IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 76042-4-I ) Respondent, ) DIVISION ONE
v. ) UNPUBLISHED OPINION
KIER KEANDE GARDNER, ) Appellant. ) ) FILED: April 15, 2019
ANDRus, J. — Kier Keand’e Gardner1 was convicted of two counts of felony
violation of a no-contact order (VNCO), as well as one count each of first degree
burglary, second degree assault, and third degree malicious mischief. He
challenges the two VNCO convictions on double jeopardy grounds. He also
challenges the imposition of a 12-month community custody term in light of his 60-
month sentence on the felony VNCO convictions. Keand’e also seeks a waiver of
1 In his Statement of Additional Grounds (SAG), Appellant contends Kier Keand’e and Gardner are two different individuals. This argument appears to be consistent with arguments he repeatedly raised with the trial court, contending he was the “representative of Mr. Gardner.” Although Appellant expressed a preference to be addressed as “Kier Ke’Ande,” “Kier Keand’e,” or “Mr. Keand’e,” he admitted at arraignment that his full name was Kier Keande Gardner. And the State produced testimony to establish that Kier Keand’e and Gardner are the same person, thereby proving for criminal liability purposes, that Appellant, regardless of the name he answers to, committed the offenses for which he was convicted.
Nonetheless, because Appellant has expressed a strong and consistent preference regarding his identity—that he is Keand’e and not Gardner—we will refer to him as Keand’e here. No. 76042-4-1/2
any discretionary legal financial obligations (LFO5) based on his mental health
status.
In a Statement of Additional Grounds (SAG), Keand’e argues the trial court
erred in not allowing him to plead guilty and in denying his request to represent
himself. He also argues there is insufficient evidence supporting the burglary
conviction.
Based on the State’s concession of error as to the felony VNCO convictions,
we remand for the trial court to vacate one of these convictions and to strike the
community custody associated with the remaining felony VNCO conviction.
Additionally, on remand, the trial court should determine whether Keand’e’s mental
health status requires a waiver of LFOs under RCW 9.94A.777. We otherwise
affirm Keand’e’s convictions and sentence.
FACTS
Marilyn Gardner2 had a no-contact order protecting her from Keand’e.
Charitie Wells, Keand’e’s girlfriend, lived with Marilyn.
On October 5, 2014, Wells and Keand’e argued with each other via text
message for most of the day. That night, Wells was startled by a banging on the
front door. Wells, assuming Keand’e was the person knocking, joined Marilyn in
her upstairs bedroom to avoid having to listen to him.
After five minutes, the banging stopped. Wells and Marilyn then heard a
loud noise that Wells described as a pop or a bang. Wells testified that it “freaked
2 Because Keand’e and his mother share a last name, we refer to Keande’s mother by her
first name, Marilyn, when necessary, to reduce any possible confusion between Keand’e and his mother. No disrespect is intended.
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[her] out because it was so loud.” She later discovered Keand’e had forced his
way into the home, damaging the sliding glass door in the process. Wells heard
Keand’e rummaging in a silverware drawer in the kitchen, and then stomp upstairs.
She was so scared she backed herself into the corner on the bed behind Marilyn.
Keand’e appeared holding a kitchen knife with an eight-inch blade. Marilyn
positioned herself between her son and Wells, to protect Wells. Keand’e stood
about a foot away from Marilyn, with the knife pointed downward, and he told his
mother that he just wanted to talk to Wells. Keand’e then pushed Marilyn aside.
Wells screamed as she moved to the other side of the bed. Marilyn tried to pull
Keand’e away but he brushed her off. Keand’e then cornered Wells and swung
the knife toward her like he was trying to stab her. Wells continued to scream for
help.
Marilyn was ultimately able to pull Keand’e off of Wells. Wells heard
someone outside yell that the police were on their way, Keand’e told his mother
and Wells to sit on the bed, calm down, and be quiet. He sat down with them, still
holding the knife. When Keand’e loosened his grip on the knife, Marilyn grabbed
it and tossed it under the bed.
When the police arrived, Marilyn and Wells fled downstairs. Police and a
K-9 dog found Keand’e hiding under Marilyn’s bed. Wells later discovered that
Keand’e had nicked her several times with his knife when he waved it at her.
The State charged Keand’e with several domestic violence crimes: one
count of first degree burglary, two counts of second degree assault, two counts of
felony VNCO, and one count of third degree malicious mischief. Following a bench
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trial, Keand’e was acquitted of one count of second degree assault and convicted
on all other counts.
