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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 82708-1-I v. PUBLISHED OPINION TAN CHI PHAN,
Appellant.
DWYER, J. — The Sixth Amendment to the United States Constitution
provides criminal defendants with two opposing yet fundamental rights: the right
to be represented by counsel and the right to represent oneself. Once the trial
court has found that a defendant has knowingly, intelligently, and voluntarily
waived his right to counsel and elected to represent himself, it is not the trial
court’s function to second-guess the defendant’s decision. Neither is it the
court’s role to later talk the defendant out of it. However unwise a defendant’s
decision, the constitution respects the defendant’s right to make it.
In the trial court, Tan Phan elected to waive his right to counsel and
represent himself in defending against the criminal charges the State brought
against him. On appeal, however, Phan asserts that the trial court later erred
when it did not sua sponte conduct a second inquiry into his desire to represent
himself either after the State amended the information to add a second charge or
when Phan’s mental health allegedly deteriorated. We hold that, on the facts of For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/2
this case, the trial court had no obligation to conduct a second colloquy, and
Phan’s waiver of counsel remained valid until he requested an attorney prior to
sentencing. Accordingly, we affirm Phan’s convictions.
I
On June 15, 2020, Tan Phan went to the home of Jerry and Linda Berger,
broke multiple windows, threatened the Bergers by brandishing a knife through a
broken window, and crashed his car into the side of their home. The State
charged Phan with attempted burglary in the first degree for the act of ramming
his vehicle into the home.
Early in the proceedings, Phan expressed the desire to represent himself.
On August 18, 2020, Judge Patrick Oishi conducted a colloquy with Phan to
ensure that he understood the rights he was surrendering and the risks of
proceeding pro se. Prior to the hearing, Phan’s appointed counsel reviewed the
waiver of counsel form with Phan, with the assistance of a Vietnamese
interpreter.
Judge Oishi explained to Phan that the maximum penalty for attempted
burglary in the first degree was 10 years in prison and a $20,000 fine. The trial
court also explained that attempted burglary in the first degree was a strike
offense.1 Phan stated that he understood. The trial court then asked Phan
which court rules would apply to the case. When Phan indicated that he did not
understand the question, the trial court emphasized that Phan would be held to
1 A “strike offense” is an offense that qualifies as a “most serious offense” under RCW
9.94A.030(32). An individual convicted of three or more “most serious offenses” may be sentenced as a persistent offender to life in prison without the possibility of parole. RCW 9.94A.030(37), .570.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/3
the same standard as an attorney and at trial would need to know the applicable
rules and laws. Phan then asked for standby counsel. Judge Oishi informed
Phan that there was no constitutional entitlement to standby counsel and that no
such attorney would be appointed in the case. The trial court then informed
Phan that he had the right to represent himself but
I think this is a terrible idea. It’s a terrible idea, because I know you think you’re smart and it sounds like you have done some studies that might be helpful to you, but you’re going to be held to such a high standard you’re going to be completely on your own. That’s why I think this is a bad idea.
Phan responded, “Your Honor, I hear your concern and I know you have
empathy and sympathy for me.” The trial court stated that empathy and
sympathy had nothing to do with his warnings; “I just have been around long
enough to know that this almost never works out well.” Phan indicated, “I
understand my consequence, Your Honor. And I would like to proceed as a pro
se also.” Satisfied that Phan was knowingly, intelligently, and voluntarily
surrendering his right to counsel and that Phan understood the charge against
him and the possible consequences of his waiver, the trial court granted his
request. Phan also waived his right to a jury trial and opted to proceed to a
bench trial.2
Trial was conducted before Judge Catherine Shaffer from October 12 to
October 14, 2020. On October 8, 2020, prior to trial, the trial court conducted a
CrR 3.5 hearing, requested by Phan in an attempt to exclude statements he had
2 In this appeal, Phan assigns no error to the trial court’s decision to accept Phan’s
waiver of his right to a trial by jury.
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made to law enforcement. Shortly before the hearing, the State moved to amend
the information to add a charge of burglary in the first degree with a deadly
weapon enhancement, based on Phan’s act of threatening the Bergers with a
knife through the broken window. Phan stated that he had no objection to the
motion, waived a reading of the information on the record, and entered a plea of
not guilty to the new charge.
