IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84297-8-I Respondent, DIVISION ONE v. PUBLISHED OPINION BOBBY DARNELL GWIN,
Appellant.
CHUNG, J. — At his trial for unlawful possession of a firearm in the first
degree, felony harassment, and possession of heroin with intent to deliver,
Bobby Gwin exercised his right to self-representation. The trial court denied his
request for standby counsel, citing its blanket policy to deny such requests. Gwin
contends the court’s categorical denial of his request for standby counsel violated
his right to represent himself under Washington Constitution article I, section 22.
Article I, section 22 provides a pro se defendant with the right to sufficient
resources to prepare and present a meaningful defense. Article I, section 22
does not, however, require that those resources include standby counsel. That
said, in determining what resources will enable a pro se defendant to prepare a
meaningful defense in a particular case, the court must consider a defendant’s
requests, including a request for standby counsel, in light of all of the
circumstances. Here, the trial court abused its discretion by failing to consider the
request for standby counsel. However, the error was harmless as Gwin had
sufficient resources to prepare and present a meaningful defense. We affirm No. 84297-8-I/2
Gwin’s convictions but reverse and remand to strike the Victim Penalty
Assessment (VPA) and correct a scrivener’s error in the judgment and sentence.
FACTS
The State charged Bobby Gwin with unlawful possession of a firearm in
the first degree, possession of heroin with intent to deliver, and felony
harassment. Gwin sought to represent himself and asked the court to proceed
pro se with standby counsel. Prior to considering Gwin’s request, the court
explained that it would not appoint standby counsel:
I’m just going to tell you right now before we go into great detail, and I do a colloquy with you, if I grant your Motion to Proceed Pro Se, not going to give you standby Counsel. I’m not going to give you paralegal. I’m not going to, frankly, give you any type of legal assistance or an assistant to, uh, help you with your legal defense. And it’s not just in your case, Mr. Gwin; I don’t give that to any Defendant who wants to proceed pro se, and I’m very upfront about that.
The court asked if Gwin wanted to continue with his pro se motion, and Gwin
stated that he still wanted to exercise his constitutional right. The court reiterated,
“If I grant your Motion to Proceed Pro Se, I’m not going to give you standby
Counsel, legal assistant, any of that; do you still want to proceed?” Gwin
confirmed, “That’s fine. Yes, sir. Yes, Your Honor. That’s fine.” The court
conducted a colloquy and determined that Gwin knowingly, intelligently, and
voluntarily waived his right to counsel. The court granted Gwin’s motion to
represent himself, and Gwin completed a waiver of counsel.
Gwin opted for a bench trial, waiving his right to a jury. The court found
Gwin guilty of unlawful possession of a firearm in the first degree and felony
harassment. Gwin was acquitted of possession of heroin with intent to deliver.
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Gwin received a low end standard range sentence of 57 months of incarceration.
He appeals.
DISCUSSION
I. Right to Standby Counsel
“The Sixth and Fourteenth Amendments of the United States Constitution
afford a criminal defendant both the right to assistance of counsel and the right to
reject that assistance and to represent himself.” State v. Silva, 108 Wn. App. 536,
539, 31 P.3d 729 (2001). While both are guaranteed, “the right to proceed pro se
and the right to assistance of counsel are mutually exclusive.” State v. Vermillion,
66 Wn. App. 332, 340, 832 P.2d 95 (1992). “Self-representation is a grave
undertaking, one not to be encouraged. Its consequences, which often work to
the defendant’s detriment, must nevertheless be borne by the defendant.” State
v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991). The federal right to self-
representation does not include a right to standby counsel or hybrid
representation. State v. Silva, 107 Wn. App. 605, 622, 27 P.3d 663 (2001);
DeWeese, 117 Wn.2d at 379.
