FILED 


JULY 23, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 31754-4-111 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

LONNIE L. BLACK, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. - Before allowing a defendant to proceed pro se, the trial 

court must ensure that the defendant makes a voluntary, knowing, and intelligent waiver 

of counsel. At a minimum, the defendant must be aware ofthe nature of the charges, the 

maximum possible penalty if convicted, and the risks of self-representation. Here, Lonnie 

Black contends the trial court erred when it allowed him to represent himself at trial 

without advising him of the maximum penalties he faced upon conviction. The State 

concedes that Mr. Black did not make a knowing and intelligent waiver of his right to 

counsel. We therefore reverse and remand for a new trial. 
No. 31754-4-II1 

State v. Black 

FACTS 

The State charged Lonnie Black with second degree assault, alleging he assaulted 

his wife, Melissa Black, by strangulation or suffocation. During trial, the prosecutor 

questioned Ms. Black repeatedly about statements she made to the police, medical 

personnel, and the prosecutor's office. Ms. Black asserted that she did not recall most of 

the alleged statements. 

On the second day of trial, Mr. Black told the court he believed his appointed 

attorney was biased against him and unwilling to present any defense. He asserted, "I've 

told her the truth on what happened from the beginning. She hasn't done anything with it. 

If anything, she's biased against me." Report of Proceedings (RP) at 50. Mr. Black 

explained: "[Defense counsel] says our defense is they can't prove it. That's not a 

defense." RP at 49. The court declined to appoint new counsel, finding: 

At this point the court does not believe that there is a conflict or that there 

has been established an ineffective assistance of counsel in this particular 

matter. And 1understand this is a very, very serious matter to everyone 

involved, and particularly to you, Mr. Black; but your attorney does have 

experience in these types of matters and it is her responsibility to address 

trial strategy. 

RP at 53-54. 

Mr. Black responded, "I think 1 would be better offwithout her, your Honor ... 

1 don't know how it works pro se ... [b Jut I have an interest into defending myself and 

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No. 31754-4-111 

State v. Black 

not just letting the prosecutor just run wild." RP at 54. The trial court engaged in the 

following colloquy with Mr. Black: 

THE COURT: Excuse me. Alright, so 1 can talk to you about that. 

You have a right to represent yourself if you so choose. You need to 

understand that ifyou do choose to represent yourself, you're going to be 

held to the same standards as if you were a lawyer. You will be responsible 

for knowing the court procedures and the court rules and complying with 

those, complying with the rules of evidence. When you present evidence, 

when you examine witnesses, that would be all your responsibility to do that 

in performance with the law. 

Do you have any training at all in the law? 

THE DEFENDANT: No, sir, butTHE COURT: You do-as 1 say, you do have that right, but you 

need to understand that you may find yourself at a significant disadvantage 

if you choose to represent yourself. 

THE DEFENDANT: Can 1get a legal aid assistance somehow? 

THE COURT: That's your choice. 

THE DEFENDANT: Can 1get assistance for-instead of counsel 

just saying they can't prove it and letting the prosecutor make all these ugly 

stuff? 

THE COURT: Like 1said, ... you have an attorney that's been 

appointed to you, and the attorney's job is to determine trial strategy . 

. . . 1 cannot appoint another attorney to represent you. 

You do have the right to represent yourself, but you need to 

understand that you're going to be held to all the same standards as if you 

were a lawyer and the court's going to treat you in that fashion. 

THE DEFENDANT: 1 don't know all the rules, Your Honor. 

THE COURT: That's what I'm trying to-okay, I understand that. 

That's something of concern. But you will be responsible to comply with 

those rules ifyou want to represent yourself. 

RP at 55-56. 

After consulting with appointed counsel, Mr. Black told the court that he 

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No. 31754-4-II1 

State v. Black 

understood that appointment of standby counsel would be an option and that he would 

like to exercise that option. The judge explained the limitations of this option and advised 

Mr. Black that he would be at a "significant disadvantage" if he represented himself. 

RP at 59. The judge reiterated that Mr. Black would be held to the same standard as a 

lawyer and would "be responsible for whatever results come from that. Just so you're 

aware. It's a very serious matter and a very serious step that you're taking." RP at 61. 

The judge then stated, "It's up to you to represent yourself ... and take the consequences 

of that." RP at 62. Mr. Black asked: "What are the consequences? Am I going to get in 

trouble here?" RP at 63. The court responded: 

However this trial turns out, I guess, that's-you're going to represent 

yourself, and I don't know what the outcome of the trial will be, but that is 

something that you are responsible for as your attorney, so--or as 

representing yourself. 

