                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                     November 28, 2017


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 49319-5-II

                       Respondent,

           v.                                               PART PUBLISHED OPINION

 RICHARD CARL HOWARD II, aka KING
 MILLER,

                       Appellant.


       MAXA, J. – Richard Howard appeals his conviction of unlawful imprisonment. Howard

argues that his decision to represent himself was not made knowingly and intelligently because

the trial court did not inform him of the maximum sentences for the crimes charged against him.

       We hold that Howard’s waiver of his right to counsel was invalid and the trial court erred

in allowing Howard to represent himself because the trial court did not inform him of the

maximum sentences for the charged crimes and the record does not otherwise show that he knew

the maximum sentences. In the unpublished portion of this opinion, we address and reject claims

that Howard asserts in a statement of additional grounds.

       Accordingly, we reverse Howard’s conviction and remand for a new trial.

                                            FACTS

Incident

       Howard had been in an on-and-off romantic relationship with Brandy Wright and was

living in her house. On April 13, 2016, Howard and Wright got into an argument and Wright
No. 49319-5-II


decided to leave the house. After packing some things, she attempted to leave through the front

door. Howard stopped Wright from leaving by standing in front of the door and holding her.

       Wright then tried to go to the back door. Howard grabbed her and pulled her back. They

were yelling at each other and although Wright said that she wanted to leave, Howard would not

let her go. Wright ran toward a bedroom and tried to get out through the window. Howard again

pulled her back, out of the window and into the house. Eventually, Howard let Wright leave

through the front door.

       The State charged Howard with unlawful imprisonment and fourth degree assault.

Motion for Self-Representation

       Before trial, Howard made a motion to represent himself. Defense counsel stated that

Howard had represented himself in previous cases. When the trial court expressed concerns

about Howard representing himself, Howard stated, “It is my constitutional right to proceed pro

se, and I would just like to exercise it.” Report of Proceedings (RP) (June 29, 2016) at 8.

       The trial court and Howard engaged in a brief colloquy, which included the following

exchange:

       THE COURT: Well, I believe that you’re competent to stand trial. That’s not the
       issue here. But whether you have any ability to really maintain a legitimate defense
       and a thoughtful defense when you are dealing with a prosecutor with many years
       of experience and years of legal training is the concern that I have. And it’s a
       concern about your due process rights because the scales are not balanced in your
       favor under that sort of a match up.
          The Court will not be giving you any special dispensation. The Court will not
       be giving you any legal advice. The Court will not be changing the rules simply
       because you are an unrepresented person. You will be held to the same standards
       as everybody else.
          Do you understand that?
       MR. HOWARD: Yes.




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No. 49319-5-II


       THE COURT: I don’t know what your offender score is, so I can’t tell you exactly
       what your sentencing range would be. But you are charged with unlawful
       imprisonment and assault in the fourth degree.
          In the event of conviction, there is likely to be a substantial period of
       imprisonment involved. Do you understand that?
       MR. HOWARD: Yes, sir.

RP (June 29, 2016) at 8-9 (emphasis added).

       The trial court then entered an order granting Howard’s motion to represent himself. The

order stated that Howard had made a “knowing, intelligent, and voluntarily [sic] waiver of

counsel.” Clerk’s Papers (CP) at 124.

Conviction and Sentence

       The jury found Howard guilty of the unlawful imprisonment charge and not guilty of the

assault charge. The court sentenced Howard to 51 months, the lower end of the standard

sentence range.

       Howard appeals his conviction.

                                           ANALYSIS

       Howard argues that his decision to represent himself and waive his right to counsel was

not knowing and intelligent because the trial court did not inform him of the maximum penalty

associated with his charge and he was not otherwise aware of the maximum penalty. We agree.

A.     LEGAL BACKGROUND

       Article I, section 22 of the Washington Constitution and the Sixth Amendment to the

United States Constitution guarantee a criminal defendant the right to assistance of counsel. The

same constitutional provisions also provide a criminal defendant with a right to self-

representation. State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010). The right of self-




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representation is “so fundamental that it is afforded despite its potentially detrimental impact on

both the defendant and the administration of justice.” Id.

       However, there is a tension between the right of self-representation and the right to

counsel. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991). A request for self-

representation constitutes a waiver of the right to counsel. Madsen, 168 Wn.2d at 504. As a

result, the right to self-representation is not absolute. In re Pers. Restraint of Rhome, 172 Wn.2d

654, 659, 260 P.3d 874 (2011). A trial court can allow a defendant to represent himself only if

his waiver of the right to counsel is voluntary, knowing, and intelligent. Madsen, 168 Wn.2d at

504. “If counsel is properly waived, a criminal defendant has a right to self-representation.”

City of Bellevue v. Acrey, 103 Wn.2d 203, 209, 691 P.2d 957 (1984) (emphasis added).

