    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
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                                                      No. 70654-3-1
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MUHAMMED ZBEIDA TILLISY,                                                                l^.*r

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                      Appellant.                      FILED: September 22, 2014         ro




       Trickey, J. — Shortly after pleading guilty to two counts of second degree identity

theft, Muhammed Tillisy moved to withdraw that plea.1 The trial court denied his motion,

finding that Tillisy entered the plea knowingly, voluntarily, and intelligently. Tillisy now
challenges the trial court's denial ofhis motion to withdraw the guilty plea. He additionally
contends that the trial court erred when it denied his request to remove his assigned

counsel and proceed pro se. Finding no error, we affirm.

                                              FACTS

       The State charged Tillisy, by third amended information, with two counts ofsecond
degree identity theft for crimes that took place on or about April 26 and 28, 2012.2
       On November 8, 2012, at a suppression hearing, Tillisy moved to remove his

counsel and proceed pro se with standby counsel.3 At that time, trial was scheduled for
November 16, 2012.4 The trial court denied Tillisy's motion.5 It found that Tillisy "has




1This appeal is linked to State v. Tillisy. No. 69962-8-I.
2Clerk's Papers (CP) at 122. The State initially charged Tillisy with one count of second degree
identity theft in an information filed on July 13, 2012. CP at 154.
3Report of Proceedings (RP) (Nov. 8, 2012) at 3, 13, 14.
4 RP (Nov. 8, 2012) at 32.
5RP (Nov. 8, 2012) at 35, 53; CP at 163-64.
No. 70654-3-1 / 2


made some assumptions that demonstrate that he does not have a full understanding of

what he is requesting."6

       On April 24, 2013, Tillisy signed a statement of guilty plea as to both counts of

second degree identity theft.7     He also signed a plea agreement and sentencing

recommendation.8

       In a letter to the trial court dated April 29, 2013, Tillisy requested that the court

withdraw his guilty plea.9 On June 26, 2013, Tillisy filed a motion to withdraw his plea of

guilty pursuant to CrRLJ 4.2(f).10 He asserted that when he entered the plea, he was

heavily medicated and his medical condition made him uncomfortable and unable to

focus.11 As a result, he argued, his judgment was impaired.12 The trial court denied the

motion.13

       On July 3, 2013, the trial court entered a judgment and sentence on Tillisy's plea.14
The court imposed a total sentence of 43 months confinement.15 Tillisy appeals.

                                        ANALYSIS

       Tillisy contends that he is entitled to withdraw his guilty plea. He argues that the

plea was not entered into knowingly, intelligently, and voluntarily because he was under
the influence of prescribed pain medication at the time he entered the plea. We disagree.




6 CP at 164.
7 CP at 106-113.
8 CP at 118.
9 CP at 104.
10 CP at 16.
11 CP at 23.
12 CP at 26.
13 RP (June 26, 2013) at 17.
14 CP at 3.
15 CP at 6.
No. 70654-3-1 / 3


       We will overturn a trial court's denial of a motion to withdraw a plea for abuse of

discretion. State v. Robinson. 172 Wn.2d 783, 790-91, 263 P.3d 1233 (2011).

       Due process requires that a defendant enter into a plea agreement knowingly,

intelligently, and voluntarily. Bovkin v. Alabama. 395 U.S. 238, 242-43, 89 S. Ct. 1709,

23 L. Ed. 2d 274 (1969); State v. Chervenell, 99 Wn.2d 309, 312, 662 P.2d 836 (1983).

"Whether a plea is knowingly, intelligently, and voluntarily made is determined from a

totality of the circumstances." State v. Branch. 129 Wn.2d 635, 642, 919 P.2d 1228

(1996). A court must allow a defendant to withdraw a guilty plea as necessary to correct

a manifest injustice. CrR 4.2(f). The defendant must show manifest injustice sufficientto

warrant withdrawal of a plea agreement before withdrawal is permissible. A manifest

injustice exists if (1) the defendant did not ratify the plea, (2) the plea was not voluntary,

(3) counsel was ineffective, or (4) the plea agreement was not kept. State v. DeClue, 157

Wn. App. 787, 792, 239 P.3d 377 (2010) (citing State v. Marshall, 144 Wn.2d 266, 281,

27 P.3d 192 (2001)). This injustice must not be obscure; it must be obvious, directly

observable, and overt. DeClue, 157 Wn. App. at 792 (quoting State v. Taylor, 83 Wn.2d

594, 596, 521 P.2d 699 (1974)).

