Opinion
No. 35589-2-II.
December 24, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02437-2, Frederick W. Fleming and Lisa R. Worswick, JJ., entered October 20, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
A jury found Jose De Jesus Soltero guilty of possessing a controlled substance (cocaine) with intent to deliver as well as deadly weapon and school zone sentence enhancements as charged. The trial court sentenced him to a standard range sentence, with sentence enhancements. We affirm, but reverse the deadly weapon sentence enhancement and remand for resentencing.
FACTS
After serving a search warrant at Soltero's residence, Pierce County Deputy Sheriff Dean Dumais searched the garage. Inside the garage, he found a toolbox. He found a rifle, sandwich bags, and measuring scoops inside the toolbox. Nearby, he found a plastic bag containing what he thought was cocaine.
The State charged Soltero with one count of unlawful possession of a controlled substance with intent to deliver, along with a deadly weapon sentence enhancement and a school zone sentence enhancement.
At a pretrial hearing on July 5, 2006, Soltero waived his right to counsel. After a colloquy with him, the trial court found that his waiver was made knowingly, voluntarily, and intelligently. For the remainder of the trial, Soltero proceeded pro se and without an interpreter.
The jury found Soltero guilty as charged. The jury also found that he was armed with a deadly weapon at the time of the commission of the crime and that the crime occurred within 1,000 feet of the perimeter of a school ground. Ultimately, the trial court sentenced Soltero to a standard range sentence, with a deadly weapon sentence enhancement and a school zone sentence enhancement, for a total confinement of 111 months.
Soltero appeals, contending that the trial court abused its discretion when it allowed him to represent himself and that the evidence is insufficient to support the deadly weapon sentence enhancement.
ANALYSIS
Right to Proceed Pro Se
Soltero claims that the trial court erred in allowing him to proceed pro se. He argues that there is "serious doubt" whether the trial court should have allowed him to proceed pro se after his colloquy with the trial court. Br. of Appellant at 35. We disagree.
The state and federal constitutions guarantee a criminal defendant the right to represent himself. U.S. Const. amends. VI, XIV; Wash Const. art. I, § 22; Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). "This right is afforded a defendant despite the fact that exercising the right will almost surely result in detriment to both the defendant and the administration of justice." State v. Vermillion, 112 Wn. App. 844, 850-51, 51 P.3d 188 (2002) (citing State v. Fritz, 21 Wn. App. 354, 359, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979)), review denied, 148 Wn.2d 1022 (2003). A defendant seeking to represent himself need not demonstrate a technical knowledge of the law and the rules of evidence. Faretta, 422 U.S. at 835.
But a defendant who desires to waive the right to counsel and proceed pro se must make an affirmative unequivocal demand to do so. State v. Modica, 136 Wn. App. 434, 441, 149 P.3d 446 (2006). The demand must be unequivocal in the context of the record as a whole. Modica, 136 Wn. App. at 441. And the waiver must be made knowingly, voluntarily, and intelligently. City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984). Once a defendant has raised the issue of self-representation, the trial court should determine the validity of the waiver. Acrey, 103 Wn.2d at 210. In interpreting Faretta, our Supreme Court has stated that "a colloquy on the record is the preferred means of assuring that defendants understand the risks of self-representation." Acrey, 103 Wn.2d at 211. "That colloquy, at a minimum, should consist of informing the defendant of the nature and classification of the charge, the maximum penalty upon conviction and that technical rules exist which will bind defendant in the presentation of his case." Acrey, 103 Wn.2d at 211. Finally, the trial court should indulge every reasonable presumption against finding that a defendant has waived the right to counsel. State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982).
Here, Soltero does not contend that he was incompetent to stand trial. Nor does he dispute that he waived his right to counsel during a pretrial hearing. In fact, the limited record during this pretrial hearing reveals that the trial court thoroughly inquired into Soltero's understanding of self-representation. In its July 5, 2006 order allowing Solero to proceed pro se, the trial court stated:
Assuming transcripts from this pretrial hearing exist, Soltero has not included them in the record on appeal. We note that the appellant has the burden to perfect the record on appeal. RAP 9.2(b); see also Rhinevault v. Rhinevault, 91 Wn. App. 688, 692, 959 P.2d 687 (1998), review denied, 137 Wn.2d 1017 (1999).
This matter having come before the Court on defendant's motion to proceed pro se, the Court having engaged in a colloquy with the defendant and finding that defendant's request is made unequivocally, freely, voluntarily and with full advise [sic] of the consequences, it is herby ORDERED that defendant be allowed to proceed pro se in this case.
Clerk's Papers at 135.
Instead, Soltero essentially argues that the trial court has a continuing obligation under Faretta to determine whether a defendant has knowingly, voluntarily, and intelligently waived his right to counsel. And based on the subsequent September 5, 2006 pretrial hearing, Soltero argues that his words and conduct were nothing more than "muddled confusion." Br. of Appellant at 39. Thus, Soltero claims that the trial court should have indulged in a presumption against finding that he waived his right to counsel.
But after a defendant has made a valid waiver of his right to counsel and requests to proceed pro se, appointment of new counsel is a matter within the trial court's discretion. State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). Our Supreme Court has stated:
After a defendant's valid Faretta waiver of counsel . . . the trial court is not obliged to appoint, or reappoint, counsel on the demand of the defendant. The matter is wholly within the trial court's discretion. Self-representation is a grave undertaking, one not to be encouraged. Its consequences, which often work to the defendant's detriment, must nevertheless be borne by the defendant. When a criminal defendant chooses to represent himself and waive the assistance of counsel, the defendant is not entitled to special consideration and the inadequacy of the defense cannot provide a basis for a new trial or an appeal.
DeWeese, 117 Wn.2d at 379. In exercising its discretion, the trial court should consider all the facts and circumstances of the defendant's case. State v. Canedo-Astorga, 79 Wn. App. 518, 525, 903 P.2d 500 (1995), review denied, 128 Wn.2d 1025 (1996).
The trial court's discretion lies along a continuum that corresponds with the timeliness of the request to proceed pro se." State v. Breedlove, 79 Wn. App. 101, 107, 900 P.2d 586 (1995). If the request to proceed pro se is made well before trial, the right exists "as a matter of law." Fritz, 21 Wn. App. at 361. If the request to proceed pro se is made shortly before trial, the right "depends on the facts of the particular case with a measure of discretion reposing in the trial court." Fritz, 21 Wn. App. at 361. Finally, if the request to proceed pro se is made during trial, then the right rests largely within the informed discretion of the trial court. Fritz, 21 Wn. App. at 361.
Here, when the trial court questioned whether he was representing himself, Soltero responded:
Yes, I am, Your Honor. I was granted a stand-by public attorney. Me, not knowing of anything, the public defender, he was dismissed without me not being notified of any situation — of that particular situation on any other hearing. So, when I requested my stand-by, I was told that he was — the individual was dismissed under some hearing that I was not of knowledge of. I didn't have no knowledge of whatsoever under that and they dismissed him.
1 Report of Proceedings (RP) at 4. After discussing with the State whether Soltero intended to proceed pro se, the trial court then asked Soltero, "[A]re you asking now for a stand-by attorney?" 1 RP at 6. Soltero responded, "No. I was given the option earlier by Your Honor Lisa Worswick." 1 RP at 6. And again, in response to the trial court's question whether he wanted to continue representing himself, Soltero responded:
Yes, I do, but yet, I mean, I wanted to make a statement how my public defender was dismissed without me knowing of the action tooken upon the court. I do not have any records of July 5th, being here — June 5th, being here on any court matters. I do have records of all my court hearings and everything, and I'm pretty sure I do not have a June 5th hearing where the Honorable Lisa Worswick signed the motion to dismiss by me allegedly granting the motion to be dismissed of the public defender.
