                                                                                                           FILED
                                                                                                   COURT OF APPEALS
                                                                                                        DIVISION 11

                                                                                              2015 JAN 27           AM 8: 49

                                                                                               S                  A. HING    1I

                                                                                               BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                             DIVISION II

 STATE OF WASHINGTON,                                                        No. 44725 -8 -I1


                                  Respondent,


          v.

                                                                       UNPUBLISHED OPINION
 MICHAEL NELSON,


                                  Appellant.




         MAxA, J. —     Michael Nelson was convicted and sentenced for first degree robbery and

unlawful possession of a firearm. He alleges that ( 1) the parties' exercise of peremptory

challenges in writing violated his public trial right, and ( 2) the trial court abused its discretion in

denying his request to represent himself on the second day of trial. Nelson' s Statement of

Additional Grounds ( SAG) alleges that defense counsel provided ineffective assistance in several


respects and that the trial court erred by incorrectly calculating Nelson' s offender score.

         We hold that ( 1) peremptory    challenges    do   not   implicate the   public   trial   right, ( 2)   the trial


court had discretion to deny Nelson' s request to represent himself because it was untimely, and

 3) Nelson fails to   show a claim   for ineffective   assistance of counsel.      We decline to address


Nelson' s offender score contention because it relies on facts outside the record. Accordingly, we

affirm   Nelson'   s convictions and sentence.
44725 -8 -II



                                                          FACTS


         Nelson, along with Theo Burke and another unidentified individual, offered a person a

ride in their car. Nelson pointed a revolver at the person and took his wallet. The other

individuals took the person' s cell phone, hat, and jacket. The State charged Nelson with first

degree robbery and first degree unlawful possession of a firearm.

Peremptory Challenges

             At trial, the parties conducted voir dire of the prospective jurors. The trial court then


explained the peremptory challenge process as follows:

             The     parties]   have    a piece   of paper.   They will write down their peremptory
             challenges,                                        paper back and forth. And when they
                                                    that piece of
                           and   they   will pass


             exercise up to the number that they are allowed, then they will bring a sheet of paper
             forward to me. I will go through their work and I will announce the names of people
             that will serve as jurors and alternate jurors in this case.

Report       of   Proceedings ( RP) ( Feb. 28, 2013) at 127. A sidebar conference was held, and then the


trial court announced in open court the selected jurors and alternate jurors. The trial court did

not consider the Bone -Club' factors before holding the sidebar. The list of peremptory

challenges was filed with the court later that same day.

Requestfor SelfRepresentation

             During trial, Nelson' s attorney presented an opening statement, cross -examined the

State' s witnesses, and objected to improper questioning. The attorney performed similarly on

the second day of trial. At a recess on the second day, Nelson told the trial court that he knew

more about his case than his attorney and wanted to cross- examine the State' s witnesses. The



 1
     State   v.   Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995) .( establishing   the five criteria
a trial court must consider before closing a courtroom proceeding to the public).
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trial court asked Nelson if he had any formal legal training, and Nelson admitted he did not. But

Nelson     persisted and stated, "[            T] he questions that I have, they' re specific, and I feel that they

will get   the truth    out of       the    witness."    RP ( Mar. 4, 2013) at 152 -53.


           The trial court expressed concern that Nelson would implicate himself, and strongly

cautioned him against questioning witnesses himself. However, Nelson continued to express

frustration with his defense attorney' s cross -examination of the State' s witnesses. The following

exchange then occurred:


           Court: [ Y] ou have the right to a lawyer of your own choice, if you hired a lawyer.
           You don' t have the right to an appointment of a lawyer of your own choice, nor do
           you have the right to switch attorneys whenever you decide that an attorney is
           giving you advice that you don' t want to hear and not proceeding in a manner that
           you think is appropriate.
               At this point in time, if you are asking me to represent yourself in this proceeding
           entirely, examine witnesses -


           Nelson: Yes.


           Court: - -      prepare jury instructions, argue the law and the facts to the jury and
           entirely take over the case?

           Nelson: Yes.


           Court: Well,         at   this   point    in time ...   based on everything I have seen and heard,
           that is   not   in   your    best interest. You         are not   sufficiently trained in the law. You
           have a very experienced attorney.
               Like I say, maybe he' s giving you some advice that you don' t want to hear.
           Sometimes        attorneys         can'   t do anything to    alter evidence   that' s   presented.   That

           doesn' t necessarily mean that you can proceed on your own.
               I am reluctant to ask you what kind of questions you wanted to ask of these
           witnesses because, once again, I' d hate you to say anything that implicated yourself.

RP ( Mar. 4, 2013) at 156 -57.




