[Copyrighted Material Omitted]
Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Appellant.
Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Respondent.
Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Appellant/Cross-Respondent.
Melody M. Crick, Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent/Cross-Appellant.
[178 Wn.App. 404] ¶ 1 Thomas Floyd appeals from his convictions for second degree assault and six violations of a no-contact order, as well as the sentencing court's use of his 1972 convictions for robbery and second degree assault in calculating his offender score. The State cross appeals the sentencing court's determination that Floyd does not qualify as a persistent offender subject to a mandatory life sentence under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570. The State also appeals from a different sentencing court's offender score calculation, resulting from Floyd's subsequent conviction for stalking and violation of a no-contact order based on conduct involving the same victim.
¶ 2 Floyd, aided by standby counsel, represented himself in a jury trial in the first proceeding after the State charged him with assault and violating a no-contact order under cause number 10-1-00019-6. Shortly after Floyd began his closing argument, the trial court terminated his pro se status and directed standby counsel to complete the argument. The jury found Floyd guilty of all charges. The State had asked that Floyd be sentenced to a life term as a persistent offender based on the two 1972 convictions, but the sentencing court ultimately refused, finding the robbery  conviction unconstitutional on its face and the assault conviction not comparable to a " most serious offense" under RCW 9.94A.030(32). Verbatim Report of Proceedings (VRP) (Dec. 2, 2011) at 106. The sentencing court nonetheless used both prior convictions in calculating Floyd's offender score, sentencing him to the maximum standard-range term of confinement.
¶ 3 The State subsequently charged Floyd under cause number 11-1-02808-1 with stalking and an additional count of violating a no-contact order involving the same victim. Floyd again represented himself, and a jury returned guilty [178 Wn.App. 405] verdicts on both counts. The sentencing court agreed with the prior sentencing court's determinations concerning the 1972 convictions, but independently calculated Floyd's offender score, again sentencing
him to the maximum standard-range term.
¶ 4 Floyd argues that (1) the first trial court violated his right to defend in person by terminating his pro se status; (2) insufficient evidence supports his convictions for violating a no-contact order at the first trial; and (3) the first sentencing court erroneously included his 1972 convictions for robbery and assault in his offender score. The State argues that (1) the first sentencing court erred by refusing to count the two 1972 convictions as " strikes" for purposes of the POAA, and (2) the second sentencing court erred by refusing to include the 1972 convictions in calculating Floyd's offender score.
¶ 5 In this consolidated appeal, we affirm each of Floyd's challenged convictions, as well as the sentence imposed after Floyd's second trial. We vacate the sentence imposed after the first trial, however, and remand for resentencing in accordance with this opinion.
I. FLOYD'S FIRST TRIAL
¶ 6 Floyd and his wife, Annette Bertan, had an altercation on the night of January 3, 2010 at their Lakewood condominium. Their downstairs neighbor called 911 after Bertan came to his door bleeding from a wound near her left ear. Responding officers encountered Floyd in the parking lot, noticed blood on his hands, and arrested him.
¶ 7 On January 4, 2010, the trial court entered an order in open court prohibiting Floyd from contacting Bertan. [178 Wn.App. 406] Over the next few months, Floyd nonetheless attempted to call Bertan several times from the Pierce County jail and Western State Hospital. The State ultimately charged Floyd by amended information with one count of second degree assault involving domestic violence and six counts of violating a no-contact order.
¶ 8 The State filed a notice that it intended to seek a mandatory life sentence under the persistent offender statute, based on Floyd's 1972 convictions for robbery and assault. The trial court allowed Floyd to represent himself, finding Floyd's request explicit, knowing, and voluntary, but appointed standby counsel over Floyd's objection.
¶ 9 At trial, Floyd's limited knowledge of court procedures and rules of evidence, as well as his apparent confusion and frustration when the trial court sustained most of the State's objections, led to many disruptions and repeated admonitions by the court. The trial court also spent considerable time hearing motions brought by Floyd that it ultimately found duplicative or meritless. However, Floyd rarely interrupted the presentation of the State's evidence, addressed the court respectfully, generally accepted the court's rulings on his objections without protest, and appeared to make a genuine effort to follow the court's instructions.
¶ 10 During closing argument, Floyd referred to several facts not in evidence, drawing repeated objections from the State. VRP at 733-34, 736, 738. After the court admonished Floyd again to argue only from evidence properly before the jury, Floyd asked questions which demonstrated some confusion as to what the court meant. VRP at 739. Floyd also attempted to offer additional evidence through his statements during closing. VRP at 743.
¶ 11 At that point the court excused the jury and, after expressing the opinion that Floyd had intentionally acted to [178 Wn.App. 407] " scuttle" the trial, engaged in a colloquy with Floyd and heard argument from the State and Floyd's standby counsel. VRP at 740. Then, over objections from both Floyd and the State, the court terminated Floyd's pro se status and appointed standby counsel to complete closing argument. Standby counsel argued that the jury could convict Floyd only of third degree assault because Bertan did not suffer substantial bodily harm. The jury returned guilty verdicts on all counts.
¶ 12 At sentencing, the court concluded that the State could not rely on either of Floyd's 1972 convictions as " strikes" for purposes of the POAA. VRP (July 15, 2011) at 106. The court ruled the robbery conviction invalid on its face because the information and two of the jury instructions misstated the elements of the crime, and it found the assault conviction not comparable to a " most serious offense" under current law because of differences in the mens rea and degree-of-injury elements. VRP (July 15, 2011) at 106. The court then concluded that both 1972 convictions counted towards Floyd's offender score, making it four. The court ultimately sentenced Floyd to 20 months' confinement on the assault charge and to a 3-year suspended sentence for the remaining counts.
II. FLOYD'S SECOND TRIAL
¶ 13 The State subsequently charged Floyd with violation of a domestic violence court order and stalking, based on his further attempts to contact Bertan. Floyd again represented himself, aided by the same standby counsel assigned by the previous trial court, and the jury returned guilty verdicts on both charges. The sentencing court sua sponte raised a question as to whether collateral estoppel required it to accept the prior sentencing court's determinations concerning Floyd's criminal history. Ultimately, the court accepted the argument made by Floyd's standby counsel that it should agree with the prior sentencing [178 Wn.App. 408] court's conclusions as to Floyd's 1972 convictions, but not the prior offender score calculation. The court sentenced Floyd to 17 months on each charge, running concurrently with each other but consecutively to the previous sentences.
I. THE RIGHT TO SELF-REPRESENTATION
¶ 14 Floyd contends that the trial court violated his right to represent himself. Because the court's determination that he intentionally disrupted the proceedings was not manifestly unreasonable and rests on a sufficient factual basis in the record, we disagree.
¶ 15 Washington's constitution explicitly guarantees criminal defendants the right to self-representation. State v. Madsen, 168 Wash.2d 496, 503, 229 P.3d 714 (2010) (citing WASH. CONST. art. I, § 22 (" the accused shall have the right to appear and defend in person" )). The United States Supreme Court has also held that 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 Wash.2d at 503, 229 P.3d 714 (citing State v. Vermillion, 112 Wash.App. 844, 51 P.3d 188 (2002)). Improper denial of the right to proceed pro se requires reversal, whether or not prejudice results. Vermillion, 112 Wash.App. at 851, 51 P.3d 188.
¶ 16 We review a trial court's denial of the right to defend in person for abuse of discretion. State v. Hemenway, 122 Wash.App. 787, 792, 95 P.3d 408 (2004). 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.’ " Madsen, 168 ...