                                                                           FILED 

                                                                        JULY 23, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31754-4-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
LONNIE L. BLACK,                              )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. - Before allowing a defendant to proceed pro se, the trial

court must ensure that the defendant makes a voluntary, knowing, and intelligent waiver

of counsel. At a minimum, the defendant must be aware of the nature of the charges, the

maximum possible penalty if convicted, and the risks of self-representation. Here, Lonnie

Black contends the trial court erred when it allowed him to represent himself at trial

without advising him of the maximum penalties he faced upon conviction. The State

concedes that Mr. Black did not make a knowing and intelligent waiver of his right to

counsel. We therefore reverse and remand for a new trial.
No. 31754-4-II1
State v. Black


                                       FACTS

       The State charged Lonnie Black with second degree assault, alleging he assaulted

his wife, Melissa Black, by strangulation or suffocation. During trial, the prosecutor

questioned Ms. Black repeatedly about statements she made to the police, medical

personnel, and the prosecutor's office. Ms. Black asserted that she did not recall most of

the alleged statements.

       On the second day of trial, Mr. Black told the court he believed his appointed

attorney was biased against him and unwilling to present any defense. He asserted, "I've

told her the truth on what happened from the beginning. She hasn't done anything with it.

If anything, she's biased against me." Report of Proceedings (RP) at 50. Mr. Black

explained: "[Defense counsel] says our defense is they can't prove it. That's not a

defense." RP at 49. The court declined to appoint new counsel, finding:

      At this point the court does not believe that there is a conflict or that there
      has been established an ineffective assistance of counsel in this particular
      matter. And 1 understand this is a very, very serious matter to everyone
      involved, and particularly to you, Mr. Black; but your attorney does have
      experience in these types of matters and it is her responsibility to address
      trial strategy.

RP at 53-54.

      Mr. Black responded, "I think 1 would be better off without her, your Honor ...

1 don't know how it works pro se ... [bJut I have an interest into defending myself and

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No. 31754-4-111
State v. Black


not just letting the prosecutor just run wild." RP at 54. The trial court engaged in the

following colloquy with Mr. Black:

              THE COURT: Excuse me. Alright, so 1 can talk to you about that.
      You have a right to represent yourself if you so choose. You need to
      understand that if you do choose to represent yourself, you're going to be
      held to the same standards as if you were a lawyer. You will be responsible
      for knowing the court procedures and the court rules and complying with
      those, complying with the rules of evidence. When you present evidence,
      when you examine witnesses, that would be all your responsibility to do that
      in performance with the law.
              Do you have any training at all in the law?
              THE DEFENDANT: No, sir, but-
              THE COURT: You do-as 1 say, you do have that right, but you
      need to understand that you may find yourself at a significant disadvantage
      if you choose to represent yourself.
              THE DEFENDANT: Can 1 get a legal aid assistance somehow?
              THE COURT: That's your choice.
              THE DEFENDANT: Can 1 get assistance for-instead of counsel
      just saying they can't prove it and letting the prosecutor make all these ugly
      stuff?
                                                                                           I
              THE COURT: Like 1 said, ... you have an attorney that's been
      appointed to you, and the attorney's job is to determine trial strategy .
              . . . 1 cannot appoint another attorney to represent you.
              You do have the right to represent yourself, but you need to
      understand that you're going to be held to all the same standards as if you
      were a lawyer and the court's going to treat you in that fashion.
             THE DEFENDANT: 1 don't know all the rules, Your Honor.
              THE COURT: That's what I'm trying to-okay, I understand that.
      That's something of concern. But you will be responsible to comply with
      those rules if you want to represent yourself.

RP at 55-56.

      After consulting with appointed counsel, Mr. Black told the court that he

                                             3

No. 31754-4-II1
State v. Black


understood that appointment of standby counsel would be an option and that he would

like to exercise that option. The judge explained the limitations of this option and advised

Mr. Black that he would be at a "significant disadvantage" if he represented himself.

RP at 59. The judge reiterated that Mr. Black would be held to the same standard as a

lawyer and would "be responsible for whatever results come from that. Just so you're

aware. It's a very serious matter and a very serious step that you're taking." RP at 61.

The judge then stated, "It's up to you to represent yourself ... and take the consequences

of that." RP at 62. Mr. Black asked: "What are the consequences? Am I going to get in

trouble here?" RP at 63. The court responded:

       However this trial turns out, I guess, that's-you're going to represent
       yourself, and I don't know what the outcome of the trial will be, but that is
       something that you are responsible for as your attorney, so--or as
       representing yourself.
                                                                                               I
              So--because you're not getting to be in trouble with the court or
       anything of that nature.

