Appeal from Superior Court of Snohomish County. Docket No: 93-1-01365-0. Date filed: 06/09/94. Judge signing: Hon. Ronald L. Castleberry.
Petition for Review Denied September 3, 1997,
PER CURIAM. Kenneth Jennings appeals the judgment and sentence entered following his jury conviction for first degree robbery, second degree robbery, and second degree possession of stolen property. Jennings' contention that he was denied the right to counsel is without merit because he effectively waived the right to counsel, elected to proceed pro se, and did not subsequently move for substitution of counsel. Consequently, we affirm.
Jennings was arraigned in September 1993 and moved to represent himself, asserting that between September 24 and October 19, he made approximately 30 unsuccessful attempts to contact his appointed counsel. At the hearing on the motion to proceed pro se, Jennings asserted he wanted to represent himself during pretrial proceedings and have standby counsel substitute in at trial. Jennings was a licensed attorney and had been practicing law until his arrest. He stated he had conducted several civil trials and had represented himself in a previous criminal case, which was resolved without a trial.
The court engaged in a colloquy with Jennings on the problems and responsibilities of representing himself, informing him that if he chose to act pro se, he would be waiving the right to counsel. The court warned him that if he later sought to terminate his pro se status before another Judge, there was no guarantee that such a request would be granted. Jennings acknowledged that a decision on a motion to substitute counsel would be "discretionary . . . not mandatory."
The court entered an order prepared and signed by Jennings authorizing him to represent himself and appointing Harvey Chamberlin as standby counsel. On May 6, 1994, the first day of trial, the prosecutor asked to clarify whether Jennings was adhering to his earlier statement that he wanted to have counsel represent him at trial. Jennings confirmed that, in spite of his earlier statements, he had not moved to substitute counsel.
The prosecutor then moved to exclude witnesses and to have Jennings shackled because of a concern about "flight." Jennings responded that he had "no position" as to these motions. The court ruled that, absent an objection, Jennings would remain shackled and would be brought into the courtroom in the jury's absence. Standby counsel expressed concern that Jennings was "breaking" under the stress of the trial and was acting in a "self-destructive" manner. The court opined that Jennings' conduct might be a "tactical move" in order to assert the issue of denial of counsel on appeal.
Three days later, the next day of trial, the prosecutor stated Jennings had informed him that he was not going to participate in the trial. After conferring with Jennings, Mr. Chamberlin reported his concerns about Jennings' competence to stand trial and to represent himself because Jennings was "extremely depressed." Even though he concluded that Jennings "very probably" would be found competent, he moved for a competency evaluation that afternoon. He also moved to substitute himself as trial counsel the next day, asserting that for Jennings to represent himself while sitting silent and depressed before the jury would be a "mockery."
The court found no reason to question Jennings' competency. The court stated it could not force Jennings to ask for representation of counsel and because Jennings himself had not made the motion to substitute counsel, the court denied counsel's motions. The jury was selected and trial proceeded. Jennings did not speak during trial, presented no defense, and was convicted as charged. Subsequently, the court imposed a standard range sentence.
Jennings first contends he was deprived of his right to counsel during the month after arraignment by counsel's failure to contact him. Because he had duly appointed counsel, we treat the issue as one of effectiveness of counsel. We find no error.
To demonstrate ineffective assistance, Jennings must show (1) counsel's performance was deficient, and (2) the deficiency prejudiced him. In re Jeffries, 105 Wash. 2d 398, 417-18, 717 P.2d 722, cert. denied, 479 U.S. 922, 107 S. Ct. 328, 93 L. Ed. 2d 301 (1986). Jennings has not made either showing. He cites no authority for the proposition that failure of counsel to contact him in the early pretrial stage is in itself deficient performance. Nor has he identified any way in which counsel's failure to contact him prejudiced the preparation of his defense.
Next, Jennings contends that even though he acted pro se during the pretrial stage, he never waived his right to counsel at trial because he indicated he wanted counsel if and when his case went to trial. Thus, he contends, the trial court erred in denying standby counsel's motion to represent him at trial. He cites no authority for the proposition that his waiver of the initial right to counsel did not apply to the right to counsel at trial.
Jennings' argument is not well taken because the premise that he did not waive the right to counsel is unfounded. He does not challenge the validity of his initial waiver of counsel. Further, the record supports the Conclusion that Jennings was competent to stand trial and made a knowing, voluntary and intelligent waiver of counsel at the time he moved to represent himself. State v. Canedo-Astorga, 79 Wash. App. 518, 524-25, 903 P.2d 500 (1995), rev. denied, 128 Wash. 2d 1025 (1996). The court warned him of the difficulties and responsibilities of attempting to represent himself, particularly while incarcerated. As an attorney, Jennings was familiar ...