Because of Keand’e’s extensive criminal history and aggravating factors
found by the court, it imposed an exceptional sentence of 130 months for burglary,
70 months for assault, 60 months for both felony VNCO convictions, and 364 days
for malicious mischief. The trial court also imposed terms of community custody—
18 months each for the burglary and assault and 12 months for each of the felony
VNCO convictions. Keand’e appeals.
ANALYSIS
Keand’e, through counsel, challenges three issues on appeal: (1) whether
his convictions of two counts of felony VNCO violate double jeopardy, (2) whether
his 12-month community custody term for the VNCO crimes exceeds the time
allowed by statute, and (3) whether, in light of Keand’e’s mental health, the trial
court erred by not waiving discretionary LFOs. The State concedes error as to the
first two issues and has no objection to a remand for the trial court to consider the
third. We conclude the concessions are well-founded and agree a remand is
appropriate for reconsideration of LFOs.
First, the two felony VNCO convictions arise out of the same “unit of
prosecution,” and both cannot stand. The Fifth Amendment to the United States
Constitution and article I, section 9 of the Washington State Constitution provide
protections against double jeopardy. State v. Brown, 159 Wn. App. 1, 9, 248 P.3d
518 (2010). These double jeopardy clauses prohibit the State from punishing an
offender multiple times for the same offense. State v. Linton, 156 Wn.2d 777, 783,
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132 P.3d 127 (2006). Claims of double jeopardy are questions of law that we
review de novo. State v. Hughes, 166 Wn.2d 675, 681 212 P.3d 558 (2009).
Under the “unit of prosecution” test, double jeopardy precludes multiple
convictions for committing just one “unit” of the crime. State v. Adel, 136 Wn.2d
629, 634, 965 P.2d 1072 (1998). In Brown, this court held that RCW 26.50.110
punishes each separate contact with a protected party as a separate violation of a
no-contact order. 159 Wn. App. at 10-11 (each phone call occurring on
consecutive days constituted distinct violations of the protection order); see also
State v. Allen, 150 Wn. App. 300, 307, 207 P.3d 483 (2009) (same regarding
email).
However, a unit of prosecution may be either a single act or a course of
conduct. See State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005). For
example, this court identified contacts with a protected person over the course of
a single incident to be just such a course of conduct. State v. Spencer, 128 Wn.
App. 132, 137-38, 114 P.3d 1222 (2005).
In count 4, the State charged Keand’e with a violation of Marilyn’s no
contact order by entering her home on October 5, 2014, in violation of RCW
26.50.110(5). In count 5, the State charged Keand’e with a violation of the no
contact order by assaulting Marilyn in violation of RCW 26.50.110(4). The State
concedes that Keand’e’s actions were a single course of conduct and thus
constitute only a single VNCO, and not two. We agree, and one of these two felony
VNCO convictions must be vacated.
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Second, the State concedes the trial court erred in imposing community
custody for the VNCO conviction. Under RCW 9.94A.701(9), a sentence of
confinement and community custody cannot exceed the statutory maximum term
for the crime. Keand’e’s conviction for violating the no-contact order is a Class C
felony. RCW 26.50.110(4)-(5). Class C felonies are punishable by a maximum
term of 60 months. RCW 9A.20.021(1)(c). The trial court sentenced Keande to
60 months of total confinement, plus 12 months of community custody. This it
cannot do under RCW 9.94A.701(9). We remand for the trial court to strike the
community custody term for Keand’e’s remaining felony VNCO conviction.
Lastly, Keand’e argues the trial court erred by not waiving his LFOs based
on his mental health condition. RCW 9.94A.777 provides that before imposing any
discretionary LFOs, a trial court must determine whether a defendant who suffers
from a mental health condition has the means to pay them. Our Supreme Court
held “that a trial court has a statutory obligation to make an individualized inquiry
into a defendant’s current and future ability to pay before the court imposes LFOs.”
State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015). And the Court of
Appeals held that Blazina extends to a defendant who suffers from a mental health
condition under RCW 9.94A.777. State v. Tedder, 194 Wn. App. 753, 756-57, 378
P.3d 246 (2016). On remand, the trial court should consider whether Keand’e
suffers from a mental health condition, and if so, whether he has the ability to pay
discretionary LFOs. See Jç~ at 757.
