                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                     February 20, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                             No. 50352-2-II

                                 Respondent,

         v.

 ANTONIO DEJON EPPS,                                        UNPUBLISHED OPINION

                                 Appellant.

       JOHANSON, J. — Antonio D. Epps appeals from his sentences for third degree rape, first

degree burglary, and violations of no-contact orders. Epps argues that the sentencing court

improperly denied his request to represent himself at sentencing. Epps also seeks to have certain

legal financial obligations (LFOs) stricken. Because Epps did not make an unequivocal request to

represent himself, we affirm his sentences. But we remand to the sentencing court to strike the

deoxyribonucleic acid (DNA) database fee, the criminal filing fee, and the interest accrual

provision.

                                               FACTS

       The State charged Epps with third degree rape, first degree burglary with sexual

motivation, violation of a domestic violence court order with sexual motivation, and violation of

a sexual assault protection order. On June 23, 2016, the trial court entered an order for a

competency evaluation under RCW 10.77.060. A licensed psychologist found Epps competent to

stand trial. A jury trial was held.
No. 50352-2-II


       During the proceedings, Epps frequently expressed frustration with his attorney and

interrupted. The trial court told him multiple times that he needed to act respectfully in the

courtroom.

       A jury convicted Epps of all four counts, but the jury declined to find that the burglary was

sexually motivated. The jury was not asked to return a special verdict as to whether Epps’s

violation of the no-contact order was sexually motivated.

       Before sentencing, defense counsel requested that the sentencing court enter an order for a

competency evaluation because Epps “exhibits denial and confusion of incontr[o]vertible facts i.e.

counts he was convicted of, what he was convicted of, the fact that his trial is over.” Clerk’s Papers

at 66. The sentencing court entered another order for a competency evaluation under RCW

10.77.060. After receiving the second evaluation, the sentencing court found Epps competent. At

the start of the sentencing hearing, the sentencing court addressed Epps’s competency with defense

counsel and Epps interrupted.

               [Defense Counsel:] I do not disagree with the findings of the doctor. I have
       no basis to disagree with it, and so I have signed the order finding Mr. Epps
       competent to proceed.
               [Court:] Is that among the documents that have been handed forward? I
       see now that it is.
               [Epps:] It’s the same doctor from last time, and it’s not cool and it’s not
       fair and it’s against my rights, and I didn’t get my preliminary hearing and I already
       said I wanted a new attorney, and I said --
               [Court:] Mr. Epps, I --
               [Epps:] I said I wanted to go pro se.
               [Court:] Mr. Epps, no.
               [Epps:] No what?
               [Court:] We’ll give you the opportunity to address the Court. Now is not
       that opportunity.
               [Epps:] Yes, it is.
               [Court:] I have signed the order finding Mr. Epps competent. Are there
       any objections or exceptions to be made by either attorney to the pre-sentence
       investigation?

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No. 50352-2-II



Verbatim Report of Proceedings (VRP) (May 12, 2017) at 3-4 (emphasis added). Later, the

sentencing court gave Epps the opportunity to address the court, but Epps did not discuss wanting

to represent himself.

                                           ANALYSIS

                               I. RIGHT TO SELF-REPRESENTATION

       Epps argues that his request to represent himself at sentencing was unequivocal and timely,

and the sentencing court violated his constitutional right to self-representation by flatly denying

Epps’s request to represent himself. We disagree.

                        A. STANDARD OF REVIEW AND PRINCIPLES OF LAW

       We review a sentencing court’s decision to deny a defendant’s request to proceed as a self-

represented litigant for abuse of discretion. State v. Curry, 191 Wn.2d 475, 483, 423 P.3d 179

(2018). A sentencing court abuses its discretion if its decision “‘is manifestly unreasonable or

rests on facts unsupported in the record or was reached by applying the wrong legal standard.’”

Curry, 191 Wn.2d at 484 (internal quotation marks omitted) (quoting State v. Madsen, 168 Wn.2d

496, 504, 229 P.3d 714 (2010)).

       Criminal defendants have a right to self-representation under art. I, section 22 of the

Washington Constitution and under the Sixth Amendment of the United States Constitution.

Curry, 191 Wn.2d at 482. “This right is so fundamental that it is afforded despite its potentially

detrimental impact on both the defendant and the administration of justice.” Madsen, 168 Wn.2d

at 503. However, the right to self-representation is not self-executing nor absolute. Curry, 191

Wn.2d at 482. We indulge in “‘every reasonable presumption against a defendant’s waiver of his



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No. 50352-2-II


or her right to counsel.’” Madsen, 168 Wn.2d at 504 (internal quotation marks omitted) (quoting

In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)).

          When a defendant requests to proceed as a self-represented litigant, the request must be

unequivocal and timely. Madsen, 168 Wn.2d at 504. The issues of equivocality and timeliness

focus on if, when, and how the defendant made a request, but not on the request’s motivation or

purpose. Curry, 191 Wn.2d at 486-87. If the request is equivocal or untimely, “the defendant’s

right to counsel remains in place and the trial court must deny the request to proceed pro se.”

Curry, 191 Wn.2d at 486. If an unequivocal request is not made, the trial court is not required to

engage in a colloquy. State v. Woods, 143 Wn.2d 561, 587, 23 P.3d 1046 (2001).

          But if the request is unequivocal and timely, “the court must then determine whether the

request is also voluntary, knowing, and intelligent.” Curry, 191 Wn.2d at 486; Madsen, 168 Wn.2d

at 504-05 (“The grounds that allow a court to deny a defendant the right to self-representation are

limited to a finding that the defendant’s request is equivocal, untimely, involuntary, or made

without a general understanding of the consequences.” This finding must be based an identifiable

fact.).

                                    B. UNEQUIVOCAL REQUEST

          Epps argues that his request to proceed as a self-represented litigant at sentencing was

unequivocal, but he does not explain why it was unequivocal. Based on his statement that his

request was unequivocal, Epps continues to argue that since the sentencing court found him

competent, the sentencing court abused its discretion by denying Epps’s request “without

exploring his right to self-represent through the required colloquy.” Br. of Appellant at 11. Epps’s




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No. 50352-2-II


argument fails because the record does not show that he made a request to self-represent at

sentencing.

       Our Supreme Court has adopted the Ninth Circuit’s articulation of an unequivocal request

that “requires a defendant to ‘make an explicit choice between exercising the right to counsel and

the right to self-representation so that a court may be reasonably certain that the defendant wishes

to represent himself.’” Curry, 191 Wn.2d at 490 (quoting United States v. Arlt, 41 F.3d 516, 519

(9th Cir. 1994). “To determine if a request for self-representation was unequivocal, the court must

in fact answer two questions: (1) Was a request made? If so, (2) was that request unequivocal?”

Curry, 191 Wn.2d at 487. To determine whether a request was made, the trial court can consider

       how the request was made—for example, was the request made formally in a
       motion or spontaneously at a hearing? . . . the language used in the actual request—
       for example, was the defendant asking to proceed pro se or expressing frustration?
       . . . [and] the context surrounding the request—for example, was the request made
       after counsel sought a continuance or because of a disagreement regarding strategy?

Curry, 191 Wn.2d at 488.

       In State v. Luvene, defense counsel requested a trial continuance. 127 Wn.2d 690, 698,

903 P.2d 960 (1995). Luvene opposed this and stated,

               “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 said that these statements, taken in the context of

the record as a whole, could be seen as an expression of frustration with the delay in trial and not

as an unequivocal request to proceed as a self-represented litigant. Luvene, 127 Wn.2d at 699;

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No. 50352-2-II


State v. Modica, 136 Wn. App. 434, 441, 149 P.3d 446 (2006) (“A criminal defendant who desires

to waive the right to counsel and proceed pro se must make an affirmative demand, and the demand

must be unequivocal in the context of the record as a whole.”), aff’d, 164 Wn.2d 83, 186 P.3d 1062

(2008).

          Likewise, here, considering the record as a whole, Epps did not make an unequivocal

request, let alone an affirmative demand, for self-representation at sentencing. Epps made the

statement spontaneously while the sentencing court and defense counsel were discussing Epps’s

competency to proceed with sentencing. Epps had also frequently interrupted the proceedings.

When considering the language used, Epps stated, “It’s the same doctor from last time, and it’s not

cool and it’s not fair and it’s against my rights, and I didn’t get my preliminary hearing and I

already said I wanted a new attorney, and I said . . . I said I wanted to go pro se.” VRP (May 12,

2017) at 3-4. Epps only stated in the past tense, “I said I wanted to go pro se” and this past tense

statement is not a request to represent himself at sentencing. VRP (May 12, 2017) at 4.

          Considering the context of the statement as a whole, “I said I wanted to go pro se” can be

seen merely as an expression of frustration with the proceedings and the competency

determination, rather than a request to proceed as a self-represented litigant.

          Furthermore, the sentencing court responded, “We’ll give you the opportunity to address

the [c]ourt. Now is not that opportunity.” VRP (May 12, 2017) at 4. The sentencing court later

gave Epps an opportunity to address the court, but Epps made no further mention of self-

representation. Thus, with the presumption against a defendant’s waiver of his right to counsel,

we hold that Epps’s argument fails because he did not make a request, let alone an unequivocal

request, to proceed as a self-represented litigant. Since Epps did not actually make a request, the


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No. 50352-2-II


sentencing court was not required to engage in a colloquy. We hold that the sentencing court did

not abuse its discretion.1

                               II. LEGAL FINANCIAL OBLIGATIONS

       Epps challenges the sentencing court’s imposition of the $100 DNA database fee and the

$200 criminal filing fee that were mandatory costs at the time of sentencing. The State concedes

and we accept the State’s concession on this issue.

       The legislature recently amended RCW 43.43.7541 and RCW 36.18.020(2)(h). LAWS OF

2018, ch. 269, § 18, 17. As a result, RCW 43.43.7541 prohibits assessment of the $100 DNA fee

against a defendant who had previously provided a DNA sample because of a prior conviction.

Also, RCW 36.18.020(2)(h) prohibits the sentencing courts from imposing the $200 filing fee on

indigent defendants. These statutory amendments apply prospectively to cases pending on appeal.

State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).

       Epps has a prior adult felony conviction in Washington from 2010, and therefore we infer

his DNA has been previously collected. See RCW 43.43.7541. The sentencing court also found

Epps indigent at sentencing. The State adds that the sentencing court should also strike the interest

accrual provision. Epps’s judgment and sentence contains an interest accrual provision. Recently

amended RCW 10.82.090 eliminates any interest accrual on nonrestitution LFOs as of June 7,

2018. LAWS OF 2018, ch. 269, § 1.




1
 Because we hold that Epps did not make an unequivocal request to represent himself, we
do not reach Epps’s argument that his request was timely.
                                               7
No. 50352-2-II


        Thus, we remand to the sentencing court to strike the DNA database fee, the criminal filing

fee, and the interest accrual provision to the extent it applies to nonrestitution LFOs after June 7,

2018, and to amend the judgment and sentence accordingly.

                                          CONCLUSION

        We hold that Epps did not make any request for self-representation at sentencing, much

less an unequivocal request. Therefore, the sentencing court did not abuse its discretion. We

affirm Epps’s sentences, but we remand for the sentencing court to strike the DNA database fee,

the criminal filing fee, and the interest accrual provision.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      JOHANSON, J.
 We concur:



 MAXA, C.J.




 LEE, J.




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