Opinion
No. 60911-4-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-03980-1, Paris K. Kallas, J., entered November 13, 2007.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Dwyer and Leach, JJ.
UNPUBLISHED OPINION
Edward James Hills appeals his convictions of vehicular homicide and vehicular assault. Hills contends the trial court erred in denying his motions to substitute counsel and a motion to proceed pro se. Hills also asserts that the mandatory two-year sentence enhancement based on a prior reckless driving conviction that was originally charged as driving while under the influence of alcohol (DUI) violates his constitutional right to due process, the separation of powers doctrine, equal protection, and the right to notice in the charging documents. We conclude the trial court did not abuse its discretion in denying Hills's motions to substitute counsel and to proceed pro se. We also reject Hills's argument that the mandatory two-year sentence enhancement under RCW 46.61.520(2) and former RCW 46.61.5055(13)(a)(v) violates due process, the separation of powers doctrine, equal protection, or his right to receive notice. And, because Hills's arguments in the statement of additional grounds are without merit, we affirm.
FACTS
At approximately noon on October 16, 2006, Edward James Hills was driving his 1998 four-door silver Ford Taurus in West Seattle. Nineteen-year-old Lindsey Austin was in the front passenger seat of the car. Hills and three other cars stopped at the red light at Delridge Way SW and SW Orchard Street. Steven Laffery, a plumber, was driving his Ford work van through the green light at the intersection when, inexplicably, Hills drove his car through the red light into the intersection. Laffery unsuccessfully tried to avoid the collision, but the front of his van struck the passenger side of the Ford Taurus. Hills and Austin were trapped inside the car. An off-duty fireman, Brian Smith, got into the car to check on the driver and the passenger. Smith made efforts to try and keep Austin's airway open. To extract Hills and Austin from the car, the firemen had to cut through the roof of the car and remove the driver's side door. Hills and Austin were taken to Harborview Medical Center (Harborview). Austin suffered severe internal injuries to her aorta, lungs, and liver from the collision and was not expected to survive. Laffery's right ankle was fractured and he suffered soft tissue injuries.
The Seattle police found a clear small bag of marijuana in the side panel of the driver's door of the Ford Taurus. The police also found marijuana in a black bag on the back seat.
Seattle police officer Eric Michl arrived at Harborview around one o'clock p.m. Officer Michl said that Hills had no visible injuries but noted that he "had watery, bloodshot eyes." Shortly after Officer Michl arrived at Harborview, Austin died.
Officer Michl informed Hills that he was under arrest for vehicular homicide and vehicular assault. Office Michl advised Hills of his constitutional rights and the special evidence warning for a blood sample. Hills admitted that he had a previous drug conviction and told Officer Michl that he had used marijuana the night before. Hills also told Officer Michl that the light was green when he drove into the intersection.
Officer Michl obtained a blood sample from Hills at approximately 1:30 p.m. The results of the blood test revealed "a THC level of 1.6 ng/mL" indicating that Hills had smoked marijuana within three to four hours of the blood draw. Hills's cell phone records also showed that he was talking on his cell phone at the time of the collision.
On April 9, 2007 the State charged Hills with vehicular homicide. The State alleged that Hills proximately caused the death of Austin by driving his car while under the influence of drugs, in a reckless manner, and with disregard for the safety of others, in violation of RCW 46.61.520(1)(a), (b) and (c). Hills was arraigned on April 18.
At the first omnibus hearing on June 1, and at each hearing thereafter until trial, Hills expressed the strongly held belief that there was evidence that would show the off-duty fireman caused Austin's death. Hills made six motions to appoint new counsel and at one point, made a motion to proceed pro se. The chief criminal judge considered and denied each of the motions to substitute counsel and the motion to proceed pro se.
Shortly before the trial on October 9, the State filed an amended information charging Hills with a second count of vehicular assault based on the injuries to Laffery.
During the four day bench trial, Laffery, eyewitnesses, police officers, the medical examiner, and the toxicologist testified. The medical examiner testified that Austin's death was caused by "multiple rib fractures and the lacerations of the aorta, lungs, liver and other viscera due to the blunt force injuries sustained in the collision." The toxicologist testified that based on the level of THC in the blood sample, Hills had smoked marijuana three or four hours before the blood draw at 1:30 p.m. on October 16, 2006. However, on cross examination, the toxicologist admitted that he could not say with certainty what the actual THC level was at the time of the collision.
