          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                 )      No. 74708-8-1
                                         )
                    Respondent,          )
                                         )      DIVISION ONE
                    v.                   )
                                         )
JOHN LLOYD KIRK,                         )      UNPUBLISHED OPINION
                                         )
                    Appellant.           )      FILED: June 12, 2017
                                         )

       MANN, J. —John Kirk appeals his conviction for attempted second degree rape of

a child arguing that he was denied the right to proceed pro se. Although Kirk requested

to proceed pro se in a previous trial for the same crime, we reversed that conviction and

remanded for a new trial. On remand, Kirk did not request to proceed pro se and

agreed to be represented by appointed counsel. We affirm the judgment and sentence.

                                         FACTS

       In January 2011, Kirk solicited sex through a Craigslist personals ad entitled,

"DADDY LOOKING FOR HIS LITTLE GIRL." An undercover detective responded to the

ad and told Kirk that he had a 13-year-old daughter who was interested in having sex

with older men. After exchanging numerous e-mails, the detective and Kirk met face to

face. After the meeting, Kirk confirmed that he was interested in meeting the 13-year-
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old girl for sex. Kirk was arrested when he showed up at the predetermined location

with several items including: condoms, lubricant, a vibrator, and a camera.

       In January 2011, the State charged Kirk with the attempted rape of a child in the

second degree. In August 2011, Kirk pleaded guilty to an amended charge of

attempting to promote commercial sex abuse of a minor. On appeal, the State

conceded that Kirk's offender score had been miscalculated. We accepted the State's

concession, granted Kirk's request to withdraw his guilty plea, and remanded for a new

trial. In re Pers. Restraint of Kirk, No. 69168-6-1, slip op. at 1-2(Wash. Ct. App. Mar. 18,

2013)(unpublished)(Kirk 1).

       In March 2014, Kirk proceeded to trial pro se and was found guilty. On appeal,

the State conceded that Kirk had not knowingly waived his right to counsel because the

court misinformed him about the offense's maximum penalty. We accepted the State's

concession, reversed Kirk's conviction, and remanded for further proceedings. State v.

Kirk, No. 71865-7-1, slip op. at 1 (Wash. Ct. App. June 15, 2015)(unpublished)(Kirk II).

       In January 2016, Kirk—while represented by counsel—pleaded guilty to

attempted rape of a child in the second degree (Kirk III). Kirk did not request to proceed

pro se. Kirk appeals the judgement and sentence.

                                        ANALYSIS

       Kirk argues on appeal that he was denied his right to proceed pro se. The State

counters that Kirk waived the right to proceed pro se by not asking the trial court to

proceed pro se. We agree with the State.




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                                              I

       Under the Washington Constitution and the Sixth Amendment to the United

States Constitution, criminal defendants have the right to proceed pro se. U.S. CONST.

amend. VI; WASH. CONST. art. I, § 22 ("the accused shall have the right to appear and

defend in person"); Faretta v. Cal., 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562

(1975). "The unjustified denial of this [pro se] right requires reversal." State v. Madsen,

168 Wn.2d 496, 503, 229 P.3d 714(2010)(quoting State v. Stenson, 132 Wn.2d 668,

737, 940 P.2d 1239 (1997)). "A waiver of counsel must be knowing, voluntary, and

intelligent." City of Bellevue v. Acre, 103 Wn.2d 203, 208-09, 691 P.2d 957(1984). "If

counsel is properly waived, a criminal defendant has a right to self-representation."

Acrey, 103 Wn.2d at 209 (citing U.S. CONST. amend. VI; WASH. CONST. art. I, § 22).

       However, "[t]he right to proceed pro se is neither absolute nor self-executing."

Madsen, 168 Wn.2d at 504. The request must be unequivocal and timely. In order "[t]o

protect defendants from making capricious waivers of counsel and to protect trial courts

from manipulative vacillations by defendants regarding representation, the defendant's

request to proceed pro se must be unequivocal." Stenson, 132 Wn.2d at 740. Courts

are required to "indulge in every reasonable presumption against a defendant's waiver

of his or her right to counsel." Madsen, 168 Wn.2d at 504 (internal quotations omitted).

                                              II

       After remand, Kirk's case returned to the trial court for scheduling. At the initial

scheduling hearing, public defender Craig McDonald appeared as Kirk's attorney.

McDonald stated that he would set up a hearing to determine if Kirk wanted to proceed

with representation or pro se. The trial court invited Kirk to set up a hearing if he

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wanted: "All right, Mr. Kirk. So your trial date is going to be the 14th of October. . . . And

of course, you can set a hearing to address the Court with regard to a request to

proceed pro se any time you like." At no time did Kirk request such a hearing.

       At the pretrial omnibus hearing, McDonald told the trial court that he "may be

asking for [Kirk] to conduct some of the examination." The trial court immediately

inquired into the scope of McDonald's representation. McDonald replied that he would

handle every aspect of the case, but that Kirk wanted to ask or dictate questions to be

asked of the State's main witness. At that point, Kirk clarified that he only wanted to

question the witness:

      [Kirk]: Your Honor, if I understand your last question, do I intend to or
      would I intend to conduct any other part of the trial.

       The Court: Correct.

      [Kirk]: I am very confident in [McDonald] and the only thing that I am
      requesting is that, during either the cross-examination or the Defense's
      direct examination, I be allowed to question [the arresting detective]. And
      as[McDonald]suggested, if this is the inappropriate time to make that
      decision, we can bring it up later.

Recognizing that Kirk was asking for "hybrid" representation, the trial court asked the

parties to research the issue further and took the issue under advisement.

       The next day, the trial court explained that it understood that although McDonald

had been appointed as Kirk's standby counsel, Kirk wanted McDonald to represent him:

       The Court: So[McDonald] has been appointed as standby counsel, which
       generally means that an individual is representing themselves, okay, and
       that counsel is appointed simply to be there for advice, not to actively
       represent an individual throughout the course of a trial. In this case, it's a
       little bit different because [McDonald] has been actively representing you
       throughout this trial and, from my conversation with both of you yesterday,
       you indicated that you were comfortable with that because you were
       comfortable with [McDonald's] representation.

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               And that was okay with you and that's how you wanted to proceed.
        I'm fine with that, if that's, you know—I think that's fine. The indication I
        got yesterday, though, was that you did want to participate in the trial in
        essentially what would be a co-counsel role by asking questions of[the
        arresting detective] when [the detective] was on the stand.

       [Kirk]: Yes, sir.

        The Court: And that's my understanding of the extent that you wish to be
        involved in the trial. Is that correct?

       [Kirk]: That would be correct, sir.

The court denied Kirk's motion for hybrid representation.1

        The prosecutor then voiced confusion over McDonald's representation of Kirk,

noting that he could not find a notice of appearance by McDonald. The trial court again

asked McDonald about the scope of his representation. McDonald confirmed that he

represented Kirk: "And I have been acting as counsel. And I believe it was my client's

or [Kirk's] decision for me to act as counsel." The trial court then asked Kirk directly

what he wanted, and Kirk confirmed for the second time that he wanted McDonald to

represent him:

        The Court: Okay. And [Kirk], I can ask you, is that your desire? And has
        that been your desire, for [McDonald]to act as your counsel?

        [Kirk]: Excuse me, Your Honor. I have no objection to him acting as
        counsel. My only concern is the issue we raised earlier—

        The Court: Uh huh.

        [Kirk]: —that there will be certain questions that 1 want to put before
        [McDonald]to be sure that they are asked.




       1 There is no constitutional right in a criminal case for hybrid representation, i.e., to participate as
cocounsel at trial. State v. Hightower, 36 Wn. App. 536, 540, 676 P.2d 1016 (1984).

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The court then reconfirmed that Kirk was not asking to proceed pro se:

      The Court: Our concern here is, we want to make sure that your desire is
      to have counsel represent you and not that you act on your behalf pro se.
      And it looks like [McDonald] has been appointed to represent you as full
      counsel. And we want to make sure that, that was your desire.

      [Kirk]: It is.2

Kirk confirmed that he had "no objection to [McDonald] being [his] lawyer."

       Despite the trial court's express invitation, at no time did Kirk request to proceed

pro se. Rather, he affirmed and reaffirmed his desire to proceed to trial with

representation. "A defendant's request to proceed pro se must be both timely made

and stated unequivocally." Stenson, 132 Wn.2d at 737. Kirk was not denied his right to

waive his right to counsel and proceed pro se.

                                             III

       Kirk argues also that his due process rights were violated because the trial court

failed to "strictly comply with the mandate" of this court by not conducting a new formal

colloquy on his right to appear pro se. The order of this court in Kirk II was simply to

"reverse the conviction, and remand for further proceedings." While the basis of the

reversal was Kirk's improper waiver of his right to counsel, we did not mandate that the

trial court conduct a new pro se colloquy; we simply reversed Kirk's conviction and

remanded for a new trial. This argument lacks merit. If Kirk wanted to waive counsel

and proceed pro se at the new trial, it was his burden to request a colloquy.




       2(Emphasis added.)


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                                             IN/

       Kirk filed a pro se statement of additional grounds(SAG) in which he raises

several issues. First, Kirk alleges that the detective who arrested him violated multiple

criminal laws related to promoting prostitution and entrapment. This argument lacks

merit. "Where the police merely give a defendant an opportunity to commit a crime by

employing a ruse, entrapment is not established." State v. Youde, 174 Wn. App. 873,

886, 301 P.3d 479 (2013); see RCW 9A.16.070. Here, the detective gave Kirk the

opportunity to commit a crime with a fictitious 13-year-old girl. The ruse did not

constitute entrapment.

       Second, Kirk alleges that the detective who arrested him did not follow the United

States Department of Justice's Internet Crimes Against Children Program's "Operational

and Investigative Standards"(Standards) by not obtaining his supervisor's consent.

While a copy of the Standards is in the appellate record, Kirk bases his claims on facts

and evidence that are not in the record. Issues that involve facts or evidence not in the

record are properly raised through a properly supported personal restraint petition, not a

SAG. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008); RAP 10.10(c).

       Finally, Kirk challenges the trial court's jurisdiction. "Murisdiction over a crime

rests exclusively in the courts of the state in which the crime is committed." State v.

Lane, 112 Wn.2d 464, 470, 771 P.2d 1150 (1989). Washington has jurisdiction over

anyone who "commits in the state any crime, in whole or in part." RCW 9A.04.030(1).

Kirk pleaded guilty to attempted second degree rape of a child and admitted that this

crime occurred in King County, Washington. Jurisdiction was proper.



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      We affirm Kirk's judgment and sentence.




WE CONCUR:



     4&d,         /




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