Date first document (petition, etc) was filed in Court of Appeals: 04/10/96.
PER CURIAM. Ted Hefley has filed a personal restraint petition challenging his conviction in Aukeen District Court for driving while under the influence of intoxicants. Hefley contends he was denied his right to counsel, was denied his right to testify at trial and was denied his right of allocution at sentencing. Hefley is correct on all three issues. Accordingly, we vacate the judgment and sentence and remand for a new trial.
Hefley was arraigned on May 24, 1994, and entered a plea of not guilty. He was provided a written Statement of Defendant's Rights at Arraignment, which he signed indicating that he had read and understood the rights enumerated.
On July 12, 1994, Hefley appeared pro se to set a trial date. At this hearing, the presiding Judge advised Hefley of the maximum penalties, explained the severe disadvantage if Hefley represented himself and urged Hefley to get counsel. When Hefley stated that he could not afford an attorney but might make too much money for an appointed attorney, the Judge encouraged him to apply for a public defender.
On August 15, 1994, Hefley filed a motion to dismiss or in the alternative to continue the trial date to obtain counsel. Hefley contended that the arresting officer improperly advised him regarding availability of a blood test. The presiding Judge referred the motion to be decided at trial.
On August 22, 1994, Hefley appeared for trial without an attorney. The trial court denied his motion to dismiss and found Hefley guilty. Hefley then moved for a continuance, which the court denied as untimely. The court sentenced Hefley to one year in jail and $1000 fine. The court suspended all but one day of the jail time and half the fine and placed Hefley on probation subject to certain conditions.
Hefley appealed pro se to the Superior Court, alleging that he had been denied his right to testify or present a defense at trial. The court affirmed Hefley's conviction, holding that he had waived his right to testify by failing to assert the issue at trial and had failed to preserve the error in the record. According to Hefley, his sentence was imposed on October 17, 1995.
Hefley subsequently filed a motion for relief from judgment in which he asserted he was denied his right to counsel and his right of allocution at sentencing. Although there is no record of the proceeding, Hefley asserts that the motion was denied and that his sentence was reimposed on February 28, 1996. Hefley then filed this personal restraint petition.
To obtain relief in a personal restraint petition Hefley must demonstrate constitutional error which resulted in actual prejudice, In re Haverty, 101 Wash. 2d 498, 504, 681 P.2d 835 (1984), or a nonconstitutional error which constitutes a fundamental defect that inherently results in a complete miscarriage of Justice. In re Cook, 114 Wash. 2d 802, 813, 792 P.2d 506 (1990). Those types of constitutional error which can never be harmless on direct appeal will be presumed prejudicial on collateral review. In re Boone, 103 Wash. 2d 224, 233, 691 P.2d 964 (1984); In re Richardson, 100 Wash. 2d 669, 679, 675 P.2d 209 (1983). The burden is on Hefley to establish the alleged errors by a preponderance of the evidence. State v. Kitchen, 110 Wash. 2d 403, 413, 756 P.2d 105 (1988); In re Hews, 99 Wash. 2d 80, 89, 660 P.2d 263 (1983).
Hefley contends that he should be granted a new trial because he did not knowingly, intelligently and voluntarily waive his right to counsel.
A criminal defendant has a constitutional right to waive the assistance of counsel and represent him or herself. State v. DeWeese, 117 Wash. 2d 369, 375, 816 P.2d 1 (1991). The waiver of counsel must be knowing, intelligent and voluntary. Bellevue v. Acrey, 103 Wash. 2d 203, 208, 691 P.2d 957 (1984). "A colloquy on the record is the preferred method; but in the absence of a colloquy, the record must reflect that the defendant understood the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of his defense." DeWeese, at 378; Acrey, at 211. Whether a waiver is valid depends on the facts and circumstances of each case. A criminal defendant's ability to represent himself has no bearing on his competence to choose self-representation. State v. Canedo-Astorga, 79 Wash. App. 518, 524, 903 P.2d 500 (1995), review denied, 128 Wash. 2d 1025, 913 P.2d 816 (1996)(citing Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 2687, 125 L. Ed. 2d 321 (1993)). The request to proceed pro se must be unequivocal, but once made, a defendant may not later demand the assistance of counsel as a matter of right since reappointment is wholly within the discretion of the trial court. DeWeese, at 376. Although a defendant has an absolute right to counsel, that right does not allow a defendant to delay trial either deliberately or inadvertently, because he has made little effort to obtain an attorney. State v. Johnson, 33 Wash. App. 15, 22, 651 P.2d 247 (1982), review denied, 99 Wash. 2d 1001 (1983).
Recently, in Tacoma v. Bishop, 82 Wash. App. 850, 920 P.2d 214 (1996), the court analyzed the differences between "waiver," "waiver by conduct," and "forfeiture." Where waiver requires a knowing, intelligent and voluntary relinquishment of a known right, usually indicated by an affirmative request, forfeiture results in the loss of a right based on the defendant's dilatory conduct, regardless of the defendant's knowledge of the right or intent to relinquish it. 82 Wash. App. at 858-59. Waiver by conduct, a hybrid of waiver and forfeiture, requires that the ...