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Keand’e raises a myriad of issues in his SAG under RAP 10.10, only three
of which merit consideration here3—(1) whether the trial court erred by refusing to
let him plead guilty, (2) whether the trial court erred by denying his request to
represent himself on the day of trial, and (3) whether sufficient evidence supports
his conviction for burglary.4
First, Keand’e argues the trial court erred by refusing to allow him to plead
guilty. “The court shall not accept a plea of guilty, without first determining that it
is made voluntarily, competently and with an understanding of the nature of the
charge and the consequences of the plea.” CrR 4.2(d); see also State v. Mendoza,
157 Wn.2d 582, 587, 141 P.3d 49 (2006) (guilty plea must be knowing, voluntary,
and intelligent). A trial court’s refusal to accept a guilty plea is within its sound
discretion. United States v. Crosby, 739 F.2d 1542, 1544 (11th Cir. 1984). We
will not disturb the ruling on appeal, unless the refusal is without justification and
thus an abuse of discretion. k1.
The trial court did not abuse its discretion in finding that Keand’e’s decision
to enter pleas of guilty was neither knowing nor intelligent. Keand’e insisted that
he had “stipulated to the facts” so there was no need to have a trial. Keand’e
appeared convinced that if he pleaded guilty, he could merely pay a fine and be
released from custody. The trial court correctly determined that Keand’e
misunderstood the sentencing statutes.
Keand’e focuses on the language of RCW 9A.20.021, which sets out the
maximum sentences for crimes—both for confinement and for monetary fines.
~ We conclude the other issues Keand’e raises in his SAG lack merit. ‘~Keand’e also filed several prose motions related to his SAG, RAP 17.1, which we deny.
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Keand’e claims that the ‘or” in ROW 9A.20.021 allows the trial court to punish him
by confinement or by fine, and factoring in the rule of lenity requires that the
interpretation most favorable to him—being punished solely with a fine—be
adopted.
Keand’e, however, ignores the sentencing ranges set out in the Sentencing
Reform Act of 1981 (SRA), chapter 9.94A ROW. Unless a statutory exception
applies or a standard range sentence has not been established, trial courts shall
impose sentences within the standard range. ROW 9.94A.505(1)-(2)(a)(i). For
Keand’e, with his extensive criminal history and extraordinarily high offender score,
the SRA mandates he serve some time in confinement. RCW 9.94A.530; ROW
9.94A.510. Keand’e’s inability, or refusal, to understand this concept showed that
he did not understand the consequences of the plea, rendering his guilty plea
unknowing and unintelligent—no matter how voluntary it may have been.
Therefore, the trial court did not err in refusing to accept his plea.
Next, Keand’e contends the trial court erred by denying his request to
represent himself. Keand’e’s right to represent himself is protected by the Sixth
Amendment of the United States Constitution and article I, section 22 of the
Washington State Constitution. Faretta v. California, 422 U.S. 806, 819-21, 95S.
Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Madsen, 168 Wn.2d 496, 500, 229 P.3d
714 (2010). When a defendant who has been found competent to stand trial seeks
waiver of counsel, the waiver of counsel must be voluntary, knowing, and
intelligent. In re Rhome, 172 Wn.2d 654, 667, 260 P.3d 874 (2011). In determining
whether a waiver of counsel is knowing and intelligent, the trial court may consider
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a defendant’s mental health history and status when competency has been
questioned, even where the defendant has been found competent to stand trial.
Id.
The trial court’s decision to grant or deny a defendant’s request to represent
himself is reviewed for abuse of discretion. State v. Curry, 191 Wn.2d 475, 483,
423 P.3d 179 (2018). A trial court abuses its discretion only if its decision is
manifestly unreasonable, rests on facts unsupported in the record, or was reached
by applying the wrong legal standard. ~ at 483-84. We give great deference to
the trial court’s determination. ~ at 484. Even if we disagree with the trial court’s
ultimate decision, we do not reverse that decision unless it falls outside the range
of acceptable choices because it was reached by applying the wrong legal
standard, it rests on facts unsupported by the record, or it is manifestly
unreasonable. ki. Moreover, self-representation determinations must be made on
a case-by-case basis, taking into consideration the circumstances of each request.
Id. at 490.
We conclude the trial court did not abuse its discretion when it denied
Keand’e’s request to represent himself at trial. Keand’e first moved to represent
himself on June 4, 2015. The trial court granted this motion in an oral ruling. On
June 24, 2015, the trial court held a hearing to address objections Keand’e had to
the written order documenting the ruling. During the hearing, the trial court
struggled to control Keand’e and considered appointing standby counsel for him
over his objection. Keand’e continued to interrupt the trial court and to object to
everything the court said. The trial court had to suspend the hearing and could not
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proceed to arraign Keand’e on the third amended information because of his
disruptive behavior. Before recessing, the trial court agreed not to appoint standby
counsel.
The next day, the Whatcom County Sheriff’s Office sent a memo to the trial
court, expressing “serious concerns” over whether the Sheriff’s Office could
accommodate Keand’e’s self-representation. The Chief indicated Keand’e was
unable to follow the rules of the court system and his misunderstanding about
these rules was interfering with his ability to adequately represent himself.
Specifically, the Sheriff’s Office notified the court that Keand’e asserted he was not
Keand’e and had refused to identify himself to deputies, claiming his name was
“private property.” The Chief also expressed concern, confirmed by Corrections
Mental Health Staff, that Keand’e “may have some underlying behavioral health
issues that are hindering his abilities to make reasonable decisions and
understand how to utilize the processes of our criminal justice system to move his
case forward.”
The trial court set a hearing for July 1, 2015, to reassess Keand’e’s ability
to represent himself given his disruptive behavior during the earlier hearing, but
Keand’e declined to attend the hearing. The trial court found good cause to
reverse its decision to allow Keand’e to represent himself, and reappointed
Keand’e’s former attorney to represent Keand’e. The trial court ordered a
competency evaluation of Keand’e. In fact, twice in less than six months, the trial
court entered orders staying the proceedings and ordering mental health
evaluations for Keand’e. Doctors at Western State Hospital were only successful
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in observing Keand’e from afar, as he would not cooperate with the evaluations.
Doctors, including a private physician retained by Keand’e’s public defender, found
Keand’e competent to stand trial.
On the first day of trial, September 6, 2016, Keand’e claimed he had waived
his right to counsel. The trial court indicated it had found he was not capable of
proceeding without counsel and did not reconsider this decision. Keand’e’s
demeanor then became even more combative, and he eventually proclaimed he
was “done with this” and told the trial court that it was not proceeding without him,
even though he was voluntarily absenting himself from the courtroom.
The trial court’s decision to reappoint counsel for Keand’e and its refusal to
allow him to represent himself during trial was not manifestly unreasonable. First,
the record amply reveals that Keand’e’s mental health condition interfered with his
ability to represent himself.
Second, the “right of self-representation is not a license to abuse the dignity
of the courtroom. Neither is it a license not to comply with relevant rules of
procedural and substantive law.” Faretta, 422 U.S. at 834 n.46. The trial judge
may “terminate self-representation by a defendant who deliberately engages in
serious and obstructionist misconduct.” ~l.; see also Madsen, 168 Wn.2d at 509
(“A court may deny pro se status if the defendant is trying to postpone the
administration of justice.”); accord United States v. Weast, 811 F.3d 743, 748 (5th
Cir. 2016) (upholding trial court’s refusal to allow defendant to represent himself
due to “obstreperous conduct,” including refusing to answer basic questions, such
as his name, and “interrupt[ing] the court ad nauseam”), cert. denied, 137 S. Ct.
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126, 196 L. Ed. 2d 99 (2016). In 2015, when the trial court reversed the decision
to allow Keand’e to represent himself, it did so only after Keand’e engaged in
persistent disruptive behavior during legal proceedings he attended and refused
to attend other proceedings. Keand’e refused to accept the trial court’s clear
directions regarding how to conduct himself in the courtroom or its clear summary
of applicable law and rules of procedure. For these reasons, the trial court did not
abuse its discretion in refusing to allow Keand’e to represent himself before or
during trial.
Lastly, Keand’e maintains insufficient evidence supports his conviction for
burglary, arguing he did not enter his mother’s home with the intent to commit any
crime. “The standard of review for a challenge to the sufficiency of the evidence
is whether, viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)
(internal quotation marks omitted). Keand’e was convicted of burglary in the first
degree, domestic violence. A person is guilty of burglary in the first degree:
if, with the intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor. (a) is armed with a deadly weapon or (b) assaults any .
person.
RCW 9A.52.020(1).
There was substantial evidence at trial from which a rational fact-finder
could conclude that Keand’e entered or remained in his mother’s home unlawfully
with the intent to assault Wells or his mother. He was overheard rummaging in the
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silverware drawer in the kitchen before he climbed the stairs and was seen holding
a knife. A rational fact-finder could conclude he formed the intent to commit assault
by intentionally seeking out a weapon. The evidence also supports a finding that
the knife was large enough to constitute a deadly weapon. Finally, Wells’s
testimony supports a finding that Keand’e assaulted her and his mother while
present inside his mother’s home. For these reasons, we conclude there was
sufficient evidence to support the burglary conviction.
We remand to the trial court to vacate one of the two felony VNCO
convictions, to strike the 12-month community custody term on the remaining
VNCO conviction, and to consider whether Keand’e has a mental health condition
sufficient to require a waiver of discretionary LFOs under RCW 9.94A.777.
Otherwise, we affirm Keand’e’s remaining convictions.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
WE CONCUR:
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