State v. Forsman

2 Wn.App.2d 1036

STATE OF WASHINGTON, Respondent, v. SEAN ALLEN FORSMAN, Appellant.

No. 49743-3-II

Court of Appeals of Washington, Division 2

February 13, 2018

UNPUBLISHED OPINION

Melnick, J.

Sean Allen Forsman appeals his sentence for three convictions of unlawful delivery of a controlled substance, two of which had sentencing enhancements.

We conclude that the trial court did not violate Forsman's right to self-representation because he represented himself at his resentencing hearing. Consequently, he did not receive ineffective assistance of counsel. However, the superior court erred by confining the scope of resentencing to the school bus route stop enhancements and refusing to consider Forsman's criminal history arguments. Accordingly, we remand for a full resentencing hearing.

FACTS

I. Conviction and Original Sentence

A jury found Forsman guilty of three counts of unlawful delivery of a controlled substance: cocaine.^[1] It also determined that school bus route stop enhancements applied to two of the three counts.^[2] The trial court calculated Forsman's offender score as six and sentenced him to 90 months on each of the three counts to run concurrently. It sentenced him to an additional 24 months for each school bus route stop enhancement, to run consecutively to the 90 months and consecutively to one another, for a total sentence of 138 months. On appeal, we affirmed Forsman's convictions but did not address any sentencing issues.^[3]

II. Personal Restraint Petition (PRP)

In May 2014, Forsman, acting as a self-represented litigant (SRL), filed a motion in the superior court to modify or correct his sentence based on a miscalculation of his offender score and the erroneous imposition of the consecutive school bus route stop enhancements. The court transferred the motion to this court for consideration as a PRP pursuant to CrR 7.8(c)(2). We dismissed the petition.

The Supreme Court granted Forsman's petition for review "only on the issue of the trial courts imposition of consecutive school bus stop enhancements." Clerk's Papers (CP) at 146. The court remanded the case to the trial court for resentencing consistent with State v. Conover. 183 Wn.2d 706, 355 P.3d 1093 (2015). Conover held that RCW 9.94A.533(6) required school bus stop enhancements to run consecutively to base sentences, but not consecutively to one another. 183 Wn.2dat719.

III. Resentencing Hearing

In September 2016, Forsman, as an SRL, filed a sentencing memorandum with the Superior Court, arguing that his offender score should be recalculated.

Forsman personally argued to the court that, pursuant to RCW 9.94A.530(2), he should be entitled to present new evidence about his offender score. The court concluded that its "lawful authority" was constrained to the "narrow issue" of the school bus route stop enhancements. Report of Proceedings (RP) (Nov. 4, 2016) at 8. It stated: "The matter is remanded for resentencing consistent with Conover. Conover addresses the school zone enhancements. I'm not going to reconsider anything other than that." RP (Nov. 4, 2016) at 8-9. The court then ruled that, consistent with Conover, the two school bus route stop enhancements should run concurrently with one another. It reduced Forsman's total sentence by 24 months to 114 months.

After the court resentenced Forsman, he raised the issue of his representation. He stated that he had attempted to retain two different attorneys, but that neither of them appeared for the hearing. The court responded that no attorney had filed a notice of appearance, which is why it had directly interacted with Forsman for the entirety of the hearing. Forsman responded that he "was wanting to proceed like a pro se as this has been a pro se course of action" and that, because the court was denying his request to present evidence about his criminal history, "it's irrelevant at this point for me to invoke that right." RP (Nov. 4, 2016) at 11.

The court then observed that a lawyer from the Department of Assigned Counsel (DAC) was present at the hearing "to essentially stand by or to provide perhaps some assistance to Mr. Forsman." RP (Nov. 4, 2016) at 12. The prosecutor expressed confusion and stated "it was never clear to me that he was back for resentencing in a pro se position, and I thought [DAC counsel] was here as his attorney of record." RP (Nov. 4, 2016) at 12. The DAC counsel clarified that she was representing him for the resentencing hearing. She said: "He and I did discuss the facts. I've told him my understanding of his argument and of the court's possible ruling, but he made the argument that he wanted to make and that he had filed with the Court." RP (Nov. 4, 2016) at 13. She confirmed that, while she had been present in a representative capacity, Forsman had wanted to speak for himself. Forsman also confirmed that he had wanted to speak for himself and stated that he had been "proceeding pro se." RP (Nov. 4, 2016) at 14.

The court asked Forsman whether it was his decision to speak for himself, and the following exchange occurred:

THE COURT: Just so our record is clear, even though [DAC counsel] has been here prepared to speak for you as your legal representative, it's your decision to speak for yourself today?

[Forsman]: Well, I was trying to present that to you before you cut me off and tried to get to the answers that you were trying to reach to, but it was a pro se course of action and you could have put her on standby. You could have granted her hybrid representation status, whatever, but it was a pro se course of action and I was acting pro se.

THE COURT: Okay. So you have no objection or no argument against [DAC counsel] sitting here silently today?

[Forsman]: No, I don't.

RP (Nov. 4, 2016) at 14.

The prosecutor then requested, for "purposes of a clean record, " that the DAC counsel advance any further arguments she may have as Forsman's attorney. RP (Nov. 4, 2016) at 14-15. The court stated that it was "satisfied that Mr. Forsman voluntarily, freely chose to speak for himself this afternoon, " but acknowledged that the DAC counsel was present representing him. RP (Nov. 4, 2016) at 15. It then gave counsel an opportunity to "make any further arguments or statements" on Forsman's behalf. RP (Nov. 4, 2016) at 15. She stated:

I can tell the Court that, in reading the documentation that was filed from the Supreme Court and also from Mr. Forsman, I do not disagree with what the Court has done here today, and what Mr. Forsman has argued is his argument, which is why I let him make the argument. Hopefully that's clear.

RP (Nov. 4, 2016) at 15. Immediately after this statement, the following exchange occurred between Forsman and the court:

[Forsman]: ... So far as being granted pro se status, this has been a pro se course of action from the beginning. From the 7.8 that was filed with this court, I have not had representation interact with me, for me, on my behalf, on this matter.And [DAC counsel], I have met her approximately an hour before coming into this courtroom today. I did not request for her assistance. At the same time, I wanted to assert my pro se status, keep my pro se status. It was never not a right that I didn't have anyways. I've been proceeding pro se and I was going to continue to proceed pro se, but I don't object to her putting forth argument on my behalf in my favor for an outcome that would be advantageous for me, but at the same time, I still want to keep my pro se status.

THE COURT: Well, I permitted you to argue for yourself. I've given [DAC counsel] an opportunity to make further arguments and comments. She made a couple of comments. I don't know how I could try to clarify the record any more.

RP (Nov. 4, 2016) at 16. The court then signed a judgment and sentence that reflected its actions. Forsman appeals.

ANALYSIS

I. Right to Self-Representation

Forsman contends that the court denied him his right to represent himself at the resentencing hearing. He claims that, if he was required to affirmatively request to represent himself, he did so unequivocally.^[4]

"We review a trial court's denial of the right to represent oneself for an abuse of discretion." State v. Englund, 186 Wn.App. 444, 454, 345 P.3d 859 (2015). "Article 1, section 22 of the Washington Constitution explicitly guarantees criminal defendants the right to self-representation." Englund, 186 Wn.App. at 455. "Courts regard this right as 'so fundamental that it is afforded despite its potentially detrimental impact on both the defendant and the administration of justice.'" Englund, 186 Wn.App. at 455 (quoting State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010)). "Improper denial of the right to represent oneself requires reversal regardless of whether prejudice results." Englund, 186 Wn.App. at 455.

However, "[t]he right to self-representation is not self-executing." Englund, 186 Wn.App. at 456. A trial court "must honor a properly made request for self-representation, " but must also "indulge in 'every reasonable presumption against a defendant's waiver of his or her right to counsel.'" Englund, 186 Wn.App. at 456 (quoting Madsen, 168 Wn.2d at 504) (internal quotations omitted). The court must determine "whether the request is unequivocal and timely" and, if it is, whether it is "voluntary, knowing, and intelligent, usually by colloquy." Madsen, 168 Wn.2d at 504.

A trial court may deny the right if the request "is equivocal untimely, involuntary, or made without a general understanding of the consequences." Madsen, 168 Wn.2d at 504-05. A defendant's request to proceed as an SRL must be unequivocal to protect "defendants from making capricious waivers of counsel and to protect trial courts from manipulative vacillations by defendants regarding representation." State...