1 RP at 6. The trial court, after discussing the journal entry from the July 5, 2006 pretrial hearing, then said, "[I]t appears that all the motions have been heard and we're ready to call a jury up to go to trial." 1 RP at 7.
In response to the trial court's question whether Soltero needed an interpreter, Soltero responded, "I choose not to go with an interpreter.
I can pretty much understand the vocabulary at this point since I've been here for quite a few months now." 1 RP at 9. He explained that the trial court had refused to allow the interpreter "to read the literature to the court." 1 RP at 10. And again, in response to the trial court's question whether Soltero needed an interpreter, he responded, "No, I do not. I no longer wish an interpreter. If I'm going to be denied any kind of need for me to have an interpreter at this point, I would just then request to dismiss the interpreter and I will just proceed to conduct — ." 1 RP at 10-11.
Although Soltero argues to the contrary, the discretion of a trial court is not destroyed by a defendant's ineptitude, even when the ineptitude has been convincingly demonstrated. Canedo-Astorga, 79 Wn. App. at 525. "Because a valid waiver of counsel must be knowing, voluntary and intelligent, the defendant who makes a valid waiver of counsel assumes the risk of ineptitude in those same ways, i.e., knowingly, voluntarily and intelligently." Canedo-Astorga, 79 Wn. App. at 526. "[T]he fact the risk later comes to pass, often just as predicted, does not by itself require reappointment." Canedo-Astorga, 79 Wn. App. at 526.
Here, Soltero's remarks did not taint the validity of his prior Faretta waiver. The trial court had no reason to deny Soltero's right to proceed pro se. See DeWeese, 117 Wn.2d at 377 (if the trial court rejects a defendant's request to proceed pro se, it runs the risk of depriving the defendant of his right to self-representation). And the trial court did not abuse its discretion. Thus, Soltero, a pro se defendant, must bear the consequences of his own representation and cannot on appeal complain of the quality of the defense. See State v. Hoff, 31 Wn. App. 809, 811, 644 P.2d 763, review denied, 97 Wn.2d 1031 (1982). Sufficiency of Deadly Weapon Enhancement
Soltero claims that the evidence was insufficient to support the deadly weapon enhancement. We agree.
RCW 9.94A.602 provides in relevant part:
In a criminal case wherein there has been a special allegation and evidence establishing that the accused . . . was armed with a deadly weapon at the time of the commission of the crime, . . . the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant . . . was armed with a deadly weapon at the time of the commission of the crime.
A firearm is a deadly weapon. RCW 9.94A.602. A person is "armed" within the meaning of the statute "'if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes.'" State v. Schelin, 147 Wn.2d 562, 567, 55 P.3d 632 (2002) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)); see also State v. Gurske, 155 Wn.2d 134, 138, 118 P.3d 333 (2005). "The accessibility and availability requirement . . . means that the weapon must be easy to get to for use against another person, whether a victim, a drug dealer (for example), or the police." Gurske, 155 Wn.2d at 139.
Thus, a nexus must exist between the deadly weapon and the crime. Schelin, 147 Wn.2d at 568. The mere presence of a deadly weapon at the crime scene may be insufficient. Gurske, 155 Wn.2d at 142. "One should examine the nature of the crime, the type of weapon, and the circumstances under which the weapon is found (e.g., whether in the open, in a locked or unlocked container, in a closet on a shelf, or in a drawer)." Schelin, 147 Wn.2d at 570.
And a nexus must exist between the deadly weapon and the defendant. Schelin, 147 Wn.2d at 568. "The nexus requirement refines the analysis and serves to place 'parameters . . . on the determination of when a defendant is armed, especially in the instance of a continuing crime such as constructive possession.'" Gurske, 155 Wn.2d at 140 (quoting Schelin, 147 Wn.2d at 568). But for purposes of a deadly weapon enhancement, the defendant does not need to be armed at the moment of arrest. State v. O'Neal, 159 Wn.2d 500, 504, 150 P.3d 1121 (2007). Moreover, the State does not need to establish with mathematical precision the specific time and place that a weapon was easily accessible and readily available, so long as it was at the time of the crime. O'Neal, 159 Wn.2d at 504-05.
Here, the Pierce County Sheriff's Department served a search warrant at Soltero's house. When Detective Brian Lund knocked on the door, Soltero answered. Soltero's wife was inside the house. Thereafter, Lund read the search warrant to Soltero and his wife, whereupon Deputy Dumais searched the residence.
Deputy Dumais testified that he entered the garage from a back door in Soltero's house. After first noticing that "[n]othing stood out as unusual" about the garage, Dumais then noticed some items that could be associated with illegal drugs on a toolbox about 10 feet away from the back door. 3 RP at 73. Eventually, Dumais searched the toolbox, finding a rifle. The rifle was not loaded, although a magazine was inserted into the rifle. Dumais also found sandwich bags and measuring scoops inside the toolbox. Dumais then found a plastic bag containing what he believed was cocaine.
From this evidence, a jury could reasonably infer that the rifle was present to protect the cocaine and/or the distribution of the cocaine. See O'Neal, 159 Wn.2d at 505-06 (in part, evidence was sufficient to show a nexus between a deadly weapon and the crime when an accomplice testified that he helped the defendants manufacture drugs and that he stood watch during critical points of the drug manufacturing); State v. Eckenrode, 159 Wn.2d 488, 494, 150 P.3d 1116 (2007) (defendant told the 911 operator that he was holding a loaded weapon, a police scanner was found in the home, and there was pervasive evidence that much of the house was used for drug production); cf. Gurske, 155 Wn.2d at 139-40; Valdobinos, 122 Wn.2d at 273-74, 282.
But while a nexus arguably existed between the rifle and the cocaine, there is simply no evidence that a nexus existed between the rifle and Soltero. When Soltero answered the door in response to Detective Lund's announcement, the rifle was not within Soltero's reach. Instead, the rifle was in a toolbox, which was in the garage. And there is no evidence that Soltero intended to use the rifle against the sheriff's deputies. Because the evidence is insufficient to establish that Soltero was "armed" in the sense of having a weapon accessible and readily available for offensive or defensive purposes, the trial court erred in enhancing Soltero's sentence for being armed with a deadly weapon in violation of RCW 9.94A.602. Valdobinos, 122 Wn.2d at 282.
The State would have us believe that a nexus existed between the rifle and Soltero solely because the officers found a sales receipt for the rifle in Soltero's house. Although such evidence may be sufficient to establish a violation of the uniform firearms act, it does not establish a nexus between the possession of cocaine with intent to sell and the use of the rifle to further that crime.
And, although the State argues that it presented evidence that "it was common for drug dealers to arm themselves to prevent being 'ripped off' either by their customers or by their suppliers," Br. of Resp't at 20, the State did not attempt to prove that the rifle was easily accessible and readily available at any other relevant time during the crime. In other words, the State failed to prove Soltero's physical proximity to the rifle at any time when its accessibility and availability for use against another person was critical.
To support the deadly weapon sentence enhancement, the evidence, when viewed in the light most favorable to the State, must be sufficient for a rational trier of fact to find that a nexus existed between the deadly weapon and the crime, and the deadly weapon and the defendant. Gurske, 155 Wn.2d at 143; State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005). But here, the evidence is insufficient to show that at any relevant time the rifle was easily accessible and readily available to Soltero for use for offensive or defensive purposes. Accordingly, the deadly weapon enhancement was improper.
We affirm the conviction, but reverse the deadly weapon sentence enhancement and remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. BRIDGEWATER, P.J. and HUNT, J., concur.