                                                                 FILED
                                                               Aug. 30, 2016
                                                      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. 33443-1-111
                                               )
                         Respondent,           )
                                               )
       V.                                      )        UNPUBLISHED OPINION
                                               )
ELUTERIO MORFIN-CAMACHO,                       )
                                               )
                         Appellant.            )

       PENNELL,   J. -    Eluterio Morfin-Camacho was convicted of felony charges after

representing himself at a jury trial. Because the trial court did not obtain a valid waiver

prior to allowing Mr. Morfin-Camacho to proceed without counsel, we reverse and

remand for a new trial.
No. 33443-1-III
State v. Morfin-Camacho


                                        FACTS

      Mr. Morfin-Camacho was charged with second degree burglary and possession of

a controlled substance (methamphetamine) in Franklin County Superior Court. During a

pretrial hearing, Mr. Morfin-Camacho informed the court he wished to discharge

appointed counsel and proceed prose. The court conducted a colloquy, during which Mr.

Morfin-Camacho claimed he had a "JD" and indicated he understood he would be held to

the same procedural and evidentiary standards as the prosecutor. Report of Proceedings

(RP) (March 17, 2015) at 2-5. The following exchange then took place:

      THE COURT: I have a question first of all for the prosecutor. I want to
      know what type of jeopardy Mr. Camacho is potentially facing, his potential
      on this charge, how much time he can be facing.



      MR. HULTGRENN: He has [an] offender score of 5 or 6. He's looking at
      22 to 29 on the burglary charge and six months and a day to 12 months on
      the drug charge.



      THE COURT: I want to make sure you understand you're looking at 29
      months confinement.

      MR. MORFIN-CAMACHO: I understand that, and I'm ready to proceed.

Id. at 3-4. The court then stated it would allow Mr. Morfin-Camacho to represent himself

and discharged appointed counsel.


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No. 33443-1-III
State v. Morfin-Camacho


      Immediately after the court's oral ruling, the prosecutor voiced concern. The

prosecutor expressed doubt over whether Mr. Morfin-Camacho actually had a "JD." Both

the prosecutor and former defense counsel stated they had concerns about Mr. Morfin-

Camacho's competence. While defense counsel addressed the court, Mr. Morfin-

Camacho interrupted and complained the attorney was lying.

      After defense counsel completed his comments, the court addressed Mr. Morfin-

Camacho again:

      THE COURT: Mr. Morfin-Camacho, where did you receive your JD?
      MR. MORFIN-CAMACHO: I earned it, sir.
      THE COURT: From who?
      MR. MORFIN-CAMACHO: I've got my own law practice.
      THE COURT: Where did you receive your JD?
      MR. MORFIN-CAMACHO: I'm ready to proceed.
      THE COURT: You're not answering my question.
      MR. MORFIN-CAMACHO: I'm ready to proceed.
      THE COURT: You indicated you received a JD. Where did you receive that
      degree?
      MR. MORFIN-CAMACHO: I obtained it in college.
      THE COURT: Which college?
      MR. MORFIN-CAMACHO: Gonzaga.
      THE COURT: Gonzaga [University]?
      MR. MORFIN-CAMACHO: Yeah.
      THE COURT: Do you have a copy of that degree?
      MR. MORFIN-CAMACHO: I can get it.
      THE COURT: I'd like you to do that.
      MR. MORFIN-CAMACHO: I'd like to proceed.

RP (March 17, 2015) at 8.



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No. 33443-1-III
State v. Morfin-Camacho


       After this colloquy, the prosecutor indicated the State had prior cases involving

Mr. Morfin-Camacho, during which he had been sent to Eastern State Hospital.

According to the prosecutor, Mr. Morfin-Camacho had previously come back from

Eastern and was deemed competent. This led the prosecutor to conclude his concerns

about competency must just be due to Mr. Morfin-Camacho's "personality." Id. at 9.

After hearing from the prosecutor on this point, the court ordered the case to proceed.

There is no indication the court ever followed up with Mr. Morfin-Camacho regarding

proof that he had obtained a "JD."

       Mr. Morfin-Camacho proceeded to represent himself at trial and was convicted as

charged. At sentencing, he received concurrent terms of confinement of 29 months for

second degree burglary and 12 months and a day for methamphetamine possession. Mr.

Morfin-Camacho timely appeals.

                                        ANALYSIS

Waiver of Counsel

       A defendant has the constitutional right to represent himself at trial. State v.

James, 138 Wn. App. 628, 635, 158 P.3d 102 (2007). When a defendant unequivocally

demands to represent himself, the trial court must ascertain whether the defendant has

made a knowing, intelligent, and voluntary waiver of the right to assistance of counsel.



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No. 33443-1-111
State v. Morfin-Camacho


Id. While a defendant has a right to self-representation, courts must 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) (quoting In re Det. of Turay,

139 Wn.2d 379, 396, 986 P.2d 790 (1999)). This court reviews a trial court's decision to

allow a defendant to represent himself for an abuse of discretion. James, 138 Wn. App at

636.

       There is no set formula for deciding the validity of a waiver of counsel. Id.

Preferably the trial court should engage in a detailed colloquy on the record. State v.

De Weese, 117 Wn.2d 369, 377-78, 816 P.2d 1 (1991). "[A]t a minimum [this colloquy

should apprise a defendant of] the seriousness of the charge, the possible maximum

penalty involved, and the existence of technical, procedural rules governing the

presentation of [a] defense". State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729 (2001)

(emphasis added). In the final analysis, the record must be sufficient to conclude the

defendant knows what he is doing and is making a choice "with eyes open." Adams v.

United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942).

       The colloquy between the court and Mr. Morfin-Camacho was insufficient to

demonstrate a valid waiver. There were two distinct problems. First, Mr. Morfin-

Camacho was not advised of the statutory maximum penalties applicable to his offenses.



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No. 33443-1-III
State v. Morfin-Camacho


The only information provided pertained to the anticipated standard ranges under the

Sentencing Reform Act of 1981, chapter 9.94A RCW. This was inadequate. Silva, 108

Wn. App. at 541-42 (advice of standard range insufficient, even when defendant received

a sentence within the standard range). Second, the court failed to adequately ensure that

Mr. Morfin-Camacho understood the proceedings against him. Mr. Morfin-Camacho's

claims about holding a "JD" and having his own law practice were suspect. The court

should have deferred resolution of Mr. Morfin-Camacho's motion for self-representation

until after obtaining verification. Without verification, the record leaves open the

reasonable possibility that Mr. Morfin-Camacho was either suffering from some sort of

delusion or intentionally deceiving the court. In either scenario, the presumption against a

valid waiver cannot be met. The record on appeal thus cannot support a valid waiver.

Sufficiency of Evidence

       In his statement of additional grounds, Mr. Morfin-Camacho appears to claim the

State did not present sufficient evidence to support the burglary conviction. Had this

been the case, retrial would be prohibited under the double jeopardy clause. However, we

find the State met its burden.

       Evidence is sufficient to support a conviction if, when viewed in the light most

favorable to the State, it permits any rational trier of fact to find the essential elements of


                                               6
No. 33443-1-III
State v. Morfin-Camacho


the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d

1068 ( 1992). This court defers to the trier of fact on issues of conflicting testimony,

witness credibility, and persuasiveness of the evidence. State v. Emery, 161 Wn. App.

172,199,253 P.3d413 (2011).

       "A person is guilty of burglary in the second degree if, with intent to commit a

crime against a person or property therein, he or she enters or remains unlawfully in a

building other than a vehicle or a dwelling." RCW 9A.52.030(1). A "building" includes

a "fenced area." RCW 9A.04.l 10(5). The trier of fact may infer that a person who enters

or remains unlawfully in a building acted with intent to commit a crime therein unless this

inference is rebutted by satisfactory evidence. RCW 9A.52.040.

      The evidence showed (1) Mr. Morfin-Camacho was in the fenced area of the store,

(2) the store owner had not given Mr. Morfin-Camacho permission to be in the fenced

area nor did he know the man was Mr. Morfin-Camacho until after he was arrested, (3)

the owner's van door was open, and (4) Mr. Morfin-Camacho's version of events was

disputed by officers, the store owner, and Mr. Morfin-Camacho's brother. This evidence

was sufficient to allow an inference that Mr. Morfin-Camacho intended to steal

something from the store owner.




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No. 33443-1-111
State v. Morfin-Camacho


Remaining Claims

       Because we are reversing Mr. Morfin-Camacho's convictions, we need not address

the remaining claims of error.

                                      CONCLUSION

       Based on the forgoing, the trial court's judgment and sentence is reversed. This

matter is remanded for a new trial.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                         Pennell, J.
WE CONCUR:




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