Like its federal counterparts, article 1, section 22 of the Washington
Constitution includes the dual rights of assistance of counsel and self-
representation. Silva, 108 Wn. App. at 539. “[C]ourts must carefully balance the
dissonant rights to counsel and to self-representation when a defendant seeks to
proceed pro se.” State v. Rafay, 167 Wn.2d 644, 652, 222 P.2d 86 (2009). Article
I, section 22 affords “a pretrial detainee who has exercised his constitutional right
to represent himself, a right of reasonable access to state provided resources
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that will enable him to prepare a meaningful pro se defense.” Silva, 107 Wn. App.
at 622. The measures necessary for reasonable access are within the discretion
of the trial court after consideration of circumstances such as the nature of the
charge, complexity of the issues, the need for investigation, and the
administration of justice. Id. at 622-23. “Although not required under either the
state or federal constitutions, a trial court may appoint standby counsel to aid a
pro se defendant at the defendant’s request.” State v. Fisher, 188 Wn. App. 924,
928, 355 P.3d 1188 (2015); see also State v. McDonald, 143 Wn.2d 506, 511, 22
P.3d 791 (2001). This court has explicitly stated that pro se defendants are “not
constitutionally entitled to standby counsel.” Silva, 107 Wn. App. at 625.
Despite this decisional authority on the right to standby counsel, Gwin
contends the trial court’s refusal to appoint standby counsel violated his rights
under article I, section 22. According to Gwin, “Washington’s state constitutional
right to defend in person encompasses a right to standby counsel when
necessary to afford an incarcerated defendant the ability to meaningfully access
the courts and present his defense.” Gwin is correct that under some
circumstances, article I, section 22 provides greater protection than its federal
counterpart. See Rafay,167 Wn.2d at 647 (while not recognized by federal law,
article I, section 22 guarantees the right to self-representation on appeal).
However, “just because a state constitutional provision has been subject to
independent interpretation and found to be more protective in a particular
context, it does not follow that greater protection is provided in all contexts.”
Murphy v. State, 115 Wn. App. 297, 311, 62 P.3d 533 (2003). Parties must
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explain why greater protections are appropriate in specific applications. State v.
Ramos, 187 Wn.2d 420, 454, 387 P.3d 650 (2017).
On review, we interpret a constitutional provision de novo. In re Pers.
Restraint of Sargent, 1 Wn.3d 580, 587, 530 P.3d 566 (2023). To determine
whether the Washington constitution extends broader rights in a particular
context we consider the six factors established in State v. Gunwall: “(1) the
textual language; (2) differences in the texts; (3) constitutional history; (4)
preexisting state law; (5) structural differences; and (6) matters of particular state
or local concern.” 106 Wn.2d 54, 58, 720 P.2d 808 (1986).
In Silva, this court considered the Gunwall factors to assess whether
article I, section 22 guarantees broader assistance than the federal constitution
to pro se defendants to prepare a defense. 107 Wn. App. at 617-21. That
Gunwall analysis resulted in the conclusion that Washington’s constitution
encompasses the right to reasonable access to state-provided resources to
enable preparation of a meaningful pro se defense, but also noted that the
defendant was not constitutionally entitled to standby counsel. Silva, 107 Wn.
App. at 622, 625.
Thus, while Silva established that article I, section 22 requires
interpretation of the right to self-representation independent from the federal
constitution, “[t]hat is only half the required analysis.” State v. Lee, 12 Wn. App.
2d 378, 391 n.4, 460 P.3d 701 (2020). Gwin must explain why that independent
interpretation leads to a constitutional entitlement to standby counsel. See Lee,
112 Wn. App. 2d at 391 n.4.
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A. Textual Language and Differences in the Texts
The text of article I, section 22 states, “In criminal prosecutions the
accused shall have the right to appear and defend in person, or by counsel . . . .”
The inclusion of the words “in person” has been interpreted as “unequivocally
guaranteeing an accused the constitutional right to represent himself.” Silva, 107
Wn. App. at 617-18. The Sixth Amendment lacks the same explicit language: “In
all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial . . . and to have the Assistance of Counsel for his defense.” Therefore, the
federal right to self-representation is implied rather than express. Id. at 618.
Because the right of self-representation in the Washington Constitution is explicit,
“the differences in the text of the constitutional provisions have great significance
in determining what is required to effectuate those rights.” Id. at 618.
