Opinion
No. 63227-2-I.
Filed: September 27, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 06-1-0903 1-1, Michael Hayden, J., entered March 26, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Cox and Appelwick, JJ.
A waiver of the right to counsel is valid if the accused understands the seriousness of the charge, the possible maximum penalty, and the existence of technical rules governing the presentation of a defense. In this prosecution for assault, the court thoroughly covered these topics with the defendant and did not abuse its discretion in ruling that he validly waived his right to counsel. Because the other arguments raised on appeal lack merit, we affirm.
FACTS
Based on allegations that Lynell Goudeau stabbed two people with a knife, the State charged him with two counts of first degree assault. Prior to trial, Goudeau told the court he wanted to proceed pro se. The court asked the prosecutor to "put on the record exactly what it is that he's been charged with and put it on the record so he understands what the maximum penalties are." The following colloquy ensued:
[PROSECUTOR]: Your Honor, at this time the defendant is charged with two counts of assault one with a deadly weapon. He does have two prior felony points from two assault twos from Pierce County. The assault ones in this case would doubt [sic]. He is facing at least 24 months on each deadly weapon enhancement consecutive to any standard range. And . . . so he is facing a substantial amount of jailtime at this point.
THE COURT: Ms. Murphy, do you have any information? I want to make sure he understands.
[PROSECUTOR]: Your Honor, I've got the sentencing brief here and for six points on [INAUDIBLE] is 77 to 102 —
THE COURT: I'm sorry, one hundred —
[PROSECUTOR]: 102 months, your Honor.
[DEFENSE COUNSEL]: And then the enhancement?
[PROSECUTOR]: Plus the enhancements. I'm sorry, 162 months to 216 months.
THE COURT: Plus?
[PROSECUTOR]: 48 months for the deadly weapon enhancements.
THE COURT: All right. Sir, do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: Can you tell me how many years that is?
THE DEFENDANT: That's 15 years nine months.
Fifteen years and nine months is the mid-point of the standard range, without enhancements, recited by the prosecutor.
THE COURT: Okay. I want to make sure — what is the maximum penalties?
[PROSECUTOR]: The maximum penalties for this offense is life and/or $50,000.
THE COURT: Do you have any questions about what you just heard?
THE DEFENDANT: No.
Later, after Goudeau said he was "open to suggestions," the court advised him against representing himself, stating, "You're looking at way too much time." The court also discussed the practical aspects of presenting a defense, including the rules of evidence and the rules of criminal procedure.
At a subsequent hearing, the court and the parties revisited Goudeau's request to proceed pro se. After warning Goudeau that self-representation required the preparation of jury instructions and awareness of applicable law, the court told him "assault one is the charge. That is a strike offense." Goudeau said, "I understand." The court then said that "the consequence of being convicted of a strike offense is enormous" and that three strikes would result in a life sentence without the possibility of release. Goudeau again said he understood.
Following a bench trial, the court convicted Goudeau as charged and imposed consecutive sentences totaling 342 months. Goudeau appeals.
DECISION
The state and federal constitutions guarantee a criminal defendant both the right to counsel and the right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995). When a defendant seeks to proceed pro se, the trial court must establish that the defendant has made a knowing and intelligent waiver. State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991); State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987). "Whether the waiver is valid lies within the sound discretion of the trial court, who should indulge every presumption against a valid waiver." State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729 (2001). Goudeau contends the court failed to ensure the validity of his waiver and therefore abused its discretion in allowing him to proceed pro se. We disagree.
The validity of a waiver is not determined by a checklist of advisements, but instead depends on the facts and circumstances of each case. DeWeese, 117 Wn.2d at 378. Although a colloquy with specific advisements is preferred, a waiver is valid so long as the record reflects "that the defendant understood the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of his defense." DeWeese, 117 Wn.2d at 378; State v. Modica, 136 Wn. App. 434, 442, 149 P.3d 446 (2006), aff'd, 164 Wn.2d 83, 186 P.3d 1062 (2008). In this case, the court's colloquies made the gravity of the charge abundantly clear, informed Goudeau of the maximum penalty, and advised him of the practical aspects of presenting a defense. In addition, Goudeau's prior felony assault convictions supported a conclusion that his waiver was knowing and intelligent. See State v. Sinclair, 46 Wn. App. 433, 438-439, 730 P.2d 742 (1986), review denied, 108 Wn.2d 1006 (1987). The court did not abuse its discretion in finding a valid waiver.
We reject Goudeau's contention that his waiver was invalid because he was not advised of his offense classification during the colloquies. As noted above, while colloquies providing certain information, including the offense classification, are preferred, a waiver is valid if the defendant understood the seriousness of the charge, the maximum penalty, and the existence of rules governing his defense. The record satisfies these requirements.
We also reject Goudeau's contention that his waiver is invalid due to misinformation he allegedly received regarding the standard range. There is no requirement that a defendant be informed of the standard range before a waiver will be deemed valid. And contrary to Goudeau's assertions, the record does not establish that he was told the range was lower than it actually was.
Goudeau points out that the range recited during the colloquy 162 to 216 months — was significantly lower than the total consecutive ranges used at sentencing. But the prosecutor indicated that this range was for a single count of first degree assault and that the sentences for Goudeau's two counts would run consecutively. The parties agree that despite a misprint in the colloquy transcript, the prosecutor likely stated that the assault sentences would "double," meaning they would be served consecutively. The prosecutor then recited the range of 162 to 216 months "for six points on [INAUDIBLE]." Because 162 to 216 months is the range for one count of first degree assault with an offender score of six, RCW 9.94A.510, the inaudible portion of this statement likely indicated that the range applied to one count of first degree assault.
Thus, the record indicates Goudeau was informed that he faced consecutive sentences of 162 to 216 months plus enhancements. Due to a reduction in the offender score at sentencing, these ranges were actually longer than the ranges ultimately used to determine Goudeau's sentence. The record, therefore, does not support his contention.
Goudeau next contends the trial court erred in failing to independently determine whether his prior second degree assault convictions constituted the same criminal conduct. But even assuming the court had such a duty, any error was harmless because Goudeau's prior offenses involved different victims and therefore were not the same criminal conduct. RCW 9.94A.589(1)(a) ("Same criminal conduct" means "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim."); State v. King, 113 Wn. App. 243, 294-95, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1013, 149 Wn.2d 1015 (2003).
Goudeau also challenges the court's failure to enter written findings and conclusions as required by CrR 6.1(d). In his opening brief, he anticipated the entry of findings and conclusions during the pendency of this appeal and reserved the right to establish prejudice from their tardy entry with further argument. The superior court subsequently entered findings and conclusions, but Goudeau has not challenged them or alleged any prejudice. Absent a showing of prejudice, we will not reverse a conviction for tardy findings and conclusions. State v. Gaddy, 114 Wn. App. 702, 705, 60 P.3d 116 (2002), aff'd, 152 Wn.2d 64, 93 P.3d 872 (2004).
Finally, Goudeau raises several arguments in a statement of additional grounds for review, as allowed by RAP 10.10. Arguments raised in a statement of additional grounds will not be considered if they fail to inform this court of the nature and occurrence of the alleged errors. RAP 10.10(c).
Goudeau claims he "was not arraigned properly" and did not receive a speedy trial. He fails, however, to identify any defect in his arraignment or the basis for his speedy trial claim. Equally vague and undeveloped is his claim that "the judge . . . told me I could not object to the indeed inconsistent and faulty confession, which will prove I could not have done the crimes of assault."
(Emphasis omitted.) Because the nature of these claims is unclear, we do not consider them. RAP 10.10(c).
Goudeau's remaining arguments criticize the evidence linking him to the assault. He claims he did not fit the witnesses' descriptions or possess clothing the assailant was wearing. He also claims the witnesses testified inconsistently and that his testimony proves he did not commit the crime. But in his statement to police, Goudeau admitted inflicting the victims' injuries and gave details about the attacks that only the assailant would know. Issues of conflicting testimony and the persuasiveness or credibility of the evidence are matters for the trier of fact that cannot be reviewed on appeal. State v. Ainslie, 103 Wn. App. 1, 6, 11 P.3d 318 (2000).
Affirmed.