### FILED APRIL 18, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. KEVINLEE GALLO, Appellant. ) ) ) ) 

### ) ) ) ) ) No. 33934-3-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- KevinLee Gallo appeals the trial court's denial ofhis motionto representhimself. The State defends the court's decision onthe basis thatMr. Gallo was equivocal inhis requestto representhimselfordisruptive, butthe record does notbear out its arguments. While the trial courtwas no doubt motivatedby concern for Mr. Gallo's best interest, it applied an improper standard inrevoking its orderpermitting selfrepresentation. Mr. Gallo mustbe afforded a newtrial onthe two counts for whichhe
was convicted.No. 33934-3-111 State v. Gallo
ANALYSIS Kevin Lee Gallo was found on Washington State Penitentiaryproperty in March 2015 and was arrested on outstanding warrants. During a search incident to arrest, officers found a small "baggie" containing methamphetamine and a glass smoking device with residue inside in Mr. Gallo'spockets. The State chargedMr. Gallo withpossession ofa controlled substance (methamphetamine), use ofdrug paraphernalia, and second degree criminal trespass. The court appointed a lawyer, but Mr. Gallo immediately indicated he wished to representhimself. The Honorable Scott Wolfram presided at a hearing onMr. Gallo's motion for self-representation, whichwas attended byhis then-appointed lawyer, Jerry Makus. Judge Wolfram engaged in a lengthy colloquy with Mr. Gallo in which he questioned him abouthis education, knowledge ofthe law and courtrules, experience in court proceedings, and reasons for wanting to representhimself. Thejudgepointed out the maximum penalty for the charges againsthim; warned him thatby representing himselfhe would be at a disadvantage; and informed him that he would need to question and cross-examine witnesses, make objections, present evidence, pickhisjury, exercise challenges, submitpretrial motions, make discovery requests, and preserve errors for appeal. Judge Wolfram also warned Mr. Gallo that he could not later complainthathe
was provided with inadequaterepresentation. Having satisfied himselfthat Mr. Gallo's requestwas knowing and intelligent, Judge Wolfram signed Mr. Gallo's waiver of 2No. 33934-3-III State v. Gallo
counsel and appointed Mr. Makus as standby counsel. When Mr. Gallo failed to appear for his trial date in late May 2015, the Honorable John W. Lohrmann issued a bench warrant for his arrest. Mr. Gallo was arrested and booked into the Walla Walla County Jail less than a week later. A couple ofweeks thereafter, Judge Lohrmann conducted a pretrial hearing for a trial that was then set for June 30. Mr. Gallo asked the court for a trial continuance, explaining thathe had "two cases going on in Benton County." 2 Report ofProceedings (RP) at 7. 1 He waived his speedy trial right. Judge Lohrmannthoroughly questioned Mr. Gallo a secondtime abouthis decision to represent himself, stating he wanted to see if Mr. Gallo was "really ready and capable and knowingly, intelligently andvoluntarily making [the] decisiontorepresent [himself]." Id. The court again went overMr. Gallo's education,jobhistory, courtroom experience, mental health history, and inquired about his understanding ofthe law andprocedures that would apply. Mr. Gallo stated he was currently representing himselfintwo matters in Benton County, thathe had no history of mental illness, and that he had undergone one competency examination in whichhe had been found competent. He acknowledged that he neededto go to the law library to study
some ofthe law and procedure that would apply to his case. In response to numerous warnings by Judge Lohrmann onthe challenges oftrial