Phan then filed a bill of particulars, asking the State to clarify the basis for
its charges, particularly by stating what it alleged to be the “crime against a
person or property” that Phan intended to commit when entering the Berger
home.3 The State informed Phan on the record that it was alleging that Phan
intended to commit assault against someone in the house and that he intended
to cause significant property damage.
Phan’s defense to both charges was that he lacked the ability to form the
requisite intent due to his mental health problems. After hearing the testimony of
multiple witnesses, the trial court convicted Phan on both charges. It then
entered its decision pursuant CrR 6.1(d), along with findings of fact and
conclusions of law supporting the convictions.
Phan then moved to have an attorney appointed to represent him at
sentencing. The trial court granted his request. At sentencing, Phan, through his
attorney, requested an exceptional downward sentence of 24 months of
incarceration on the basis of Phan’s mental health difficulties both prior to and
3 “A person is guilty of burglary in the first degree if, with 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 or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.” RCW 9A.52.020(1).
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/5
after the incident, his failed mental health defense, youthfulness, and the COVID-
19 pandemic. The trial court rejected Phan’s request and sentenced him to 30
months on count one and 25 months on count two, to be served concurrently,
plus a mandatory consecutive 24 months for the deadly weapon enhancement,
for a total of 54 months of incarceration.
II
Phan asserts that the trial court erred by not sua sponte conducting a
colloquy with him on his desire to continue representing himself when the State
amended the information to add a charge of burglary in the first degree with a
deadly weapon enhancement. This is so, Phan asserts, because the new charge
and enhancement significantly increased the maximum possible penalty, and the
constitution requires that the court conduct another colloquy when there is a
significant change in circumstances. We disagree.
A
We review a trial court’s decision on a defendant’s request to proceed pro
se for abuse of discretion. State v. Burns, 193 Wn.2d 190, 202, 438 P.3d 1183
(2019). A trial court abuses its discretion if its decision is manifestly
unreasonable, unsupported by the record, or based on an incorrect legal
standard. Burns, 193 Wn.2d at 202. We apply a correlating standard of review
to this odd situation—reviewing the trial court’s decision to do nothing to cause a
lawfully pro se defendant to change his mind.
The United States and Washington Constitutions provide criminal
defendants with the right to counsel, as well as the right to represent themselves
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at trial. U.S. CONST. amend. VI, XIV; W ASH. CONST. art. 1, § 22; Faretta v.
California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v.
Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995). The right to self-
representation is “so fundamental that it is afforded despite its potentially
detrimental impact on both the defendant and the administration of justice.”
State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).
However, this right is neither absolute nor self-executing. Madsen, 168
Wn.2d at 504. A defendant wishing to invoke his right to self-representation must
make an affirmative, unequivocal demand to waive counsel and proceed pro se.
Luvene, 127 Wn.2d at 698. A trial court may deny the request only if the request
is equivocal, untimely, involuntary, or made without a general understanding of
the consequences. Burns, 193 Wn.2d at 202-03; Madsen, 168 Wn.2d at 505.
For the trial court to properly accept a waiver of counsel, the record should
establish that “‘[the defendant] knows what he is doing and his choice is made
with eyes open.’” State v. Hahn, 106 Wn.2d 885, 889, 726 P.2d 25 (1986)
(quoting Faretta, 422 U.S. at 835).
Our Supreme Court has “strongly recommend[ed]” that the trial court
conduct a colloquy on the record to assure that a defendant understands the
risks of self-representation. City of Bellevue v. Acrey, 103 Wn.2d 203, 211, 691
P.2d 957 (1984). “This colloquy should include a discussion about the
seriousness of the charge, the possible maximum penalty involved, and the
existence of technical procedural rules governing the presentation of the
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accused’s defense.” State v. Modica, 136 Wn. App. 434, 441, 149 P.3d 446
(2006), aff’d, 164 Wn.2d 83, 186 P.3d 1062 (2008).
