### FILED JULY 23, 2015 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE 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OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31754-4-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) LONNIE L. BLACK, ) ) Appellant.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 intelligentwaiver ofcounsel. At a minimum, the defendant mustbe aware ofthe nature ofthe charges, the maximumpossiblepenalty ifconvicted, and the risks ofself-representation. Here, Lonnie Blackcontends the trial court erred when it allowed him to represent himselfat trial without advising him ofthe maximumpenalties he faced upon conviction. The State concedes thatMr. Blackdid notmake a knowing and intelligentwaiver ofhis right to counsel. We therefore reverse and remand for a newtrial.No. 31754-4-II1 State 

### v. Black
FACTS The State chargedLonnie Blackwith second degree assault, alleging he assaulted his wife, Melissa Black, by strangulation or suffocation. Duringtrial, the prosecutor questioned Ms. Blackrepeatedly 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. Onthe second day oftrial, Mr. Blacktold the court he believed his appointed attorney was biased against him and unwilling to present any defense. He asserted, "I've told herthe truth on what happened from the beginning. She hasn't done anything with it. Ifanything, she's biased against me." Report ofProceedings (RP) at 50. Mr. Black explained: "[Defense counsel] says our defense is they can'tprove it. That's not a defense." RP at 49. The court declined to appoint new counsel, finding: At this pointthe court does not believe that there is a conflict or that there has been established an ineffective assistance ofcounsel in this particular matter. And 1 understand this is a very, very serious matter to everyone involved, and particularly to you, Mr. Black; butyour attorney does have experience in these types ofmatters and it is herresponsibility to address trial strategy. RP at 53-54. Mr. Blackresponded, "I think 1would bebetter offwithout her, yourHonor
... 1don't know how it works pro se ... [bJut I have an interest into defending myselfand 2

### No. 31754-4-111 State v. Black



### notjust letting the prosecutorjustrun wild." RP 

### at 54. 

### The trial court engaged in the following colloquy with Mr. 

### Black: THE COURT: Excuse me. Alright, so 1can talk to you about that. You have a right to represent yourselfifyou so choose. You need to understand that ifyou do choose to representyourself, you're going to be held to the same standards as ifyou were a lawyer. You will be responsible for knowing the courtprocedures and the courtrules and complying with those, complyingwith the rules ofevidence. When you present evidence, when you examine witnesses, that would be all your responsibility to do that in performance with the law. Doyou have any training at all in the law? THE DEFENDANT: No, sir, butTHE COURT: You do-as 

### 1say, you do have that right, but you need to understand that you may find yourselfat a significant disadvantage ifyou choose to represent yourself. THEDEFENDANT: Can 

### 1get a legal aid assistance somehow? THE COURT: That'syour choice. THEDEFENDANT: Can 

### 1get assistance for-instead ofcounsel just saying they can'tprove it and letting the prosecutor make all these ugly stuff? THE COURT: Like 

### 1 said,
...you have an attorney that'sbeen appointed to you, and the attorney'sjob 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 ifyou were a lawyer and the court's going to treat you in that fashion. THEDEFENDANT: 

### 1don't know all the rules, Your Honor. THE COURT: That's what I'm trying to-okay, I 

### understand that. That's something ofconcern. 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. Blacktold the court that he 3 

# INo. 31754-4-II1 State v. Black
understood that appointment ofstandby counsel would be an option and that he would like to exercise that option. Thejudge explained the limitations ofthis option and advised Mr. Blackthathe would be at a "significant disadvantage" ifhe represented himself. RP at 59. Thejudgereiterated that Mr. Blackwould 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 thatyou're taking." RP at 61. Thejudgethen stated, "It's up to you to represent yourself
... and take the consequences ofthat." RP at 62. Mr. Black asked: "What are the consequences? Am I going to get in trouble here?" RP at 63. The court responded: Howeverthis trial turns out, I guess, that's-you're going to represent yourself, and I don'tknow whatthe outcome ofthe trial will be, butthat is something thatyou are responsible for as your attorney, so--or as representingyourself. So--becauseyou're not getting to be in trouble with the court or anything ofthat nature. RP at 63. Mr. Black, with some reservation, indicated he wanted to represent himself, explaining, "I don'tthink this is a super intelligent move, but I believe defending my character and my name counts and tojust stand here and can'tprove 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. Ajuryfound Mr. Black guilty ofsecond degree assault. 4 

# INo. 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 ofcounsel and to proceedpro se. He specifically contends thatthe court failed to provide any meaningful response to his expressed concern about the consequences ofrepresenting himself. He asserts that at a minimum, the court should have advised him that should he be convicted ofsecond degree assault, the maximum penalty would be incarceration for 10 years. The State concedes errorbased on the trial court's failure to inform Mr. Black ofthe maximum penalty ifconvicted. A criminal defendant has the right to assistance ofcounsel, but he also has the right to waive assistance ofcounsel. 

### Faretta v. 

### California, 422 U.S. 806, 819,95 S. Ct. 2525,45 L. Ed. 2d 562 (1975). The rightto represent oneselfin court is grounded in the federal constitution. In

### Faretta, the United States Supreme Courtheldthat the Sixth Amendmentprovides 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 havethe 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 onthe grounds that selfrepresentation would be detrimental to the defendant's ability topresenthis case. 

### State v.
5 

# I

### 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 proceedpro se when the request is equivocal, untimely, involuntary, ormade without a general understanding ofthe 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 ofwhat is required in pro se representation. City of Bellevue 

### v. Acrey, 

### 103 Wn.2d 203,210,691 P.2d 957 (1984). In Acrey, 

### our Supreme Court enumerated the criteria for determining the validity ofwaiver ofcounsel. The court held that a colloquy on the record is the preferred means of assuring that a defendant understands the risks ofself-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. "Whetherthe waiver is valid lies withinthe sound discretion ofthetrial court, who should indulge every 

# I presumption against a valid waiver." State 

### v. Silva, 

### 108 Wn. App. 536, 539, 31 P.3d 729 

# I (2001). 

# I 

# I f 

### f Ifa defendant seeks to represent himselfand the court fails to explain the
6No. 3 1 754-4-II1 State 

### v. Black
consequences ofsuch 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. UnitedStates 

### 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 ofit is not subject to harmless error analysis. Silva, 108 Wn. App. at 542. Even the most skillful ofdefendants cannot make an intelligent choice without knowledge ofall facts material to the decision. Absent this critical information, a defendant cannot make a knowledgeable waiver ofhis constitutional right to counsel. Id. at 541. Here, the trialjudge did not discuss the nature and classification ofthe charge, nor did 

### itdiscuss the maximum penalty faced by Mr. Black ifhewas 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 intelligentwaiver ofhis 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 WashingtonAppellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
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# I 

# I I l 

# t 

# i I I No. 31754-4-II1 State 

### v. Black
Lawrence-Berrey, 

### J. WE CONCUR:

Brown, J.

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