Opinion
No. 57565-1-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-01862-1, Carol A. Schapira, J., entered December 12, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA.
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
Michael E. Peterson represented himself and was convicted on five counts of first degree robbery, based on stipulated facts. He argues that (1) he did not make a knowing, voluntary, and intelligent waiver of the right to counsel; (2) the fact of his prior convictions should have been found by a jury; and (3) the Persistent Offender Accountability Act is unconstitutional because it violates the single subject rule. We affirm, because the court made a thorough inquiry into Peterson's request to proceed pro se, and his waiver of counsel was knowing, voluntary, and intelligent. His other arguments have been expressly rejected by prior case law.
I.
Peterson was accused of a string of robberies at fast food restaurants. Witnesses identified him, his image was captured on video, the modus operandi of the robberies was similar, and he confessed to police. While formulating his trial strategy, Peterson insisted that pleading not guilty or plea bargaining would be dishonest. He rejected his lawyer's strategy and insisted and wanted to present a purely religious defense — that God had forgiven him for his crimes. A mental health evaluation revealed that his religious beliefs did not prevent him from understanding the proceedings. The evaluator reported that Peterson was opposed to presenting any defense except a religious one.
In pretrial motions, Peterson requested to discharge his court-appointed attorney because she rejected his religious defense. His lawyer also reported that Peterson did not want to participate in formulating any legal defense except one: that God had forgiven him. The trial court denied his motion, explaining that trial strategy decisions were generally up to his attorney, and that his attorney was correct in noting that divine forgiveness was not a defense under the law. The judge explained that certain decisions, including the decision to represent himself, were Peterson's alone. But she stressed that his lawyer's job was to choose the appropriate legal defenses. Peterson did not approve:
Peterson: I'm supposed to abide by that?
Judge: Except for those things that I suggested to you, that you have some authority over. That's correct.
Peterson: Well, in that case, then I choose to represent myself then.
Report of Proceedings (RP) (May 24, 2005) at 7-8.
The court then proceeded with a thorough colloquy regarding Peterson's request. Peterson responded appropriately to the judge's questions, and indicated that he understood the situation. His request was granted as being a knowing, voluntary, and intelligent waiver of the right to counsel. Peterson stipulated to a trial on the record and waived his right to a jury trial. He was convicted on all five counts.
Right to Counsel
Peterson argues that his waiver of the right to counsel was not knowing, voluntary, and intelligent. First, he contends that his request was equivocal. Second, he asserts that the trial court did not adequately ensure that Peterson made his decision "with his eyes open" because the colloquy consisted of mostly yes or no questions. Evaluation of this waiver is made in view of the record as a whole. We bear in mind both the presumption against waiver of counsel and Peterson's constitutional right to represent himself.
In re Detention of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999).
Turay, 139 Wn.2d at 396.
State v. Breedlove, 79 Wn. App. 101, 110-111, 900 P.2d 586 (1995).
Peterson's request to proceed pro se was unequivocal. State v. Luvene, cited by Peterson, is inapposite. In Luvene, the defendant was frustrated that his trial counsel was not ready, and said he would represent himself if that would prevent further delay. However, in the same paragraph, he also said he was out of his league and unprepared. The court concluded that this was merely an equivocal expression of frustration with the delay. Here, the trial court told Peterson that his attorney was in charge of trial strategy and could decide not to present his religious defense, which was not recognized under the law. Understanding that this was the role of his lawyer, and feeling that presenting any other defense would be contrary to his beliefs, he took the available option of representing himself with a clear, definitive statement, "I choose to represent myself then." Peterson also made clear that he had successfully represented himself in the past.
127 Wn.2d 690, 903 P.2d 960 (1995).
Luvene, 127 Wn.2d. at 698.
Luvene, 127 Wn.2d. at 699.
He expressed these feelings about his defense to both his attorney and to his mental health evaluator.
RP (May 24, 2005) at 8.