B
Phan first argues that his initial waiver of counsel was invalid because the
trial court did not advise him of the maximum potential penalty for burglary in the
first degree. But Phan was not charged with burglary in the first degree at the
time of his waiver of counsel. A waiver of counsel is valid if the defendant
“accurately understands the penalty he or she faces at the time the waiver is
made.” Modica, 136 Wn. App. at 445. Phan cites no authority for the proposition
that a trial court must advise the defendant about the consequences of a crime
for which the defendant has not been charged. Were this the standard
there could never be a competent waiver of the assistance of counsel inasmuch as few, if any, judges, and perhaps not even lawyers, could deliver an impromptu dissertation in every case covering all possible included offenses, the range of allowable punishments, all possible defenses to the charges and circumstances in mitigation thereof.
Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969). We agree. Phan’s
argument is without merit.
C
Phan next contends that his initial waiver of counsel became invalid when
the State added a new charge and the trial court erred by not sua sponte
conducting a second colloquy. We disagree.
When a defendant makes a demand to represent himself, trial courts are
required to give “‘every reasonable presumption’” against the defendant’s waiver
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of the right to counsel. Madsen, 168 Wn.2d at 504 (internal quotation marks
omitted) (quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)).
While conducting its colloquy, the trial court may use all reasonable means to
dissuade the defendant from surrendering his right to counsel. But once a trial
court has found that the defendant has made a valid waiver of the right to
counsel, the stated presumption disappears and trial judges should not attempt
to impose their will upon a defendant who is exercising a constitutional right.
The United States Supreme Court explained why this is so in Faretta. As
the Supreme Court noted, the rights afforded in the Sixth Amendment, such as
the right to confront witnesses and the right to compulsory process, are personal
to the defendant, not to the defense attorney. Faretta, 422 U.S. at 819. The right
to represent oneself was not only implicit in the language of the Sixth
Amendment, but was well accepted as a matter of historical practice. Faretta,
422 U.S. at 822-32. For over 200 years, common law courts had accepted the
“nearly universal conviction . . . that forcing a lawyer upon an unwilling defendant
is contrary to his basic right to defend himself if he truly wants to do so.” Faretta,
422 U.S. at 817. Given this historic practice, there was no doubt in the Justices’
minds that the Sixth Amendment was enacted to respect the defendant’s free
choice. In the Court’s words, “although he may conduct his own defense
ultimately to his own detriment, his choice must be honored out of ‘that respect
for the individual which is the lifeblood of the law.’” Faretta, 422 U.S. at 834
(emphasis added) (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S. Ct. 1057,
25 L. Ed. 2d 353 (1970) (Brennan, J., concurring)).
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When a trial court sua sponte induces a pro se defendant to engage in a
second colloquy, the purpose of which is to get the pro se defendant to second-
guess the defendant’s original unequivocal decision to waive counsel, the
defendant’s choice is not “be[ing] honored.” See Faretta, 422 U.S. at 834.
Given the respect the law affords to a defendant’s decision, lower federal
courts have held that “only a substantial change in circumstances will require the
[trial] court to inquire whether the defendant wishes to revoke his earlier waiver.”
United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989); accord United States
v. McBride, 362 F.3d 360, 367 (6th Cir. 2004); United States v. Hantzis, 625 F.3d
575, 582 (9th Cir. 2010). We adopted this approach in Modica. There, the
defendant asserted, as Phan does here, that the trial court was required sua
sponte to conduct a second colloquy after the State added a charge of witness
tampering. Modica, 136 Wn. App. at 444-45. We noted that “it is not ordinarily
incumbent upon a trial court to intervene at a later stage of the proceeding to
inquire about a party’s continuing desire to proceed pro se.” Modica, 136 Wn.
App. at 445. Rather, the rule adopted is that a valid waiver of the right to
counsel generally continues throughout the proceedings, unless the waiver was
limited to a particular stage of the proceedings or there has been a substantial
change in circumstances. Modica, 136 Wn. App. at 445. When applying this rule
to Modica’s case, we held that the mere addition of a new charge did not amount
to a substantial change in circumstances. Modica, 136 Wn. App. at 446.
Phan attempts to distinguish Modica on the basis that the new charge
against Modica was a lesser offense that would not have increased the maximum
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/10
possible penalty, whereas here the new charge was a greater offense with a
deadly weapon enhancement that did increase the possible maximum penalty.