Darnice Madison, a close family friend, and Hills testified on behalf of the defense. Madison testified that the light was green when Hills drove into the intersection. Hills also testified that the light was green, "I remember stopping, and I don't know, just waiting till the light turned green. When the light turned green, that's when I proceeded." Hills testified that after the collision, he called Austin's name. Hills said that Austin did not respond but that she was still breathing. Hills testified that an off-duty fireman then got in the car "and he grabbed her head and had it up and held it back, and he held it back until the fire department showed up."
Hills's attorney made a strategic decision to not call the off-duty fireman based on the concern that the testimony would undermine Hills's theory and testimony at trial.
In closing argument, Hills's attorney argued that the State did not prove beyond a reasonable doubt that Hills was driving under the influence of drugs or that he was impaired at the time of the collision. The attorney also relied on Hills's testimony to argue that:
[F]rom his perception, as he was sitting there immediately following the accident, that Ms. Austin was still alive, that she was breathing okay, and that her impairment of breathing did not happen until the off-duty good Samaritan paramedic arrived, and that after he started moving Ms. Austin around, it was then that her body started demonstrating the distress that was her impending death. Mr. Hills firmly believes that 'if it were not for the EMT doing that to her, Ms. Austin would still be alive today.'
The trial court found Hills guilty of vehicular homicide and vehicular assault. The court rejected the argument that the State did not prove Hills was under the influence of drugs and impaired at the time of the collision.
At the time of the driving, the defendant was under the influence of marijuana and impaired from his consumption of marijuana. The defendant's blood was properly and legally drawn at 1:38 p.m. The blood was then tested at the Washington State Toxicology Laboratory by licensed analyst and forensic toxicologist, Justin Knoy. There is no evidence that the blood was tampered with, altered, or contaminated with in any way. The testing was done according to the procedures approved by the State Toxicologist and those procedures are accepted in the scientific community.
The results show a THC level of 16 ng/mL and carboxy THC level of 16.6 ng/mL. Based on how THC is processed in the body, the defendant smoked the marijuana within 3-4 hours of the blood draw. His THC level would have been higher in the hours before the blood draw. Based on the carboxy-THC, the defendant was an infrequent user of marijuana and would have felt the effects of the drug more pronounced than a more frequent user. Marijuana impairs driving by distorting time and space and delayed reaction time and decreased vigilance. The consumption of marijuana by the defendant impaired his ability to perform the complex divided attention tasks involved in driving.
DRE Officer Michl also provided a basis for the Court to find that the defendant was impaired by marijuana. The defendant's eyes were bloodshot and watery and no other facts were presented to credibly explain this symptom of marijuana impairment. Additionally, the facts of the collision, stopping at and then running the red light, and failing to take any evasive action, both demonstrate that he was impaired by the marijuana he had consumed.
The defendant's ability to drive was lessened to an appreciable degree and he was under the influence of marijuana and impaired by his consumption of marijuana.
The court also rejected the argument that the collision was not the proximate cause of Austin's death and Laffery's injuries. The trial court expressly found that Hills's driving proximately caused the injuries and death of Austin and the substantial bodily harm to Laffery. The court also found that Hills drove his car in a reckless manner and with disregard for the safety of others.
The defendant intentionally drove his car while impaired and drove it with a young teenage passenger. His conduct was rash and heedless and indifferent to the consequences and far greater than ordinary negligence and with a disregard for the safety of others.
The court imposed a high-end standard range sentence for vehicular homicide and vehicular assault. The sentence included a mandatory 24-month enhancement under RCW 46.61.520(2) based on a prior conviction for reckless driving that was originally charged as a DUI.
ANALYSIS
Motions to Substitute Counsel
Hills argues that he was denied his constitutional right to counsel because of an irreconcilable conflict with his attorney. Hills made a number of motions seeking to substitute counsel based on his mistaken belief there was evidence that the off-duty fireman caused Austin's death. Hills contends the court erred in concluding there was not an irreconcilable conflict and denying his motions for new counsel.
A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate. State v. DeWeese, 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991) (citing Wheat v. United States, 486 U.S. 153, 159 n. 3, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)). A defendant dissatisfied with appointed counsel has the burden to show good cause, such as an irreconcilable conflict or a complete breakdown in communication to warrant substitution of counsel. State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997) (Stenson I). In determining whether an irreconcilable conflict exists, the court must consider: (1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel's representation, and (3) the effect of any substitution on the scheduled proceedings. Stenson I, 132 Wn.2d at 734.
Unsupported allegations are not enough to require substitution and a defendant cannot rely on a general loss of confidence or trust to justify appointment of new counsel. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004); State v. Schaller, 143 Wn. App. 258, 268, 177 P.3d 1139 (2007), rev. denied, 164 Wn.2d 1015 (2008). However, "[i]f the relationship between the lawyer and client completely collapses," refusal to substitute counsel violates a defendant's constitutional right to effective assistance of counsel. In re Personal Restraint of Stenson, 142 Wn.2d 710, 722, 16 P.3d 1 (2001) (Stenson II) (citing United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998)).
In determining whether the trial court abused its discretion in concluding there was not an irreconcilable conflict on appeal, we must consider: (1) the extent of the conflict, (2) the adequacy of the court's inquiry, and (3) the timeliness of the motion. Stenson II, 142 Wn.2d 723-24.
At each of the omnibus hearings and on the day of trial, the chief criminal judge considered and rejected Hills's motions to substitute counsel. The crux of Hills's concern was his dissatisfaction with his attorney's strategy because of his strongly held belief that there was evidence to prove Austin's death was caused by the off-duty fireman.
At the first omnibus hearing, on June 1, Hills asked the court to appoint new counsel because he did not receive a complete copy of the discovery until a month after the arraignment. Hills also claimed that there were critical documents, such as the autopsy report, that were missing.
THE COURT: Well he can't provide it until it is vetted by the State, by court rule, so I don't —
DEFENDANT HILLS: I understand that, your Honor. I understand that, but there is a lot of documents missing, and I informed him prior to him giving me the discovery. He has yet to produce the copies — the documents that — . . . I believe that these are critical documents that can prove my innocence, and he has failed to obtain them. He has given me the runaround saying that the State hasn't provided him — . . . he got one page and don't have two pages . . .
THE COURT: What documents do you think that Mr. Weston has that you don't have yet provided?
DEFENDANT HILLS: The autopsy report. That goes directly to the charge that I am being charged with. Ambulance reports. The fire department's report that was on the scene. There was an off-duty fire department individual that jumped in my vehicle, and he is not even in any of the reports. I don't have any initial police reports. All these documents can prove my innocence.
The prosecutor objected to providing Austin's medical records to Hills on the ground that the medical records "including autopsy, are not records that become part of redacted discovery that go into the defendant's hands. . . ." After the court denied the motion for new counsel and Hills's request for an unredacted copy of the autopsy report, Hills stated that he was going to file a bar complaint against his attorney with the American Bar Association. Following a lengthy discussion about the need for further investigation by the defense, the court continued the omnibus hearing to June 15.
On June 15, Hills renewed his request for new counsel. Hills's attorney also expressed some concern about his inability to communicate with Hills. Characterizing the request as one for a second opinion, the attorney joined in Hills's motion.
MR. WESTON: There is some change of circumstance between then and now, including — I would actually join in this one. I don't often, but the reason I would be willing — the reason that I do join in this motion is Mr. Hills is in a very precarious and serious situation. There is practically no information going between us, and I wouldn't exactly say that that is — I wouldn't say that that is voluntary on his part. It seems like we're just not communicating, and I would say that Mr. Hills ought to have a second opinion. I would characterize this like a very serious surgery. I am telling him certain information. Mr. Hills wants a second opinion, and I have kind of — we are kind of at loggerheads in our communication. And again I say it is not because he doesn't want to hear, I mean I don't perceive this as a voluntary thing, so — and Mr. Hills wishes to address the Court.
Hills then interrupted, and told the judge that he had a conflict not only with his attorney, but with all of the court-appointed attorneys who had represented him in the past.
DEFENDANT HILLS: If I may, your Honor? Good afternoon. Yes, there is a conflict of interest with — just not the attorney, but with also all of the agencies — past tense. . . . All of these court-appointed attorney agencies I have had conflicts of interest. I'm sorry I didn't address the issue with you June 1. I am bringing the issue now to the Court, and I do ask the Court to appoint private counsel.
Hills's attorney addressed the bar complaint and Hills's misperception about the discovery.
MR. WESTON: I think that part of what Mr. Hills is talking about, in terms of the conflict of interest, Mr. Hills filed a bar complaint against me, which was — I don't know what the term would be, dismissed or — and he has also filed complaints against attorneys in every agency.
THE COURT: And I noticed that two of the attorneys mentioned are OPD private counsel appointees . . .