After his unequivocal statement, the trial court adequately apprised Peterson of the relevant information and the risks associated with self-representation. Peterson does not dispute that the court met the "technical requirements" in its inquiry. He argues, however, that because the questions were mostly yes or no, and did not probe deeply enough, the colloquy was inadequate. But the questions were not all yes or no, and Peterson responded intelligently and appropriately to each question posed. The colloquy was detailed, thorough, and probing, and fully apprised Peterson of the required information. Peterson's waiver was knowing, voluntary, and intelligent.
Peterson accurately recites these technical requirements: seriousness of the charge, possible maximum penalty, the existence of technical procedural rules governing the presentation of his defense, and the risks associated with self-representation. State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729 (2001).
Prior Convictions
Peterson contests his life sentence under the Persistent Offender Accountability Act (POAA) as improper under Blakely v. Washington, because a jury did not determine the fact of his prior convictions beyond a reasonable doubt. This issue has been squarely addressed in State v. Wheeler:
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
145 Wn.2d 116, 34 P.3d 799 (2001).
Generally, the State must prove every element of an offense charged beyond a reasonable doubt. However, traditional factors considered by a judge in determining the appropriate sentence, such as prior criminal history, are not elements of the crime. In Thorne, this court concluded that the POAA is a sentencing statute codified as part of the SRA and does not define the "elements" of the status of being a habitual criminal. Therefore, the prior convictions that result in a sentence of life imprisonment without the possibility of parole need not be pleaded in the information. All that is required by the constitution and the statute is a sentencing hearing where the trial judge decides by a preponderance of the evidence whether the prior convictions exist.
Wheeler, 145 Wn.2d at 120-121 (citations omitted).
The details of Peterson's two separate prior convictions for first degree robbery appear in the record. Peterson does not dispute their existence. Instead he tries to avoid the impact of Wheeler by arguing that the jury must still determine whether the conviction qualifies as one of the "most serious offenses" under POAA. He cites no authority for this proposition, and does not explain how the "most serious offense" evaluation of a prior crime is an element of the crime currently charged, nor why the determination is not a purely legal one, outside the purview of the fact finder. The statute is unambiguous: first degree robbery is defined as a most serious offense under POAA. Peterson's argument fails.
Division Two has held (and Division Three agreed) that a life sentence under POAA is not an exceptional or enhanced sentence governed by Blakely. State v. O'Connell, No. 23563-7-III, 2007 Wash. App. LEXIS 190 (Feb. 6, 2007); State v. Ball, 127 Wn. App. 956, 957, 113 P.3d 520 (2005) rev. denied, 156 Wn.2d 1018 (2006). However, this court has disagreed in an unpublished opinion. In re Pers. Restraint of Keller, 2006 Wash. App. LEXIS 1105.
All class A felonies are defined as most serious offenses under RCW 9.94A.030(29)(a); RCW 9A.56.200(2) defines robbery in the first degree as a class A felony.
POAA Constitutionality
Peterson challenges the constitutionality of POAA. He argues that the Act violates the single subject rule, and must be discarded in its entirety. This argument was rejected in State v. Thorne, when our Supreme Court concluded that any provisions in the law relating to persistent offenders are valid. Peterson claims that Amalgamated Transit Union Local 587 v. State essentially overruled Thorne sub silencio by holding that any act found to violate the single subject rule must be struck down entirely. However, the holding of Amalgamated is that an Act may be struck down entirely if it covers two unrelated subjects. Also, Amalgamated cites Thorne repeatedly and with approval. Peterson's argument fails.
129 Wn.2d 736, 921 P.2d 514 (1996).
Thorne, 129 Wn.2d at 758.
142 Wn.2d 183, 11 P.3d 762 (2000).
Amalgamated, 142 Wn.2d at 216-17.
Amalgamated, 142 Wn.2d at 204-10.
Additional Grounds
In a statement of additional grounds, Peterson raises a spirited challenge to the personal jurisdiction of this court and of the trial court on mostly religious grounds. However, his challenge has no discernible basis in law.
AFFIRMED.