       Here, no such showing has been made. Tillisy points to no evidence indicating his

judgment was impaired at the time of the guilty plea. Even assuming such evidence
exists, he neither presented this evidence to the trial court when entering the guilty plea

nor when moving to withdraw the plea. This bare assertion is insufficient. See State v.
Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984) ("More should be required to overcome

this 'highly persuasive' evidence of voluntariness than a mere allegation by the

defendant.").
No. 70654-3-1 / 4


           Indeed, the record of the plea colloquy indicates Tillisy understood the plea

agreement and was informed and cognizant of its consequences. The trial court asked

him questions regarding his understanding of the statement of guilty plea.16 Tillisy

answered that he read and understood the statement as well as the waiver of rights

contained in the document, and stated he had no questions.17 Furthermore, Tillisy's

signature and submission of the statement of guilty plea creates a strong presumption

that he entered into the plea voluntarily. See State v. Smith. 134 Wn.2d 849, 852, 953

P.2d 810 (1998) ("When a defendant completes a plea statement and admits to reading,

understanding, and signing it, this creates a strong presumption that the plea is

voluntary."). Tillisy responded intelligently to the thorough questioning by the court.

           Moreover, at the hearing on the motion to withdraw the plea, the trial court stated

that it had seen no evidence that Tillisy had been in pain on the date the plea was taken.18

The court also stated that it had observed no confusion on the part of Tillisy from taking

his prescribed medications.19 During a plea colloquy, a court has abundant opportunity

to observe a defendant's conduct, appearance, and demeanor. Osborne. 102 Wn.2d at

98. The trial court did not abuse its discretion by denying Tillisy's motion to withdraw the

guilty plea.

           Tillisy next contends that the trial court abused its discretion when it denied his

request to represent himselfat trial. However, Tillisy waived his right to appeal this pretrial

ruling when he entered into the guilty plea. See State v. Majors. 94 Wn.2d 354, 356, 616

P.2d 1237 (1980) ("Ordinarily, a plea of guilty constitutes a waiver by the defendant of his


16   RP   (April 24, 2013) at 5.
17   RP   (April 24, 2013) at 5-8, 11.
18   RP   (June 26, 2013) at 17.
19   RP   (June 26, 2013) at 18.
No. 70654-3-1 / 5


right to appeal, regardless of the existence of a plea bargain."); State v. Martin. 149 Wn.

App. 689, 693, 205 P.3d 931 (2009) ("A guilty plea waives even constitutional violations

occurring before the plea, unless the violation involves the government's power to

prosecute."). Nevertheless, this claim fails.

       Both the state and federal constitutions guarantee a criminal defendant the right to

counsel and the right to self-representation. State v. Madsen. 168 Wn.2d 496, 503, 229

P.3d 714 (2010).     But the right to self-representation is neither absolute nor self-

executing. State v. Woods. 143 Wn.2d 561, 586, 23 P.3d 1046 (2001). A defendant's

request to proceed pro se must be both unequivocally stated and timely made. State v.

Stenson, 132 Wn.2d 668, 740, 940 P.2d 1239 (1997). The request must be unequivocal

in the context of the record as a whole. State v. Luvene, 127 Wn.2d 690, 698-99, 903

P.2d 960 (1995). Although a court must honor a properly made request for self-

representation, a court must also indulge in "'every reasonable presumption'" against a

defendant's waiver of the right to counsel. Madsen. 168 Wn.2d at 504 (internal quotation

marks omitted) (quoting In re Detention of Turav. 139 Wn.2d 379, 396, 986 P.2d 790

(1999)).

       We review the trial court's denial of a request for self-representation for abuse of

discretion. Madsen, 168 Wn.2d at 504.

       In the context of the record as a whole, we find that Tillisy's request was not

unequivocal. Although he requested to proceed pro se, this request was expressed as

an alternative to obtaining substitute counsel.     In fact, Tillisy acknowledged that he

preferred substitute counsel to proceeding pro se.20 The request was an expression of


20RP(Nov. 8, 2012) at 21, 23.
No. 70654-3-1 / 6


dissatisfaction with his appointed counsel, who was later replaced by private counsel.

Tillisy complained about his interactions with his counsel, and he stated that he would

seek an ineffective assistance of counsel claim.21 A request to proceed pro se that

indicates dissatisfaction with appointed counsel may indicate the request is equivocal.

Stenson. 132 Wn.2d at 740-41; Woods, 143 Wn.2d at 586-87. Accordingly, the trial court

properly denied Tillisy's request to waive counsel and proceed pro se.

       Affirmed.




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WE CONCUR:




21 RP (Nov. 8, 2012) at 15-17, 21.
