                                                                                                                   FILED
                                                                                                           COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTENSICIN 11
                                                                                                        Z0 I5       17           8: 1 0
                                                    DIVISION II
                                                                                                          STAT ,         SHfkl      ON
 STATE OF WASHINGTON,                                                                 No. 44958 -7 -II
                                                                                     consolidated witW`

                                                                                      No. 44965 -0 -II
                                           Respondent,


             v.



 ALLEN ENGLUND,                                                          PUBLISHED IN PART OPINION


                                           Appellant.



         MELNICK, J. —        Allen Englund appeals his convictions of two counts of assault in the


second degree while armed with a firearm and three counts of unlawful possession of a firearm in


the   second      degree. Englund argues that we should vacate his convictions and remand for a new


trial because the trial court abused its discretion by denying Englund' s requests to proceed as a

self represented
     -                litigant ( SRL),      failed to bring Englund to trial within the time for trial rule, and

denied Englund his        right   to be     present at   every   critical stage of   the   proceedings.    Englund also


makes several assertions          in his   statement of additional grounds (         SAG). In the published portion


of the opinion, we hold that the trial court did not abuse its discretion when it denied Englund' s

requests to represent himself. In the unpublished portion of the opinion, we hold that the trial court


did not violate Englund' s right to a timely trial, and it did not violate Englund' s right to be present

at   every   critical stage of    the   proceedings.     We   also reject   Englund'   s   SAG   assertions.    We affirm


Englund'     s convictions.
44958 -7 -II / 44965 -0 -II




                                                       FACTS


I.       SUBSTANTIVE FACTS'


         A.       Englund' s Criminal History

         In 1976, Englund pleaded guilty to burglary in the second degree in Lewis County Superior

Court. Because      of   the   conviction,   Englund   could not   legally   possess a   firearm. On August 19,


2009, a jury found Englund guilty of unlawful possession of a firearm in the first degree in

Thurston County Superior Court. The judgment and sentence specifically informed Englund that

he   could not   legally   possess a   firearm   unless a court of record restored        his   right   to do so.   On


October 13, 2012 and December 16, 2012, Englund could not legally possess any firearm.

         B.       Facts Relating to October 2012 Case

         Englund owned property with two travel trailers on it. In October 2012, Washington Fish

and Wildlife Officer Chris Zuchlewski stopped at Englund' s property to investigate two

unattended    fishing    poles.   Following the investigation, Zuchlewski ran a records check on the

license numbers of the vehicles on the property. From the records check, Zuchlewski determined

that because Englund had felony convictions, he could not legally possess firearms.

         Later that same day, Zuchlewski drove past Englund' s property again and observed

Englund holding a rifle with a scope. Zuchlewski and a fellow officer entered Englund' s property

and placed him under arrest. Following the arrest, Zuchlewski, accompanied by Englund and with

his consent, entered one of the trailers on the property and, from under a mattress, seized a loaded

 22 caliber rifle equipped with a scope.




1 The State charged Englund in two separate informations. One related to the October 2012 events;
the other related to the December 2012 events. The trial court consolidated the cause numbers for
trial.




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44958 -7 -II / 44965 -0 -II




            C.          Facts Relating to December 2012 Case

            Mark Christensen and Arthur Parrish are friends. They know Englund. Christensen drove

by   Englund'       s residence        every time he drove to Parrish' s          residence.      In mid -December 2012,


Christensen and Parrish drove onto Englund' s property in Christensen' s vehicle and struck the

front fender        of   Englund'      s vehicle.   Englund believed the collision was intentional and he was


fearful that Christensen' s truck might strike his trailer or injure him. Englund wanted to retaliate.


against Christensen and Parrish.


            Shortly      thereafter, Christensen      drove his     vehicle   home from Parrish'         s residence.   While


passing Englund' s property, he heard a loud boom that sounded like a shotgun blast. Christensen

did not stop or examine his vehicle until the next day when he observed what appeared to be

shotgun pellets embedded                in the driver' s   side and rear   tire   of   the   vehicle.   Later that same day,

Englund, while on his property, aimed and fired a firearm at a vehicle containing Christensen and
Parrish. Christensen and Parrish feared for their lives and, once reaching Christensen' s residence,

they called law enforcement.

            After the call, Sheriff's deputies arrested Englund on his property. In a search incident to

arrest, deputies seized a box of 20 -gauge shotgun shells from Englund' s pocket. The shot found

in the 20 -gauge shells was size 8, a form of birdshot capable of injuring a human being. In a search

pursuant to a warrant, deputies seized a loaded 20 -gauge bolt action shotgun from under a blanket

in   a   trailer   on   Englund'   s   property.    Additionally, deputies seized a loaded . 22 caliber rifle from

Englund' s other trailer.




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44958 -7 -II / 44965 -0 -II



II.      PROCEDURAL HISTORY


         On December 26, 2012, Englund appeared for arraignment and pleaded not guilty to each

charge. 2 The trial court appointed a lawyer for Englund and set a February 19, 2013 trial date. On

January 24, the trial court allowed Englund' s lawyer to withdraw for good cause and ordered the

Office of Assigned Counsel to appoint a new lawyer for Englund as soon as possible. On January

28, the trial court appointed new counsel for Englund. Two days later, the trial court allowed the

new lawyer to withdraw at Englund' s request. Englund moved to represent himself. Regarding

self -representation, the trial court engaged in a colloquy with Englund:

         THE COURT: And is it true that you wish to represent yourself?
         ENGLUND: If I have to.
         THE COURT: If you have to?
         ENGLUND: Yeah.

