IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. THOMAS-JAMES DONALD ARTHUR, Appellant. No. 68926-6-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: November 18, 2013 Schindler, J.

— Thomas-James Donald Arthur seeks reversal ofhis conviction 

### of failure to register as a sex offender. Arthur argues the courtabused its discretion by denying his requestto proceed pro se. We affirm.
FACTS In 1991, the Snohomish County Superior Court Juvenile Division found Thomas

### James Donald Arthur guilty ofrape of a child inthe firstdegree. Arthur acknowledged that as a convicted sex offender, he had an obligation to register his residential address with the county sheriffs office. On November 22, 2010, Arthur changed his registration address from homeless to his parents' address in Mountlake Terrace. Arthur's parents, Charlotte and JamesNo. 68926-6-1/2 

### Arthur, own afourbedroom home.1 There is awood shedin thebackyard. The shed has no electricity, no furniture, and leaked when itrained. On March 17, 2011, the Mountlake Terrace Police Department came to the Mountlake Terrace home to verify that Arthur lived there. Charlotte and James told 

### police thatArthur no longer lived at their home and had moved in with his girlfriend Susan Barringer. The State charged Arthurwith failure to register as a sex offender underformer 

### RCW 9A.44.132 (2010).2 The Statealleged thatfrom March 17 toApril 27, 2011, Arthur, "having registered as residing at a fixed residence,
. . . cease[d] to reside at that residence and did knowingly fail to provide timely written notice to the county sheriff's office."3 The court scheduled trial to begin on October 21, 2011. On October7, the parties agreed to continue the trial until January 13, 2012. On December 20, 2011, the parties agreed to continue the trial date to March 16, 2012. On February 9, 2012, the parties entered an agreed continuance ofthe trial date until April 20, 2012. Arthur's trial began on April 24, 2012. The State's two witnesses, Charlotte and James, were present and waiting to testify. James suffers from gout and was confined
to wheelchair. The court heard several pretrial motions. Arthur agreed to waive his right to a jury trial. The court conducted a colloquy with Arthur on the request to waive his right to


### 1We refertoArthur's parents bytheirfirst namesforclarity and intend nodisrespect. 2The legislatureamended RCW9A.44.132{1) in 2011, adding failure toregisteras a sexoffender to include previous convictions for felony failure to register as a sex offender "pursuant to the laws of another state." Laws of2011, ch. 337, § 5. 

### 3Afterthe StatechargedArthur, Arthurregistered with thesheriffs officethathe wasliving at Barringer's address in Edmonds.No. 68926-6-1/3 a jury trial and found Arthur voluntarily, knowingly, and intelligentlywaived his right to a jury trial. The State informed the court that Arthurwould stipulate that he was required to register and to the admissibility ofexhibits related to his 1991 conviction, including a certified copy ofthe orderon disposition. The court accepted the stipulation and
admitted the exhibits. Arthur would not stipulate to the admissibility ofthe sex offender registration forms he filled out at the Snohomish County Sheriff's Office in November2010 and September 2011. The court asked whether a CrR 3.5 hearing was necessary. Before the CrR 3.5 hearing, the court ordered a brief recess to allow defense counsel to discuss the CrR 3.5 issue with Arthur. Afterthe recess, defense counsel informed the courtthatArthurwished to proceed pro se: "Your Honor, during the brief recess, it did
come to my attention that Mr. Arthurwould like to address the Court. He indicated to
me that he actually wished to represent himselfat this trial." With the court's permission, Arthur read a briefstatement. Arthur said, "My attorney is an officer ofthe court. Ihave the highest level ofrespectfor him. Irequest the Courtto allow me to set motions in my own defense at this time. That's all Ihave to say." Arthurtold the court that he needed a continuance so he could subpoena additional witnesses and evidence. THE DEFENDANT: Your Honor, Idid waive off a jury trial. I believe that willwork and Ihave full faith inyou, sir. However, there is some discrepancies inthe case that Ithoughtwould be brought up and I'm not seeing anything in light ofthat right now. Idon't want to waste any of the Court's time. I'm very capable ofdefending myself. With respect to [defense counsel], Ijustfeel within me that there are things in this courtroom right now that are not going the way that Ihad expected that need to come out.No. 68926-6-1/4 THE COURT: You realize we'rejust at the very beginning stages ofthe trial? THE DEFENDANT: Yes, Your Honor, but there are at leasttwo more witnesses that should have been on the docket and they're not here, and there is information that was supposed to be subpoenaed thatwould 

### be --1 got the idea when this came up aboutthe stipulation of admissibility ofstatements ofthe defendant. Idon't see any documentation for the Mountlake Terrace Police Department and letters and notes that Icame 

### by, requesting them, ifthey had been trying to get a hold of me. That's in my defense. 

### THE COURT: All right. Well, Ijust asked you a minute ago if you're ready to go to trial right here right now. THE DEFENDANT: With the exception ofthat answer, no, because

— 

### THE COURT: Well, wait. Whatdo you mean by withthe exception ofthat answer? THE DEFENDANT: Ifthose two things Ijust

- ifthose two items 

### that Ijust listedwere here, Iwould be ready to go myself to defend my case, yes, Your Honor, but, no, I'm not, because Idon't have the two witnesses and the documentation. 

### THE COURT: So you're not just asking to representyourself. You're asking for the trial to be delayed? THE DEFENDANT: With all due respect, yes, sir. 

### The court denied Arthur's requestto proceed pro se as untimely. 

### [T]he law is that ifa request is made well in advance of the trial, it should be granted as a matterof, essentially, of routine for a defendantto 

### represent himself ifthe Court is, in fact, satisfied that the defendant is appreciative of the risks and the exposure that he faces and what the maximums are. There are rules that need to be followed and whatnot, but we're not well in advance ofthe trial. We're not even shortly inadvance of the trial. We have begun the trial. And the rule, also, is that once the trial has begun, the Court has 

### significant discretion as to whetheror not to allow for a person to say or 

### asserttheir rightto representthemselves at the time. We have started this trial. I've already admitted three or four exhibits.
. . . The State had witnesses -- or had a witness appear yesterday 

### under a personal service subpoena who was ordered to come back today
.... 

### Iwas also informed yesterday thatthe defendant's father, who was a witness who was under personal service subpoena, who has health 

### problems, was not here yesterday but would be returning today. But, again, the man has some health issues
....No. 68926-6-1/5 

### Ihaven't heard a word about any motion to continue untilsuch time as both people under subpoena actually were present in the courthouse ready to testify
.... Ifthe defendant truly wanted to represent himself, he should have made this motion before we had already started the trial and before these witnesses, one ofwhom is particularly not easy or convenient for him to get here, were present outside inthe hallway less than 15 feet from the courtroom doorwaiting to testify. The motion is denied. [T]he record should reflect the basis for the Court's denial ofthe motion for the defendant to represent himselfis that this is untimely. We're already here. We have actually started the trial. While opening statements hadn't been made yet, the attorneys were in the process of admitting exhibits. Ihad admitted several exhibits. He has an attorney who's here and ready to represent him. Mr. Thompson is a skilled lawyer and he is prepared to go to trial and that's what we're going to do. Following the CrR 3.5 hearing, the court concluded that the sex offender registration forms Arthurfilled out at the Snohomish County Sheriff's Office were admissible. The State called five witnesses: three detectives from the Snohomish County Sheriffs office, Arthur's mother Charlotte, and Arthur's father James. James testified that Arthur lived at his home during the spring of 2011. James said that Arthurwould sleep inthe shed, on the couch, or inthe family van. Charlotte testified thatArthur had not lived on the property for five or six years. Charlotte said that it did not look like anyone had been sleeping inthe shed in 2011. Arthur and his girlfriend Susan Barringertestified for the defense. Barringer testified that when she started dating Arthur in March 2011, she picked him up at his parents' house "[pjrobably every day, because he didn't drive." Barringertestified that Arthur lived in the wood shed and that she saw Arthur's personal belongings inside the shed. Arthur testified that he stayed inthe wood shed in March and April of2011.No. 68926-6-1/6 Arthurtestified that his father agreed he could stay inthe shed. Arthur also testified that he and his father agreed not to tell his mother he was staying on the property. The courtfound the defendant committed the crime of failing to register as a sex offender. The court explicitly found Charlotte's testimony credible. The courtfound that the testimony of Arthur, James, and Barringerwas not credible. The court sentenced Arthurto 90 days confinement. The court ordered the sentence could be served as work release. Arthur appeals.
ANALYSIS Arthur argues that the court abused its discretion by denying his request to represent himself. We review the trial court's denial of a requestfor selfrepresentation for abuse of discretion. State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). Criminal defendants have the right to selfrepresentation underthe Washington Constitution, article I, section 22 (amend. 10), and the United States Constitution, amendments VI and XIV. Madsen, 168 Wn.2d at 503; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L Ed. 2d 562 (1975). However, the right to self representation is not self-executing. State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 (2001). Itis well established that a defendant's request to proceed pro se must be 

### unequivocal and timely. State v. DeWeese, 117Wn.2d369, 377, 816 P.2d 1 (1991). Where a defendant's requestfor selfrepresentation is untimely, "the right is relinquishedNo. 68926-6-1/7 and the matter ofthe defendant's representation is left to the discretion ofthe trial judge." DeWeese. 117 Wn.2d at 377. The trial court's discretion to grant or deny a motion to proceed depends on when the request is made. Ifthe demand for selfrepresentation is made " 'well before the trial
or hearing and unaccompanied by a motion for a continuance, the right of self 

### representation exists as a matteroflaw.'" Madsen, 168Wn.2d at5084 (quoting State

v. Barker, 75 Wn. App. 236, 241. 881 P.2d 1051 (1994)). Ifthe request is made "'as the trial or hearing is about to commence, or shortly before, the existence ofthe right depends on the facts ofthe particular case with a measure ofdiscretion reposing inthe trial court inthe matter.'" Madsen, 168 Wn.2d at 508 (quoting Barker, 75 Wn. App. at 241). Finally, ifthe defendant makes his request" 'during the trial or hearing, the right to proceed pro se rests largely inthe informed discretion ofthe trial court.'" Madsen, 168 Wn.2d at 508 (quoting Barker. 75 Wn. App. at 241). 

### Arthur argues that because he made his request before trial, the court's discretion was limited. The State argues thatbecause Arthur made his request afterthe trial began, the decision rested within the informed discretion ofthe trial court. 

### We need not decide whethertrial had begun. Whetherthe motion to proceed pro
se was made immediately before trial or during trial, Arthur does not dispute thatthe trial court had at least a "measure ofdiscretion" to deny the untimely requestfor self representation. Here, trial had already been continued three times. Trial was scheduled to begin and the State's two subpoenaed witnesses, James and Charlotte Arthur, were present 

### and ready to testify. James had difficulty getting to the courthouse because he had gout 4(Emphasis omitted.)No. 68926-6-1/8 

### and was confined to a wheelchairwith "extremely swollen" legs. Charlotte was present atthe courthouse forthe second day in a row. Only afterthe court heard preliminary motions, conducted a colloquy on Arthur'sjury trial waiver, and admitted several exhibits did Arthur askto represent himselfforthe first time. Arthur also asked for a continuance. Arthur's attorney was prepared to represent him. The courtdid not abuse its discretion by denying Arthur's motion to proceed pro se. Affirmed.

**\—T WE CONCUR:

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