                                                           COURT OF APPEALS DiVi
                                                            STATE OF WASHINGTON

                                                           2013 APR 23 AH II* IU




 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE

STATE OF WASHINGTON,
                                                  No. 67657-1-1
                    Respondent,
                                                  ORDER AMENDING OPINION



TREVOR MICHAEL ZOPPI,
aka JAMES MICHAEL CARVER,

                    Appellant.


      A panel of the court has determined that the opinion filed March 25, 2013

should be amended; now, therefore, it is hereby

      ORDERED that the opinion be amended as follows:

      DELETE the last sentence on page 2, which reads:

      Judge Donald Kessler entered an order of competency.

      REPLACE that sentence with the following sentence:

      Judge Ronald Kessler entered an order of competency.

      DELETE the first sentence of the first paragraph on page 14, which reads:

      The only misstatement of the maximum sentence was the improper

      maximum concurrent sentence length stated on June 2.
No. 67657-1-1/2


      REPLACE that sentence with the following sentence:

      The only misstatement of the maximum sentence was the improper

      maximum consecutive sentence length stated on June 2.


      DATED this 9&- day of April, 2013.



                                        [yC4tALj^^i^ J(~ .pJ-~
WE CONCUR:


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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                  S    too

STATE OF WASHINGTON,
                                                                                            o
                                                      No. 67657-1-1               5a   o        .
                    Respondent,
                                                      DIVISION ONE                _, ' ?^n
               v.

                                                      UNPUBLISHED OPINION Sn           ™</>
TREVOR MICHAEL ZOPPI,
aka JAMES MICHAEL CARVER,

                    Appellant.                        FILED: March 25, 2013


       Appelwick, J. — Carver alleges the trial court abused its discretion by declining

to order a second competency evaluation and by allowing Carver to represent himself at

trial. We affirm.


                                        FACTS


       James Carver1 was charged with two sets of crimes relating to different victims.

The charges were tried together, and he was convicted on all counts.

       In 2006, Carver was convicted of malicious mischief after he assaulted his

mother and damaged her property.      In April 2010, she obtained a domestic violence

protection order against Carver. Carver violated the order in early July 2010 when he

wrote his mother a letter and left her two voicemail messages.        On July 11, he left

another message, threatening '"I am going to rip your fucking head off.'" As a result, he

was charged with felony harassment and two counts of misdemeanor violation of a

court order.


       In 2007, Jessica Smith, Carver's ex-classmate, came home and found Carver on

her porch. When police arrived, they discovered candy on the porch. He was convicted

       1 We refer to the appellant as James Carver, because he signed the judgment
and sentence using that name.
No. 67657-1-1/2



of misdemeanor stalking. In April 2010, he spray-painted "'Orion (heart) Lepus'" on

Smith's garage door. Smith's husband discovered the message when he came home

and called the police. Police discovered a chocolate bunny in the Smiths' backyard.

After Carver was arrested, he revealed that he spray-painted the message, that he was

Orion, and that Smith was Lepus. As a result, he was charged with felony stalking and

malicious mischief in the third degree.

       In November 2010, prior to trial, defense counsel expressed "significant concerns

about [Carver's] competency." Counsel explained that Carver understood the nature of

the charged offenses, but that his understanding was not rooted in reality. The trial

court ordered Carver to undergo a competency evaluation

      A psychologist from Western State Hospital issued a report on November 24,

2010 concluding that Carver was competent. He diagnosed Carver with a "psychotic

disorder," but stated that Carver was not disorganized and did not have any significant

impairment in cognitive function. The psychologist wrote that Carver was frustrated that

he could not contact his mother and stated he might need a knife to break in to his

mother's home if it was vacant. The psychologist noted Carver's reluctance to disclose

his beliefs about his victims, but explained, "It appears likely he harbors delusional

beliefs about them."


      In February 2011, the defense asked for a continuance to allow a defense expert

to complete a competency evaluation. On March 15, 2011, defense counsel stipulated

to Carver's competency and represented that the expert had found Carver competent.

Judge Donald Kessler entered an order of competency.
No. 67657-1-1/3



       On April 3, 2011, Carver wrote a letter to Judge Kessler. He indicated that Smith

was a false person impersonating one of Carver's high school classmates and that his

mother was dead.


      On May 4, defense counsel sought extra time to prepare an insanity defense.

Carver was upset about the requested continuance. He was hopeful that the charges

would be dismissed, because his mother was dead. Judge Theresa Doyle denied his

request to discharge counsel.

      On June 2, Carver sought to proceed pro se. After concerns were raised about

Carver's continued competency, Judge Kessler asked the defense to have its expert

render an opinion on whether Carver suffered from a mental illness to the extent that he

could not conduct trial proceedings by himself.

      On June 17, defense counsel informed the court that the defense expert

determined Carver was cognitively intact and could represent himself. Defense counsel

himself, however, expressed concern about Carver's competency.           The prosecutor

likewise noted that it had been a long time since the competency hearing.          Judge

Kessler stated that the competency concern was nothing new, and noted that Carver

was still competent.   He performed a colloquy with Carver regarding his decision to

represent himself. Although Judge Kessler advised Carver that he was making a poor

decision, he concluded that Carver made a knowing, voluntary, and intelligent waiver of

his right to counsel. He appointed defense counsel as standby counsel for trial.

      On July 11, Carver asked for a subpoena to obtain his high school year book so

he could prove that Smith was an imposter and for funds so he could obtain his

mother's death certificate.     The prosecutor again indicated that it would likely be
No. 67657-1-1/4



"appropriate to have a new competency colloquy." Judge Steven Gonzalez asked the

prosecutor to identify changes that would justify a new inquiry into competency. The

prosecutor stated that in June the State knew that Carver believed his mother was

dead, but did not know that Carver believed Smith was an imposter. That statement

was incorrect, as Carver had previously written a letter indicating both beliefs and had

expressed both beliefs at previous proceedings. Judge Gonzalez questioned Carver to

determine whether he understood the charges against him, concluded he did, and

allowed him to represent himself. Carver waived his right to a jury trial.

       Carver was convicted on all five counts.

                                      DISCUSSION


       Carver argues that he was entitled to a new competency evaluation. He also

argues that he did not make a voluntary, knowing, and intelligent waiver of his right to

counsel.


  I.   Competency

       Criminal defendants have a fundamental right not to be tried while incompetent.

Drope v. Missouri. 420 U.S. 162, 171-72, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). An

incompetent person may not be tried, convicted, or sentenced so long as the incapacity

continues. RCW 10.77.050. A defendant is incompetent if he or she "lacks the capacity

to understand the nature of the proceedings against him or her or to assist in his or her

own defense as a result of mental disease or defect." RCW 10.77.010; State v. Lord,

117 Wn.2d 829, 900, 822 P.2d 177 (1991). Thus, the test has two parts: (1) whether

the defendant understands the nature of the charges; and (2) whether he is capable of

assisting in his defense. In re Pers. Restraint of Fleming. 142 Wn.2d 853, 861-62, 16
No. 67657-1-1/5



P.3d 610 (2001). He does not need to be capable of suggesting or choosing a trial

strategy. State v. Ortiz. 104 Wn.2d 479, 483-84, 706 P.2d 1069 (1985). And, the mere

existence of a mental disorder or the existence of delusions does not prevent him from

being competent. State v. Smith. 74 Wn. App. 844, 850, 875 P.2d 1249 (1994); State v.

Benn. 120 Wn.2d 631, 661-62, 845 P.2d 289 (1993).

      The trial court shall order a competency evaluation when there is reason to doubt

a defendant's competency.      RCW 10.77.060(1 )(a).     Once the trial court makes a

determination that a defendant is competent, it need not revisit competency unless

"'new information presented has altered the status quo ante.'" State v. Ortiz. 119 Wn.2d

294, 301, 831 P.2d 1060 (1992). In evaluating the need for a competency evaluation,

the trial court may consider the defendant's appearance, demeanor, conduct, personal

and family history, past behavior, medical and psychiatric reports, and the statements of

counsel. Fleming. 142 Wn.2d at 863. Representations of medical findings can erase

doubt in the court's mind. State v. Heddrick. 166 Wn.2d 898, 908, 215 P.3d 201 (2009).

      The trial court's decision on whether to order a competency examination is

reviewed for an abuse of discretion. Fleming. 142 Wn.2d at 863. The trial court abuses

its discretion when its decision is manifestly unreasonable or exercised on untenable

grounds or for untenable reasons. Mayer v. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132

P.3d 115 (2006).