       The preferred method for determining the validity of a waiver of the right to counsel is

through a colloquy on the record between the trial court and the defendant. State v. Mehrabian,

175 Wn. App. 678, 690, 308 P.3d 660 (2013). “[T]he trial court should assume responsibility for

assuring that decisions regarding self-representation are made with at least minimal knowledge

of what the task entails.” Acrey, 103 Wn.2d at 210. The trial court must make the defendant

aware of the dangers and disadvantages of self-representation to ensure that the defendant

“ ‘knows what he is doing and his choice is made with eyes open.’ ” Rhome, 172 Wn.2d at 659

(quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)).

       During this process, the trial court must indulge every reasonable presumption against

waiver of the right to counsel. Madsen, 168 Wn.2d at 504. The trial court may deny a request

for self-representation if the request is “made without a general understanding of the

consequences.” Id. at 505.



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No. 49319-5-II


       We review for abuse of discretion a trial court’s decision on whether a defendant’s

waiver of the right to counsel is voluntary, knowing, and intelligent. Rhome, 172 Wn.2d at 667.

A trial court abuses its discretion if its decision is manifestly unreasonable, based on untenable

grounds, or based on an erroneous view of the law. Id. at 668. The burden of proof is on the

defendant to show that the waiver of the right to counsel was not knowing and intelligent. State

v. Hahn, 106 Wn.2d 885, 901, 726 P.2d 25 (1986).

       Because the right to counsel is so fundamental, a trial court’s erroneous finding that the

defendant validly waived the right to counsel cannot be treated as harmless error. State v. Silva,

108 Wn. App. 536, 542, 31 P.3d 729 (2001).

B.     REQUIREMENT THAT DEFENDANT HAVE KNOWLEDGE OF MAXIMUM PENALTY

       The issue here is whether Howard was required to know the maximum sentences for

unlawful imprisonment and fourth degree assault for his waiver of his right to counsel to be

valid. We hold that Howard was required to know the maximum sentence, either through the

trial court’s colloquy or otherwise.

       1.   Applicable Cases

       In Acrey, the Supreme Court established that a colloquy between the trial court and the

defendant was the “preferred means of assuring that defendants understand the risks of self-

representation.” 103 Wn.2d at 211. The court stated:

       That colloquy, at a minimum, should consist of informing the defendant of the
       nature and classification of the charge, the maximum penalty upon conviction and
       that technical rules exist which will bind defendant in the presentation of his case.

Id. (emphasis added). The court stated that in the absence of a colloquy, the record “must

somehow otherwise show that the defendant understood the seriousness of the charges and knew



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No. 49319-5-II


the possible maximum penalty.” Id. The court held that the defendant’s waiver was invalid in

that case because, among other things, there was no evidence that the defendant knew the

possible penalties involved. Id. at 212.

       In DeWeese, the Supreme Court stated that before self-representation is allowed, “[t]he

requirements of a knowing and valid waiver must be met.” 117 Wn.2d at 377. The court stated:

       A colloquy on the record is the preferred method; but in the absence of a colloquy, the
       record must reflect that the defendant understood the seriousness of the charge, the
       possible maximum penalty involved, and the existence of technical procedural rules
       governing the presentation of his defense.

Id. at 378 (emphasis added).

       Since Acrey, Court of Appeals cases uniformly have recited the general rule that a trial

court should inform the defendant of the possible maximum penalty for the charged crime when

addressing a request for self-representation. E.g., Mehrabian, 175 Wn. App. at 690; State v.

James, 138 Wn. App. 628, 636, 158 P.3d 102 (2007); State v. Lillard, 122 Wn. App. 422, 427,

93 P.3d 969 (2004); Silva, 108 Wn. App. at 539; State v. Sinclair, 46 Wn. App. 433, 437, 730

P.2d 742 (1986).

       Two cases have addressed a situation where a trial court allowed a defendant to represent

himself without informing him of the maximum penalty for the charged crime. In Silva, the

record showed that the defendant understood the nature and gravity of the charges against him,

was aware of the risks attendant with self-representation, twice had represented himself in other

trials, and had demonstrated exceptional skill in presenting pretrial motions. 108 Wn. App. at

540-41. However, the trial court’s colloquy failed to inform the defendant of, among other

things, the maximum possible penalties he faced. Id. at 540. The trial court granted the

defendant’s motion to represent himself. Id. at 538.


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No. 49319-5-II


          Division One of this court reversed because the defendant was not advised of the

maximum penalty for the charged crimes. Id. The court stated:

          [E]ven the most skillful of defendants cannot make an intelligent choice without
          knowledge of all facts material to the decision. Silva was never advised of the
          maximum possible penalties for the crimes with which he was charged. Absent
          this critical information, Silva could not make a knowledgeable waiver of his
          constitutional right to counsel.

Id. at 541.

          In Sinclair, the defendant was charged with burglary. 46 Wn. App. at 434. The record

showed that the defendant was aware of the risks of self-representation, the task involved in

representing himself, and the nature and classification of the charge. Id. at 438. The trial court

did not expressly advise the defendant of the maximum penalty for burglary, but the record

reflected that the defendant was otherwise aware of the penalty. Id. at 438-39. Division One

stated:

          Although the court failed to specifically inform him of the maximum penalty upon
          conviction, Sinclair had several prior convictions, including three for burglary, one
          as recent as 1980. We conclude, therefore, that he was well aware of the possible
          consequences of another conviction.

Id. As a result, the court held that the defendant’s waiver of the right to counsel was valid. Id. at

439.

          2.   Informed or Otherwise Aware of Maximum Sentence

          The State argues that a defendant’s lack of knowledge of the maximum penalty for the

charged crime does not require reversal if the totality of the circumstances show that the

defendant’s waiver of the right to counsel was knowing and intelligent. We disagree.

          In Acrey, the Supreme Court stated that the trial court’s colloquy “should” inform the

defendant of the maximum penalty for the charged crime, not that the colloquy “must” inform


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No. 49319-5-II


the defendant. 103 Wn.2d at 211. But the court also stated that the trial court “at a minimum”

should provide that information. Id. The court also stated that, absent a colloquy, the record

“must” otherwise show that the defendant knew the possible maximum penalty. Id. (emphasis

added). This language suggests that the defendant’s knowledge of the maximum penalty for the

charged crime is a minimum requirement for finding a valid waiver. And the Supreme Court in

DeWeese used the word “must” when stating the rule. 117 Wn.2d at 378.

       Further, the court in Silva clearly stated the rule in absolute terms. The court emphasized

that without knowing the maximum penalty for the charged crime, a defendant cannot make a

knowledgeable waiver of the right to counsel. Silva, 108 Wn. App. 541.

       Finally, no court has held or even suggested that a defendant can knowingly or

intelligently waive the right to counsel without being informed or otherwise being aware of the

maximum penalty for the charged crime. And no court has held that a “totality of the

circumstances” can overcome the defendant’s lack of knowledge regarding the maximum

penalty.

       We agree with the analysis in Silva. The maximum penalty for the charged crime is

essential information that a defendant needs in deciding whether to represent himself or herself.

A defendant may be willing to represent himself when facing a lesser penalty but not when

facing a greater penalty. Therefore, if a defendant does not know the maximum penalty for the

charged crime, we cannot say that the defendant is making the decision to represent himself or

herself knowingly.




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No. 49319-5-II


       Accordingly, we hold that a waiver of the right to counsel is invalid if the trial court does

not inform the defendant of the maximum penalty for the charged crime and the defendant is not

otherwise aware of the maximum penalty.

       3.    Knowing Waiver Analysis

       Here, the trial court engaged in a colloquy in which it emphasized to Howard some of the

difficulties he would face in representing himself. But the court failed to inform Howard of the

maximum penalties for unlawful imprisonment and fourth degree assault. The court stated only

that, although it could not tell Howard his sentencing range, “there is likely to be a substantial

period of imprisonment involved.” RP (June 29, 2016) at 9. In addition, nothing elsewhere in

the record shows that Howard otherwise knew the maximum penalties for his charged offenses.

       The State argues that even though the trial court did not specify the exact maximum

sentence, informing Howard that he faced a “substantial period of imprisonment” was sufficient

to establish a valid waiver. RP (June 29, 2016) at 9. However, the term “substantial” was not

precise enough to give Howard meaningful guidance; a “substantial” sentence for one person

might be far lower than the maximum penalties for the offenses with which Howard was

charged. Unlawful imprisonment is a class C felony, RCW 9A.40.040(2), with a maximum

penalty of confinement in a state correctional institution for five years. RCW 9A.20.021(1)(c).

Fourth degree assault is a gross misdemeanor, RCW 9A.36.041(2), with a maximum penalty of

imprisonment in the county jail of 364 days. RCW 9A.20.021(2). Howard may not have

understood how much prison time he actually faced.

       The trial court’s failure to inform Howard of the maximum penalty for the charged

crimes and the absence of anything in the record showing that Howard was otherwise aware of



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No. 49319-5-II


the maximum penalty meant that his waiver of the right to counsel could not be knowing and

intelligent. Accordingly, we hold that the trial court erred in granting Howard’s motion to

represent himself.

                                          CONCLUSION

       We reverse Howard’s conviction and remand for a new trial.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.06.040, it is so ordered.

                                   ADDITIONAL ANALYSIS

       Howard asserts multiple claims in a statement of additional grounds. We address only

those claims that could affect the State’s ability to move forward with the case on remand.

A.     SUFFICIENCY OF THE EVIDENCE

       Howard asserts that the State failed to present sufficient evidence to support his unlawful

imprisonment conviction. Specifically, he asserts that the State did not prove that he acted

“knowingly” in restraining Wright. We disagree.

       When evaluating the sufficiency of evidence for a conviction, the test is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102,

105, 330 P.3d 182 (2014). We assume the truth of the State’s evidence and all reasonable

inferences drawn from that evidence when evaluating whether sufficient evidence exists. Id. at

106.




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No. 49319-5-II


       Under RCW 9A.40.040(1), a person is guilty of unlawful imprisonment if he “knowingly

restrains another person.” RCW 9A.40.010 defines “restrain” as “restrict[ing] a person’s

movements without consent and without legal authority in a manner which interferes

substantially with his or her liberty.” A person acts “knowingly” when

       (i) he or she is aware of a fact, facts, or circumstances or result described by a statute
       defining an offense; or
       (ii) he or she has information which would lead a reasonable person in the same
       situation to believe that facts exist which facts are described by a statute defining
       an offense.

RCW 9A.08.010(b).

       Here, the evidence at trial was sufficient to allow a rational jury to conclude that Howard

knowingly restrained Wright. First, Wright testified that Howard physically prevented her from

leaving the house on multiple occasions, either by holding her or by pulling her away from the

house’s exits. He did this even after she told him that she wanted to leave. Second, Wright

testified that she believed Howard acted intentionally in trying to prevent her from leaving. This

testimony could allow a rational jury to conclude that Howard knew he was restraining Wright

without her consent.

       Accordingly, we reject Howard’s claim that the State presented insufficient evidence to

support his conviction of unlawful imprisonment.

B.     ADEQUACY OF INFORMATION

       Howard asserts that the State’s charging document failed to inform him of all essential

elements of his unlawful imprisonment charge. We disagree.

       To provide notice to a defendant of the nature of the accusation against him, a charging

document must include all essential elements of a crime. State v. Zillyette, 178 Wn.2d 153, 158,



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No. 49319-5-II


307 P.3d 712 (2013). This requirement comes from the Sixth Amendment to the United States

Constitution and article I, section 22 of the Washington Constitution. Id. A two-pronged test

determines the validity of the State’s charging document: “(1) do the necessary elements appear

in any form, or by fair construction, on the face of the document and, if so, (2) can the defendant

show he or she was actually prejudiced by the unartful language.” Id. at 162.

       Here, the relevant statute, RCW 9A.40.040, provides, “A person is guilty of unlawful

imprisonment if he or she knowingly restrains another person.” The information charging

Howard stated that he “did unlawfully, feloniously, and knowingly restrain another person, to-

wit: Brandy Wright, contrary to RCW 9A.40.040.” CP at 3.

       This statement included the essential elements of unlawful imprisonment: that Howard

restrained Wright and that he did so knowingly. The language is also the same in all material

respects to the language at issue in State v. Johnson, which the Supreme Court held to be

sufficient. 180 Wn.2d 295, 301-02, 325 P.3d 135 (2014). Finally, Howard has not shown what

language potentially confused him or how he was in fact prejudiced.

       Accordingly, we reject Howard’s claim that the charging information omitted an essential

element of his unlawful imprisonment charge.

C.     TIME FOR TRIAL

       A defendant’s right to be brought to trial in a timely manner is governed by CrR 3.3(b).

That rule, which is consistent with constitutional requirements, provides that a defendant

generally must be brought to trial within 60 days of arraignment. CrR 3.3(b); State v. Ollivier,

178 Wn.2d 813, 823, 312 P.3d 1 (2013). However, certain time periods are “excluded in

computing the time for trial.” CrR 3.3(e); see Ollivier, 178 Wn.2d at 823. One such period



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occurs during competency proceedings, including under chapter 10.77 RCW. CrR 3.3(e)(1); see

State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004). In cases involving competency

proceedings, the defendant must be brought to trial within the longer of 60 days from

arraignment or 30 days after the trial court’s written order finding the defendant to be competent.

CrR 3.3(b)(1), (b)(5), (e)(1).

       Here, Howard apparently was arraigned on April 14, 2016. The trial court ordered a

competency evaluation on May 19 and entered an order finding Howard to be competent on June

29. Therefore, the rule required Howard to be brought to trial within 30 days on June 29, a

period ending on July 30. The first day of trial was July 27, a date within the allotted period.

       Accordingly, we hold that Howard’s time for trial rights were not violated.

                                          CONCLUSION

       We reverse Howard’s conviction and remand for a new trial. However, we reject

Howard’s assertions that the evidence was insufficient to support his conviction, the information

was deficient, and his time to trial rights were violated.



                                                       MAXA, J.

 We concur:



 WORSWICK, J.




 BJORGEN, C.J.




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