1 "1 RP"refers to the verbatim report ofthe May 13, 2015 proceedings; "2 RP" refers to the verbatim report ofall otherreported proceedings. 3No. 33934-3-111 State v. Gallo
and the disadvantages ofself-representation, Mr. Gallo repeatedly said he understood. Judge Lohrmann concluded, I'm going to go ahead and find thatyour decision to representyourselfis knowingly, intelligently andvoluntarily made, thatyou are waiving your right to counsel with the full understanding ofwhatyour rights are[. H]e has an appreciation ofthe charges, the consequences ofrepresenting himself, and is aware ofthe dangerthat he faces, so I'm going to allow it. 2 RP at 15. HereappointedMr. Makus as standby counsel and set a new omnibus hearing for July 31, with a newtrial date ofAugust 18. Mr. Gallo failed to appear for the July 31 omnibus hearing, so the trial court again issued a bench warrant for his arrest. The State would later amend the informationto include a charge ofbailjumping. Mr. Gallo was not arrested until October 9, 2015. At a hearing before Judge Lohrmann a few days thereafter, Mr. Gallo explained that he had been injail in Benton County. Judge Lohrmannrevoked Mr. Gallo'sprose status and reappointed Mr. Makus during the following exchange: [MR. GALLO]: Good morning, Your Honor[.] THE COURT: Good morning, Mr. Gallo. You seemedto have disappeared for awhile. [MR. GALLO]: I did. I went back to Tri-Cities. I was in the middle ofa move before I got in trouble, while moving backto Walla Walla, wentbackthere to tie up loose ends withthe move and legal stuff and I ended up injail overthere. I did get some stuffdone with DSHS and I have beento a drug and alcohol assessment, that I've gotthe results--don'tknow ifthe Court would be interested in that at all. And I am back in Walla Walla. Arrived notthe way I wanted to come, but the State gave me a ride here and I do not need to go backto Benton County. The--my legal stuffthere is taken care of. There would beno more warrants anywhere. Ijustwant an 4

### No. 

### 33934-3-111 State v. Gallo 

### opportunity to get things cleared up here now. THE COURT: I'm going to reappoint Mr. Makus to represent you. And Ithink you are in need ofsome legal assistance at this point, some specialized legal advice given your situation. I'm going to revoke your pretrial release. Set bail at $10,000. Was there briefly bail posted in this? [PROSECUTOR]: There had been. THE COURT: Oh, Irecall. We released the bail so thatyou could get some things taken care of. [MR. GALLO]: Um hmm. And I wasn't able to make it backuntil now. Ihave been incarcerated in Benton County. As far as my attorney, Makus, I don'tthink that's going to work out. I tried to work with him and Ijustcan'tdo it. Doesn't seem to wantto do anything that I wantto do andjust argues with me and tells me I can't do that. So I don't, I don't-Ithink I would need counsel from, you know, because Ihaven't found one without a conflict ofinterest. THE COURT: Mr. Makus is in the courtroom. Is there an ethical reason why you could not serve as Mr. Gallo's attorney? MR. MAKUS: No, not as far as I am concerned, Your Honor. He does have his own independentthinking, and doesn't like the advice I give. But other than that, IthinkTHE COURT: Well, I'm going to go ahead and reappoint Mr. 

### Makus. Youjustdon't get your choice ofa lawyer who you might get along with, Mr. Gallo. All the attorneys on our defense panel here are extremely capable, I've got to tell you, and successful. And so my suggestion is you listen carefully and listen to the advice on matters of strategy and ifyou really want to represent yourself, again, we'll deal with that at a later time. Andbelieve me I'm going to inquire very carefully. You haven't shown me that you are really able to represent yourself. I have grave concerns about that. [MR. GALLO]: Understood. [MR. GALLO]: Your Honor, would you be able to instructthe attorney to do as I say instead oftelling me what I have to do? THE COURT: No. You know, I can't do that, Mr. Gallo. The attorney is ethically boundto exercise hisjudgmentin terms ofadvice given to you. There is---ethically he can't do certain things. For example, ifyou want him to do something that he knows is improper, he can't do it. He is ethically forbidden from doing that sort ofthing. So, again, see what 

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### No. 33934-3-III State v. Gallo
you can do, and listen carefully, respectfully, okay? [MR. GALLO]: I will try to work with him. Thank you, YourHonor. 2 RP at 21-23. On October 20, Mr. 

### Gallo wrote a letter to Judge Lohrmann complaining that Mr. 

### Makus "willnot workwith me." Clerk's Papers (CP) at 71. He stated he needed effective defense counsel without a "conflict ofinterest" and "ifI can noteffectively defend myselfthe
... State will have to pay for outside council [sic]." Id. 