MR. WESTON: And also what Mr. Hills is talking — it is his opinion that the State needs to provide all of the discovery by arraignment, and part of his complaint with me is that they didn't do that, and so I did not file — I did not have a probable cause hearing on it.
Based on Hills's mistaken belief that his attorney had not timely provided discovery, his history of conflicts with court appointed and private attorneys, and the fact that the bar complaint against his attorney had been dismissed, the court denied Hills's motion to substitute counsel.
THE COURT: Mr. Hills, as both lawyers know, is just wrong about that — that there is an ongoing duty to provide discovery as it is obtained and I have no reason to believe that that hasn't happened. I also don't think Mr. Hills would get along better with any other lawyer. There is nothing here that is indicating to me that Mr. Weston has caused a problem here — that Mr. Hills has, from his own words, never been satisfied with counsel on any of his cases — that there is no indication that the communication would be any better with any other lawyer or that anything that Mr. Weston has done is in any way inappropriate.
At the omnibus hearing on August 24, Hills made another motion before a different judge for new counsel or to proceed pro se. The judge continued the motion to the following week to be heard by the chief criminal judge.
At the hearing the following week before the chief criminal judge, the prosecutor notified Hills that the State planned to amend the information to add an additional count of vehicular assault. Hills again expressed concern about missing discovery, and renewed his motion for new counsel or to proceed pro se. Hills reiterated his belief that his attorney was withholding evidence that would prove the off-duty fireman caused Austin's death. Hills also complained that his attorney had only met with him one time since the arraignment.
The prosecutor addressed the evidence concerning the cause of Austin's death. According to the prosecutor, there was no evidence that the fatal injuries were related to any of the off-duty fireman's efforts to assist Austin. The prosecutor stated that Austin's death was caused by internal injuries that were "within her torso, so it had nothing to do with her neck."
Nonetheless, Hills continued to insist that his attorney "has been withholding critical, crucial information that proves my innocence, as I have been stating from day one." Hills also expressed frustration that his attorney had not yet interviewed the off-duty fireman.
[W]ho . . . grabbed my friend's head, held it back, and so I believe that her cause of death wasn't directly from the accident, and I believe he knows this and that is why he has never come to see me, never come to reveal the report to me —
Hills's attorney also told the court that "[t]here is nothing in the police reports substantiating what Mr. Hills said." But the attorney said that he had subpoenaed records from the fire department and that the defense investigator was seeking to identify and interview the off-duty fireman and others. The attorney also addressed the concern about only meeting with Hills one time between the arraignment and the omnibus hearing.
THE COURT: And I just have one question [for Mr. Weston]: Have you — Is your understanding the same as Mr. Hills, you have only seen him one time?
MR. WESTON: That is true. I have only seen him one time. However, I also sent to him — he has received redacted copies of the discovery. I have reviewed with him the first five pages of the autopsy. I did not get the last three until — I believe it was the July. I have sent to him every piece of new information that my investigator has gotten, through the mail, and I have invited him to give me a call to discuss what's going on.
At the end of the hearing, the court asked Hills why he did not want an attorney. Hills told the court that he did want an attorney but he wanted one that was "sufficient in representing me." The court denied Hills's motion for new counsel. And based on the colloquy with Hills, the court denied the motion to proceed pro se because the request was "certainly not unequivocal."
At the last omnibus hearing on September 21, after the court arraigned Hills on the amended information charging one count of vehicular homicide as to Austin and one count of vehicular assault as to Laffery, Hills renewed his motion for new counsel.
DEFENDANT HILLS: Yes, your Honor. Good morning. I had just spoke to Mr. Weston and informed him that I would like to have an independent retesting of my blood at the state crime lab, and he informed me that that is not something that he is willing to do, so I am asking the Court to direct him to do such, because I think it is very pertinent to my case.
And I would also like to inform the Court of another serious concern. Mr. Weston came and visited me — I believe it was last week — and offered to finally show me the autopsy reports, which were
incomplete. And I asked Mr. Weston, before handing them over to me, if it was incomplete, please don't waste my time, and yet he did it anyway, so he is still hiding information from me. I am still uncomfortable with his representation, and I would like to also reiterate that past — in the past when I had first informed you that I had conflicts of interest with all of the Office of Public Defense in the past, I recall that you said there is no need to change attorneys, and I feel that there is quite a need — it is a very good concern to change attorneys, and possibly have the Court appoint a private counsel rather than somebody from the Office of Public Defense who I have clearly had conflicts of interest with in the past — and it wasn't at all my doing. It was the way that the attorneys were handling what they do. It was the way that I was taking things. So I think that this is a very high-profile case that renders such an appointment of private counsel — .
When the court asked whether the attorney had reviewed the autopsy report with Hills, the attorney explained that he attempted to review the entire autopsy report with Hills but Hills questioned whether the report was complete or authentic. The court denied the motion to substitute counsel.
THE COURT: We have been through this argument before. Whether — the question of whether the defense is going to ask for retesting by the tox lab is certainly within the discretion of trial counsel. The motion again is denied.
Before trial began on October 9, Hills again asked the chief criminal judge to appoint new counsel. The court denied the motion,
THE COURT: I have made this ruling before. . . . There is nothing new that has been raised.
Hills again expressed concern about not reading the police reports or the autopsy report. In response, the chief criminal judge told Hills, "I am satisfied that Mr. Weston is doing an admirable job for you. Thank you."
On appeal, Hills argues that the conflict with his attorney was irreconcilable and the chief criminal judge erred in refusing to grant his motions to appoint new counsel. The record shows that any conflict between Hills and his attorney was based on Hills's strongly held, but mistaken belief, that the off-duty fireman caused Austin's death. The undisputed evidence established that Austin died from severe internal injuries caused by the collision. As in Stenson I, a defendant's dissatisfaction with his attorney based on unsubstantiated claims is not grounds to find an irreconcilable conflict. Stenson I, 132 Wn.2d at 734-35. The record also shows that Hills had a history of conflicts with appointed counsel and filing bar complaints against his lawyers. As the court noted, a new attorney would not overcome Hills's concerns.
Hills also emphasizes the fact that his attorney visited him only once between the arraignment in April and the omnibus hearing in August. But the record shows that the attorney communicated with Hills, provided Hills with discovery, and offered to talk by phone. And even if the relationship was strained, the record does not establish a complete breakdown in communication that warranted substitution of counsel. Stenson II, 142 Wn.2d at 723.
Hills also argues that by pointing out that his attorney was "doing an admirable job," the court did not properly focus on whether there was an irreconcilable conflict. However, determining "the breakdown's effect on the representation the client actually receives" is part of the inquiry the court should make. Stenson II, 142 Wn.2d at 724.
Hills cites United States v. Nguyen, 262 F.3d 998 (9th Cir. 2001), to argue that the court's inquiry into the conflict was inadequate because the court did not privately question either Hills or his attorney. The facts in Nguyen are different.
In Nguyen a non-English speaking defendant, Nguyen, asked to substitute private counsel because he had stopped communicating with his appointed attorney. Nguyen also sought to present testimony from other witnesses about the breakdown in communication. On appeal, the Ninth Circuit held that the trial court abused its discretion in denying the motion for new counsel without the defendant present and in refusing to schedule a hearing. Nguyen, 262 F.3d at 1004. The court noted that the trial court's decision was based more on keeping to the court's schedule than engaging in an appropriate inquiry concerning Nguyen's motion to substitute. Nguyen, 262 F.3d at 1005.
Here, unlike in Nguyen, the criminal presiding judge engaged in a lengthy colloquy with Hills and questioned Hills, his attorney, and the prosecutor in seeking to ascertain whether there was irreconcilable conflict. The dispute between Hills and his attorney over trial strategy, and Hills's dissatisfaction was not a sufficient reason to grant the motions for new counsel. The record supports the court's determination that there was not an irreconcilable conflict and that Hills did not show good cause to appoint new counsel. The record also supports the conclusion that the judge made adequate inquiries about the alleged conflict. Motion to Proceed Pro Se
The record also shows that the attorney effectively represented Hills during the trial, and that Hills was able to present his theory that the off-duty fireman caused Austin's death.
Hills also contends the court erred in denying his motion to represent himself pro se in violation of the Sixth Amendment of the United States Constitution and article 1, section 22 of the Washington State Constitution.
A defendant has a "constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). But "[e]xercising the right of self-representation requires waiving the right to counsel. A defendant may represent himself only when he 'knowingly and intelligently' waives the lawyer's assistance that is guaranteed by the Sixth Amendment." Indiana v. Edwards, 128 S. Ct. 2379, 2391, 171 L. Ed.2d 345 (2008) (Scalia, J., dissenting) (quoting Faretta, 422 U.S. at 835). The Supreme Court in Faretta also recognized the "tension between a defendant's autonomous right to choose to proceed without counsel and a defendant's right to adequate representation." De Weese, 117 Wn.2d at 376. See Faretta 422 U.S. at 832 ("right of an accused to conduct his own defense seems to cut against the grain" of the right to assistance of counsel).