   A. June Proceedings

      On June 2, the prosecutor expressed concern that it had been "quite a while"

since Carver was found competent. Judge Kessler stated that Carver was probably

suffering from a delusion disorder, but didn't see that the delusions made him
No. 67657-1-1/6



incompetent for trial. He asked the defense to have its expert render an opinion on

whether Carver suffered from a severe mental illness to the point that he could not

conduct trial proceedings by himself. He decided to defer the issue of whether Carver

could proceed pro se until hearing from the expert.

      On June 17, the prosecutor asked the court to consider defense counsel's

concerns about Carver's competency.        Defense counsel himself expressed "grave

concerns" about Carver's competency. He argued that Carver believed his mother was

dead and Smith was an actress and that those delusions went to "the very heart of his

ability to represent himself." But, defense counsel also relayed the expert's opinion that

Carver was cognitively intact and could represent himself. Judge Kessler declined to

order a new competency evaluation and found Carver competent to represent himself.

      Carver argues that under these circumstances, the trial court abused its

discretion by not ordering a new competency evaluation.        In addition to his general

argument that his delusions worsened leading up to trial, Carver argues that the

passage of time since the original competency determination and the urgings of both

attorneys weighed heavily in favor of a new competency evaluation.

      The passage of time may be one factor in determining if a new competency

evaluation is warranted. But, there is no per se rule that the passage of time mandates

a new evaluation. The test remains whether there is a showing that the status quo ante

has changed. In fact, in the case Carver cites to support his statement that the passage

of time is an appropriate factor to consider, the court concluded that the defendant was

not entitled to a new evaluation. State v. Laffertv. 2001 UT 19, 20 P.3d 342, 359-60.

The court reasoned that the allegedly new behaviors warranting a new evaluation
No. 67657-1-1/7




amounted to new people observing the same behavior already considered and ruled

upon. \&, at 361. Similarly, it is not clear that Carver's delusions leading up to trial were

new. Carver's argument fails to acknowledge that the psychologist who conducted that

evaluation and determined that Carver was competent was aware that Carver likely held

delusional beliefs.   For instance, during his evaluation, Carver revealed that he may

need a knife to break into his mother's vacant home. The report states that, due to

Carver's statements and actions, it is "likely he harbors delusional beliefs about" his

mother and Smith.      The fact that Carver began to reveal more details about those

delusions does not necessarily make them new or signal a change in the status quo

ante.


        Carver is correct that the trial court should give considerable weight to defense

counsel's opinion regarding his client's competency. Lord. 117 Wn.2d at 901. But, the

State has different motivations than defense counsel and Carver has not articulated why

the prosecutor's concerns should be "entitled to even more reliance."              And, the

prosecutor never said that Carver was actually incompetent to stand trial. Rather, she

indicated that current circumstances might warrant further competency inquiry.

        More importantly, defense counsel's concerns were undercut by the defense

expert's conclusion that Carver was still competent. At that point, the parties were fully

aware of the extent of Carver's delusions.      Deferring to the opinion of mental health

experts is a tenable basis to find competency. State v. Lawrence. 166 Wn. App. 378,

389, 271 P.3d 280, review denied. 174 Wn.2d 1009, 281 P.3d 686 (2012).                  And,

representations of medical findings can erase doubts in the court's mind. Heddrick. 166

Wn.2d at 908.
No. 67657-1-1/8



      Carver nevertheless argues that there is no evidence that the defense expert

considered Carver's developing delusions, because her report is not in the record. But,

the trial court requested that Carver's own expert evaluate Carver's current

competency, and defense counsel represented that the expert found Carver to be

competent.    Counsel was in the best position to provide the report and did not.

Moreover, defense counsel did not object that the report was not in the record and did

not attempt to challenge the basis of the expert's conclusion before the trial court.

Carver is not arguing ineffective assistance of counsel.    He cannot now succeed by

arguing that defense counsel either failed to obtain a current evaluation as requested, or

otherwise lied about the content of the report. The trial court was entitled to rely on

defense counsel's representation that its expert believed Carver was competent. It did

not abuse its discretion by declining to order a new competency evaluation.

   B. July Proceedings

      On July 11, the prosecutor cautioned, "The State is concerned that the defendant

has decompensated ... in his time in the jail, since 2010, that he has delusions that

were not present previously when he was evaluated by Western [State Hospital] and

that that impacts his ability to understand the charges against him." She continued, "I'm

not saying he's incompetent, but I have concerns and - and would ask the Court to

inquire further." She asked for a new competency colloquy. Judge Gonzalez explained

that the issue was whether there were changes that would justify a new competency

evaluation. The prosecutor said that in June she knew about the delusion concerning

Carver's mother, but not his delusion concerning Smith.          Judge Gonzalez asked

standby counsel if he had noticed any changes in the month and a half that he had


                                                8
No. 67657-1-1/9



been representing Carver. He replied that Carver's affect was stable. When asked if

there were any specific issues regarding Carver's competency, standby counsel

responded, "I don't have any particular concerns."

       Judge Gonzalez then engaged in a colloquy with Carver concerning his

understanding of the charges against him, his delusions, and his ability to represent

himself. At the end of the colloquy, Judge Gonzalez asked the prosecutor if she would

like any more inquiry. The prosecutor responded in the negative.

       Judge Gonzalez had no basis to order a new competency evaluation, because

neither the prosecution nor standby counsel presented any new information that altered

the status quo ante. The delusions that the prosecutor brought to Judge Gonzalez's

attention had already manifested themselves, at the latest, before the defense expert

determined that Carver was still competent.

       Further, a careful reading of the record reveals that the prosecutor only asked for

a competency colloquy.     She expressed concerns, but did not express a belief that

Carver was actually incompetent.      Judge Gonzalez then asked Carver a series of

questions that touched on both prongs of the competency test: whether he understood

the nature of the charges and whether he could assist with his defense. At the end of

the inquiry, the prosecutor indicated she was satisfied with the colloquy.       Standby

counsel did not request a competency colloquy or evaluation, instead telling the court

that he did not have any particular concerns.

      The trial court did not abuse its discretion by declining to order a new

competency evaluation.
No. 67657-1-1/10



 II.   Right to Counsel

       A criminal defendant has the right to assistance of counsel, but he also has the

right to waive assistance of counsel. Faretta v. California. 422 U.S. 806, 819, 95 S. Ct.

2525, 45 L. Ed. 2d 562 (1975). A court may not deny a motion for self-representation

on the grounds that self-representation would be detrimental to the defendant's ability to

present his case. State v. Madsen. 168 Wn.2d 496, 505, 229 P.3d 714 (2010). Rather,

the trial court may only deny a motion to proceed pro se when the request is equivocal,

untimely, involuntary, or made without a general understanding of the consequences.

Id. at 504-05. If the request is neither equivocal nor untimely, then the court considers

whether the request is voluntary, knowing, and intelligent, usually by colloquy, jd. at

504.   The competency standard for waiving the right to counsel is the same as the

competency standard for standing trial.    Fleming. 142 Wn.2d at 862. The trial court's

decision on a motion to proceed pro se is reviewed for an abuse of discretion. Madsen.

168Wn.2dat504.

       Carver argues that the trial court abused its discretion because his waiver was

equivocal, because he did not fully understand that he would not have a right to standby

counsel at trial, and because he did not understand the maximum possible penalty.

       Carver relies on State v. Luvene for his argument that his waiver was equivocal.

127 Wn.2d 690, 698-99, 903 P.2d 960 (1995). In Luvene. a defendant was upset that

his defense counsel asked for a continuance.        Id. at 698.   He stated that he was

"'prepared to go for myself" so that he could go to trial on its set date. jd. But, he also

stated, "This is out of my league for doing that,'" and "'[i]f he's not ready to represent

me, then forget that. But I want to go to trial on this date.'" jd. On appeal, he argued


                                               10
No. 67657-1-1/11




that his statements indicated an unequivocal intent to waive his right to assistance of

counsel.   ]d     The Supreme Court determined that his statements were merely an

expression of frustration, and not an unequivocal assertion of his right to self-

representation.    UL at 699.   Carver claims that his request was similarly equivocal,

because he only sought to proceed pro so after his request for different counsel was

denied. The record amply shows that Carver unequivocally waived his right to counsel.

Contrary to Carver's assertions, Carver never asked for new counsel. Rather, on May 4

counsel requested a continuance for further time to pursue an insanity defense. Carver

was upset and stated that he did not want to be represented by any attorney. On June

2, the trial court asked if Carver still wanted to represent himself. He said, "I do." On

June 17, the trial court again asked if Carver still wanted to represent himself. He said,

"Yes. Absolutely." On July 11, the trial court asked once more if Carver still wished to

represent himself. He said, "Yes. I do." Carver's statements are not comparable to the

ambivalence present in Luverne.

       Carver also argues that he did not adequately understand that as a pro se

defendant he would not have a right to standby counsel at trial. Again, that argument is

not supported by the record. On June 2, Carver requested to represent himself, but

asked for the assistance of standby counsel. Judge Kessler explained that he retained

the right to appoint standby counsel, but that Carver was not entitled to it. Carver stated

that he understood and still wished to represent himself.           On June 17, Carver

exclaimed, "I just want to know if I can have a standby." Judge Kessler explained that

although he could give him standby counsel, Carver would be on his own and there was

no guarantee of standby counsel.         Carver stated that he understood.        Carver's


                                                11
No. 67657-1-1/12



delusions were the only reason his competency was in question at all, there is no

evidence that he suffered from any cognitive deficiencies at any time. Thus, there is no

reason to question his assurances that he understood. His exclamation on June 17 can

be reasonably interpreted as a desire to know whether Judge Kessler would, in fact,

appoint standby counsel as opposed to whether he had a right to standby counsel.

       Lastly, Carver argues that his waiver was not voluntary because he was never

accurately advised of his maximum possible penalty.          The trial court's colloquy

concerning waiver should cover the seriousness of the charge, the possible maximum

penalty involved, and the existence of technical, procedural rules governing trial. State

v. Silva. 108 Wn. App. 536, 539, 31 P.3d 729 (2001).        When the defendant is not

accurately advised on the maximum possible penalty, he is not capable of making an

intelligent waiver, jd. at 541. The Ninth Circuit has held that an overstatement of the

maximum possible sentence is not an accurate statement. United States v. Forrester,

512 F.3d 500, 507 (9th Cir. 2007).

       But, waiver is not compromised when the trial court fails to accurately advise the

defendant if the defendant is otherwise aware of the nature and classification of the

charge, and the possible penalties. State v. Sinclair. 46 Wn. App. 433, 438, 730 P.2d

742 (1986).    Where the defendant is not informed or otherwise aware, reversal is

required.   Silva. 108 Wn. App. at 540, 542. The court does not engage in harmless

error analysis, jd.

       Judge Kessler first advised Carver of the maximum possible penalty on June 2.

At that point, Carver had been charged with two felonies and two gross misdemeanors.




                                               12
No. 67657-1-1/13



The State indicated that it might add a felony malicious mischief charge. 2 Judge
Kessler stated that each felony could result in a five year sentence, that each gross

misdemeanor could result in a one year sentence, and that the sentences could run

consecutively. Judge Kessler then advised Carver that he could be facing 32 years if

the sentences ran consecutively. Carver indicated that he understood. Based on the

information available at that time, that advisement was correct as to the maximum

penalty for each offense. But, the maximum consecutive sentence, even if the State

added a third felony charge, was only 17 years.

       On June 17, Judge Kessler again advised Carver of the maximum possible

penalty. He told Carver that he faced five years for each of the three felonies and one

year for each of the two gross misdemeanors, and that the time could run consecutively.

Judge Kessler did not add the sentences together or state the maximum possible total

sentence. Carver indicated that he understood.

       On July 11, Judge Gonzalez asked Carver to recite the charges in his own

words. Carver stated he was charged with two counts of violating a restraining order,

one count of harassment against his mother, one count of stalking Smith, and one

misdemeanor charge for malicious mischief.        Judge Gonzalez then asked Carver to

recite the maximum possible penalty. Carver responded that the he was informed the

maximum penalty would be five years. The prosecutor agreed, but clarified that it was

five years for each of the two felony counts.




       2 Ultimately, the State did not charge an additional felony, instead charging
malicious mischief in the third degree, a gross misdemeanor.


                                                13
No. 67657-1-1/14



      The only misstatement of the maximum sentence was the improper maximum

concurrent sentence length stated on June 2. At that hearing, Judge Kessler accurately

stated the maximum sentence for each charge. On June 17, Judge Kessler again

accurately stated the maximum sentence for each charge. Carver indicated on June 2

and June 17 that he understood the time per offense and that they could run

consecutively. On July 11, he stated that the maximum penalty was five years. The

prosecutor clarified that that was five years per felony.    There is no evidence of

cognitive deficiencies that give reason to doubt his statements that he understood.

From the June 2 and June 17 proceedings, it is clear that Carver was informed of the

nature and classifications of the charges and the potential penalties. We conclude that

Carver understood the penalties he faced and that his waiver was knowing. The trial

court did not commit an abuse of discretion by allowing Carver to represent himself pro

se.



      We affirm.




WE CONCUR:




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                                             14