While initially having some appeal, upon scrutiny it is clear that the requirement
adopted in Modica is not so easily satisfied. Indeed, case law indicates that the
mere addition of a new charge, particularly when that charge is based on the
same set of facts alleged in the initial information, does not sufficiently alter the
defendant’s general understanding of the consequences of his decision to
represent himself so as to require the trial court to sua sponte intervene and once
again call into question the pro se defendant’s constitutionally protected decision
to employ self-representation.
Corresponding federal case law demonstrates that this is so. For
instance, in Arellanes v. United States, 302 F.2d 603, 610 (9th Cir. 1962), the
defendant argued that the court should have conducted an additional colloquy
when the district attorney filed an information charging the defendant as a repeat
offender, as the new allegation increased the maximum possible penalty. The
Ninth Circuit held that this event did not require intervention by the trial court.
Arellanes, 302 F.2d at 610. To the contrary, the circuit court stated that “it would
constitute an excessive burden to require the trial court to intervene at each
potentially separable stage of trial to conduct an inquiry respecting a party’s
continuing wishes with respect to counsel, when, as here, appellant’s continuing
state of mind respecting his original waiver is clear.” Arellanes, 302 F.2d at 610
(citation omitted). The court noted that this was not a situation in which the new
information “gives rise to a full-scale trial of complex issues.” Arellanes, 302 F.2d
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at 610. Rather, the only issue was whether the defendant was the same person
named as having the cited prior convictions, “a fact peculiarly within the
knowledge of defendant.” Arellanes, 302 F.2d at 611.
A more recent decision from the same court confirmed that this remains
the prevailing view. In analyzing a habeas petition, the circuit court rejected the
defendant’s contention that the trial court’s failure to advise him of the maximum
possible penalty, when the State requested posttrial to have the defendant
sentenced as a habitual offender, constituted a violation of clearly established
law. Arrendondo v. Neven, 763 F.3d 1122, 1136 (9th Cir. 2014). As the Ninth
Circuit noted, at the time that the defendant waived his right to counsel, he had
not been charged as a habitual offender. Arrendondo, 763 F.3d at 1133. The
court held that “[c]learly established Supreme Court law does not require a
defendant waiving his right to counsel to understand the potential application of
recidivist sentencing enhancements that had not yet been charged, and were not
required to have been charged, at the time of the waiver.” Arrendondo, 763 F.3d
at 1133.
For his part, Phan directs us to Jensen v. Hernandez, 864 F. Supp. 2d 869
(E.D. Cal. 2012), in which a federal trial court granted a habeas petition filed by a
defendant who was subject to an amended information alleging a sentencing
enhancement. After receiving a written concession from the California Attorney
General’s Office, the district court accepted the concession and ruled that the
addition of the sentencing enhancement to the information constituted a
substantial change in circumstances necessitating a second colloquy confirming
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the defendant’s desire to continue to represent himself, and that the state court’s
failure to do so entitled the defendant to habeas relief. Jensen, 864 F.Supp.2d at
900.
For several reasons, we are not persuaded by Jensen. First, one month
thereafter, the Ninth Circuit (in which the Jensen trial court is located), filed an
unpublished opinion in which it rejected an identical ruling reached by a judge of
the Southern District of California. See Becker v. Martel, 472 Fed. Appx. 823,
824 (9th Cir. 2012). Because the State conceded error in Jensen, similar
appellate review of the district court decision was not available. Second, unlike
in Jensen, the State here has not conceded that a substantial change in
circumstances took place that would have necessitated a second colloquy. And
third, the Jensen decision was filed two years before the Ninth Circuit’s contrary
decision in Arrendondo. For all of these reasons, we do not find Jensen to be an
authoritative decision.
Phan also points us to State v. Rhoads, 813 N.W.2d 880 (Minn. 2012). In
that case, the Minnesota Supreme Court held that when the State doubles the
maximum possible punishment by filing new charges, a prior waiver of counsel is
no longer valid.4 Rhoads, 813 N.W.2d at 889-90. But Rhoads adopted the
reasoning of the Southern District of California’s ruling in Becker v. Martel, 789 F.
Supp. 2d 1235 (S.D. Cal. 2011), which, as previously noted, was subsequently
overturned by the Ninth Circuit. Becker, 472 Fed. Appx. at 824. Because it rests
4 In Rhoads, the defendant was initially charged with second degree burglary. The State of Minnesota later added a charge of first degree burglary. 813 N.W.2d at 883.
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on such a shaky foundation, we decline to adopt Minnesota’s jurisprudential
approach to this issue.
D
We also decline to adopt a bright line rule as to that which constitutes
such a substantial change in circumstances that a second colloquy into the
defendant’s continued desire for self-representation is required. This is so
because the facts of this case do not require us to do so.
The record of the proceedings below demonstrates that Phan’s continuing
state of mind respecting his original waiver of counsel remained clear: he wished
to represent himself at trial.
At the hearing during which Phan initially waived his right to counsel, Phan
did not state that his waiver was conditioned on his understanding that the
maximum possible penalty that he faced would never be greater than 10 years
imprisonment. Indeed, Phan said nothing about the maximum possible penalty
other than that he understood what it was. The penalty Phan faced appears from
the record to have had no impact on his decision to validly waive his right to
counsel. Phan’s statements during the colloquy do indicate, however, that his
decision to waive his right to counsel was influenced by his experience
representing himself in court in Vietnam and his understanding of the elements of
the charge against him.
When the State moved to amend the information, the charge it sought to
add was one count of burglary in the first degree with a deadly weapon
enhancement. This charge was based on the same set of facts that it had
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already alleged in the initial complaint. The legal elements of both charges were
virtually the same. Nothing in the amended information changed the nature of
Phan’s defense. Phan’s defense to both charges was that he lacked the
requisite capacity to form the necessary intent to commit a crime against a
person in the house. This remained his defense throughout the case.
Had Phan believed that amendment of the information caused him unfair
surprise, he had a remedy in requesting a continuance. State v. Alvarado, 73
Wn. App. 874, 878, 871 P.2d 663 (1994). Not only did Phan not request a
continuance, he stated that he had no objection to the State’s motion to amend.
The trial court offered to read the amended information into the record, but Phan
stated that he did not wish the court to do so. Instead, Phan sought clarification
of both the original charge and new charge by filing a written bill of particulars,
which was immediately addressed on the record. At no time during this hearing
did Phan indicate that the danger of increased penalties caused him to question
the wisdom of continuing pro se.
Phan’s behavior during the trial similarly reflects his continued desire to
represent himself. Phan conducted cross-examination of all witnesses, made
objections based on the evidence rules, and gave his own closing argument that
focused on the legal elements of the charges. At no point did Phan express that
he would like to have an attorney reappointed to take over his defense.
Moreover, after he was found guilty, Phan requested reappointment of an
attorney to represent him at sentencing. Thus, it is clear both that—all along—
Phan knew how to make such a request and also knew that—at all times—he
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had the ability to pose such a request to the court. It is clear, however, that—in
Phan’s mind—only after being convicted did the circumstances change
significantly enough for him to change his mind as to the wisdom of his pro se
status.
The record thus indicates that Phan was intent on representing himself
and that the addition of new charges did not affect his decision. The trial court
was not required to conduct a second colloquy sua sponte when Phan had
already made his decision clear. Moreover, the trial court was duty bound to
honor Phan’s decision and wisely chose not to engage in an inquiry that was not
necessary but might serve to overcome Phan’s free will. There was no error.
III
Phan further asserts that the trial court erred by not inquiring into his
mental competency to represent himself while the trial was ongoing. The State
contends that Phan showed no signs of mental incompetency during trial and the
trial court therefore had no duty to inquire about his ability to represent himself.
Although the parties focus on the factual dispute of Phan’s mental state, we
resolve this issue on a purely legal basis.
At the outset, we note that Phan does not argue that he was ever
incompetent to stand trial. Although often conflated under an umbrella of
“competency,” the distinction between competency to stand trial and competency
to represent oneself is important, as the legal standards governing each are
vastly different.