According to Gwin, the texts and their differences “weigh in favor of a
finding that the state constitutional right includes a right to the assistance of
standby counsel to effectuate the right to appear and defend in person.” Indeed,
Silva noted that because the right under the Sixth Amendment is implied and a
matter of interpretation, “it is not immune from further interpretation and
modification,” whereas the right under the Washington Constitution is “clear and
explicit.” 107 Wn. App. at 618. Thus, “the differences in the text of the
constitutional provisions have great significance in determining what is required
to effectuate those rights.” Id. at 619. However, Gwin does not provide any
analysis as to why the textual differences point to a broader right under article I,
section 22 that encompasses, specifically, the right to standby counsel.
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B. State Constitutional and Common Law History
Gwin argues that state constitutional history weighs in favor of
independent interpretation “because the framers of the Washington [C]onstitution
chose to copy the declaration of rights from the constitutions of other states
rather than from the federal Bill of Rights.” As Silva stated, the decision to use
constitutional language from other states “indicates the framers did not consider
the language of the U.S. Constitution to adequately state the extent of the rights
meant to be protected by the Washington Constitution.” 107 Wn. App. at 619.
Silva also considered state common law history, stating, “Washington courts
have stated in passing that a pro se pretrial detainee does have a continued right
of access to the courts after declining the assistance of counsel.” Id. Pro se
defendants must also have reasonable access to legal materials. Id. at 620. This
common law history demonstrates that the right to self-representation
guaranteed by the state constitution “is a substantive right, not a mere formality.”
Id. That right “cannot be satisfied unless it is made meaningful by providing the
accused the resources necessary to prepare an adequate pro se defense.” Id. at
621.
Gwin points to this same history discussed in Silva as indicating that “at a
minimum, the Washington [C]onstitution guarantees the right to standby counsel
when necessary to meaningfully effectuate the pro se litigant’s right of access to
the courts and the right to meaningfully prepare his defense.” This access to
resources necessary for a meaningful defense is precisely the right described in
Silva, yet the court explicitly declined to extend this right to require standby
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counsel. 1 107 Wn. App. at 625 (“Silva is not constitutionally entitled to standby
counsel,” so his refusal to conduct interviews without counsel was “not justified”).
Instead, “[w]hat measures are necessary or appropriate to constitute reasonable
access lie within the sound discretion of the trial court after consideration of all
the circumstances . . . .” Silva, 107 Wn. App. at 622 -23. These resources may
include, but do not require, standby counsel. Fisher, 188 Wn. App. at 928. Gwin
does not explain how history compels a different interpretation resulting in a
constitutional entitlement specifically to standby counsel.
C. Pre-existing State Law, Structural Differences, and State Interest
The last three Gunwall factors are straightforward. Gwin acknowledges
that pre-existing state law has not been considered helpful in assessing the right
to self-representation in Washington. See Silva, 107 Wn. App. at 621. The State
notes that Washington has codified the right to waive counsel in RCW 10.73.150
1 Silva is the most recent published case to consider a pro se defendant’s entitlement to
resources and assistance under the Washington Constitution. A recent unpublished case from this court, State v. Johnson, No. 84181-5-I (Wash. Ct. App. Jan. 29, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/841815.pdf, held that the right to standby counsel is not required under either the federal or state constitution:
Although not required under either the state or federal constitutions, a trial court may appoint standby counsel to aid a pro se defendant at the defendant’s request. State v. McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). Our Supreme Court “has defined standby counsel’s role as not necessarily representing the defendant but as providing technical information.” Id. There is no absolute right of pro se litigants to standby counsel or “hybrid representation” whereby defendants may serve as co-counsel with their attorneys. State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991).
Slip op. at 10-12. However, neither McDonald nor DeWeese addressed the specific issue of standby counsel under article I, § 22. McDonald discusses the Sixth Amendment right to self-representation and states the court may appoint standby counsel over a defendant’s objection. 143 Wn.2d at 511. Likewise, DeWeese discussed the Sixth Amendment, rather than the Washington Constitution. 117 Wn.2d at 379.
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and RCW 10.77.020, but has not similarly enacted a statute to provide standby
counsel.
The State acknowledges that the difference in structure between the state
and federal constitutions “favors an independent state interpretation in every
Gunwall analysis.” State v. Russell, 125 Wn.2d 24, 61, 882 P.2d 747 (1994).
Additionally, the exercise of a defendant’s state constitutional right to self-
representation is “plainly of state interest and local concern.” Silva, 107 Wn. App.
at 621.
