                                                                     FILED
                                                                   MAY 16, 2017
                                                           In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                            )        No. 33990-4-111
                                                )
                         Respondent,            )
                                                )
       V.                                       )        PUBLISHED OPINION
                                                )
JEROME CURRY JR,                                )
                                                )
                         Appellant.             )

       PENNELL,   J. -    Criminal defendants enjoy competing rights to counsel and self-

representation. As between these two rights, the default is the right to counsel. To

overcome the presumption in favor of counsel, a defendant must first unequivocally

request self-representation. This prerequisite is not satisfied if a defendant's desire to

forfeit counsel is rooted in frustration with counsel's need for a continuance.

       During Jerome Curry's prosecution for felony drug offenses, he asked to represent

himself. The court held a hearing at which Mr. Curry repeatedly stated he had no choice

but to forfeit counsel because his attorney would not be ready to proceed without a

continuance. The qualifications attached to Mr. Curry's request for self-representation

constituted equivocation. Accordingly, Mr. Curry's request for self-representation was

invalid, and the convictions sustained thereafter must be reversed.
No. 33990-4-III
State v. Curry


                                    BACKGROUND

       Mr. Curry was charged with two counts of possession of a controlled substance.

He was originally appointed counsel but filed several pretrial motions pro se. 1 Defense

counsel ultimately filed a motion on Mr. Curry's behalf, requesting leave for Mr. Curry to

proceed without counsel.

       The trial court addressed the motion to proceed without counsel at a pretrial

hearing. At the hearing, the court engaged Mr. Curry in a lengthy discussion focused on

whether Mr. Curry's waiver of counsel was knowing, voluntary, and intelligent.

Throughout this discussion, Mr. Curry repeatedly stated he had "no choice" but to

represent himself because he wanted to assert his right to a speedy trial. See Verbatim

Report of Proceedings (VRP) (May 7, 2015) at 4, 12, 19.

      Mr. Curry explained he was frustrated because a change in personnel at the office

of public defense meant his attorney would need a continuance. He stated:

      [B]asically, I mean, if I've got to sit and wait until the end of June, ... I
      mean, send me to prison or release me. One of the two. I mean, I aint got
      time to sit here. I mean, I have obligations on the streets. I'm losing my
      home. And if I've got to lose my home, I might as well defend [myself].




      1
        Also prior to trial, the court found Mr. Curry competent to stand trial after
ordering an evaluation. Mr. Curry has not raised any competency concerns and does not
argue that his mental health is relevant to any issues on appeal.

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State v. Curry


Id. at 13. Mr. Curry stated that if his counsel could be ready by an earlier date, he would

have "no problem" working with counsel. Id. at 14.

        At the close of the hearing, the court asked if Mr. Curry's decision to proceed

without counsel was his "voluntary and steadfast decision." Id. at 18. Mr. Curry stated,

"Well, it's not voluntary .... It's I have no choice in the matter." Id. at 18-19. The court

then made the following inquiry:

               THE COURT: Well, it's either your freewill choice of doing this, or
       somehow there's been some pressure put on you. And the only pressure I
       recall you saying is the time pressure; that is, that you believe you don't
       have a choice because you don't want an extension of the trial date, since
       you have other affairs that you believe you need to take care of. And you'd
       rather have an outcome quicker rather than later on. That's what I
       understand you to say. Is that accurate?
               THE DEFENDANT: That's-that's accurate.

Id. at 19.

       After Mr. Curry confirmed the court's characterization of his position, the court

granted Mr. Curry's request for self-representation. Approximately five weeks later, Mr.

Curry represented himself at a jury trial and was convicted as charged. He now appeals.

                                        ANALYSIS

       Our state and federal constitutions confer on criminal defendants the right of self-

representation. WASH. CONST. art I,§ 22; Faretta v. California, 422 U.S. 806, 819-20,

95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). While this right is widely known and well

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No. 33990-4-III
State v. Curry


established, implementation is difficult because exercising the right of self-representation

involves waiving the right to counsel. State v. De Weese, 117 Wn.2d 369, 376-77, 816

P.2d 1 (1991). As between the competing rights to self-representation and to counsel, the

latter is preferred. Accordingly, we indulge "' every reasonable presumption' against a

defendant's waiver of his or her right to counsel." State v. Madsen, 168 Wn.2d 496, 504,

229 P.3d 714 (2010) (internal quotation marks omitted) (quoting In re Det. of Turay,

139 Wn.2d 379, 396, 986 P.2d 790 (1999).

       We review a trial court's disposition of a defendant's request for self-

representation for abuse of discretion. Id. This is a deferential standard. However, we

will reverse a trial court's decision under this standard if it is unsupported by the record or

if it was reached "' by applying the wrong legal standard.'" Id. (quoting State v. Rohrich,

149 Wn.2d 647, 654, 71 P.3d 638 (2003)).

       The first step a trial court faces in assessing a defendant's request for self-

representation is to determine whether the request is timely and unequivocal. Id. Both

prerequisites must be met, or the inquiry ends there. State v. Woods, 143 Wn.2d 561, 587,

23 P.3d 1046 (2001). Without a timely and unequivocal request, the right to counsel

remains in place and the request for self-representation must be denied. Id. at 587-88.

Only if the request for self-representation is both timely and unequivocal must the court



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No. 33990-4-111
State v. Curry


continue the inquiry by determining whether the request is "voluntary, knowing, and

intelligent." Madsen, 168 Wn.2d at 504 (citing Faretta, 422 U.S. at 835).

       This case involves only the threshold question of whether Mr. Curry's request for

self-representation was unequivocal. Thus, we do not look at whether the trial court

engaged in an adequate colloquy under Faretta. We instead focus on Mr. Curry's

statements and whether the record, as a whole, indicates his request for self-

representation was unequivocal. See Woods, 143 Wn.2d at 586.

       When a request for self-representation is made in the context of a defendant's

desire to exercise his or her speedy trial rights, the question of equivocation is complex.

On the one hand, a defendant's request for self-representation is equivocal if it is based

merely on displeasure with counsel's need for a continuance. Id. at 587; State v. Luvene,

127 Wn.2d 690, 699, 903 P.2d 960 (1995). But on the other hand, a defendant can make

a strategic choice to assert the right to self-representation in order to avoid a trial delay.

State v . Modica, 136 Wn. App. 434, 442, 149 P.3d 446 (2006), ajf'd, 164 Wn.2d 83,

186 P.3d 1062 (2008).

       Two tools guide our review of Mr. Curry's request for self-representation to

determine if it was equivocal. First, there is the admonition that we must indulge every

reasonable presumption against the waiver of a defendant's right to counsel. Second, we


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State v. Curry


may compare Mr. Curry's statements with the ones deemed equivocal in Luvene. The

Luvene court held the following request for self-representation was equivocal:

               I've been here since July .... You know, I don't wanna sit here any
       longer. It's me that has to deal with this. If I'm prepared to go for myself,
       then that's me. You know, can't nobody tell me what I wanna do. They say
       I did this, so why not-if I wanna go to trial, why can't I go to trial on the
       date they have set for my life? I'm prepared. I'm not even prepared about
       that. I wanna go to trial, sir ....
               I don't wanna extend my time. This is out of my league for doing
       that. I do not want to go. If he's not ready to represent me, then forget that.
        But I want to go to trial on this date.

Luvene, 127 Wn.2d at 698. Our Supreme Court concluded these statements by Mr.

Luvene could "be seen only as an expression of frustration" with trial counsel's delay.

Id. at 699. There was, therefore, no valid request for self-representation and the

presumption in favor of counsel remained in place.

       Both available tools militate in favor of finding Mr. Curry's request for self-

representation equivocal. This case is much like Luvene. Throughout his hearing, Mr.

Curry consistently asserted he had "no choice" but to ask for self-representation. Mr.

Curry never identified any strategic reason for preferring an early trial date. He was

instead resigned to just get things over with, reasoning, "I can do bad by myself."

VRP (May 7, 2015) at 7. The State argues Mr. Curry's waiver was valid, pointing out

that he repeatedly asked to represent himself even after being warned of the dangers and



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State v. Curry


disadvantages of doing so. The problem with the State's position is it only goes to the

issue of voluntariness; it does not address the foundational issue of equivocation.

Because the record as a whole raises serious doubt as to the validity of Mr. Curry's

request for self-representation, the presumption against waiver favors invalidating the

removal of counsel.

       We note a defendant's claim that he has "no choice" but to request self-

representation is not always a sign of equivocation. Criminal prosecutions are full of hard

choices. For example, because a criminal defendant does not have the right to appointed

counsel of his or her choice, a defendant may have to choose between the attorney

selected by the court or self-representation. See De Weese, 117 Wn.2d at 378. A

defendant's ultimate selection is not invalid just because the choice was hard.

       But a defendant concerned with trial delay is not forced to make a hard choice

between competing rights. The right to a speedy trial can be harmonized with counsel's

need for more time. CrR 3.3(f); State v. Campbell, 103 Wn.2d 1, 13-15, 691 P.2d 929

(1984 ). In addition, unlike truly antithetical rights, a defendant's waiver of the right to

counsel does not empower the defendant to insist on a specific speedy trial date. Trial

dates can be changed over a defendant's objection. State v. Flinn, 154 Wn.2d 193,201,

110 P.3d 748 (2005). Because of this possibility, there is no guarantee that a defendant



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State v. Curry


who discharges counsel in hopes of hastening the trial process will reap any benefit.

       Our opinion should not be interpreted to mean that a defendant can never make a

strategic choice to waive counsel in hopes that his or her proceedings will go forward

more quickly. The constitutional right to self-representation affords defendants this

choice. See Modica, 136 Wn. App. at 442. However, for a valid waiver to occur, the

record as a whole must demonstrate the defendant is clear-eyed in his strategy and not

merely frustrated with the slow pace of the legal process.

       Here, the record does not suggest Mr. Curry sought an early trial date for strategic

reasons. He simply wanted to settle his fate as quickly as possible. Under our case law,

this motivation rendered Mr. Curry's request for self-representation equivocal. The

motion should have been denied and counsel retained.

                                     CONCLUSION

       Mr. Curry's conviction is reversed, and this matter is remanded to the trial court

for further proceedings.


                                          Pennell, J.
WE CONCUR:




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