So--because you're not getting to be in trouble with the court or 

anything of that nature. 

RP at 63. 

Mr. Black, with some reservation, indicated he wanted to represent himself, 

explaining, "I don't think this is a super intelligent move, but I believe defending my 

character and my name counts and to just stand here and can't prove it, let them prove it, I 

don't think that's a fair defense." RP at 62-63. The court allowed Mr. Black to proceed 

pro se. A jury found Mr. Black guilty of second degree assault. 

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No. 31754-4-III 

State v. Black 

ANALYSIS 

Mr. Black asserts that the trial court erred by granting his request to waive his right 

to the assistance of counsel and to proceed pro se. He specifically contends that the court 

failed to provide any meaningful response to his expressed concern about the 

consequences of representing himself. He asserts that at a minimum, the court should 

have advised him that should he be convicted of second degree assault, the maximum 

penalty would be incarceration for 10 years. The State concedes error based on the trial 

court's failure to inform Mr. Black of the maximum penalty if convicted. 

A criminal defendant has the right to assistance of counsel, but he also has the 

right to waive assistance of counsel. Faretta v. California, 422 U.S. 806, 819,95 S. Ct. 

2525,45 L. Ed. 2d 562 (1975). The right to represent oneself in court is grounded in the 

federal constitution. In Faretta, the United States Supreme Court held that the Sixth 

Amendment provides a right to self-representation. Faretta, 422 U.S. at 807. The 

Washington State Constitution expressly guarantees a defendant's right to selfrepresentation: "In criminal prosecutions the accused shall have the right to appear and 

defend in person, or by counsel." CONST. art. I, § 22 (amend. 10). 

A court may not deny a motion for self-representation on the grounds that selfrepresentation would be detrimental to the defendant's ability to present his case. State v. 

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No. 31754-4-III 

State v. Black 

Madsen, 168 Wn.2d 496,505,229 P.3d 714 (2010). Rather, the trial court may only deny 

a motion to proceed pro se when the request is equivocal, untimely, involuntary, or made 

without a general understanding of the consequences. Id. at 504-05. Ifthe request is 

neither equivocal nor untimely, then the court considers whether the request is voluntary, 

knowing, and intelligent. Id. at 504. 

The trial court is responsible for assuring that decisions regarding selfrepresentation are made with at least minimal knowledge of what is required in pro se 

representation. City ofBellevue v. Acrey, 103 Wn.2d 203,210,691 P.2d 957 (1984). In 

Acrey, our Supreme Court enumerated the criteria for determining the validity of waiver 

ofcounsel. The court held that a colloquy on the record is the preferred means of 

assuring that a defendant understands the risks of self-representation and that the 

colloquy, at a minimum, should inform the defendant ofthe nature and classification of 

the charges, the possible maximum penalty involved, and the existence oftechnical and 

procedural rules that would bind the defendant at trial. Id. at 211. "Whether the waiver is 

valid lies within the sound discretion ofthe trial court, who should indulge every I 

presumption against a valid waiver." State v. Silva, 108 Wn. App. 536, 539, 31 P.3d 729 

(2001). I 

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If a defendant seeks to represent himself and the court fails to explain the 

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No. 3 1 754-4-II1 

State v. Black 

consequences of such a decision to him, the State is not entitled to have a resulting 

conviction affirmed, and the defendant is entitled to a reversal and an opportunity to make 

an informed and knowing choice. United States v. Arlt, 41 F.3d 516, 521 (9th Cir. 1994). 

Further, the right to counsel is so fundamental to the right to a fair trial that any 

deprivation of it is not subject to harmless error analysis. Silva, 108 Wn. App. at 542. 

Even the most skillful of defendants cannot make an intelligent choice without 

knowledge of all facts material to the decision. Absent this critical information, a 

defendant cannot make a knowledgeable waiver of his constitutional right to counsel. 

Id. at 541. 

Here, the trial judge did not discuss the nature and classification of the charge, nor 

did it discuss the maximum penalty faced by Mr. Black ifhe was convicted. The court's 

generalized warning without specific reference to the charge and maximum penalty did 

not impart sufficient information by which Mr. Black could make a voluntary, knowing, 

and intelligent waiver of his right to counsel. Accordingly, we accept the State's 

concession: we reverse Mr. Black's conviction and remand for a new trial. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

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No. 31754-4-II1 

State v. Black 

Lawrence-Berrey, J. 

WE CONCUR: 


Brown, J. 

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