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44725 -8 - II



        Nelson then reiterated his request to cross -examine one of the State' s witnesses.


The trial court asked what Nelson would ask the witness, Nelson gave a short reply, and

the trial court stated:


         I am going to stop you, Mr. Nelson, because you are making statements now that
         implicate    yourself as an accomplice or as a perpetrator of             the   offense. ...   You
         have the    right   to impeach things that [ a   witness] said ...        through other witnesses.
         But based    on what you are
                                    saying         now,   that certainly is - -
                                                                     I can understand why
          your attorney] would not want to pursue a line of inquiry that further implicates
         knowledge that you had.
                I] t' s really apparent to me that you are not prepared through education,
         training   or experience    to   represent yourself or cross -examine           the witness.   So I am
         not going to allow you to do that at this time.

RP ( Mar. 4, 2013) at 158 -59.


Verdict and Sentence


         Nelson' s trial continued and he was found guilty on both charges. At sentencing

Nelson' s prior criminal history was submitted to the trial court. He had several prior felony

convictions, including four 2006 convictions: two for possession of a controlled substance and

two for conspiracy to deliver a controlled substance. The trial court calculated that Nelson' s

offender score     for his   current offenses was eight.       The trial   court                Nelson to 168 -204


months on the first degree robbery charge and 77 -102 months on the unlawful possession of a

firearm charge.


         Nelson appeals.


                                                    ANALYSIS


A.       PUBLIC TRIAL RIGHT


         Nelson argues that the trial court violated his right to a public trial by allowing the parties

to exercise peremptory challenges in writing. We recently addressed this issue in State v. Marks,

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44725 -8 -II



     Wn.   App. ,           339 P. 3d 196, 199 -200 ( 2014),             holding that ( 1) the exercise of peremptory

challenges are not part of voir dire and therefore do not automatically implicate the public trial

right, and ( 2) peremptory challenges do not satisfy the experience prong of the experience and

logic test. We cited to our prior decision in State v. Dunn, which also held that peremptory

challenges     do   not    implicate the   public   trial   right.       180 Wn. App. 570, 575, 321 P. 3d 1283 ( 2014),

review   denied,            Wn.2d (        2015).    Accordingly, we follow Marks and Dunn and hold that

the trial court did not violate Nelson' s public trial right by allowing the parties to conduct

peremptory challenges in writing.

B.       RIGHT TO SELF -REPRESENTATION


         Nelson argues that he was deprived of his constitutional right to self representation
                                                                                -              when


the trial court denied his request to represent himself on the second day of trial. We disagree.

          Criminal defendants have an explicit right to self representation
                                                             -              under article I, section

22 of the Washington State Constitution and an implicit right under the Sixth Amendment to the

United States Constitution. State            v.   Madsen, 168 Wn.2d 496, 503, 229 P. 3d 714 ( 2010);             see also




Faretta   v.   California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 ( 1975).                    This right is


so fundamental that it is protected despite its potentially detrimental impact on both the

defendant      and   the   administration of justice.        Madsen, 168 Wn.2d          at   503. The unjustified denial


of the right of self -representation requires reversal. Id.

          But the right of a defendant to represent himself is not absolute or self -executing. Id. at

504. If a defendant asks to represent himself, then the trial court must determine whether the

defendant' s request is unequivocal and timely. Id. If the defendant' s request is not equivocal or

untimely, the trial court must determine whether the defendant' s request is voluntary, knowing,

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44725 -8 -II




and intelligent. Id. Courts are required to indulge in every reasonable presumption against a

defendant' s waiver of his or her right to counsel. Id. We review a trial court' s decision to deny a

request for self representation
                 -              for an abuse of discretion. Id. at 504.


        We assume without deciding that Nelson' s request to represent himself was unequivocal.

But even if a defendant makes an unequivocal request to represent himself, a trial court has


broad discretion to grant or deny an untimely request. State v. Stenson, 132 Wn.2d 668., 737, 940

P. 2d 1239 ( 1997).


        Whether a request is timely, and the extent of the trial court' s discretion in considering

such a request,    is determined   on a continuum.     Madsen, 168 Wn.2d     at   508.   Our Supreme Court


in Madsen stated:


          If the demand for self-representation is made ( 1) well before the trial or hearing
        and unaccompanied by a motion for a continuance, the right of self representation
                                                                           -
        exists as a matter of law; (2) as the trial or hearing is about to commence, or shortly
        before, the existence of the right depends on the facts of the particular case with a
        measure of discretion reposing in the trial court in the matter; and ( 3) during the .
        trial or hearing, the right to proceed pro se rests largely in the informed discretion .
        of the trial court"


Id. (quoting State    v.   Barker, 75 Wn.   App.   236, 241, 881 P. 2d 1051 ( 1994)) (   emphasis omitted).




