State v. Gwin

548 P.3d 970

STATE of Washington, Respondent,

v.Bobby Darnell GWIN, Appellant.

No. 84297-8-1

Court of Appeals of Washington, Division 1.

Filed May 20, 2024

Honorable Melinda Young, Judge.

PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, Jennifer J. Sweigert, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Chung, J.

¶1 At his trial for unlawful possession of a firearm in the first degree, felony harassment, and possession of heroin with intent to deliver, Bobby Gwin exercised his right to self-representation. The trial court denied his request for standby counsel, citing its blanket policy to deny such requests. Gwin contends the court’s categorical denial of his request for standby counsel violated his right to represent himself under Washington Constitution article I, section 22.

¶2 Article I, section 22 provides a pro se defendant with the right to sufficient resources to prepare and present a meaningful defense. Article I, section 22 does not, however, require that those resources include standby counsel. That said, in determining what resources will enable a pro se defendant to prepare a meaningful defense in a particular case, the court must consider a defendant’s requests, including a request for standby counsel, in light of all of the circumstances. Here, the trial court abused its discretion by failing to consider the request for standby counsel. However, the error was harmless as Gwin had sufficient resources to prepare and present a meaningful defense. We affirm Gwin’s convictions but reverse and remand to strike the Victim Penalty Assessment (VPA) and correct a scrivener’s error in the judgment and sentence.

FACTS

¶3 The State charged Bobby Gwin with unlawful possession of a firearm in the first degree, possession of heroin with intent to deliver, and felony harassment. Gwin sought to represent himself and asked the court to proceed pro se with standby counsel. Prior to considering Gwin’s request, the court explained that it would not appoint standby counsel:

I’m just going to tell you right now before we go into great detail, and I do a colloquy with you, if I grant your Motion to Proceed Pro Se, not going to give you standby Counsel. I’m not going to give you paralegal. I’m not going to, frankly, give you any type of legal assistance or an assistant to, uh, help you with your legal defense. And it’s not just in your case, Mr. Gwin; I don’t give that to any Defendant who wants to proceed pro se, and I’m very upfront about that.

The court asked if Gwin wanted to continue with his pro se motion, and Gwin stated that he still wanted to exercise his constitutional right. The court reiterated, "If I grant your Motion to Proceed Pro Se, I’m not going to give you standby Counsel, legal assistant, any of that; do you still want to proceed?" Gwin confirmed, "That’s fine. Yes, sir. Yes, Your Honor. That’s fine." The court conducted a colloquy and determined that Gwin knowingly, intelligently, and voluntarily waived his right to counsel. The court granted Gwin’s motion to represent himself, and Gwin completed a waiver of counsel.

¶4 Gwin opted for a bench trial, waiving his right to a jury. The court found Gwin guilty of unlawful possession of a firearm in the first degree and felony harassment. Gwin was acquitted of possession of heroin with intent to deliver. Gwin received a low end standard range sentence of 57 months of incarceration. He appeals.

DISCUSSION

I. Right to Standby Counsel

[1–3] ¶5 "The Sixth and Fourteenth Amendments of the United States Constitution afford a criminal defendant both the right to assistance of counsel and the right to reject that assistance and to represent himself." State v. Silva, 108 Wash. App. 536, 539, 31 P.3d 729 (2001). While both are guaranteed, "the right to proceed pro se and the right to assistance of counsel are mutually exclusive." State v. Vermillion, 66 Wash. App. 332, 340, 832 P.2d 95 (1992). "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." State v. DeWeese, 117 Wash.2d 369, 379, 816 P.2d 1 (1991). The federal right to self-representation does not include a right to standby counsel or hybrid representation. State v. Silva, 107 Wash. App. 605, 622, 27 P.3d 663 (2001); DeWeese, 117 Wash.2d at 379, 816 P.2d 1.

[4–9] ¶6 Like its federal counterparts, article 1, section 22 of the Washington Constitution includes the dual rights of assistance of counsel and self-representation. Silva, 108 Wash. App. at 539, 31 P.3d 729. "[C]ourts must carefully balance the dissonant rights to counsel and to self-representation when a defendant seeks to proceed pro se." State v. Rafay, 167 Wash.2d 644, 652, 222 P.3d 86 (2009). Article I, section 22 affords "a pretrial detainee who has exercised his constitutional right to represent himself, a right of reasonable access to state provided resources that will enable him to prepare a meaningful pro se defense." Silva, 107 Wash. App. at 622, 27 P.3d 663. The measures necessary for reasonable access are within the discretion of the trial court after consideration of circumstances such as the nature of the charge, complexity of the issues, the need for investigation, and the administration of justice. Id. at 622-23, 27 P.3d 663. "Although not required under either the state or federal constitutions, a trial court may appoint standby counsel to aid a pro se defendant at the defendant’s request." State v. Fisher, 188 Wash. App. 924, 928, 355 P.3d 1188 (2015); see also State v. McDonald, 143 Wash.2d 506, 511, 22 P.3d 791 (2001). This court has explicitly stated that pro se defendants are "not constitutionally entitled to standby counsel." Silva, 107 Wash. App. at 625, 27 P.3d 663.

[10] ¶7 Despite this decisional authority on the right to standby counsel, Gwin contends the trial court’s refusal to appoint standby counsel violated his rights under article I, section 22. According to Gwin, "Washington’s state constitutional right to defend in person encompasses a right to standby counsel when necessary to afford an incarcerated defendant the ability to meaningfully access the courts and present his defense." Gwin is correct that under some circumstances, article I, section 22 provides greater protection than its federal counterpart. See Rafay, 167 Wash.2d at 647, 222 P.3d 86 (while not recognized by federal law, article I, section 22 guarantees the right to self-representation on appeal). However, "just because a state constitutional provision has been subject to independent interpretation and found to be more protective in a particular context, it does not follow that greater protection is provided in all contexts." Murphy v. State, 115 Wash. App. 297, 311, 62 P.3d 533 (2003). Parties must explain why greater protections are appropriate in specific applications. State v. Ramos, 187 Wash.2d 420, 454, 387 P.3d 650 (2017).

[11, 12] ¶8 On review, we interpret a constitutional provision de novo. In re Pers. Restraint of Sargent, 1 Wash.3d 580, 587, 530 P.3d 566 (2023). To determine whether the Washington constitution extends broader rights in a particular context we consider the six factors established in State v. Gunwall: "(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern." 106 Wash.2d 54, 58, 720 P.2d 808 (1986).

¶9 In Silva, this court considered the Gunwall factors to assess whether article I, section 22 guarantees broader assistance than the federal constitution to pro se defendants to prepare a defense. 107 Wash. App. at 617-21, 27 P.3d 663. That Gunwall analysis resulted in the conclusion that Washington’s constitution encompasses the right to reasonable access to state-provided resources to enable preparation of a meaningful pro se defense, but also noted that the defendant was not constitutionally entitled to standby counsel. Silva, 107 Wash. App. at 622, 625, 27 P.3d 663.

¶10 Thus, while Silva established that article I, section 22 requires interpretation of the right to self-representation independent from the federal constitution, "[t]hat is only half the required analysis." State v. Lee, 12 Wash. App. 2d 378, 391 n.4, 460 P.3d 701 (2020). Gwin must explain why that independent interpretation leads to a constitutional entitlement to standby counsel. See Lee, 12 Wash. App. 2d at 391 n.4, 460 P.3d 701.

A. Textual Language and Differences in the Texts

¶11 The text of article I, section 22 states, "In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel …. " The inclusion of the words "in person" has been interpreted as "unequivocally guaranteeing an accused the constitutional right to represent himself." Silva, 107 Wash. App. at 617-18, 27 P.3d 663. The Sixth Amendment lacks the same explicit language: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial … and to have the Assistance of Counsel for his defense." Therefore, the federal right to self-representation is implied rather than express. Id. at 618, 27 P.3d 663. Because the right of self-representation in the Washington Constitution is explicit, "the differences in the text of the constitutional provisions have great significance in determining what is required to effectuate those rights." Id. at 618, 27 P.3d 663.

¶12 According to Gwin, the texts and their differences "weigh in favor of a finding that the state constitutional right includes a right to the assistance of standby counsel to effectuate the right to appear and defend in person." Indeed, Silva noted that because the right under the Sixth...