RP at 63.

       Mr. Black, with some reservation, indicated he wanted to represent himself,

explaining, "I don't think this is a super intelligent move, but I believe defending my

character and my name counts and to just stand here and can't prove it, let them prove it, I

don't think that's a fair defense." RP at 62-63. The court allowed Mr. Black to proceed

pro se. A jury found Mr. Black guilty of second degree assault.

                                             4

No. 31754-4-III
State v. Black


                                        ANALYSIS

       Mr. Black asserts that the trial court erred by granting his request to waive his right

to the assistance of counsel and to proceed pro se. He specifically contends that the court

failed to provide any meaningful response to his expressed concern about the

consequences of representing himself. He asserts that at a minimum, the court should

have advised him that should he be convicted of second degree assault, the maximum

penalty would be incarceration for 10 years. The State concedes error based on the trial

court's failure to inform Mr. Black of the maximum penalty if convicted.

       A criminal defendant has the right to assistance of counsel, but he also has the

right to waive assistance of counsel. Faretta v. California, 422 U.S. 806, 819,95 S. Ct.

2525,45 L. Ed. 2d 562 (1975). The right to represent oneself in court is grounded in the

federal constitution. In Faretta, the United States Supreme Court held that the Sixth

Amendment provides a right to self-representation. Faretta, 422 U.S. at 807. The

Washington State Constitution expressly guarantees a defendant's right to self-

representation: "In criminal prosecutions the accused shall have the right to appear and

defend in person, or by counsel." CONST. art. I, § 22 (amend. 10).

       A court may not deny a motion for self-representation on the grounds that self-

representation would be detrimental to the defendant's ability to present his case. State v.



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                                                                                                 I
No. 31754-4-III
State v. Black


Madsen, 168 Wn.2d 496,505,229 P.3d 714 (2010). Rather, the trial court may only deny

a motion to proceed pro se when the request is equivocal, untimely, involuntary, or made

without a general understanding of the consequences. Id. at 504-05. If the request is

neither equivocal nor untimely, then the court considers whether the request is voluntary,

knowing, and intelligent. Id. at 504.

       The trial court is responsible for assuring that decisions regarding self-

representation are made with at least minimal knowledge of what is required in pro se

representation. City ofBellevue v. Acrey, 103 Wn.2d 203,210,691 P.2d 957 (1984). In

Acrey, our Supreme Court enumerated the criteria for determining the validity of waiver

of counsel. The court held that a colloquy on the record is the preferred means of

assuring that a defendant understands the risks of self-representation and that the

colloquy, at a minimum, should inform the defendant ofthe nature and classification of

the charges, the possible maximum penalty involved, and the existence of technical and

procedural rules that would bind the defendant at trial. Id. at 211. "Whether the waiver is

valid lies within the sound discretion ofthe trial court, who should indulge every
                                                                                              I
presumption against a valid waiver." State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729

(2001).
                                                                                              II
                                                                                              f
                                                                                              f
       If a defendant seeks to represent himself and the court fails to explain the
                                                                                              I
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No. 3 1754-4-II1
State v. Black


consequences of such a decision to him, the State is not entitled to have a resulting

conviction affirmed, and the defendant is entitled to a reversal and an opportunity to make

an informed and knowing choice. United States v. Arlt, 41 F.3d 516, 521 (9th Cir. 1994).

Further, the right to counsel is so fundamental to the right to a fair trial that any

deprivation of it is not subject to harmless error analysis. Silva, 108 Wn. App. at 542.

Even the most skillful of defendants cannot make an intelligent choice without

knowledge of all facts material to the decision. Absent this critical information, a

defendant cannot make a knowledgeable waiver of his constitutional right to counsel.

Id. at 541.

       Here, the trial judge did not discuss the nature and classification of the charge, nor

did it discuss the maximum penalty faced by Mr. Black ifhe was convicted. The court's

generalized warning without specific reference to the charge and maximum penalty did

not impart sufficient information by which Mr. Black could make a voluntary, knowing,

and intelligent waiver of his right to counsel. Accordingly, we accept the State's

concession: we reverse Mr. Black's conviction and remand for a new trial.

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

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

2.06.040.


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No. 31754-4-II1
State v. Black




                       Lawrence-Berrey, J.

WE CONCUR: 





                       Brown, J.




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