### (emphasis omitted). He asked thejudgeto schedule a hearing "ASAP to address this subject." Id. 

### (emphasis omitted). Mr. Gallo was arraigned on the bailjumping charge on October 26. The next transcribed proceeding in ourrecord is trial, which began on November 30, 2015. Mr. 

### Makus represented Mr. Gallo at trial. Atthe close ofthe State's evidence, he successfully moved to dismiss the bailjumping charge. Thejury found Mr. 

### Gallo guilty ofpossession ofmethamphetamine and use ofdrug paraphernaliabut acquitted him of the criminal trespass charge. At sentencing, the trial court asked Mr. Gallo: THE COURT: Mr. Gallo, I-justout ofcuriosity, it is my observation in this case that you were greatly assisted by legal counsel representing you. Without getting a dismissal ofthose two additional counts you would be looking at substantially more time. I'mjustcurious, do you understand the helpfulness oflegal counsel by now? [MR. GALLO]: I do, Your Honor. Yes, it is very confusing and overwhelming not to have one ifI did not take advantage ofit. THE COURT: Ijusthope in the future that you understand that 6No. 33934-3-III 

### State v. Gallo
these lawyers sometimes aren'treal polite. They are very busy people and don'thave the greatest bedside manners in the world butthey are dam good attorneys andthat isjust an observation I have had as well. 2 RP 148-49. Mr. Gallo asked ifMr. Makus or another Walla Walla defender could help with his matter in Benton County, butthejudge answered that would notbepossible. The court sentenced Mr. Gallo to 106 days' confinement, all ofwhich was covered by time already served, and imposed 12 months ofcommunity custody. The State had requested legal financial obligations (LFOs) inthe amount of$3,892 butthe trial court
was persuadedby Mr. Makus to impose only $600 in mandatory LFOs. Mr. Gallo appeals. ANALYSIS Mr. Gallo appeals the denial ofhis right to self-representation as well as one condition ofcommunity custody. Because we conclude thatMr. Gallo is entitledto a
new trial we do not address the challenges to his community custody condition, which
can be raised, ifnecessary, in future proceedings. The constitutional right ofa criminal defendantto self-representation "is so fundamental that it is afforded despite its potentially detrimental impact onboth the defendant and the administration of justice." 

### State v. Madsen, 168 Wn.2d496,503,229 P.3d 714 (2010) (citing a defendant's explicit rightunder article I, section 22 ofthe Washington Constitution and implicit right underthe Sixth Amendmentto the United States Constitution). To waive the right to counsel, however, a criminal defendant must 7

### No. 33934-3-III State v. Gallo

act knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). He should be made aware ofthe dangers and disadvantages, so that the record will establish that he knows what he is doing and his choice is made with eyes wide open. 

### Id. A colloquy on the record is the preferred method ofensuring an intelligent waiver ofthe right to counsel. City of Bellevue v. Acrey, 103 Wn.2d 203,211, 691 P.2d 957 (1984). Trial courts must indulge in every reasonable presumption against a defendant's waiver ofhis right to counsel, but the presumption does not give a court carte blanche to deny a motion to proceed prose. Madsen, 168 Wn.2d at 504. "A court may not deny a motion for self-representation based on grounds that self-representation would be detrimental to the defendant's ability to presenthis case or concerns that courtroom proceedings will be less efficient and orderly than ifthe defendant were represented by counsel." Id. at 505. Rather, the trial court may only deny a motionto proceedprose when the request is equivocal, untimely, involuntary, or made without a general understanding ofthe consequences. Id. at 504-05. Once granted, the court may appoint standby counsel or allow for hybrid representation. Id. at 509 n.4. A trial court may terminate pro se status "ifa defendant is sufficiently disruptive
or ifdelay becomes the chiefmotive." Id.; Faretta, 422 U.S. at 834 n.46 ("[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct."). "Acourt may not deny prose status merely 8

### No. 33934-3-III State v. Gallo


### because the defendant is unfamiliar with legal rules orbecause the defendant is obnoxious." Madsen, 

### 168 Wn.2d at 509. We review decisions to permit or deny self-representation for abuse ofdiscretion. In re Pers. Restraint of Rhome, 

### 172 Wn.2d 654, 667-68, 260 P.3d 874 (2011). "Because the trial court has the opportunity to observe a defendant's demeanor and nonverbal conduct, appellate courts owe considerable deference to a trial court's finding in this regard." State v. Floyd, 

### 178 Wn. App. 402,410,316 P.3d 1091 (2013). A trial court abuses its discretion when its decision is "manifestly unreasonable," was reached by applying the wrong legal standard, or is based on facts not supported by the record. Madsen, 

### 168 Wn.2d at 504. Improper denial ofthe right to represent oneselfrequires reversal regardless ofwhetherprejudice results. Id. 

### at 503. In Floyd, 

### the defendant knowingly and voluntarily waived his right to counsel and, aided by standby counsel, represented himself. 178 Wn. App. at 404. At trial, he displayed limited knowledge ofcourtprocedures and the rules ofevidence. Id. 

### at 406. He became confused and frustrated when the trial court sustained State objections, which resulted in many disruptions and warnings by the court. Id. 

### During closing argument, he referred to facts not in evidence, to which the State repeatedly objected. Id. 

### Outside the presence ofthejury, the trial court expressed its conclusion that the defendant was intentionally scuttling the trial, revoked his pro se status, and asked standby counsel to complete the closing argument. Id. 

### at 406-07. 9No. 33934-3-111 State v. Gallo
On appeal, this courtwas troubled that the trial court had not pursued a course of action less severe than revoking the defendant's prose status. Id. at 411. Because the trial court identified the defendant's intentional obstruction and disruption ofproceedings
as the basis for revoking pro se status and the record contained sufficient evidence of warnings and disruptions, however, the defendant's convictions were affinned. Id. at 410-12. In this case, it is clearthatMr. Gallo's waiver ofcounsel was knowing and voluntary. Both Judge Wolfram and Judge Lohrmann engaged in very adequate colloquies with Mr. Gallo. No one contends otherwise. At issue is only whetherthe trial court had a basis for revoking Mr. Gallo'sprose status. The State asks us to conclude that in the October 12 hearing, Mr. Gallo withdrew his request to proceedprose orthathe behaved equivocally then and thereafter. But Madsen made clearthat equivocation is not shownwhere a defendant merely raises new counsel as an alternative or, after self-representation is denied, quits asking. 168 Wn.2d at 507. At most, Mr. Gallo acquiesced in the trial court's announced decision to reappoint Mr. Makus. The State also contends that Mr. Gallo did not live up to his assurances to the courtthathe would be motivated, zealous, and would study up in orderto be able to effectively represent himself. Butthis argument is premised on an incorrect legal standard. The lack ofquality ofself-representation does notjustify a trial court's 10

### No. 33934-3-III State 

### v. Gallo


### revocation ofprose status. Id. 

### at 505. Finally, the State argues that Mr. Gallo engaged in manipulation and obstruction, by requesting bail and then failing to appear at court appearances. Butunlike the trial court's revocation ofprose status in 

### Floyd, which came after several disruptions, warnings, and delays, Mr. Gallo's prose status was terminated without warning, after he failed to appear at two hearings. And the record suggests Mr. Gallo did not appear at one
or both hearings because he was incarcerated in Benton County. The only basis for revoking Mr. Gallo's self-representation discernable from Judge Lohrmann's statements is thatMr. 

### Gallo needed legal advice and assistance. He expressed "grave concern"that Mr. 

### Gallo wouldbe unable to adequately represent himself. 2 RP at 23. While his beliefthat Mr. Gallo needed assistance was undoubtedly accurate (as Mr. 

### Gallo himselfwould later concede), it was the wrong legal standard. Again, denial ofthe right to proceedprose requires reversal even when no prejudice results. Madsen, 

### 168 Wn.2d at 503. The record on appeal does not support a lawful basis for the trial court's decision to terminate Mr. Gallo's self-representation. Application ofthe wrong legal standard constitutes abuse ofdiscretion. We reverse Mr. Gallo's two convictions without prejudice to retrial ofthe controlled substance charges, and remand.

11No. 33934-3-111 State v. Gallo
A majority ofthe panel has determined this opinion will notbeprinted inthe Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:


## j 

# ~.9. Pennell, J.

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