Opinion
No. 58951-2-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06467-2, William L. Downing, J., entered September 29, 2006.
Affirmed by unpublished per curiam opinion.
Albert Karkunov challenges his conviction for attempted murder in the second degree, arguing that (1) he received ineffective assistance of counsel; (2) the removal of his legal materials by jail guards prejudiced his right to a fair trial; and (3) the trial court erred by denying his request to represent himself at his sentencing hearing. Karkunov's ineffective assistance of counsel claim fails because he cannot show any prejudice resulting from his attorney's error. Nor has he shown sufficient prejudice to justify dismissal based on the seizure of his legal materials. And the trial court did not abuse its discretion by denying his untimely motion for self-representation brought for the apparent purpose of delaying his sentencing hearing. We affirm.
FACTS
The State charged Karkunov with attempted murder in the first degree. He was first arraigned on August 9, 2005. The expiration of the speedy trial period under CrR 3.3 was set for October 8, 2005. Karkunov wanted to go to trial within the speedy trial period but his attorney at the time, David Kraft, convinced him to waive his right to a speedy trial for one week to allow more time for preparation. Kraft told Karkunov that waiving his speedy trial right for one week would merely result in the trial date being set one week later. But this turned out to be misinformation because, in fact, continuing the case reset the speedy trial period, resulting in an in-custody trial date of October 22, 2005. At the next hearing, the court assigned a trial date of October 13, 2005. On October 12, 2005, Karkunov, through Kraft, moved to continue the case to have more time to prepare. Karkunov signed the order continuing the case until October 27, 2005. The case was continued many more times for numerous reasons. On November 28, 2005, Karkunov successfully moved for substitution of counsel, replacing Kraft with Dennis McGuire. In February, McGuire brought a motion to dismiss the case for violation of CrR 3.3 based on Kraft's initial misinformation about the effect of asking for a one week continuance. That motion was denied without prejudice so that McGuire could raise the issue again before the trial court. After a pretrial hearing, the trial court denied the motion.
The State first arraigned Karkunov on attempted murder in the second degree, but later amended the information to charge attempted murder in the first degree and arraigned him on that charge on September 1, 2005.
In early April 2006, while Karkunov was awaiting trial in the King County Jail, guards searched his cell and removed all of his written materials, including his legal papers. Based on this incident, Karkunov moved for dismissal under CrR 8.3(b). The trial court heard testimony about the incident and orally ruled that dismissal was not appropriate because (1) Karkunov's habitual concealment of contraband inside his written materials and his refusal to separate his legal materials from his nonlegal materials justified their removal and (2) there was no evidence that the guards gained or used any information from those materials to prejudice his right to a fair trial.
On June 22, 2006, a jury convicted Karkunov of attempted second degree murder and found that he was armed with a firearm at the time of the crime. The sentencing hearing was originally set for July 21, 2007. But when the parties appeared for sentencing, McGuire withdrew as Karkunov's attorney and the court appointed new counsel. Because of the substitution of counsel, the court extended the time to bring posttrial motions, but none were filed. At the rescheduled sentencing hearing, Karkunov moved to represent himself. The trial court denied that motion and sentenced him to 94 months, the low end of the standard range, plus an additional 60 months for the firearm enhancement. Karkunov appeals.
DISCUSSION
I. Ineffective Assistance of Counsel
To establish a claim for ineffective assistance of counsel, a defendant must meet the two-prong Strickland test by showing that (1) counsel's performance was deficient, falling below an objective standard of reasonableness and (2) that deficiency prejudiced the defendant because there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. If the defendant fails to meet either prong of the test, "the inquiry need go no further."
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. Rainey, 107 Wn. App. 129, 135, 28 P.3d 10 (2001), review denied, 145 Wn.2d 1028 (2002) (citing Strickland, 466 U.S. at 687).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (citing State v. Lord, 117 Wn.2d 829, 894, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992)).
Karkunov argues that he received ineffective assistance of counsel because Kraft incorrectly advised him that he could waive his speedy trial right under CrR 3.3 for one week when, in fact, under CrR 3.3(c)(2)(i), any waiver results in resetting the commencement date and restarts the time for trial at zero.