Courts should also "indulge every reasonable presumption against finding that a defendant has waived the right to counsel." State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002). And "to protect trial courts from manipulative vacillations by defendants regarding representation, we require a defendant's request to proceed in propria persona, or pro se, to be unequivocal." DeWeese, 117 Wn.2d at 376. Whether the request to proceed pro se is unequivocal must be determined in the context of the record as a whole. State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 (2001). While a request to proceed pro se may be made in the alternative to a request for new counsel, a conditional request must still be unequivocal. Stenson I, 132 Wn.2d at 741. Woods, 143 Wn.2d at 586.
Here, after unsuccessfully trying to obtain new counsel at the omnibus hearing on August 31, Hills made a motion to proceed pro se.
DEFENDANT HILLS: Today I have in mind to go pro se, to manage and plead my own case, and I am also asking the Court to have the State turn over every critical, crucial, important document that shows my innocence, due to the Brady Doctrine. Substitute of counsel, I don't think I am going to address, because it seems that I most likely won't get it. I recall you saying that you wouldn't allow me to change counsels — even though I expressed to you how I felt about this counsel. Mr. Eric Weston — I have been incarcerated for over 120 days. Mr. Weston has been to visit me one time out of that 120 days, has failed to keep me informed of anything pertinent to my case, and I have still yet had an opportunity to view the autopsy report, which they both have been, the State and Mr. Weston, have been so diligently hiding from me. And so today, your Honor, I would like to pose this motion to you, to go pro se to manage my own case, and to also allow me —
The court considered Hills's request to proceed pro se. The court engaged in a lengthy colloquy with Hills in an effort to apprise him of the seriousness of the charges, the complexity of the evidence, and the risks and responsibilities of self-representation. See State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002) ("the trial court should assume responsibility for assuring that the defendant's decision is made with at least minimal knowledge of what the task entails. . . ."). During the colloquy, Hills reiterated his belief that his attorney "has been withholding critical, crucial information that proves my innocence, as I have been stating from day one." At the end of the colloquy, and after questioning Hills and his attorney, the court asked Hills "[w]hy don't you want an attorney?" In response Hills told the court:
Well, I would like an attorney, one that is — would be, you know, sufficient in representing me. I mean, your Honor, if you was in my position, an attorney — you have been locked up for 120 days and your so-called counsel has not came and seen you but for
one time to inform you that you are going to go into court to continue your case even further, I mean I thought I had a 60 day speedy trial right. You know, I have been shown that I don't even have a 60-day speedy trial right, according to the rules, so Mr. Weston has not been playing fair by the rules.
Based on the colloquy and the record as a whole, the court found that Hills's request to proceed pro se was not unequivocal.
THE COURT: — and therefore — there is not a basis for counsel, and it is not an unequivocal request, so we have finished this issue.
On appeal, Hills concedes that his first choice was substitution of counsel, but argues that his alternative request to proceed pro se was unequivocal. Hills primarily relies on State v. Barker, 75 Wn. App. 236, 881 P.2d 1051 (1994), to support his argument that the request was unequivocal. Barker is distinguishable.
The court in Barker did not engage in a proper colloquy or "any analysis by the court of the facts and circumstances of the case." Barker, 75 Wn. App. at 241-42. Here, unlike in Barker, when the criminal presiding judge engaged in a proper colloquy and asked Hills why he did not want a lawyer, Hills repeated his desire for new counsel rather than an unequivocal desire to represent himself. Based on the record as a whole, we conclude the trial court did not err in concluding Hills's request to represent himself was not equivocal.
Sentence Enhancement
In the alternative, Hills seeks to vacate the mandatory two-year sentence enhancement that was imposed based under former RCW 46.61.520(2) and RCW 46.61.5055(13)(a)(v). Relying primarily on this court's decision in State v. Shaffer, 113 Wn. App. 812, 55 P.3d 668 (2002) overruled by, City of Walla Walla v. Greene, 154 Wn.2d 722, 116 P.3d 1008 (2005), and the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Hills contends that RCW 46.61.5055(13)(a)(v) violates due process, the separation of powers doctrine, equal protection, and his constitutional right to notice. Hills asserts that an enhancement based on a prior DUI charge that the State did not prove beyond a reasonable doubt is unconstitutional.
All references in this opinion are to former RCW 46.61.5055(13)(a)(v). Effective January 1, 2009, the same language is now codified at RCW 46.61.5055(14)(a)(v). Laws of 2008, ch. 282, § 14.
Upon conviction of vehicular homicide under RCW 46.61.520, the legislature mandates imposition of an additional two-year enhancement for a prior offense as defined in RCW 46.61.5055. RCW 46.61.520(2) states:
(2) Vehicular homicide is a class A felony punishable under chapter 9A.20 RCW, except that, for a conviction under subsection (1)(a) of this section, an additional two years shall be added to the sentence for each prior offense as defined in RCW 46.61.5055.
(Emphasis added).
RCW 46.61.5055(13)(a) defines what prior offenses are subject to the sentence enhancement under RCW 46.61.520(2). RCW 46.61.5055(13)(a)(v) provides in pertinent part:
(a) A "prior offense" means any of the following:
. . .
(v) A conviction for a violation of RCW 46.61.5249 [negligent driving-first degree], RCW 46.61.500 [reckless driving], or RCW 9A.36.050 [reckless endangerment] or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 [DUI] or RCW 46.61.504 [physical control of vehicle under the influence], or an equivalent local ordinance, or of RCW 46.61.520 [vehicular homicide] or RCW 46.61.522 [vehicular assault].
(Emphasis added).
There is no dispute that Hills was previously charged with driving while under the influence of alcohol (DUI) in violation of RCW 46.51.502 and 46.51.504 and that Hills pleaded guilty to reckless driving in violation of RCW 46.51.500. In the Statement of Defendant on Plea of Guilty to reckless driving conviction, Hills admitted that "on May 15, 2004, within King County, Washington, I drove a motor vehicle on a public street in a manner displaying a willful and wanton disregard for the safety of property after consuming alcohol."
Based on the evidence at sentencing, the court concluded that the reckless driving conviction was a prior offense under RCW 46.61.5055(13)(a)(v), and imposed the mandatory two-year sentence enhancement as required by RCW 46.61.520(2).
Relying on Shaffer, Hills argues that the mandatory sentence enhancement violates his Fourteenth Amendment right to due process. In Shaffer, this court held that former RCW 46.61.5055(12)(a)(v) violated the due process right of a conviction based on proof beyond a reasonable doubt because the statute allowed imposition of a sentence enhancement for an unproven DUI charge. Shaffer, 113 Wn. App. at 817-818. But in Greene, 154 Wn.2d at 722, the Washington Supreme Court reversed the decision in Shaffer. The court rejected Greene's due process challenge to the DUI sentence enhancement statute because the statute, former RCW 46.61.5055(12)(a)(v), requires a conviction for negligent driving or other listed offense originating from a DUI charge.
[T]he statute requires the State to establish that a prior driving conviction involved use of intoxicating liquor or drugs. Thus, due process is satisfied for the purposes of this mandatory enhancement if the prior conviction exists and the prosecution can establish that intoxicating liquor or drugs were involved in that prior offense.
Greene, 154 Wn.2d at 728.
Because Greene controls, we reject Hills's reliance on Shaffer. Here, there is no dispute that Hills was charged with the crime of DUI in violation of RCW 46.51.502 and RCW 46.61.504, and that he pleaded guilty to reckless driving in violation of RCW 46.51.500. Nor is there any dispute that in the Statement of Defendant on Plea of Guilty, Hills admitted that he drove a "in a manner displaying a willful and wanton disregard for the safety of property after consuming alcohol." Because Hills was convicted of reckless driving while admittedly under the influence of alcohol, we reject his due process challenge to RCW 46.61.5055(13)(a)(v).
Hills's reliance on Apprendi and Blakely is also misplaced. Under Apprendi, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely, the Court clarified Apprendi, and held that the statutory maximum means the maximum sentence that a judge can impose "solely on the basis of the facts reflected in the jury verdict or admittedly by the defendant." Blakely, 542 U.S. at 303.
(Emphasis omitted).