        Nelson made his request to represent himself on the second day of trial. We hold that the

third Madsen rule applies. Therefore, we acknowledge that the decision whether to grant or deny

Nelson' s request to represent himself rested largely in the trial court' s discretion.

         Factors to be considered in assessing a request for self -representation during trial include:

           T] he quality of counsel' s representation of the defendant, the defendant' s prior
         proclivity to substitute counsel, the reasons for the request, the length and stage of
         the proceedings, and the disruption or delay which might reasonably be expected
         to    follow the granting of   such a motion."
44725 -8 -II



State    v.   Fritz, 21 Wn.      App.      354, 363, 585 P. 2d 173 ( 1978) (          quoting People v. Windham, 19 Cal.

3d 121, 128 -29, 560 P. 2d 1187 ( 1977)).                     Absent "   substantial reasons,"        a last minute request for


self representation
     -              " should generally be denied, especially if the granting of such a request may

result   in    delay   of   the trial."    State v. Garcia, 92 Wn.2d 647, 656, 600 P. 2d 1010 ( 1979).

              The application of the relevant factors here does not suggest that the trial court abused its


discretion. There is nothing in the record to suggest that Nelson received anything short of
                                 2
proper representation.               Nelson'     s apparent reason       to   represent   himself —his frustration with his


attorney'      s unwillingness        to   ask   the State'   s witnesses     the   questions   Nelson   wanted   him to   ask —is




not particularly compelling. And Nelson' s request was made in the middle of a jury trial after

the jury had already heard testimony from two of the State' s witnesses.

              Because Nelson made his request to represent himself after the second day of trial, it was

untimely and the trial court had broad discretion whether to grant or deny it. Nelson did not

provide substantial reasons to grant his last minute request. Accordingly, we hold that the trial

court did not abuse its discretion in denying Nelson' s request to represent himself.

C.            INEFFECTIVE ASSISTANCE OF COUNSEL


              In his SAG, Nelson argues that he was denied his right to effective assistance of counsel


because defense counsel allegedly failed to ( 1) contact Nelson for a three -month period




2 Our analysis is not helped by the second Fritz factor. The State contends Nelson had a
proclivity for substitution of counsel, but the record does not support this. Nelson' s prior
attorneys appear to have withdrawn due to a conflict of interest, or for an unspecified reason
after Nelson' s mother attempted to bribe witnesses to alter their testimony. There is no evidence
that Nelson        caused      his   attorneys    to   withdraw or requested          that   they   withdraw.
44725 -8 -I1



regarding his    case, (   2) impeach a witness who testified against Nelson about an alleged


videotaped confession, and ( 3) show Nelson a video of a witness' s confession.


         1.     Legal Principles


         To prevail on an ineffective assistance of counsel claim, the defendant must show both

that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation

prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).


Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. Id.at 33. Prejudice exists if there is a reasonable probability that

except for counsel' s errors, the result of the proceeding would have differed. Id. at 34.

Reasonable probability in this context means a probability sufficient to undermine confidence of

the outcome. Id.


         We give great deference to trial counsel' s performance and begin our analysis with a


strong   presumption       that   counsel' s performance was reasonable.          Id. at 33.   A claim that trial


counsel provided ineffective assistance does not survive if counsel' s conduct can be

characterized as     legitimate trial strategy   or   tactics. Id.   at   33.   To rebut the strong presumption

that counsel' s performance was effective, the defendant bears the burden of establishing the

absence of     any " `   conceivable    legitimate tactic explaining        counsel' s performance.' "     Id. at 42


 quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).

         We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009).
44725 -8 -II



         2.    Lack of Contact


         Before trial, Nelson alleged that his attorney did not discuss trial strategy with him

outside of court and did not tell him about the State' s potential plea deals. His defense attorney

denied the allegations, telling the trial court that he had met with Nelson on several occasions

and had discussed the merits of his case with him. Similarly, Nelson claims in his SAG that his

defense counsel did not contact him about his case for a three -month period, and generally failed

to keep him informed about his case.

         Here, there is no evidence in the record that substantiates Nelson' s claims that his

attorney failed to contact him about his case, and therefore Nelson' s claims rely on facts outside

the record. We do not address claims based on facts outside the record on direct appeal. State v.

McFarland, 127 Wn.2d 322, 337 -38, 899 P. 2d 1251 ( 1995).       Accordingly, we do not address this

claim.



         3.    Failure to Impeach


         Nelson argues that his trial attorney was ineffective because he allegedly failed to

impeach Burke, one of the State' s witnesses who testified against Nelson. We hold that defense

counsel' s alleged failure to impeach Burke presents a matter of trial strategy and therefore was

not deficient.


         Nelson' s SAG references Burke' s videotaped confession in which Nelson contends


Burke confessed to taking the victim' s wallet. The record does not show what Burke actually

said in the videotape. But the record does show that Nelson' s attorney interviewed Burke prior

to trial, and that his interview was consistent with what Burke stated in the videotape. At trial,


Nelson' s attorney impeached Burke by eliciting his testimony that Burke made a deal with the

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44725 -8 -I1



State for a reduced charge and sentence in exchange for testifying against Nelson. Moreover,

Nelson'   s               questioned   Burke   about   his   alleged videotaped confession —Burke   admitted to
               attorney


taking the victim' s cell phone but not the victim' s wallet.

          Here, there is no evidence in the record to support Nelson' s claim regarding Burke' s

confession. But to the extent defense counsel' s performance might be deficient, Nelson also


does not show that any error affected the outcome of his trial. Therefore, we hold that this claim

has no merit.


          4.      Failure to Show Video


          During trial, Nelson alleged that his attorney had failed to show him Burke' s videotaped

testimony against him. In his SAG, Nelson claims that his attorney' s failure to show him the
videotape constituted ineffective assistance of counsel. The record shows that as of the first day

of Nelson' s second trial, his defense attorney had not shown him Burke' s videotape. The trial

court instructed Nelson' s attorney to show him the videotape either that day or the next. There is

no evidence in the record as to whether or not Nelson was actually shown the video.

          However, even if we presume this was deficient attorney conduct, Nelson fails to show

how this was prejudicial to the outcome of his trial. Accordingly, we hold that this claim fails.

D.        CLAIMED SENTENCING ERROR


          Nelson' s SAG asserts that the trial court erred in calculating his offender score by

including two prior convictions that constituted the same criminal conduct. We hold that we do
not have a sufficient record to review this assignment of error.


          When a defendant is convicted of multiple crimes, each is treated like a prior conviction

for purposes of calculating the defendant' s offender score unless the crimes constitute the same

                                                               10
44725 -8 -II



criminal conduct.       RCW 9. 94A. 589( 1)(   a).   A sentencing court must find that two or more crimes

constitute the same criminal conduct if they " require the same criminal intent, are committed at

the   same   time   and place, and   involve the   same victim."    Id. " ` If any   one element is missing,

multiple offenses cannot be said to encompass the same criminal conduct, and they must be

counted    separately in calculating the    offender score.' "     State v. Garza- Villarreal, 123 Wn.2d 42,


47, 864 P. 2d 1378 ( 1993) (    quoting State v. Lessley, 118 Wn.2d 773, 778, 827 P. 2d 996 ( 1992)).

          In State v. Deharo, our Supreme Court examined a defendant' s convictions of possession


with   intent to deliver heroin   and   conspiracy to deliver. 136 Wn.2d 856, 857, 966 P. 2d 1269


 1998).    The defendant' s convictions were based solely on his possession of six bindles of heroin

at the time of arrest. Id. at 857. The defendant argued that the two counts encompassed the same


criminal conduct, and our       Supreme Court        agreed.   Id. at 857 -58. The court concluded that the


objective    intent underlying the two     charges —to     deliver the heroin in the    men' s possession —was




the same. Id. at 859. According to the court, the result might have been different if the record

had established a distinction between the time or place of the two charges. Id. at 858. But


because there was unity of intent, time, place, and victim, the two charges were considered the

same criminal conduct for sentencing purposes. Id. at 858 -59.

          Here, the record is insufficient for us to determine whether Nelson' s possession and


conspiracy convictions constitute the same criminal conduct. The record does not show at what

time or at what place Nelson' s two convictions for conspiracy and possession took place. It is

possible that either of Nelson' s conspiracy convictions could have been completed at a time

separate from his possession convictions, which would show Nelson' s convictions were not the


same criminal conduct. Alternatively, like the situation in Deharo, Nelson' s two separate


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44725 -8 -I1



convictions for possession and conspiracy could have been based solely on the same conduct,

which could have established that the two convictions were the same criminal conduct.

        Here, Nelson' s SAG contention refers to facts outside the record that we cannot review.

McFarland, 127 Wn.2d at 337 -38 ( a personal restraint petition is the appropriate method to

obtain review of matters outside   the   record).   Therefore we do not further consider this issue.


        We affirm Nelson' s convictions and sentence.


        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 pursuant to RCW 2. 06. 040, it

is so ordered.




 We concur:




           1
    HANSON, C. J.




  SUTTON, J.




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