Opinion
No. 63850-5-I.
October 19, 2009.
Appeal from the Superior Court, Thurston County, No. 08-1-00836-7, Gary R. Tabor, J., entered August 28, 2008.
Affirmed by unpublished opinion per Agid, J., concurred in by Grosse and Becker, JJ.
A jury found Justin W. Grover guilty of two counts of violation of a protection order. On appeal, Grover asserts that the trial court violated his right to represent himself by denying his request to proceed pro se and that the State failed to meet its burden of proving his prior offenses were committed under RCW 26.50.110(5). Because the trial court did not abuse its discretion in denying Grover's request to proceed pro se and the Washington Supreme Court has held that the validity of a no-contact order is not an element of the crime, we affirm.
FACTS
The facts are not in dispute. On August 22, 2007, Justin W. Grover's sister Marcia petitioned for an order of protection against Grover. On February 7, 2008, Grover walked into Marcia's house. Marcia told Grover he had to leave, and after he left, she called the police.
On May 25, 2008, Grover came to Marcia's house again. When Marcia went to the door, he was sitting right outside the door. Grover told Marcia he would not leave and then tried to get into Marcia's boyfriend's car. When Marcia asked Grover to leave, he threatened to kill her boyfriend. Marcia called the police. Grover walked into a park across the street from Marcia's house. Police officers located Grover in the park and arrested him. The State charged Grover with two counts of violation of a protection order — domestic violence (Counts I and III) and one count of felony harassment (Count II).
The day before the beginning of trial, Grover asked to represent himself at trial. The court denied Grover's motion to proceed pro se. The court stated that "while you have a right to a defense, you also need the assistance of an attorney because I'm not convinced that you would be able to restrict any arguments that you have to the issues that would arise in connection with trial." The court informed Grover that his attorney would make tactical decisions about examining witnesses and the kinds of evidence that would be admissible at trial.
Marcia and the officers who arrested Grover testified at trial. The parties stipulated that Grover had two prior convictions for violations of a no-contact order.
The parties stipulate and agree that the defendant has the following prior convictions:
Violation of a No Contact Order Domestic Violence, CR193586, conviction date of March 26, 2003
Violation of a No Contact Order, CR195103, conviction date of September 17, 2003
The jury found Grover guilty of two counts of violation of a protection order (Counts I and III). In the special verdict form, the jury found that Grover and Marcia were "members of the same family or household" and Grover had "twice been previously convicted for violating the provisions of a no-contact or protection order[.]"
(Emphasis omitted.)
The jury could not reach a verdict on the felony harassment charge (Count II). The court declared a mistrial as to Count II. The prosecutor said that the State did not intend to pursue Count II.
The court sentenced Grover to two concurrent, standard range sentences of 27 months.
Grover appeals.
DISCUSSION
Grover asserts that the trial court violated his right to represent himself by denying his request to proceed pro se.
"The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Criminal defendants have a constitutional right "to waive assistance of counsel and to represent themselves at trial." But the right to self-representation is not absolute. "In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be timely."
Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
State v. DeWeese, 117 Wn.2d 369, 375, 816 P.2d 1 (1991).
State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002), review denied, 148 Wn.2d 1022 (2003).
Id.
Once a defendant has raised the issue, the trial court is responsible for assuring that the defendant has at least a minimal knowledge of what self-representation entails, preferably by engaging the defendant in a colloquy on the record about the potential risks.
Id.
We review the court's denial of a request to proceed pro se for abuse of discretion. "The trial court's discretion lies along a continuum that corresponds with the timeliness of the request to proceed pro se." The continuum is as follows:
Id. at 855.
State v. Breedlove, 79 Wn. App. 101, 107, 900 P.2d 586 (1995).
(a) if made well before the trial or hearing and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made 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 (c) if made during the trial or hearing, the right to proceed pro se rests largely in the informed discretion of the trial court.
State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979).
As the trial gets closer, the court's interest in "the orderly administration of justice becomes weightier." A defendant may not use the right to proceed pro se as a means of unjustifiably delaying the trial or obstructing justice.
Breedlove, 79 Wn. App. at 107.
Vermillion, 112 Wn. App. at 851.
Here, Grover did not ask to proceed pro se until the day before the beginning of trial. Although the parties agreed that Grover was competent to stand trial and to assist counsel in presenting the defense, in pretrial hearings, Grover repeatedly interrupted the judge. Grover also appeared to be confused about what had occurred in his case and mistakenly asserted that the court had not held an omnibus hearing.
Approximately one month before trial, Grover asked the court for a different attorney. The court denied Grover's request.
During his request to proceed pro se, Grover had trouble focusing on the issues. When the court tried to engage him in a discussion of the rules of evidence and how a person representing himself would have to cross-examine witnesses, Grover began to argue that the court should admit a shirt that was on his property. Grover also confused the information with a conviction, arguing, "I'm already found guilty in the State's eyes." Immediately after the ruling, Grover continued to argue that he wanted the shirt "subpoenaed" and again stated that the court had not held an omnibus hearing. Grover continued to be disruptive during trial.
Grover repeatedly interrupted the court, and the judge had to tell him to remain silent.
Based on Grover's disruptive behavior before his request to proceed pro se and his inability to stay on topic during the hearing, combined with the fact that he made his request for self-representation the day before trial, we conclude that the trial court did not abuse its discretion in denying Grover's request to proceed pro se.
Grover relies on State v. Arthur to argue that "whether prior convictions for no-contact orders fall under the proviso of RCW 26.50.110 is an element of the felony offense" and the State has the burden of proving that essential element beyond a reasonable doubt. But as the State correctly points out and the defense conceded at oral argument, the Washington Supreme Court expressly overruled Arthur in State v. Miller: "We respectfully disagree with the Court of Appeals and hold that the validity of the no-contact order is not an element of the crime. To the extent the cited cases are inconsistent, they are overruled." Because Miller is directly on point, we reject Grover's assertion that the State had the burden of proving that Grover's prior offenses were committed under RCW 26.50.110(5).
126 Wn. App. 243, 244, 108 P.3d 169, overruled by State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005).
156 Wn.2d 23, 30, 123 P.3d 827 (2005) (citing Arthur, 126 Wn. App. at 244).
But even if Grover's argument were valid, his failure to object on this ground at trial waived the issue on appeal. A stipulation is an express waiver in which the party concedes the truth of an alleged fact for the purposes of trial. The effect is that one party need not prove the fact and the other may not disprove it. Because Grover did not argue below that there was insufficient evidence that his prior convictions were committed under RCW 26.50.110(5), he may not raise that objection on appeal.
State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006), review denied, 160 Wn.2d 1015 (2007).
Id.; see also State v. Gray, 134 Wn. App. 547, 558, 138 P.3d 1123 (2006) ("By waiting until the State rested to move to dismiss based on the inadequacy of the judgment and sentence, rather than objecting to that document's admissibility under RCW 26.50.110(5) in the first instance, Gray waived any objection."), review denied, 160 Wn.2d 1008 (2007); State v. Ortega, 134 Wn. App. 617, 626, 142 P.3d 175 (2006) ("[D]efendant's failure to timely object on this ground waives the issue. Because Ortega did not object, he may not complain on appeal that the trial court should have made the determination before admitting the stipulation." (citation omitted)), review denied, 160 Wn.2d 1016 (2007).
Affirmed.
WE CONCUR.