State v. Englund

186 Wash.App. 444

345 P.3d 859

STATE of Washington, Respondent

v.Allen ENGLUND, Appellant.

Nos. 44958–7–II

44965–0–II.

Court of Appeals of Washington, Division 2.

March 17, 2015.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

PUBLISHED IN PART OPINION

MELNICK, J.

¶ 1 Allen Englund appeals his convictions of two counts of assault in the second degree while armed with a firearm and three counts of unlawful possession of a firearm in the second degree. Englund argues that we should vacate his convictions and remand for a new trial because the trial court abused its discretion by denying Englund's requests to proceed as a self-represented litigant (SRL), failed to bring Englund to trial within the time for trial rule, and denied Englund his right to be present at every critical stage of the proceedings. Englund also makes several assertions in his statement of additional grounds (SAG). In the published portion of the opinion, we hold that the trial court did not abuse its discretion when it denied Englund's requests to represent himself. In the unpublished portion of the opinion, we hold that the trial court did not violate Englund's right to a timely trial, and it did not violate Englund's right to be present at every critical stage of the proceedings. We also reject Englund's SAG assertions. We affirm Englund's convictions.

FACTS

I. Substantive Facts ¹

A. Englund's Criminal History

¶ 2 In 1976, Englund pleaded guilty to burglary in the second degree in Lewis County Superior Court. Because of the conviction, Englund could not legally possess a firearm. On August 19, 2009, a jury found Englund guilty of unlawful possession of a firearm in the first degree in Thurston County Superior Court. The judgment and sentence specifically informed Englund that he could not legally possess a firearm unless a court of record restored his right to do so. On October 13, 2012 and December 16, 2012, Englund could not legally possess any firearm.

B. Facts Relating to October 2012 Case

¶ 3 Englund owned property with two travel trailers on it. In October 2012, Washington Fish and Wildlife Officer Chris Zuchlewski stopped at Englund's property to investigate two unattended fishing poles. Following the investigation, Zuchlewski ran a records check on the license numbers of the vehicles on the property. From the records check, Zuchlewski determined that because Englund had felony convictions, he could not legally possess firearms.

¶ 4 Later that same day, Zuchlewski drove past Englund's property again and observed Englund holding a rifle with a scope. Zuchlewski and a fellow officer entered Englund's property and placed him under arrest. Following the arrest, Zuchlewski, accompanied by Englund and with his consent, entered one of the trailers on the property and, from under a mattress, seized a loaded .22 caliber rifle equipped with a scope.

C. Facts Relating to December 2012 Case

¶ 5 Mark Christensen and Arthur Parrish are friends. They know Englund. Christensen drove by Englund's residence every time he drove to Parrish's residence. In mid- December 2012, Christensen and Parrish drove onto Englund's property in Christensen's vehicle and struck the front fender of Englund's vehicle. Englund believed the collision was intentional and he was fearful that Christensen's truck might strike his trailer or injure him. Englund wanted to retaliate against Christensen and Parrish.

¶ 6 Shortly thereafter, Christensen drove his vehicle home from Parrish's residence. While passing Englund's property, he heard a loud boom that sounded like a shotgun blast. Christensen did not stop or examine his vehicle until the next day when he observed what appeared to be shotgun pellets embedded in the driver's side and rear tire of the vehicle. Later that same day, Englund, while on his property, aimed and fired a firearm at a vehicle containing Christensen and Parrish. Christensen and Parrish feared for their lives and, once reaching Christensen's residence, they called law enforcement.

¶ 7 After the call, Sheriff's deputies arrested Englund on his property. In a search incident to arrest, deputies seized a box of 20–gauge shotgun shells from Englund's pocket. The shot found in the 20–gauge shells was size 8, a form of birdshot capable of injuring a human being. In a search pursuant to a warrant, deputies seized a loaded 20–gauge bolt action shotgun from under a blanket in a trailer on Englund's property. Additionally, deputies seized a loaded .22 caliber rifle from Englund's other trailer.

II. Procedural History

¶ 8 On December 26, 2012, Englund appeared for arraignment and pleaded not guilty to each charge.² The trial court appointed a lawyer for Englund and set a February 19, 2013 trial date. On January 24, the trial court allowed Englund's lawyer to withdraw for good cause and ordered the Office of Assigned Counsel to appoint a new lawyer for Englund as soon as possible. On January 28, the trial court appointed new counsel for Englund. Two days later, the trial court allowed the new lawyer to withdraw at Englund's request. Englund moved to represent himself. Regarding self-representation, the trial court engaged in a colloquy with Englund:

THE COURT: And is it true that you wish to represent yourself?

ENGLUND: If I have to.

THE COURT: If you have to?

ENGLUND: Yeah.

THE COURT: Are you making a request to this court that you represent yourself?

ENGLUND: Yeah.

Report of Proceedings (RP) (Jan. 30, 2013) at 5. The trial court then entered an order requiring Englund to file a written motion to represent himself. Englund's former lawyer expressed concern that the current February 19 trial date would not allow adequate preparation time for a new lawyer. The State agreed. The trial court engaged in the following colloquy with Englund:

THE COURT: Thank you. And I believe—correct me if I'm wrong, Mr. Englund. But I believe the last time that you were before the court asking—or agreeing with the motion of counsel to withdraw from your case, you understood that that may very well mean an extension of dates, including the trial date; right?

ENGLUND: No.

THE COURT: I'm sorry?

ENGLUND: What would you mean an extension? No. What's that?

THE COURT: You understood that your agreement with the request to allow your counsel to withdraw may mean that the trial date would continue out further than when it currently is.

ENGLUND: If it has to be—a speedy trial is 60 days.

THE COURT: I'm sorry. I can't hear you.

ENGLUND: It should still be a fast, speedy trial, 60 days.

THE COURT: So you are not in agreement with the continuation of the trial?

ENGLUND: No.

THE COURT: You are not?

ENGLUND: No.

RP (Jan. 30, 2013) at 8–9. Because a determination still needed to be made concerning Englund's legal representation, the trial court found good cause to continue the jury trial in the December 2012 case to the week of March 11, 2013.

¶ 9 The trial court set a February 12 status review hearing regarding counsel. Englund appeared at the hearing and again said he wanted to represent himself.³ Englund had not yet filed a written motion to represent himself. The trial court engaged in a colloquy with Englund, asking him if he understood the nature of all the charges against him.⁴ Englund said yes. However, Englund interjected throughout the colloquy that he had “gun rights.” RP (Feb. 12, 2013) at 7. Additionally, the trial court asked Englund if he was familiar with the rules of evidence and criminal procedure:

THE COURT: Are you familiar with the rules of evidence?

ENGLUND: Yes.

THE COURT: How are you familiar with the rules of evidence?

ENGLUND: The evidence ain't against me. It's the ones that made the assault, not me.

....

THE COURT: Are you familiar with the rules of criminal procedure?

ENGLUND: Yeah.

THE COURT: And how are you familiar with the rules of criminal procedure?

ENGLUND: Because I didn't do nothing wrong. I ain't the type to go to somebody else's place and step out of line.

....

THE COURT: Do you have a legal theory you wish to argue to the [c]ourt that you believe your lawyer would not argue on your behalf?

ENGLUND: No.

....

THE COURT: At this point, I need to advise you that, in the [c]ourt's opinion, you would be far better served if you were defended by a trained lawyer than representing yourself. It's unwise to represent yourself. You face extremely stiff penalties if, in fact, you are found guilty. You are not familiar with the law.

RP (Feb. 12, 2013) at 9–11. The trial court also advised Englund he could not argue at trial that he had the right to possess a firearm. The trial court entered a written order denying Englund's request to represent himself. Based on its colloquy with Englund, the trial court found that Englund “would not have the capacity to understand and follow the procedural rules in this matter and would thereby be unable to provide for his defense.” Clerk's Papers (CP) at 52. The trial court ordered the Office of Assigned Counsel to appoint a lawyer to represent Englund.

¶ 10 Eight days later, at a previously set review hearing, Englund's new appointed lawyer appeared, but Englund was not transported to the courtroom. His lawyer presented the trial court with a stipulated competency evaluation order. The court signed it. Because Englund refused to cooperate with a competency evaluation at the jail, the trial court subsequently entered an amended order for the evaluation to occur at Western State Hospital.

¶ 11 On May 2, the trial court found Englund legally competent to stand trial. At that time, the trial court set a new trial date for May 28. During the hearing, Englund's lawyer advised the court that Englund did not believe she represented him. Englund addressed the court:

THE COURT: ... Mr. Englund, you wish to address the court?

ENGLUND: What do you mean?

THE COURT: Do you have a question?

ENGLUND: Yeah. You're sitting there trying to put me up for trial, and it's way past the 60–day trial, and I'm not the one

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