         THE COURT: Are you making a request to this court that you represent yourself?
         ENGLUND: Yeah.


Report   of   Proceedings ( RP) ( Jan. 30, 2013)   at   5.   The trial court then entered an order requiring

Englund to file a written motion to represent himself. Englund' s former lawyer expressed concern


that the current February 19 trial date would not allow adequate preparation time for a new lawyer.

The State agreed. The trial court engaged in the following colloquy with Englund:

         THE COURT: Thank         you.   And I believe —correct      me if I'm wrong, Mr. Englund.
         But I believe the last time that   you were    before the   court   asking —or agreeing with
         the motion of counsel to withdraw from your case, you understood that that may
         very well mean an extension of dates, including the trial date; right?
         ENGLUND: No.

         THE COURT: I' m sorry?
         ENGLUND: What         would you mean an extension?           No. What' s that?
         THE COURT: You understood that your agreement with the request to allow your
         counsel to withdraw may mean that the trial date would continue out further than
         when it currently is.
         ENGLUND: If it has to be —a  speedy trial is 60 days.
         THE COURT: I'm sorry. I can't hear you.

2 Englund was only in custody for the charges related to the December 2012 case.

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44958 -7 -II / 44965 -0 -II




        ENGLUND: It should still be a fast, speedy trial, 60 days.
        THE COURT: So you are not in agreement with the continuation of the trial?
        ENGLUND: No.
        THE COURT: You are not?
        ENGLUND: No.


RP ( Jan. 30, 2013) at 8 -9. Because a determination still needed to be made concerning Englund' s

legal representation, the trial court found good cause to continue the jury trial in the December

2012 case to the week of March 11, 2013.


        The trial   court     set   a   February   12    status   review   hearing     regarding    counsel.    Englund


appeared at the hearing and again said he wanted to represent himself.3 Englund had not yet filed

a written motion to represent himself. The trial court engaged in a colloquy with Englund, asking
                                                                                   4
him if he    understood   the   nature of all      the   charges against    him.       Englund     said yes.   However,


Englund interjected throughout the colloquy that he had "                  gun rights."    RP ( Feb. 12, 2013) at 7.


Additionally, the trial court asked Englund if he was familiar with the rules of evidence and

criminal procedure:



         THE COURT: Are you familiar with the rules of evidence?
        ENGLUND: Yes.
         THE COURT: How are you familiar with the rules of evidence?
         ENGLUND: The evidence ain' t against me. It' s the ones that made the assault, not
        me.




         THE COURT: Are you familiar with the rules of criminal procedure?
         ENGLUND: Yeah.
         THE COURT: And how are you familiar with the rules of criminal procedure?
         ENGLUND: Because I didn' t do nothing wrong. I ain' t the type to go to somebody
         else' s place and step out of line.




3 The record shows a lawyer appeared with Englund at this hearing. However, the lawyer said he
did not represent Englund.


4 At this point, the charges arising from both the October 2012 and December 2012 incidents were
discussed.



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44958 -7 -II / 44965 -0 -II



         THE COURT: Do you have a legal theory you wish to argue to the [ c] ourt that you
         believe your lawyer would not argue on your behalf?
         ENGLUND: No.


         THE COURT: At this point, I need to advise you that, in the [ c] ourt'.s opinion, you
         would be far better served if you were defended by a trained lawyer than
         representing yourself. It' s unwise to represent yourself. You face extremely stiff
         penalties if, in fact, you are found guilty. You are not familiar with the law.

RP ( Feb. 12, 2013)       at   9 - 11.    The trial court also advised Englund he could not argue at trial that he


had the right to possess a firearm. The trial court entered a written order denying Englund' s request

to   represent   himself.       Based on its colloquy with Englund, the trial court found that Englund

 would not have the capacity to understand and follow the procedural rules in this matter and

would   thereby be       unable     to    provide       for his defense."         Clerk'   s   Papers ( CP)   at   52.   The trial court


ordered the Office of Assigned Counsel to appoint a lawyer to represent Englund.


         Eight days later, at a previously set review hearing, Englund' s new appointed lawyer

appeared, but Englund was not transported to the courtroom. His lawyer presented the trial court


with a stipulated competency evaluation order. The court signed it. Because Englund refused to

cooperate with a competency evaluation at the jail, the trial court subsequently entered an amended

order for the evaluation to occur at Western State Hospital.


         On May 2, the trial court found Englund legally competent to stand trial. At that time, the

trial court set a new trial date for May 28. During the hearing, Englund' s lawyer advised the court

that Englund did not believe she represented him. Englund addressed the court:


         THE COURT:...                   Mr. Englund, you wish to address the court?
         ENGLUND: What do you mean?
         THE COURT: Do you have a question?
         ENGLUND: Yeah. You're sitting there trying to put me up for trial, and it's way
         past    the   60 -day trial,      and   I' m   not   the   one   that   made   this all ( indiscernible).       So

         I didn't go to somebody else's place and assault them at their place.

RP ( May 2, 2013) at 5.


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44958 -7 -II / 44965 -0 -II




          On May 13, Englund' s lawyer submitted a written motion for reconsideration of the

February 12, 2013 order denying Englund' s motion to represent himself. She further moved for

an order    to   allow   Englund to   represent   himself.     Accompanying the motion was the .lawyer' s

declaration in which she outlined Englund' s intent to not cooperate in any way with assigned

counsel.    She also outlined the defenses Englund planned to raise if permitted to proceed as an


SRL. At the same time, the lawyer provided Englund with a three -page letter containing relevant

legal   research and an analysis of     his   case.   She offered to provide assistance to Englund in the


capacity of standby counsel.


          Three days later, the trial court had another hearing and allowed Englund to address the

court. The trial court did not, however, engage in further colloquy with Englund, noting that it did

not have the transcript from the colloquy on February 12, 2013. In its written order, the trial court

denied Englund' s motion for reconsideration on the grounds that it was not filed within 10 days of

the entry of the order. Additionally on that day, the trial court consolidated the October 2012 and

December 2012 causes for trial.


          On May 24, the State amended the charges in both informations to unlawful possession of

a firearm in the second degree, two counts of assault in the second degree, and two counts of

unlawful possession of a       firearm in the     second   degree.      After his arraignment, Englund, by and

through    his lawyer, filed   a written waiver of a    jury   trial.   On May 29, 2013, the trial court held a

bench trial and found Englund guilty of all counts. The trial court entered separate judgments and

sentences for each cause.


          Englund appeals his convictions under both cause numbers. We consolidated the cases on


appeal.




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44958 -7 -II / 44965 -0 -II



                                                        ANALYSIS


I.            MOTIONS FOR SELF REPRESENTATION


              We review a trial court' s denial of the right to represent oneself for an abuse of discretion.

In     re   Pers. Restraint of Rhome, 172 Wn.2d 654, 667, 260 P. 3d 874 ( 2011).                 The "   ad   hoc,   fact -


specific analysis of waiver of counsel questions is best assigned to the discretion of the trial court.


State       v. -Hahn,   106 Wn.2d 885, 900, 726 P. 2d 25 ( 1986). A trial 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. '    State v. Madsen, 168 Wn.2d 496, 504, 229 P. 3d 714

                                                                                             5
 2010) ( quoting State        v.   Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 ( 2003)).


              Article 1,   section 22 of the Washington Constitution explicitly guarantees criminal

defendants the right to self representation.
                             -               Madsen, 168 Wn.2d at 503. The Sixth Amendment to


the United States Constitution implicitly guarantees this right. Faretta v. California, 422 U. S. 806,

819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 ( 1975).              Courts regard this right as " 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. Improper denial of the right to represent oneself requires


reversal regardless of whether prejudice results. Madsen, 168 Wn.2d at 503.

              Englund    made   three   separate motions    to    proceed as an   SRL.   Timeliness of this type of


motion        is determined     on a continuum.        State v. Barker, 75 Wn. App. 236, 241, 881 P.2d 1051

     1994).    When a trial court delays ruling on the motion but is put on notice of a defendant' s desire

to proceed as an SRL, the timeliness of the request is measured from the date of the initial request.



5 Although the dissent recognizes these standards of review, it instead reviews the record de novo,
interprets the facts de novo, and fails to give deference to the trial court judge who communicated
with and observed Englund' s demeanor as well as his verbal and nonverbal skills.

6 "[
        T] he accused shall have the right to appear and defend in person."


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44958 -7 -II / 44965 -0 -II




State   v.   Breedlove, 79 Wn. App. 101, 109, 900 P. 2d 586 ( 1995). Thus, the timeliness of Englund' s


request to represent himself is measured from the date of his first request: January 30, 2013.

However,          we examine each motion            separately        and   independently.    Madsen, 168 Wn.2d at 505.


We hold that the trial court did not improperly deny Englund' s right to self representation.
                                                                              -

             A.          First Motion


             Englund argues that the trial court abused its discretion by requiring him to file a written

motion       to   represent   himself. We disagree.              At the hearing, Englund clearly indicated that he

wanted to represent himself. In response, the trial court ordered Englund to file a written motion.

Englund       argues      this directive is   a   denial   of   his   request.     On the contrary, the trial court did not

deny Englund' s request, it merely deferred ruling until the motion was properly before the court.

             Englund further argues that the trial court abused its discretion by " failing to exercise it."

Appellant' s Br. at 21. Englund made his request to be an SRL in the midst of his counsel' s motion

to withdraw. A trial court must be allowed the discretion to manage its own affairs. Madsen, 168

Wn.2d.       at   506.    When a trial court is reasonably unprepared to immediately consider a motion, it

properly      exercises      discretion    by delaying     its ruling. Madsen, 168 Wn.2d              at   506. Here, the trial


court   had       no notice of   the   motion and required more              time to    consider   it. The trial court did not


abuse its discretion.