D. Conclusion on Independent State Constitutional Analysis of Right to Standby Counsel
We have previously established that article I, section 22 guarantees a right
of reasonable access to resources that will enable a pro se litigant to prepare a
meaningful defense. Silva, 107 Wn. App. at 622. Those resources—including
standby counsel—are at the discretion of the trial court. Silva, 107 Wn. App. at
622-23.
However, Gwin provides no argument as to why the broader reach of the
right to self-representation and the resources to conduct a meaningful defense
under article I, section 22 necessarily includes a specific entitlement to standby
counsel. We decline to extend the right to meaningful resources to prepare and
present a defense beyond the right as defined in Silva.
II. Trial Court’s Consideration of the Request for Standby Counsel
Gwin claims the trial court abused its discretion by failing to meaningfully
consider his request for standby counsel. The State concedes the trial court’s
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blanket refusal to appoint standby counsel was a failure to properly exercise its
discretion, but claims any error was harmless. We agree.
The measures necessary to provide a pro se defendant reasonable
access to state provided resources are within the sound discretion of the trial
court. Silva, 107 Wn. App. at 622-23. This includes access to standby counsel.
“[T]he trial court is not obliged to appoint, or reappoint, counsel on the demand of
the defendant. The matter is wholly within the trial court’s discretion.” DeWeese,
117 Wn.2d at 379. However, when a defendant requests standby counsel, “the
trial court must exercise its discretion in considering the request.” State v. Davis,
6 Wn. App. 2d 43, 52, 429 P.3d 534 (2018), rev’d on other grounds by State v.
Davis, 195 Wn.2d 571, 461 P.3d 1204 (2020). The trial court has discretion to
determine what measures are necessary to constitute reasonable access “after
consideration of all the circumstances, including, but not limited to, the nature of
the charge, the complexity of the issues involved, the need for investigative
services, the orderly administration of justice, the fair allocation of judicial
resources (i.e., an accused is not entitled to greater resources than he
would otherwise receive if he were represented by appointed counsel), legitimate
safety and security concerns, and the conduct of the accused.” Silva, 107 Wn.
App. at 623. We review a decision to deny standby counsel for abuse of
discretion. Davis, 6 Wn. App. 2d at 52. A trial court’s failure to exercise discretion
is an abuse of discretion. State v. Stearman, 187 Wn. App. 257, 265, 348 P.3d
394 (2015).
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Here, the trial court refused to consider whether standby counsel should
be appointed in Gwin’s case, rejecting Gwin’s request for standby counsel based
on its blanket policy to deny assistance for any pro se defendant. The court did
not exercise discretion to consider Gwin’s request in the context of his case and
circumstances. Thus, the court abused its discretion.
Because there is no constitutional right to standby counsel, the court’s
failure to consider Gwin’s request is not of constitutional magnitude and is
subject to analysis under the nonconstitutional harmless error standard. State v.
Barry, 183 Wn.2d 297, 303, 352 P.3d 161 (2015). “Under this nonconstitutional
harmless error standard, ‘an accused cannot avail himself of error as a ground
for reversal unless it has been prejudicial.’ ” Barry,183 Wn.2d at 303 (quoting
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). An error is not
prejudicial unless, within reasonable probabilities, the outcome of the trial would
have been materially affected had the error not occurred. Barry, 183 Wn.2d at
303.
Gwin claims the failure to appoint standby counsel likely affected the
outcome of his trial because the record includes several instances in which his
“status as an incarcerated pro se party prevented him from preparing and
presenting his defense in ways that could easily have been avoided if he had the
assistance of standby counsel.” Specifically, Gwin points to his difficulties
subpoenaing and impeaching witnesses.
Gwin had difficulty confirming his witnesses due to changes to the trial
date. Several of his subpoenas were returned as undeliverable. Gwin argues that
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standby counsel could have assisted with coordinating witnesses. However,
Gwin had the assistance of an investigator, and the court instructed Gwin to have
the investigator serve the witnesses. At some point, Gwin was without an
investigator and the court provided him with blank subpoenas and offered to mail
them. 2 Gwin was concerned that one witness was “ducking” his subpoena, and
he wanted to know how to compel the witness to appear. While standby counsel
could have provided technical expertise, the record is unclear as to the witness
and possible testimony. 3 Therefore, Gwin does not show that inability to compel
the witness to testify resulted in prejudice.
As for impeachment of witnesses, Gwin wanted to admit prior convictions
to impeach the victim’s credibility. Gwin could not produce certified copies of the
relevant docket, and the court refused to admit the exhibits. The court explained
that Gwin needed certified public documents and allowed Gwin to submit certified
copies if he could obtain them before the end of the trial. Gwin contends that
“[s]tandby counsel could have assisted him in obtaining certified copies or at
least explained this requirement so that Gwin could have done so.” But the trial
court itself explained the rules and allowed Gwin time to obtain the documents.
Further, the record shows that Gwin had introduced certified copies of another
public document as part of his defense, demonstrating that he knew how to
obtain such documents. Moreover, the victim did not testify at Gwin’s trial. The
trial court admitted her 911 call, which it found “was compelling and had the ring
2 Gwin appears to have fired two investigators. 3 Gwin mentions Mr. Edmond Redmond, who appears to be a defense investigator rather
than the witness. Gwin does not provide a name for the witness.
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of truth.” The court reasoned, “The 911 call is credible as Ms. Hunter was afraid
for her life and needed to call for help. The call was the product of someone
terrified and looking for help, not the call of someone who was angry and hoping
to get someone in trouble.” Evidence of prior convictions would not have altered
the court’s assessment of her credibility in the emergency circumstance.
Gwin also sought to impeach one of the detectives with an inconsistent
statement made during a defense interview. However, the record is unclear as to
the statement at issue. Gwin cannot show that assistance of standby counsel
would have resulted in the admission of the impeachment evidence and altered
the outcome of the trial.
Under article I, section 22, this court has considered access to legal
materials, pencil and paper, copying services, coordination of services such as
arranging interviews, blank subpoena forms, postage, and opportunity to
interview witnesses to be among the reasonable tools necessary to prepare a pro
se defense. Silva, 107 Wn. App. at 625-26.
The record demonstrates that Gwin had access to similar resources. He
had use of a laptop loaded with electronic discovery prior to trial as well as a
laptop for use in court. He had access to the jail’s law library for legal research.
The court assisted in mailing subpoenas. Additionally, Gwin had the assistance
of an investigator to serve subpoenas, interview witnesses, and research factual
issues. He received public funding for DNA and fingerprint analysis and
independent experts. Moreover, Gwin wrote and filed multiple motions with
citations to legal authority and argument. He was ultimately acquitted on one of
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the counts. Gwin was able to prepare and present a meaningful, and partially
successful, defense with the resources provided.
While standby counsel may have improved contact with defense
witnesses and led to more success in impeaching State witnesses, Gwin has not
demonstrated that the outcome of the trial would have been materially affected.
Thus, the trial court’s failure to meaningfully consider Gwin’s request for standby
counsel was harmless error.
III. Correction of the Judgment and Sentence
The court imposed the required VPA but waived all other legal financial
obligations. While this case was pending on appeal, the legislature enacted RCW
7.68.035(4), which prohibits the court from imposing the VPA “if the court finds
that the defendant, at the time of sentencing, is indigent.” Amendments to cost
statutes apply prospectively to cases still pending on appeal. See State v.
Wemhoff, 24 Wn. App. 2d 198, 202, 519 P.3d 297 (2022).
At sentencing, the State conceded that Gwin was indigent. The State
agrees that RCW 7.68.035(4) applies and the VPA is now an unauthorized legal
financial obligation. We remand to strike the VPA from Gwin’s judgment and
sentence.
The parties also agree that the judgment and sentence contains a
scrivener’s error. The judgment and sentence states that Gwin was convicted by
a jury verdict, but Gwin waived his right to a jury and was convicted by bench
trial. The remedy for a scrivener’s error is remand to the trial court for correction.
State v. Sullivan, 3 Wn. App. 2d 376, 381, 415 P.3d 1261 (2018).
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We affirm the convictions. We reverse and remand to strike the VPA from
Gwin’s sentence, as well as to correct the scrivener’s error.
WE CONCUR: