Opinion
No. 29001-8-III.
June 23, 2011. Unpublished Opinion
Appeal from a judgment of the Superior Court for Benton County, No. 10-1-00192-5, Bruce A. Spanner, J., entered April 29, 2010.
Affirmed by unpublished opinion per Kulik, C.J., concurred in by Sweeney and Brown, JJ.
A judge convicted Ronald Steven Law of possession of methamphetamine after a stipulated facts trial. Mr. Law was represented by counsel. Mr. Law now contends that the court erred when it refused to hear his pro se motion for a new trial, filed two days before the sentencing hearing. We review a trial court's denial of hybrid representation for an abuse of discretion. Because we conclude that there was no abuse of discretion, we affirm the trial court.
FACTS
On April 29, 2010, Ronald Law was convicted of possession of methamphetamine. Mr. Law waived his right to a jury trial and the case was tried on stipulated facts. The stipulated facts state that on February 18, 2010, Susie Weymouth called police to report that Mr. Law, her ex-boyfriend, had come to her apartment and was harassing her. Sergeant Kirk Isakson arrived at the scene and looked for Mr. Law. Sergeant Isakson checked the vehicles in the street and in the driveway. In particular, he looked around a truck that was parked in the driveway of 502 N. Jean #B. The sergeant did not see anything but as he talked to Ms. Weymouth in her doorway, he heard some noise behind him. He turned and saw Mr. Law walking toward the truck parked in the driveway. He knew Mr. Law on sight and called out to him by saying, "`Ron, come here.'" Clerk's Papers (CP) at 22.
Mr. Law responded by saying "`what'" and walked away faster. CP at 22. The sergeant identified himself as a Kennewick police officer and told Mr. Law to stop. Mr. Law failed to comply and walked quickly to the north side of the truck. At that point, Mr. Law was partially obstructed from Sergeant Isakson's view. When the sergeant commanded him to show his hands, Mr. Law buried his hands in his pockets. Sergeant Isakson heard sort of a clanking sound and then Mr. Law started walking toward him menacingly.
Mr. Law walked within 12 to 20 feet away from Sergeant Isakson and then obeyed commands to get on the ground. Lieutenant Jackson arrived and walked behind the truck. There, he found tissue paper that contained a baggie with white paper and a glass pipe. Sergeant Isakson had not seen the tissue paper earlier when he searched around the truck. Mr. Law is the only person who the officers saw around the truck. The white powder later was determined to be methamphetamine by the Washington State Patrol Crime Laboratory.
When the court asked if he wanted to add anything to these stipulated facts, Mr. Law stated that he was expecting a witness to appear who he had subpoenaed. According to Mr. Law, the witness would testify that he saw "the guy throw this stuff on the ground in a paper." Report of Proceedings (RP) (Apr. 8 Apr. 19, 2010) at 14. He also stated that there was a discrepancy in the description of the size of the truck. Defense counsel mentioned the truck, but did not address Mr. Law's assertions regarding the missing witness. The court did not inquire about either issue and found Mr. Law guilty.
Two days before the sentencing hearing, Mr. Law filed a pro se motion for a new trial, alleging ineffective assistance of counsel. He argued that he had not received a fair trial because his lawyer failed to secure the attendance of defense witness Brent Marsh, who purportedly signed an affidavit containing allegedly exculpatory information. Specifically, in his motion for a new trial, Mr. Law alleged that Mr. Marsh had signed an affidavit in which Mr. Marsh stated that he had "seen with his own eyes, an individule [sic] toss to the ground a wadded-up tissue at the exact location where the drugs were found wrapped in tissue." CP at 27. Mr. Law argued that at a minimum, his lawyer should have requested a continuance in order to try to reach Mr. Marsh.
This affidavit was not attached to Mr. Law's witness list and is not on file with the Benton County Superior Court.
Mr. Law's motion also alleged that his Sixth Amendment right to compel favorable witnesses to testify was denied by counsel's failure to contact and investigate additional witnesses. He believes that at least four individuals "witnessed everything that transpired between Mr. Law and law enforcement officers." CP at 29. In addition, Mr. Law argued that the stipulated facts were not presented to him for his approval and that he repeatedly informed counsel that the facts were inaccurate.
Later, on April 29, the parties reconvened for sentencing. When questioned by the court about his motion for a new trial, Mr. Law acknowledged that he had filed the motion, but he did not have his paperwork with him because the corrections staff took it from him. The trial court recalled Mr. Law's prior motion that the court considered frivolous and denied the motion for new trial, stating "if these motions had merit, I'm sure able counsel would bring them for you." RP (Apr. 29, 2010) at 7. The court then sentenced Mr. Law to 12 months and one day.
ANALYSIS
Mr. Law attempted to handle certain issues on a pro se basis, but retained counsel for the remaining issues. The court denied Mr. Law's hybrid representation when the court denied the motion for a new trial.
Courts review a trial court's denial of a request to proceed pro se for an abuse of discretion. State v. Breedlove, 79 Wn. App. 101, 107, 900 P.2d 586 (1995). Generally, the court may deny a defendant the right to self-representation if the defendant's request is equivocal, untimely, involuntary, or made without a general understanding of the consequences. State v. Madsen, 168 Wn.2d 496, 504-05, 229 P.3d 714 (2010). In addition, the court may appoint standby counsel to aid the defendant if necessary. State v. Fritz, 21 Wn. App. 354, 363, 585 P.2d 173 (1978). However, a judge's discretion to allow a pro se motion lies on a continuum that corresponds with the timeliness of the motion. Breedlove, 79 Wn. App. at 107; Fritz, 21 Wn. App. at 361. A proper demand for self-representation rests on this continuum:
"(a) if made well before the trial . . . and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made as the trial . . . is about to commence, or shortly before, the existence of the right depends on the facts of the particular case with a measure of discretion reposing in the trial court in the matter; and (c) if made during the trial . . . the right to proceed pro se rests largely in the informed discretion of the trial court."
Breedlove, 79 Wn. App. at 106-07 (quoting Fritz, 21 Wn. App. at 361). Mr. Law relies primarily on Breedlove and Fritz to support his position that the motion was properly made.
In Breedlove, the plaintiff filed a motion to appear pro se with stand-by counsel two weeks before trial was set to start. Breedlove, 79 Wn. App. at 109. The court must balance "the defendant's interest in self-representation and society's interest in the orderly administration of justice." Id. at 107. However, as the trial gets closer, the interest in the orderly administration of justice becomes weightier. Id. Therefore, the "court can deny the request if it finds either (1) that the motion is made for improper purposes, i.e., for the purpose of unjustifiably delaying a trial or hearing, or (2) that granting the request would obstruct the orderly administration of justice." Id. at 108 (footnote omitted). The Breedlove court found the trial court abused its discretion when it denied the motion when there was no evidence that it was designed to delay the trial or impair the orderly administration of justice. Id. at 110.
Conversely, in Fritz, the court denied the defendant's motion to appear pro se based on the orderly administration of justice. Lewis Fritz successfully avoided the first trial date by fleeing the state, and the second by obtaining a substitution of counsel and a continuance on the eve of trial. Also, on the day of the third trial date, Mr. Fritz attempted to discharge his new attorney, represent himself, and obtain another continuance. The prosecutor demonstrated difficulty with keeping witnesses available for trial. Therefore, the court did not abuse that discretion when it denied Mr. Fritz's motion based on the obstruction of the orderly administration of justice. Fritz, 21 Wn. App. at 365.
Here, Mr. Law attempted to represent himself posttrial and the court found this to be an attempt to delay sentencing. The court stated, "it appears to me that you've discovered as long as you file frivolous motions that the inevitable, that sentencing will be delayed. You're represented by able counsel, and I'm denying your request to file motions in this court. . . . [I]f these motions had merit, I'm sure able counsel would bring them for you." RP (Apr. 29, 2010) at 6-7.
Mr. Law's request was made after his conviction. The court did not abuse its discretion by denying Mr. Law's request to file a pro se motion.
Although Mr. Law claims that the court denied his request to file motions pro se, this case is actually a hybrid representation. The decision to allow a hybrid representation is reviewed for an abuse of discretion. United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). The Sixth Amendment to the United States Constitution does not confer a right of hybrid representation on a defendant. State v. Hightower, 36 Wn. App. 536, 540, 676 P.2d 1016 (1984). The decision to "`allow hybrid representation remains within the sound discretion of the trial judge.'" Id. (quoting Halbert, 640 F.2d at 1009). Courts will allow hybrid representation only if there is a strong showing of a "special need," or where there has been a "substantial showing" that "the cause of justice will thereby be served." Hightower, 36 Wn. App. at 541 (quoting Wilson v. State, 44 Md. App. 318, 330, 408 A.2d 1058 (1979); People v. Mattson, 51 Cal. 2d 777, 797, 336 P.2d 937 (1959)). In addition, the court must have the discretion to control the conduct of a trial and maintain dignity, decorum, and orderly procedures, and to avoid unnecessary delays. Id. at 542 (quoting Moore v. State, 83 Wisc. 2d 285, 300, 265 N.W.2d 540 (1978)).
In this case, Mr. Law did not argue or prove that he has any "special need" or that "the cause of justice will thereby be served" by continuing with the hybrid representation. As previously noted, the court found that Mr. Law's attempt to file this motion was merely to delay his sentencing. There is no evidence in the record suggesting that the court abused its discretion.
Mr. Law also asserts ineffective assistance of counsel. The State is correct that the defense stipulated to the facts. Therefore, Mr. Law is estopped from bringing his ineffective assistance of counsel claim.
Even if we consider the ineffective assistance of counsel claim, we would have to conclude that it has no merit. In all cases, there is a strong presumption that counsel's representation was effective. State v. Woods, 138 Wn. App. 191, 197, 156 P.3d 309 (2007). To prevail on an ineffective assistance claim, the defendant must pass the two-prong Strickland test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant must prove that counsel's performance was deficient in some respect, and that the deficiency prejudiced the defense. Id.; see also State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If the defendant fails to establish either element of the test, the claim is defeated. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
In this case, Mr. Law claims that his attorney failed to secure the attendance of a witness, Brent Marsh, who had exculpatory information. The question then is whether the decision to proceed with a stipulated facts trial prejudiced Mr. Law.
Mr. Law specifically states in his argument that "no evidence exists about whether Mr. Marsh's testimony would have been relevant, or helpful to Mr. Law." Appellant's Br. at 10. He states that Mr. Marsh had "exculpatory information," but that is the only reference to the proceedings. Appellant's Br. at 9. Mr. Law's motion for a new trial stated that the witness, Mr. Marsh, saw someone toss an object to the ground where the drugs were found but, even if Mr. Marsh had so testified, it did not exclude Mr. Law as the person observed by Mr. Marsh. The record must support the determination that the witness's testimony would have been helpful to the defense. The plain statement that Mr. Marsh's statement would be exculpatory is insufficient. As a result, Mr. Law cannot show prejudice and, thus, his ineffective assistance claim fails.
Mr. Law's other allegations in his motion for a new trial are similarly unsupported. The record contains no evidence that the testimony of other potential witnesses would have been helpful to the defense. Mr. Law only hypothesizes what their testimony would entail. Finally, Mr. Law's dispute over the stipulated facts concerns details that do not undermine the trial court's finding of guilt.
We affirm the trial court.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SWEENEY, J., concur.