             B.          Second Motion


             After engaging in a colloquy with Englund, the trial court found that Englund lacked the

capacity to aid in his own defense and denied the request to proceed as an SRL. Englund argues

that capacity is          not a criterion     for the trial     court' s consideration.       We hold that the trial court


properly considered Englund' s capacity and it is a proper ground the trial court can consider to

deny    a    defendant SRL       status.   See Rhome, 172 Wn.2d               at   659 -60.
44958 -7 -II / 44965 -0 -II




          The right to self -representation is not self -executing. State v. Modica, 136 Wn. App. 434,

441, 149 P. 3d 446 ( 2006),          affd,   164 Wn.2d 83, 186 P. 3d 1062 ( 2008).                Although the trial court


must honor a properly made request for self representation,
                                            -               a trial court must also indulge in

  every reasonable presumption' against a defendant' s waiver of his or her .right to counsel."

Madsen, 168 Wn.2d at 504 ( quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P. 2d 790.

 1999)). "     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."      Madsen, 168 Wn.2d            at   504 -05.    Such a


finding   must      be based   on an "   identifiable fact." Madsen, 168 Wn.2d at 505.


          States may constitutionally         deny    a   defendant SRL    status "`   on the ground that [he] lacks the


mental    capacity to     conduct      his trial defense. "'    Rhome, 172 Wn.2d at 660 ( quoting Indiana v.

Edwards, 554 U. S. 164, 174, 129 S. Ct. 2379, 171 L. Ed. 2d 345 ( 2008)).                           Therefore, trial courts


may limit the right to self -representation when there is a question about the defendant' s

competency to         act as   his   own counsel.         Rhome, 172 Wn.2d       at    661- 62.    Additionally, the state

constitutional right to self representation
                             -              " may not properly be construed as an absolute right in

all cases."    State v. Kolocotronis, 73 Wn.2d 92, 98, 436 P. 2d 774 ( 1968).


          Competency to stand trial " does not automatically equate to a right to self representation"
                                                                                       -

because the standard for determining competency to stand trial assumes the defendant will "assist

in his defense,      not conduct      his defense."       Rhome, 172 Wn.2d at 660 ( citing Edwards, 554 U.S. at

174 -75).     Self -representation undercuts the right to a fair trial when the defendant' s lack of capacity

to   conduct    a   defense threatens        an   improper   conviction.     Edwards, 554 U. S.         at   176 -77.    Here,


Englund clearly demonstrated a lack of capacity to conduct a defense. When asked why he wanted

to proceed as an SRL, Englund could not articulate why he did not want a lawyer to represent him.



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44958 -7 -II / 44965 -0 -II




Additionally, Englund was unresponsive to the trial court' s inquiry into his familiarity with the

rules of evidence and criminal procedure.



           The trial court correctly found that Englund lacked capacity to aid in his own defense. CP

at   52.   Taken as a whole, the record of this hearing contains sufficient support for the trial court' s

finding. We defer to the trial court' s finding because it had the opportunity to observe and consider

Englund' s demeanor and nonverbal conduct, as well as his verbal responses during the colloquy.

See State    v.   Floyd, 178 Wn.   App. 402, 410,     316 P. 3d 1091 ( 2013), review denied, 180 Wn.2d 1005,


321 P. 3d 1206 ( 2014); State       v.   Read, 163 Wn.   App. 853,    864, 261 P. 3d 207 ( 2011). Englund could


not understand the very basic questions the trial court posed. As an example, Englund' s statements

in response to the trial court' s inquiry about whether he understood the nature of the charges

against him illustrate unresponsiveness:


           THE COURT: And under case number 12 -1- 01752 -6, d you understand that you
           are charged with one count of unlawful possession of a firearm in the second
           degree?
           ENGLUND: I have gun rights.
           THE COURT: I'm asking if you understand that in 12 -1- 01752 -6, that you are
           charged with one count of unlawful possession of a firearm in the second degree.
           Do you understand that is the charge before the [ c] ourt?
           ENGLUND: Yeah, but you're talking around —I have gun rights.


RP ( Feb. 12, 2013) at 6. Englund remained so focused on his belief that he had a right to possess

a    firearm that he did   not   reply to the trial   court' s questions with relevant answers.     This behavior


continued throughout the remainder of the colloquy. Substantial evidence supports the trial court' s

ruling that Englund lacked capacity to aid in his own defense.

           A trial court may not deny a motion for self -representation based on grounds that it would

be " detrimental to the defendant' s ability to present his case" or concerns that proceedings would

be less    efficient and   orderly.      Madsen, 168 Wn.2d       at   505.   A defendant' s " unfamiliar[ ity] with




                                                            11
44958 -7 -II / 44965 -0 -II




legal rules" does not justify a trial court's denial of the right to proceed as an SRL. Madsen, 168

Wn.2d     at   509. "   A court may impose lesser sanctions for failure to adhere to proper procedures,

but ` must     not sacrifice constitutional rights on               the   altar of   efficiency. "'   Floyd, 178 Wn. App. at

409 ( quoting Madsen, 168 Wn.2d                  at   509). Here, although the trial court noted that Englund would


be better served if represented by a lawyer and that Englund is not familiar with the law, those

statements are most logically read as factors that contributed to the trial court' s conclusive finding

that Englund      lacked capacity to            provide   for his   own     defense.     Therefore, the trial court' s finding

was not based on the improper legal standard that Englund is unfamiliar with legal rules. Rather,


by explicitly finding that Englund lacked capacity, the trial court properly exercised its discretion

to deny Englund' s motion to proceed as an SRL.

          C.        Third Motion


          Englund argues that because he was found competent to stand trial, the trial court abused


its discretion by refusing to engage in further colloquy with Englund and by refusing to consider

his   renewed request          to   represent   himself at the    hearing     on   May    16, 2013.     Englund' s request took


the   form     of a motion      for   reconsideration.      The grant or denial of a motion for reconsideration is .


within the sound discretion of the trial court. Lilly v. Lynch, 88 Wn. App. 306, 321, 945 P.2d 727

 1997).      As   such,   it   will   be   overturned     only   upon an abuse of         discretion.    Lilly, 88 Wn. App. at

321.


          Englund incorrectly equates competency to stand trial with a right to self-representation.

Br. of Appellant at 26. As discussed above, the two are not the same. Rhome, 172 Wn.2d at 660.

 A trial court may consider a defendant' s mental health history and status when competency has

been   questioned, even where              the defendant has been found              competent   to   stand   trial."   Rhome, 172


Wn.2d at 667. Here, the trial court relied on all of the information it had regarding the defendant' s




                                                                    12
44958 -7 -II / 44965 -0 -II




mental health history, along with its own observations. None ofthe information evidences the trial

court abused its discretion. In addition, the trial court relied on CR 59( b) and found that the motion

for   reconsideration was         untimely.   The trial court did not abuse its discretion by relying on its

previous encounters with Englund to deny the motion for self representation
                                                             -              and by refusing to

engage in further colloquy with Englund. We affirm the trial court.

             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.


I.           TIME FOR TRIAL ( CrR 3. 3)


             Englund argues that his CrR 3. 3 rights were violated because the trial court continued the


trial   date   over   his   objection.   We hold that no violation occurred because the continuance was


properly granted and the time for trial was properly computed considering applicable excluded

periods.



               A] trial court's grant or denial of a motion for a CrR 3. 3 continuance or extension will


not   be disturbed     absent a   showing   of a manifest abuse of   discretion.'"   State v. Cannon, 130 Wn.2d


313, 326, 922 P. 2d 1293 ( 1996) ( quoting         State v. Silva, 72 Wn. App. 80, 83, 863 P. 2d 597 ( 1993)).

 Discretion is abused only where it is exercised on untenable grounds or for untenable reasons."

State   v.   Williams, 104 Wn.      App.   516, 521, 17 P. 3d 648 ( 2001).    The application of a court rule to


particular facts is a question of law. State v. Carlyle, 84 Wn. App. 33, 35, 925 P.2d 635 ( 1996).

Therefore,      we review an alleged violation of a court rule         de   novo.    State v. Kenyon, 167 Wn.2d


130, 135, 216 P. 3d 1024 ( 2009).




7 Englund raises the identical issue in his statement of additional grounds. We address it here.


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44958 -7 -II / 44965 -0 -II



           A.           Continuance —Excluded Period


           Under CrR 3. 3( b)( 1)( i),      an in- custody defendant must be brought to trial within 60 days

after arraignment.          When a defendant is not brought to trial before the expiration of the time for

trial   limitation, the trial        court must   dismiss the        charges with prejudice.          CrR 3. 3( h). Specific time


periods are excluded from the 60 -day calculation, including continuances granted for good cause.

CrR 3. 3(       e).   The trial court may continue the trial date when " such continuance is required in the

administration of justice and the defendant will not be prejudiced in the presentation of his or her

defense."         CrR 3. 3( f)(2).    The reasons for the continuance must be on the record or in writing. CrR

3. 3 ( f)(2).


           Here, Englund' s arraignment occurred on December 26, 2012 and he remained in custody.

Therefore, his time for trial would have expired on February 24, 2013, 5 days after the time actually

set   for his trial.      On January 30, 2013, the trial court found good cause to continue the trial to the

week of          March 11, 2013.         Englund     argues         that "[     t] he sole basis to justify the court' s action

 continuing the trial date] was its refusal to allow [Englund] to proceed to trial on the date already
                                                         Br.        29.    This            is                 by   the             The
set   representing himself." Appellant'              s         at                  claim        unsupported              record.




trial court concluded that it would be unreasonable for a new lawyer or Englund to prepare

adequately for a trial on February 19, 2013.

           Thus, the trial court found good cause to continue the trial to the week of March 11, 2013,

and     it included the bases for its ruling in writing.                        This finding is well within the trial court' s

discretion. Englund did               not claim   any    prejudice         by   the   delay.    Therefore, we hold that the trial


court did not violate CrR 3. 3 or manifestly abuse its discretion by continuing Englund' s trial date

to the week of March 11, 2013.




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44958 -7 -II / 44965 -0 -II




          B.        Competency            Evaluation —Excluded Period


          All proceedings relating to the competency of a defendant to stand trial are excluded from

the time for trial rule, beginning on the date when the competency examination is ordered and

terminating when the court enters a written order finding that the defendant is competent to stand

trial. CrR 3. 3(   e)(   1).    CrR 3. 3( b)( 5) extends the time for trial 30 days following the end of a period

excluded       for competency          proceedings pursuant              to CrR 3. 3(    e).     On February 20, 2013, the court

entered an order         to    evaluate    Englund for competency to               stand       trial.   On May 2, 81 days later, the

court   found Englund competent to                     stand   trial. Pursuant to CrR 3. 3(             b)( 5)   and   CrR 3. 3(    e),    the 81-


day period between the order and the finding is excluded from speedy trial calculations, extending

Englund'   s    speedy trial date to June 4, 2013.                   His trial    was    held     on    May      28 and    May      29.     Thus,


Englund' s trial date did not violate the time for trial rules.


          C.        Objection and Motion


          Even if we assume the trial court set Englund' s trial outside the time for trial limits,

Englund did       not    properly        object. "     A party who objects to the date set upon the ground that it is

not within     the time limits        prescribed       by [ CrR 3. 3]    must, within          10 days     after   the   notice   is ...    given,




move    that the    court set a        trial   within    those time limits."         CrR 3. 3( d)( 3). "           A party who fails, for

any reason, to make such a motion shall lose the right to object that a trial commenced on such a

date is   not within           the time   limits     prescribed     by   this   rule."    CrR 3. 3( d)( 3); See State v. Chavez -


Romero, 170 Wn.                App.   568, 581, 285 P. 3d 195 ( 2012), review denied, 176 Wn.2d 1023 ( 2013).


Englund did       not move         the    court   to   reset   trial dates.     Therefore, Englund' s claim that his time for


trial rights were violated            fails.   We hold that the court held Englund' s trial in a timely fashion.




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II.           RIGHT TO BE PRESENT


              Englund argues that the trial court violated his right to be present at every critical stage of

the proceedings under Washington Constitution, article 1, section 22. 8 Englund argues that the

hearing in which the competency evaluation was ordered is a critical stage in the proceedings. We

hold that Englund did not have a constitutional right to be present at this hearing.

              Whether a defendant's constitutional right to be present has been violated is a question of

law,     we     review      de   novo.    State     v.   Irby,   170 Wn.2d 874, 880, 246 P. 3d 796 ( 2011). "[             I] n


Washington, the right to appear and defend as guaranteed by article I, section 22 of the Washington

Constitution is triggered at any time during trial that a defendant's substantial rights may be

affected."        State   v.   Jones, 175 Wn.       App.    87, 107, 303 P. 3d 1084 ( 2013).     The defendant' s right to


be    present     includes       situations   in   which   he may " actively   contribute   to his   own   defense."   State v.


Bennett, 168 Wn.            App.     197, 203, 275 P. 3d 1224 ( 2012) ( emphasis in original). " In general, a stage


of    trial   is ` critical' if it   presents a     possibility    of prejudice   to the defendant."   State v. McCarthy,

178 Wn.         App.   90, 97, 312 P. 3d 1027 ( 2013) (            quoting State v. Hawkins, 164 Wn. App. 705, 715,

265 P. 3d 185 ( 2011)).              Additionally, "[ a] critical stage is one ` in which a defendant' s rights may

be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is

otherwise        substantially       affected. "'    State v. Heddrick, 166 Wn.2d 898, 910, 215 P. 3d 201 ( 2009)


    quoting State      v.   Agtuca, 12 Wn.          App.   402, 404, 529 P. 2d 1159 ( 1974)), as corrected ( Sept. 15,


2009).


              Englund argues that a request for a competency evaluation constitutes a critical stage

because the court made a factual determination on the sufficiency of the evidence to order a

competency evaluation. We hold that Englund did not have a constitutional right to be present at


8
    In   criminal prosecutions, "         the accused shall have the right to appear and defend in person."


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the hearing because Englund' s rights were not substantially affected by the order for a competency

evaluation.



         In   support of    his   argument,     Englund     cites   to the definition   of "critical stage[   1" found in

State v. Bremer: a defendant has a " right to be present when evidence is being presented or

whenever      the defendant'      s presence    has `   a relation,   reasonably   substantial,'    to the opportunity to

defend   against     the charge."     98 Wn. App. 832, 834, 991 P. 2d 118 ( 2000) (                  quoting In re Pers.

Restraint of Lord, 123 Wn.2d 296, 306, 868 P. 2d 835 1994),                     as amended         March 10, 1994)).       In


Bremer, Division Three of this court held that the defendant did not have a right to be present


during discussion of proposed jury instructions because his presence had no relation to the

opportunity to defend against the charge he faced. 98 Wn. App at 835.

         Here, Englund' s absence from the hearing on February 20, 2013 had no relation to his

opportunity to defend          against    the   charges.    Englund does not argue that his absence from the


hearing where the trial court ordered the competency evaluation affected the outcome of the

challenged convictions or resulted in prejudice.9 Englund does not argue that the court abused its

discretion in ordering the competency evaluation; nor does Englund challenge the competency

evaluation     itself.   See State       v.   Thomas, 75 Wn.2d 516, 517 - 18, 452 P. 2d 256 ( 1969) ( The


determination of whether a competency examination should be ordered rests generally within the

discretion    of   the trial   court.).       Englund was ultimately found            competent      to   stand   trial.   He


challenges only the outcome of the trial, and he does not argue that the order of the competency




9 The state constitutional right to appear and defend is subject to harmless error analysis. Irby, 170
Wn.2d at 886. The State has the burden of proving the error was harmless, and must do so beyond
a reasonable         Irby, 170 Wn.2d at 886. But the defendant must at least raise the possibility
                   doubt.
of prejudice. Jones, 175 Wn. App. at 108.


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evaluation affected       that   outcome.     Therefore, we hold that Englund did not have a constitutional


right to be present at the hearing ordering the competency evaluation.

III.    STATEMENT OF ADDITIONAL GROUNDS


        Englund raises several issues in his SAG. Englund appears to assert that law enforcement

officers entered his land without probable cause or a warrant, he never lost the right to possess a

firearm, his time for trial rights were violated, and charges should have been brought against

Christensen   and   Parrish.       We have addressed the time for trial issue above and hold that the


remaining claims lack merit.

        A.        Probable Cause and Warrant


        Englund     asserts,     in full, "No Reason No Warr[ a] nt."             SAG   at   6. Although RAP 10. 10( c)


does not require Englund to refer to the record or cite authority, he is required to inform us of the

 nature and occurrence of alleged errors." .               These assertions of error are too vague to allow us to


identify the issues and we do not reach them.

        B.        Right to Possess a Firearm


        Englund asserts that he never lost the right to possess a weapon following his 1976 felony

conviction of burglary in the second degree and his 2009 conviction of unlawful possession of

firearm in the first degree. Under the United States and Washington Constitutions, the law is well

established   that the    right   to   bear   arms   is   subject   to   reasonable regulation.    State v. Krzeszowski,


106 Wn.    App.   638, 641, 24 P. 3d 485 ( 2001).             One such regulation is prohibition of possession of


firearms by convicted felons. Krzeszowski 106 Wn. App at 641.

         Englund further asserts that the trial court " let [ him] keep [ his] gun rights" following his

1976 conviction. SAG at 2. This is not contained in the record on appeal, and we cannot consider

matters outside     the   record on     direct   appeal.     We cannot consider matters outside the record on a




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direct   appeal.   State    v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995) ( " If a defendant


wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the

appropriate means of         doing    so   is through   a personal restraint petition. ").   Furthermore, following

Englund' s 2009 conviction for unlawful possession of a firearm in the first degree, Englund could

not   legally possess   a   firearm. Former RCW 9. 41. 040( 1)(         a) (   2009). Therefore, we reject Englund' s


contention that he could legally possess a firearm on October 13, 2012 and December 16, 2012.

          C.       Charges Against Christensen and Parrish


          Englund contends that the State should have initiated charges against Christensen and


Parrish,   not   Englund.        SAG at 1, 5, 6, and 7. This issue requires evidence or facts not existing in

the   record on appeal and         does    not affect   Englund'   s convictions.    Therefore, we do not address it.


McFarland, 127 Wn.2d at 335.


           We affirm Englund' s convictions.




I concur:




               rgen, A.C. J.




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         MAxA, J. (   dissenting) — I agree with the majority' s decisions regarding Allen Englund' s

time for trial and right to be present arguments, and with the majority' s rejection of Englund' s

statement of additional grounds ( SAG) assertions. However, I dissent because the majority erred

in concluding that the trial court properly denied Englund' s request to represent himself at trial.

         After engaging in a colloquy with Englund, the trial court concluded as follows:

              At this point, I need to advise you that, in the Court' s opinion, you would be far
         better served if you were defended by a trained lawyer than representing yourself.
         It' s unwise to represent yourself. You face extremely stiff penalties if, in fact, you
         are found guilty. You are not familiar with the law.

                  You clearly don' t know the rules of evidence based upon the statements you
         made to the Court. It does not appear that you know the rules of criminal procedure,
         and because you' re facing such a stiff penalty, it appears that you would be better
         served by being represented by a lawyer.

                 I do not find that you have the ability to represent yourself in this matter.
         I' m denying your right to represent yourself.

Report   of   Proceedings ( RP) (   Feb. 12, 2013) at 11- 12. The trial court then entered a handwritten

order   denying   defendant'   s motion   to represent himself, which     contained a single   finding: "    the



defendant would not have the capacity to understand and follow the procedural rules in this

matter and would      thereby be    unable   to provide for   his defense."   Clerk' s Papers ( CP) at 52.


         It is clear from the oral comments and implied by the written order that the trial court

concluded that Englund did not have the ability to effectively represent himself. As the majority

recognizes, this is not a proper basis for denying a defendant' s constitutional right to defend

himself But the majority interprets the written order as a finding that Englund lacked the mental

capacity to represent himself. Even if the trial court' s order could be interpreted this way, the

record does not support such a finding.




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44958 -7 -II / 44965 -0 -II



            1.   Defendant' s Ability to Represent Himself

            The trial   court' s oral conclusion      that Englund    would    be " better   served,"   RP ( Feb. 12,


2013) at 11, by a lawyer' s representation is an improper basis for denying a defendant' s

constitutional right to represent himself. Our Supreme Court in State v. Madsen emphasized


that, "[   a] court may not deny a motion for self -representation based on grounds that self -

representation would         be detrimental to the defendant' s ability to         present    his   case."   168 Wn.2d


496, 505, 229 P. 3d 714 ( 2010).


            Similarly, the trial court' s statement that Englund was not familiar with the rules of

evidence or criminal procedure is not a proper basis for denying a defendant' s constitutional

right to represent himself. The court in Madsen stated that a trial court " may not deny pro se

status     merely because the defendant is           unfamiliar with   legal   rules."   Id. at 509. This statement


makes it clear that whether or not a defendant is familiar with legal rules is not material to


addressing a request for self representation.
                              -               Id. The court in In re Personal Restraint ofRhome

further     stated   that the trial   court   may   not consider   the defendant' s   skill and   judgment. 172


Wn.2d 654, 663, 260 P. 3d 874 ( 2011).


            Finally, the record shows that Englund was stubborn and unresponsive when responding

to the trial court' s questions about his request to represent himself. However, the fact that a

defendant' s behavior impedes the orderly administration ofjustice is not a sufficient basis for

denying a defendant' s request to represent himself. Madsen, 168 Wn.2d at 509. As the majority

recognizes, "[ c] ourts must not sacrifice constitutional rights on the altar of                  efficiency." Id. And


the fact that the defendant is " obnoxious" also is not a proper basis for denying self -

representation. Id.




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44958 -7 -II / 44965 -0 -II




        In summary, a defendant' s ability to represent himself is irrelevant in addressing a motion

for self representation.
         -               As long as the defendant' s waiver of his constitutional right to counsel is

knowing, voluntary, and intelligent, id. at 504 -05, a defendant is free to exercise his

constitutional right to represent himself even if exercising that right is not in his best interests.

        2.     Defendant' s Mental Capacity to Represent Himself

        On the other hand, as the majority opinion points out, a finding that a defendant is not

mentally competent to represent himself is a proper ground for denying a request for self -

representation. Rhome, 172 Wn.2d at 659 -60, 669. The question is whether the defendant

   lacks the   mental   capacity to   conduct   his trial defense.' ".    Id. at 660 ( quoting Indiana v.

Edwards, 554 U. S. 164, 174, 128 S. Ct. 2379, 171 L. Ed. 2d 345 ( 2008)).


        Here, the trial court did not find that Englund lacked the mental capacity to conduct his

trial defense. Instead, the trial court found that Englund " would not have the capacity to

understand and    follow the   procedural rules     in this    matter."   CP at 52. The majority opinion

apparently concludes that this finding is equivalent to a finding on mental incapacity, and that the

record supports this finding. I disagree.

         The majority points to three factors that it claims support the trial court' s conclusion that

Englund lacked the mental capacity to represent himself. First, the majority asserts that

 Englund     could not understand     the   very basic   questions   the trial   court posed."   Majority at 11.

As an example, the majority points to Englund' s unresponsiveness when the trial court asked

questions about self representation
                     -              and the fact that he remained focused on his belief that he had

a right to possess a firearm. However, this portion of the record does not suggest that Englund

did not understand the trial court' s questions. The record shows only that he did not want to

respond, and instead wanted to talk about his gun rights. The fact that a defendant fails to




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44958 -7 -II / 44965 -0 -II




respond to a trial court' s questions, is fixated on an issue that he wants to address, or is stubborn

or even obnoxious provides no evidence that he lacks the mental capacity to represent himself.

        Second, the majority states that Englund was unable to articulate why he did not want a

lawyer to represent him. The majority does not cite any authority for the proposition that a

defendant' s failure to articulate why he wants to exercise his constitutional right of self -

representation is evidence that he lacks the mental capacity to represent himself. A defendant

has a constitutional right to self -representation, whether or not he can articulate a reason.


        Third, the majority relies on the fact that Englund was unresponsive to the trial court' s

inquiry into his familiarity with the rules of evidence and criminal procedure. However, once

again the record indicates that Englund did not respond because he did not want to, not that he

lacked the mental capacity to respond. And a defendant' s unfamiliarity with legal rules does not

necessarily suggest that he lacks the mental capacity to represent himself.

        I agree that a defendant' s constitutional right to represent himself is not absolute.

Madsen, 168 Wn.2d at 504. I also agree that a trial court generally has discretion to deny a

defendant' s request for self representation.
                              -               Id. However, a trial court abuses its discretion when

it denies a defendant' s request to represent himself based on a finding that the defendant lacks

the mental capacity to represent himself that has no support in the record. 10 The trial court
abused its discretion here.


        It is hard to disagree with the trial court' s conclusion that Englund would be better served

by a lawyer' s representation. However, because there is no evidence that Englund did not have



1° I recognize the trial court' s unique opportunity to observe and consider a defendant' s
demeanor and non -verbal conduct in assessing the defendant' s request to represent himself.
However, here nothing in the record suggested that the defendant did not have the mental
capacity to conduct his own defense.

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44958 -7 -II / 44965 -0 -II




the mental capacity to represent himself, the trial court was required to allow him to exercise his

constitutional right of self representation,
                             -               whether foolish or not. I believe that the trial court


erred in interfering with Englund' s right to represent himself. Accordingly, I would reverse and

remand for a new trial.




                                               MAXA, J.