While this was an error on the part of counsel, Karkunov fails to show how he was prejudiced by this error. Believing Kraft's erroneous advice about the rule, Karkunov agreed to a one week delay. Based on the waiver, the court changed the trial date from October 8 to October 13, resulting in a five day delay. But the resulting delay was in fact no longer than the one week to which Karkunov had agreed.
Even though resetting the time-for-trial clock had no effect on the actual trial date, Karkunov claims that had he known about the effect of CrR 3.3(c)(2)(i), he would not have waived his rights under CrR 3.3 on August 31, 2005. But this would not have resulted in an earlier trial or a dismissal for a violation of CrR 3.3. Had he insisted on his original trial date of October 8, 2005, a continuance would still have been necessary because his counsel had surgery on September 28 and was unavailable until October 12, 2005. In fact, when Kraft had recovered sufficiently to appear in court, he requested a continuance to give him more time to prepare for trial, and Karkunov signed the order. Because he shows no prejudice resulting from his attorney's error, we reject Karkunov's ineffective assistance of counsel claim.
State v. Greene, 49 Wn. App. 49, 55, 742 P.2d 152 (1987) (The illness of counsel may be an unavoidable and unforeseen circumstance justifying delay "`in the administration of justice.'") (quoting State v. Brown, 40 Wn. App. 91, 697 P.2d 583, review denied, 103 Wn.2d 1041 (1985)).
And even if Karkunov had refused to agree to either of the continuances based on his counsel's need for additional preparation, the court could have granted the continuances over Karkunov's objection without violating his constitutional right to a speedy trial or abusing its discretion. See State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).
II. Seizure of Legal Materials
Karkunov contends that the trial court erred by denying his motion for dismissal under CrR 8.3(b) based on the seizure of his legal materials.
We review an order denying a motion to dismiss a criminal prosecution under CrR 8.3(b) for abuse of discretion. That rule provides that a court "may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect[s] the accused's right to a fair trial." To obtain dismissal, a defendant must show by a preponderance of the evidence (1) arbitrary governmental action or misconduct that (2) prejudices his right to a fair trial. The misconduct need not be of an evil nature; simple mismanagement is enough. Governmental intrusion into a defendant's private communications with his attorney is not automatically deemed a prejudicial violation of the defendant's Sixth Amendment right to counsel. Prejudice is presumed only in cases where the government's actions are purposeful and without justification. When the presumption of prejudice does not apply, a defendant must prove actual prejudice by showing
State v. Garza, 99 Wn. App. 291, 295, 994 P.2d 868 (citing State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997)), review denied, 141 Wn.2d 1014 (2000).
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003); Garza, 99 Wn. App. at 295. Karkunov incorrectly asserts that the State bears the burden of proving a lack of prejudice beyond a reasonable doubt. Division Three of this court has already explicitly rejected this assertion. Garza, 99 Wn. App. at 297-301.
Michielli, 132 Wn.2d at 239.
Garza, 99 Wn. App. at 298 (citing Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977)).
Id. at 300-01.
(1) that evidence gained through the intrusion will be used against them at trial; (2) that the prosecution is using confidential information pertaining to defense strategies; (3) that the intrusions have destroyed their confidence in their attorneys; or (4) that the intrusions will otherwise give the State an unfair advantage at trial.
Id. at 301.
Id. at 301.
"[D]ismissal is an extraordinary remedy, appropriate only when other, less severe sanctions will be ineffective."
Id. at 301-02 (citing Shillinger v. Haworth, 70 F.3d 1132, 1143 (10th Cir. 1995)).
Here, the purposeful seizure of Karkunov's legal materials was not without justification, so the presumption of prejudice does not apply. Karkunov argues that the guards should have found a less intrusive way to prevent him from concealing contraband in his legal materials. He suggests that a search of the materials in his presence would have been sufficient and that removing the materials from his cell was unjustified. But the guards had already tried to use searches of Karkunov's materials in his presence to stop him from concealing contraband in his written materials. Before taking his legal materials, a guard had repeatedly warned him about this practice, given him the opportunity to separate his legal materials from the rest of his written materials, and explained that failure to do so would result in removal of all his written materials. Nor has Karkunov demonstrated actual prejudice. He has not shown that the guards even read any of his confidential legal materials, much less gave them to the prosecution to be used against him in any way.
And the cases on which Karkunov relies are distinguishable. In State v. Cory, the Washington Supreme Court presumed prejudice because the police purposefully eavesdropped on a conversation between a defendant and his attorney without justification. Here, there was no purposeful intrusion into Karkunov's confidential conversations with his attorney. In State v. Garza, Division Three of this court remanded a denial of a CrR 8.3(b) motion for additional fact-finding to determine whether guards "closely examining or reading" inmates' legal documents was justified when conducting a search for items related to an attempted escape. Here, the court conducted a thorough hearing and found that the seizure of Karkunov's legal materials was justified. More importantly, the court found that, unlike in Garza, the guards did not closely examine or read Karkunov's legal materials. The trial court did not abuse its discretion by denying Karkunov's CrR 8.3(b) motion for dismissal.
62 Wn.2d 371, 377-78, 382 P.2d 1019 (1963).
99 Wn. App. 291, 301, 994 P.2d 868 (2000).
III. Motion To Proceed Pro Se
A criminal defendant has a constitutional right to represent himself by proceeding pro se. "In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be timely." "The right may not be exercised for the purpose of delaying the trial or obstructing justice." We review a trial court's ruling denying a request to proceed pro se for an abuse of discretion. And the "court's discretion lies along a continuum corresponding to the timeliness of the request:"
U.S. Const. amends. VI, XIV; Wash. Const. art. I, § 22; Faretta v. California, 422 U.S. 806, 852, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Vermillion, 112 Wn. App. 844, 850, 51 P.3d 188 (2002), review denied, 148 Wn.2d 1022 (2003).
Vermillion, 112 Wn. App. at 851 (citing State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995)).
Id.
Id. at 855 (citing Breedlove, 79 Wn. App. at 106).
Id.
(a) if made well before the trial . . . and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made as the trial . . . 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 . . ., 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).
State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979).
A trial court does not abuse its discretion by denying a motion to proceed pro se brought for the apparent purpose of delaying or disrupting the administration of justice.
See State v. Hemenway, 122 Wn. App. 787, 794-95, 95 P.3d 408 (2004).
Here, Karkunov's request to represent himself at sentencing was clearly untimely, having been made after his conviction. In fact, Karkunov did not even timely request to appear pro se at his original sentencing hearing. On the day he was originally supposed to be sentenced, he chose instead to delay the proceedings by asking for new counsel. And the trial court found that Karkunov moved to proceed pro se at his sentencing, after appointment of new counsel for the sole purpose of representation at the sentencing hearing, to further delay the proceedings.
[F]rom the start there have been attempts at delaying the process, at impeding the progress of the case. . . .
I cannot condone that any longer. The case will proceed to sentencing at this time.
Because the record supports the trial court's conclusion that Karkunov's request to represent himself was untimely and made with the intent to further delay his sentencing, the court properly denied his request.
The State also argues that Karkunov's request to proceed pro se was equivocal. Because we hold that the trial court did not abuse its discretion by denying the request as untimely and brought with the intent to delay, we need not reach this argument.
Karkunov cites a Ninth Circuit case, Lopez v. Thompson, to support his claimed right to proceed pro se at his sentencing hearing. But Lopez is not on point. There, the defendant unequivocally waived his right to counsel and asked to proceed pro se at sentencing after pleading no contest, while represented, to a number of charges. The issue on appeal was whether the defendant had knowingly and intelligently waived his right to counsel. Presumably, because there was no trial and the defendant sought to proceed pro se a mere eight days after pleading no contest, the trial court did not consider timeliness or whether the motion was brought as a delay tactic. Since Lopez deals with a different issue from the one raised here, it does not support Karkunov's claim that the trial court abused its discretion by refusing to grant his untimely motion to proceed pro se.
202 F.3d 1110 (9th Cir.), cert. denied, 531 U.S. 883 (2000).
Id. at 1112-13.
Id. at 1117.
Id. at 1113.
We affirm.
For the Court: