STATE v. INGRAM, 163 Wn. App. 1023 (2011)

No. 64969-8-I.The Court of Appeals of Washington, Division One.
Filed: September 12, 2011. UNPUBLISHED OPINION.

Appeal from a judgment of the Superior Court for King County, No. 09-1-05756-3, Cheryl B. Carey, J., entered February 17, 2010.

Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Cox and Lau, JJ.

LEACH, A.C.J.

Robert Scott Ingram appeals his conviction for theft of a motor vehicle.[1] Ingram claims that the trial court erred by denying his motion to dismiss for violation of his right to a speedy trial under CrR 3.3. In a statement of additional grounds, Ingram raises several errors, including the denial of his right to proceed pro se.

We hold that the trial court did not err by denying the motion to dismiss under CrR 3.3 because Ingram waived his right to a speedy trial when he signed a written order resetting the speedy trial commencement date. We also hold that the trial court did not abuse its discretion by denying Ingram pro se status because his request to represent himself was equivocal. Finding no merit in Ingram’s remaining assignments of error, we affirm.

Background
While detained in jail, Ingram was arraigned on September 23, 2009, on the charge of theft of a motor vehicle. Under the speedy trial rule, CrR 3.3(b)(1), the State had 60 days to bring him to trial.[2] Thus, the initial speedy trial expiration date was November 23.

At a case scheduling hearing on October 7, the trial court entered an agreed order to continue case scheduling to October 27. In two separate provisions, the “Order on Case Scheduling or Status Conference and Waiver of Speedy Trial” listed new speedy trial commencement and expiration dates, October 27 and December 25, respectively. On the first page, the order also contained a speedy trial waiver provision with extra signature blocks just below the waiver language. Ingram’s counsel signed the order here, but Ingram did not. Instead, Ingram signed only the third and final page of the order, along with his counsel, the prosecutor, and the trial judge.

The following day, on October 28, Ingram moved to discharge his attorney. Ingram told the court that a “communication breakdown” had occurred and that he did not feel “secure” going to trial with his current counsel. After Ingram’s attorney stated that she believed Ingram lacked trust in her abilities and agreed that it would be appropriate for the court to discharge her, the trial court granted Ingram’s request. On November 4, the trial court appointed a second attorney but also discharged that attorney a day later due to a conflict of interest. The court appointed Ingram’s third attorney on November 10, but on November 20, Ingram moved to discharge this attorney as well. He told the court he wanted new counsel and stated, “Your Honor, all I’m seeking is adequate counsel in order to be able to move forward to trial.” The court denied his motion and told Ingram that he could either proceed with his current attorney or bring a motion to represent himself. After Ingram indicated that he would seek pro se status, the court engaged in a brief colloquy regarding waiver of counsel but deferred ruling on the motion.

Three days later, on November 23, Ingram renewed his motion for pro se status. The court engaged in a lengthy colloquy with Ingram regarding his wish to represent himself but denied the motion. Trial was set for December 23.

A week before trial, on December 16, Ingram moved to dismiss for violation of CrR 3.3. The court denied his motion and entered four written findings: (1) Ingram intended to waive his speedy trial right as part of the case scheduling order dated October 7; (2) the disqualification of each of the two prior attorneys reset the commencement date under CrR 3.3(c)(2)(vii); (3) the court was “confident” that it had a discussion with Ingram regarding possible continuances necessitated by appointment of new counsel; and (4) the correct commencement date for speedy trial purposes was November 5, with an expiration date of January 4, 2010.

After several short continuances, trial began on January 4. A jury convicted Ingram three days later.

Ingram appeals.

Analysis Speedy Trial
Ingram claims that the trial court erred when it found no violation of the speedy trial rule and denied his motion to dismiss under CrR 3.3.[3] Because the application of a court rule to particular facts is a question of law, [4] we review an alleged violation of the speedy trial rule de novo.[5]

Under CrR 3.3(b), an in-custody defendant must be brought to trial within 60 days after arraignment, which serves as the initial speedy trial commencement date.[6] The commencement date resets to zero if one of several enumerated events occurs, including a speedy trial waiver or disqualification of counsel.[7] When a defendant is not brought to trial before expiration of the speedy trial time limit, the court must dismiss the charges with prejudice.[8]

Ingram first claims that the “Order on Case Scheduling or Status Conference and Waiver of Speedy Trial” entered by the trial court on October 7 did not effectively waive his speedy trial right because he did not sign the signature block immediately under the explicit waiver provision on the first page of the three-page order. To waive the speedy trial rule, a written waiver of the defendant’s rights must be signed by the defendant and filed with the court.[9] The waiver shall specify a new commencement date, which serves to reset the speedy trial time limit to zero.[10]

Ingram contends that, without his separate signature under the explicit waiver provision on the first page of the order, the initial commencement date (the date of arraignment) remained intact. Ingram demands more than the rule requires. The order that Ingram challenges meets all the requirements of CrR 3.3(c)(2)(i). It lists new commencement and expiration dates, contains explicit waiver language, and Ingram’s signature appears on the final page of the order. Had there been no extra signature line under the explicit waiver provision, there would be no question here as to the validity of Ingram’s waiver. The absence of Ingram’s signature on the extra signature line below the waiver language does not negate the presence of Ingram’s signature at the end of the order. Thus, Ingram effectively waived his right to a speedy trial under CrR 3.3, and the trial court validly reset the commencement date to October 27.

Ingram also contends that the trial court should not have discharged his first attorney. He claims that there was no basis to disqualify the attorney and, thus, no basis to reset the commencement date under CrR 3.3(c)(2)(vii). Although neither party briefed the invited error doctrine, we find that the invited error doctrine bars this claim.

The invited error doctrine precludes judicial review of an error when a defendant knowingly and voluntarily sets up the error.[11] Here, Ingram himself created the error when he moved the court to discharge his attorney based on a “communication breakdown.” The court granted his motion. He later reiterated his dissatisfaction with his attorney when he told the court that he had been in a heated argument with the attorney and that their communication “was not anything pleasant.” Ingram cannot demand a new attorney, have one appointed, and later challenge the propriety of the trial court in granting his request.

Ingram also contends that the trial court erred by finding it had warned Ingram that appointment of new counsel might necessitate a continuance. But Ingram does not identify any authority requiring a warning for purposes of CrR 3.3, [12]
nor does he assign error to any of the continuances granted by the trial court. Moreover, Ingram does not demonstrate that a warning about a continuance would have had any effect on his request to discharge his first attorney. Therefore, we also reject this claim.

Ingram effectively waived his speedy trial right on October 7, which reset the speedy trial commencement date to October 27. As Ingram does not assign error to the disqualification of his second attorney, and the record reflects a required withdrawal due to a conflict of interest, the trial court correctly determined that, upon that disqualification, the commencement date had been reset to November 5. Because trial commenced on January 4, the day of speedy trial expiration, we hold that no violation of CrR 3.3 occurred.

Statement of Additional Grounds Ingram contends that the trial court erred by refusing to discharge his third attorney and allowing Ingram to proceed pro se.[13] We review a trial court’s denial of a request to proceed pro se for an abuse of discretion.[14] A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or for untenable reasons.[15]

Both the federal and state constitutions guarantee the right to self-representation in a criminal proceeding.[16] Because this right is fundamental, it is afforded despite its potentially detrimental impact on both the defendant and the administration of justice.[17] The right to proceed pro se, however, is not absolute.[18] Courts must indulge in every reasonable presumption against a defendant’s waiver of his right to counsel.[19] Yet this presumption “does not give a court carte blanche to deny a motion to proceed pro se.”[20]
A court may deny pro se status when the court finds that the defendant’s request is equivocal, untimely, involuntary, or made without a general understanding of the consequences.[21]
Such a finding must be based on some identifiable fact.[22]
The unjustified denial of the right requires reversal.[23]

Ingram made two separate motions to proceed pro se, the first on November 20, and the second on November 23. Although the trial court deferred its decision on the first motion, we will examine each motion independently, as a deferred ruling may be as erroneous as a denial.[24]

Ingram first asked to represent himself on November 20, after the court denied Ingram’s request to discharge his third attorney and obtain new counsel.[25] Here, after the court denied Ingram’s request for new counsel and told Ingram that he could move to proceed pro se if he was unhappy with his attorney, Ingram said, “And that’s what I will do.” Then, the following exchange took place:

THE COURT: Mr. Ingram, you want to represent yourself?
THE DEFENDANT: If that’s necessary. I prefer not to have to but if that’s the case.
THE COURT: You keep going through lawyers. You don’t make any particular reason why except to say they are not any good, and they tell me something I don’t want to hear.
THE DEFENDANT: I didn’t say they were not any good, your Honor.
THE COURT: You just did. That’s not good enough reason for the Court. You got to come up with some reason or —
THE DEFENDANT: My reason being would be that our conversation, we came across a gap in our communication that I could not bridge, and I don’t feel comfortable going to trial with this attorney.
The court did not inquire further or engage in additional colloquy to determine if Ingram’s request was legally deficient. Instead, the court delayed ruling on the pro se motion.

The trial court did not err in delaying its ruling. Generally, when a court fails to conduct a proper colloquy to determine whether the requirements for waiver of counsel are met, the only permissible conclusion is that the waiver was sufficient.[26] But a court may defer ruling if the court is reasonably unprepared to immediately respond to the request.[27] “[A] trial court must be allowed the flexibility and discretionary authority to properly manage its own affairs.”[28] Here, the trial court had no notice of Ingram’s request for pro se status before it denied Ingram’s motion to discharge counsel. Thus, the trial court did not abuse its discretion in deferring ruling on Ingram’s motion for pro se status.

Three days later, Ingram appeared in front of a different trial judge and renewed his pro se motion. During a lengthy colloquy, Ingram acknowledged that he understood the crime charged and possible penalties and that he would be required to abide by certain rules and procedures. When asked why he brought the motion to represent himself, Ingram said, I had no wish to go forward by myself, but I — I — and I was just asking for adequate counsel that I believe, you know, that I would be entitled to. But I don’t believe that — that I — it would be my best interest to go to trial with Mr. Bradley as my attorney.

Ingram said he believed that his attorney had shown “no real interest” in his case and stated, “So I guess I . . . have to pursue it on my own because I’m not being allowed a chance at fair counsel to pursue trial. I mean, I would — I do not want to have to — to — to present my case personally, but I will if I have to.” When the court urged Ingram not to attempt to represent himself, Ingram said, “Unless the State’s willing to give me another attorney, then I’m forced to go forward on my own.” When the court asked Ingram if representing himself was a voluntary decision on his part, Ingram replied, “Not really, no. Like I said, I have no real knowledge of the law but if I have to.” After this exchange, the trial court denied his request.

As Ingram did here, a defendant may request to proceed pro se in the alternative to a request for new counsel.[29] But that conditional request must still be unequivocal, viewed in light of the record as a whole.[30]

State v. Stenson[31] is instructive. There, the defendant immediately moved to proceed pro se after the court denied his motion for new counsel.[32] He told the court: “`I would formally make a motion then that I be able to allow [sic] to represent myself. I do not want to do this but the court and the counsel that I currently have force me to do this.'”[33]
The trial court found that he did not really want to proceed without counsel and denied his request.[34] On appeal, the Washington Supreme Court held that the request was equivocal, as most of the discussion between Stenson and the trial judge concerned Stenson’s wish for different counsel, and Stenson did not refute the trial court’s conclusion that he did not want to proceed without counsel.[35]

Contrarily, in State v. Madsen, [36] the trial court offered to appoint a new attorney after the defendant expressed several reasons why he did not want to be represented by his current counsel. The defendant replied, “`I’d rather represent myself.'”[37] He also explicitly invoked his right: “`I am gonna revert to my constitutional rights, Washington State constitutional rights, Article I, Subsection 22, I have a right to represent myself and that’s what I’m going to move forward with doing.'”[38] The court found that it was error to deny Madsen’s motion, as he explicitly and repeatedly cited the constitutional provision protecting his right to self-representation and never wavered from that position.[39]
Unlike Stenson’s request, Madsen’s request was unequivocal.[40]

Here, unlike in Madsen, Ingram never explicitly invoked his right. Rather, much like in Stenson, Ingram’s request revolved around his wish for different counsel. Ingram repeatedly expressed to the court his unhappiness with his current counsel and claimed that their conversations had become “openly hostile.” Ingram stated that he did not want to represent himself but felt “forced” to do so because the court would not appoint a new attorney. None of these statements unequivocally asserted Ingram’s right to self-representation. On the contrary, his comments clearly show that he preferred to go forward with representation, albeit with a different attorney than the one currently assigned. Therefore, Ingram’s motion was equivocal. The trial court did not abuse its discretion by denying his request.

Also in his statement of additional grounds, Ingram disagrees with the trial court’s calculation of his offender score. He states that a trial court judge, at a sentencing for a different offense in 2002, struck a conviction from his record because “the case (from 1989) was so old that it no longer applied.” Because these facts are outside the record, we cannot review this claim.[41]

Ingram also asserts that the sentencing range and offender score calculations violate double jeopardy. Particularly, he claims that the added offender score points for his past crimes subjected him to a second prosecution for the same offense. We reject this claim because double jeopardy protections do not generally apply to sentencing proceedings.[42]

Ingram next contends that the State “acted out of prejudice” when it charged him with theft of a motor vehicle. He claims that the conduct constituting the charged offense only qualified as taking a motor vehicle in the second degree because the vehicle had a “price of $900.00 on both rear side windows, as well as the rear windshield.” However, a vehicle’s value is not an element of the crime of theft of a motor vehicle.[43] Thus, Ingram’s claim has no merit.

Finally, Ingram claims that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance, a defendant must satisfy a two-prong test.[44] First, a defendant must show a deficiency in counsel’s representation.[45] Counsel’s representation is deficient if it falls below an objective standard of reasonableness.[46]
Second, a defendant must demonstrate that the deficient performance resulted in prejudice.[47] If a defendant fails to establish either prong, we need not inquire further.[48]

Ingram does not identify how counsel was deficient, nor does he demonstrate prejudice. We cannot consider an appellant’s argument in a statement of additional grounds for review if it does not inform the court of both the nature and occurrence of the error.[49] Because Ingram fails to explain his assertion, we are not able to review it.

Conclusion
Affirmed.

WE CONCUR:

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