motions made on the day of trial are not automatically untimely, the presiding and trial court judges acted within their discretion when they denied Dabney's motion. Here, both judges were able to determine the strength of Dabney's interest in self-representation by engaging him in a discussion about his reasons for asking to proceed pro se. From those conversations, it appeared that Dabney wanted to represent himself so that he could put on witnesses his attorney had not planned on calling and because he thought the case was easy enough for him to handle alone.
See State v. Stenson, 132 Wn.2d 668, 738, 940 P.2d 1239 (1997) (citing People v. Mogul, 812 P.2d 705, 708-09 (Colo.App. 1991) (rejecting rule that motion to waive counsel on the day of trial is per se untimely)), cert. denied, 523 U.S. 1008 (1998).
While a defendant has a valid interest in waiving counsel to call different witnesses and pursue alternative trial strategies, nothing in the record shows that the disagreement over trial strategy arose suddenly or unexpectedly or that Dabney could not have brought his motion earlier. And Dabney's last-minute request would have caused a delay in the trial until he could locate and subpoena the witnesses he wanted to call and the evidence he wanted to present. Accordingly, a reasonable judge could have concluded that Dabney's interest in self-representation was outweighed by society's interest in the orderly administration of justice, which would have been obstructed by Dabney's last-minute motion.
Statement of Additional Grounds: Ineffective Assistance of Counsel
In a statement of additional grounds for review, Dabney claims that his counsel provided ineffective assistance by failing to present a medical necessity defense to his bail jumping charges. In support of this claim, Dabney refers to a medical release of information form that he claims to have signed and asserts that his attorney falsely denies having received this document and/or other documents related to his medical necessity defense. Dabney argues that a medical official's statement supports his contention that his attorney received the documents necessary to mount this defense. None of these documents or statements is in the record.
RCW 9A.76.170(2) provides that:
It is an affirmative defense to a prosecution under this section [bail jumping] that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.
To demonstrate ineffective assistance of counsel, Dabney must show that defense counsel's representation fell below an objective standard of reasonableness and that the deficient representation prejudiced him. "Competency of counsel is determined based upon the entire record below." Here, there is no evidence in the record to suggest that Dabney's counsel fell below an objective standard of reasonableness by deciding not to pursue an uncontrollable circumstances defense. Likewise, we have no evidence in the record showing that the failure to pursue a defense under RCW 9A.76.170(2) prejudiced Dabney. Claims based on matters outside the record cannot be considered on appeal. If Dabney wishes to challenge the effectiveness of his counsel, he must raise these claims in a properly supported personal restraint petition.
See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citations omitted).
Id. at 335.
Nothing in the record suggests either that there were uncontrollable circumstances or that Dabney surrendered as soon as the circumstances ceased to exist.
State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991).
State v. Byrd, 30 Wn. App. 794, 800, 638 P.2d 601 (1981) ("A personal restraint petition is the appropriate procedure to raise a claim of ineffective assistance of counsel based upon matters outside the record on appeal."). See also McFarland, 127 Wn.2d at 335; Rice, 118 Wn.2d at 885-86; RAP 16.4, 16.7.
Accordingly, we affirm.