In State v. Hughes, 154 Wn.2d 118, 137, 110 P.3d 192 (2005), overruled on other grounds, Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), our supreme court held that the existence of a prior conviction need not be proved to a jury beyond a reasonable doubt. Consequently, a sentencing court must only find that the prior conviction exists by a preponderance of the evidence. State v Wheeler, 145 Wn.2d 116, 121, 34 P.3d 799 (2001). And in Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), the Court held that in examining a prior conviction, the sentencing court can consider the charging documents, written plea agreement, the plea colloquy, and factual findings stipulated to by the defendant. Here, because there is no dispute Hills was convicted of reckless driving and admitted he was driving recklessly after consuming of alcohol, the two-year sentence enhancement does not violate Apprendi or Blakely.
We also reject Hills's argument that the two-year sentence enhancement under RCW 46.61.5055(13)(a)(v) violates the separation of powers doctrine. Except for constitutional restrictions, the legislature's power to define criminal punishments is plenary. State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004).
As the United States Supreme Court recently noted in a decision rejecting the application of Apprendi and Blakely to the determination of whether to impose a concurrent or consecutive sentence,
Beyond question, the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status. See, e.g., Patterson, 432 U.S. at 201, 97 S. Ct. 2319 ("It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government."). We have long recognized the role of the States as laboratories for devising solutions to difficult legal problems. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L. E. 747 (1932) (Brandeis, J., dissenting). This Court should not diminish that role absent impelling reason to do so.
Oregon v. Ice, 129 S. Ct. 711, 718-19, 172 L. Ed. 2d 517 (2009).
Hills's claim that the DUI sentence enhancement violates the equal protection statute also fails. The Fourteenth Amendment guarantees that "persons similarly situated with respect to the legitimate purpose of the law must receive like treatment." State v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996). "When a physical liberty alone is involved in a statutory classification," we apply the rational relationship test, which "requires only that the means employed by the statute be rationally related to a legitimate State goal, and not that the means be the best way of achieving that goal." Manussier, 129 Wn.2d at 673. Here, the legislature's decision to impose a sentence enhancement related to certain prior DUI-related convictions is rationally related to the legitimate State objective of protecting the public. RCW 9.94A.010(4).
Hills also claims that his sentence enhancement violates his constitutional right to notice under the Sixth Amendment, and article I, section 22 of the Washington Constitution. Hills relies on State v. Recuenco, 163 Wn.2d 428, 434, 180 P.3d 1276 (2008), to argue that the sentence enhancement is an element of the charged crime that must be included in the charging document. But because the sentence enhancement is a penalty and is not an element of the crime, formal notice in the charging documents is not required. State v. Crawford, 159 Wn.2d 86, 96, 147 P.3d 1288 (2006).
Statement of Additional Grounds for Review
Hills raises four other issues in his Statement of Additional Grounds. First, Hills argues that his attorney provided ineffective assistance of counsel. To prevail, Hills must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "[E]xceptional deference must be given when evaluating counsel's strategic decisions." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Hills contends that the sentencing memorandum written by his attorney shows that his attorney had a conflict of interest because the attorney expressed sympathy for the families of the victims. However, in context, the memorandum demonstrates that Hills's attorney was seeking to ensure the court would not sentence Hills based on sympathy for the families.
Hills also asserts that his attorney provided deficient performance by not pursuing his theory that Austin's death was caused by asphyxiation, and by refusing to seek an independent laboratory test of his blood sample. The record shows that his attorney thoroughly investigated alternative causes of death. And because the defense theory at trial was that the blood sample was adulterated and thus inadmissible, the failure to seek an independent test was not deficient. McNeal, 145 Wn.2d at 362.
Next, Hills argues that the court abused its discretion in admitting drug laboratory reports that were not properly certified under CrR 6.13(b). However, there was no objection below on this ground. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). Hills also argues that the State violated his Fourteenth Amendment due process rights by failing to preserve exculpatory evidence. Based on the premise that Austin's death was caused by asphyxiation, Hills asserts that the State destroyed exculpatory evidence by allowing Austin's body to be cremated. But the evidence conclusively established that Austin's death was caused by internal injuries from the collision and not from asphyxiation or spinal cord injuries. On this record, there is no constitutional violation. California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).
Last, Hills argues that the court imposed a sentence based on a miscalculated offender score. Hills contends that under State v. Smith, 144 Wn.2d 665, 30 P.2d 1245 (2001), juvenile convictions could not be used to calculate his offender score. But after Smith, the legislature amended the sentencing laws so that prospectively previously "washed out" convictions are included when calculating an offender score. RCW 9.94A.525; Varga, 151 Wn.2d at 202.
We affirm.
WE CONCUR: