State v. Phan

522 P.3d 105

STATE of Washington, Respondent,

v.Tan Chi PHAN, Appellant.

No. 82708-1-I

Court of Appeals of Washington, Division 1.

Filed December 27, 2022

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Jan Trasen, Attorney at Law, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Prosecuting Atty. King County, King Co Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Dwyer, J. ¶1 The Sixth Amendment to the United States Constitution provides criminal defendants with two opposing yet fundamental rights: the right to be represented by counsel and the right to represent oneself. Once the trial court has found that a defendant has knowingly, intelligently, and voluntarily waived his right to counsel and elected to represent himself, it is not the trial court's function to second-guess the defendant's decision. Neither is it the court's role to later talk the defendant out of it. However unwise a defendant's decision, the constitution respects the defendant's right to make it.

¶2 In the trial court, Tan Phan elected to waive his right to counsel and represent himself in defending against the criminal charges the State brought against him. On appeal, however, Phan asserts that the trial court later erred when it did not sua sponte conduct a second inquiry into his desire to represent himself either after the State amended the information to add a second charge or when Phan's mental health allegedly deteriorated. We hold that, on the facts of this case, the trial court had no obligation to conduct a second colloquy, and Phan's waiver of counsel remained valid until he requested an attorney prior to sentencing. Accordingly, we affirm Phan's convictions.

I

¶3 On June 15, 2020, Tan Phan went to the home of Jerry and Linda Berger, broke multiple windows, threatened the Bergers by brandishing a knife through a broken window, and crashed his car into the side of their home. The State charged Phan with attempted burglary in the first degree for the act of ramming his vehicle into the home.

¶4 Early in the proceedings, Phan expressed the desire to represent himself. On August 18, 2020, Judge Patrick Oishi conducted a colloquy with Phan to ensure that he understood the rights he was surrendering and the risks of proceeding pro se. Prior to the hearing, Phan's appointed counsel reviewed the waiver of counsel form with Phan, with the assistance of a Vietnamese interpreter.

¶5 Judge Oishi explained to Phan that the maximum penalty for attempted burglary in the first degree was 10 years in prison and a $20,000 fine. The trial court also explained that attempted burglary in the first degree was a strike offense.¹ Phan stated that he understood. The trial court then asked Phan which court rules would apply to the case. When Phan indicated that he did not understand the question, the trial court emphasized that Phan would be held to the same standard as an attorney and at trial would need to know the applicable rules and laws. Phan then asked for standby counsel. Judge Oishi informed Phan that there was no constitutional entitlement to standby counsel and that no such attorney would be appointed in the case. The trial court then informed Phan that he had the right to represent himself but

I think this is a terrible idea. It's a terrible idea, because I know you think you're smart and it sounds like you have done some studies that might be helpful to you, but you're going to be held to such a high standard you're going to be completely on your own. That's why I think this is a bad idea.

¶6 Phan responded, "Your Honor, I hear your concern and I know you have empathy and sympathy for me." The trial court stated that empathy and sympathy had nothing to do with his warnings; "I just have been around long enough to know that this almost never works out well." Phan indicated, "I understand my consequence, Your Honor. And I would like to proceed as a pro se also." Satisfied that Phan was knowingly, intelligently, and voluntarily surrendering his right to counsel and that Phan understood the charge against him and the possible consequences of his waiver, the trial court granted his request. Phan also waived his right to a jury trial and opted to proceed to a bench trial.²

¶7 Trial was conducted before Judge Catherine Shaffer from October 12 to October 14, 2020. On October 8, 2020, prior to trial, the trial court conducted a CrR 3.5 hearing, requested by Phan in an attempt to exclude statements he had made to law enforcement. Shortly before the hearing, the State moved to amend the information to add a charge of burglary in the first degree with a deadly weapon enhancement, based on Phan's act of threatening the Bergers with a knife through the broken window. Phan stated that he had no objection to the motion, waived a reading of the information on the record, and entered a plea of not guilty to the new charge.

¶8 Phan then filed a bill of particulars, asking the State to clarify the basis for its charges, particularly by stating what it alleged to be the "crime against a person or property" that Phan intended to commit when entering the Berger home.³ The State informed Phan on the record that it was alleging that Phan intended to commit assault against someone in the house and that he intended to cause significant property damage.

¶9 Phan's defense to both charges was that he lacked the ability to form the requisite intent due to his mental health problems. After hearing the testimony of multiple witnesses, the trial court convicted Phan on both charges. It then entered its decision pursuant CrR 6.1(d), along with findings of fact and conclusions of law supporting the convictions.

¶10 Phan then moved to have an attorney appointed to represent him at sentencing. The trial court granted his request. At sentencing, Phan, through his attorney, requested an exceptional downward sentence of 24 months of incarceration on the basis of Phan's mental health difficulties both prior to and after the incident, his failed mental health defense, youthfulness, and the COVID-19 pandemic. The trial court rejected Phan's request and sentenced him to 30 months on count one and 25 months on count two, to be served concurrently, plus a mandatory consecutive 24 months for the deadly weapon enhancement, for a total of 54 months of incarceration.

II

¶11 Phan asserts that the trial court erred by not sua sponte conducting a colloquy with him on his desire to continue representing himself when the State amended the information to add a charge of burglary in the first degree with a deadly weapon enhancement. This is so, Phan asserts, because the new charge and enhancement significantly increased the maximum possible penalty, and the constitution requires that the court conduct another colloquy when there is a significant change in circumstances. We disagree.

A

¶12 We review a trial court's decision on a defendant's request to proceed pro se for abuse of discretion. State v. Burns, 193 Wash.2d 190, 202, 438 P.3d 1183 (2019). A trial court abuses its discretion if its decision is manifestly unreasonable, unsupported by the record, or based on an incorrect legal standard. Burns, 193 Wash.2d at 202, 438 P.3d 1183. We apply a correlating standard of review to this odd situation—reviewing the trial court's decision to do nothing to cause a lawfully pro se defendant to change his mind.

¶13 The United States and Washington Constitutions provide criminal defendants with the right to counsel, as well as the right to represent themselves at trial. U.S. CONST . amend. VI, XIV ; WASH. CONST. art. 1, § 22 ; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ; State v. Luvene, 127 Wash.2d 690, 698, 903 P.2d 960 (1995). The right to self-representation is "so fundamental that it is afforded despite its potentially detrimental impact on both the defendant and the administration of justice." State v. Madsen, 168 Wash.2d 496, 503, 229 P.3d 714 (2010).

¶14 However, this right is neither absolute nor self-executing. Madsen, 168 Wash.2d at 504, 229 P.3d 714. A defendant wishing to invoke his right to self-representation must make an affirmative, unequivocal demand to waive counsel and proceed pro se. Luvene, 127 Wash.2d at 698, 903 P.2d 960. A trial court may deny the request only if the request is equivocal, untimely, involuntary, or made without a general understanding of the consequences. Burns, 193 Wash.2d at 202-03, 438 P.3d 1183 ; Madsen, 168 Wash.2d at 505, 229 P.3d 714. For the trial court to properly accept a waiver of counsel, the record should establish that " ‘[the defendant] knows what he is doing and his choice is made with eyes open.’ " State v. Hahn, 106 Wash.2d 885, 889, 726 P.2d 25 (1986) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525 ).

¶15 Our Supreme Court has "strongly recommend[ed]" that the trial court conduct a colloquy on the record to assure that a defendant understands the risks of self-representation. City of Bellevue v. Acrey, 103 Wash.2d 203, 211, 691 P.2d 957 (1984). "This colloquy should include a discussion about the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of the accused's defense." State v. Modica, 136 Wash. App. 434, 441, 149 P.3d 446 (2006), aff'd, 164 Wash.2d 83, 186 P.3d 1062 (2008).

B

¶16 Phan first argues that his initial waiver of counsel was invalid because the trial court did not advise him of the maximum potential penalty for burglary in the first degree. But Phan was not charged with burglary in the first degree at the time of his waiver of counsel. A waiver of counsel is valid if the defendant "accurately understands the penalty he or she faces at the time the waiver is made." Modica, 136 Wash. App....