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A “‘mentally incompetent defendant, though physically present in the
courtroom, is in reality afforded no opportunity to defend himself,’” and,
accordingly, cannot be forced to undergo trial. Drope v. Missouri, 420 U.S. 162,
171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (quoting Caleb Foote, A Comment on
Pre-Trial Commitment of Criminal Defendants, 108 U. PA. L. REV. 832, 834
(1960)). The test for incompetency to stand trial asks whether the defendant
“lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his defense.”
Drope, 420 U.S. at 171; accord Dusky v. United States, 362 U.S. 402, 402, 80 S.
Ct. 788, 4 L. Ed. 2d 824 (1960). Washington imposes an ongoing obligation on
the trial court to order a competency hearing whenever there is reason to doubt
the defendant’s competency to stand trial. RCW 10.77.060(1)(a); State v.
McCarthy, 193 Wn.2d 792, 803, 446 P.3d 167 (2019).
However, these are not the standards that apply when, on appeal, for the
first time, a defendant asserts that despite being competent to stand trial, the
defendant was incompetent to defend pro se. As the United States Supreme
Court explained, the test for competency to stand trial asks whether the
defendant is able to “consult with counsel” and “‘assist [counsel] in preparing his
defense.’” Indiana v. Edwards, 554 U.S. 164, 170, 128 S. Ct. 2379, 171 L. Ed.
2d 345 (2008) (quoting Drope, 420 U.S. at 171). This standard “assume[s]
representation by counsel and emphasize[s] the importance of counsel.”
Edwards, 554 U.S. at 174. Given that this assumption is necessarily
unwarranted when a defendant elects self-representation, “an instance in which a
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defendant who would choose to forgo counsel at trial presents a very different set
of circumstances, which . . . calls for a different standard.” Edwards, 554 U.S. at
174-75.
In Edwards, the defendant was twice found incompetent to stand trial and
ordered to be committed to a mental hospital in an effort to regain competency.
554 U.S. at 167-68. Edwards’ condition improved during his periods of
commitment, and he was eventually deemed competent to stand trial. Edwards,
554 U.S. at 168-69. Then Edwards requested to represent himself. Edwards,
554 U.S. at 168-69. The trial court denied the request, finding that Edwards’
history of mental illness and periods of incompetency rendered him incompetent
to defend himself regardless of his current fitness to stand trial. Edwards, 554
U.S. at 169. On appeal, Edwards asserted that the denial of his request
amounted to a violation of his constitutional right to self-representation.
Edwards, 554 U.S. at 169.
The Supreme Court disagreed. The Court noted that, given the variant
presentations of mental illness, there may be some instances in which a
defendant “may well be able to satisfy Dusky’s mental competence standard [to
stand trial], for he will be able to work with counsel at trial, yet at the same time
he may be unable to carry out the basic tasks needed to present his own defense
without the help of counsel.” Edwards, 554 U.S. at 175-76. The Court ultimately
held:
[T]he Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally
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competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.
Edwards, 554 U.S. at 177-78.
Washington courts have subsequently clarified the application of Edwards
to cases in which the defendant’s request to waive his right to counsel and
proceed pro se is granted. In In re Pers. Restraint of Rhome, 172 Wn.2d 654,
664, 260 P.3d 874 (2011), a personal restraint petitioner cited the Edwards
decision when contending that the federal constitution required the trial court to
find him competent before permitting him to represent himself at trial. Our
Supreme Court declined to read Edwards as establishing any such requirement,
noting that “Edwards does not require trial courts to evaluate a defendant’s
mental health status in order to secure a valid waiver of counsel.” Rhome, 172
Wn.2d at 665. Our Supreme Court held that Edwards, along with earlier
Washington precedent, permitted a trial court to consider the defendant’s mental
health when assessing whether a request for self-representation is knowing,
intelligent, and voluntary, but that the trial court is not constitutionally required to
conduct an independent determination as to the defendant’s competency to
proceed pro se. Rhome, 172 Wn.2d at 665. The court held open the question of
whether Washington law requires “a more stringent waiver of counsel for a
defendant whose competency is questioned.” Rhome, 172 Wn.2d at 665.
In the aftermath of the Rhome decision, Division Three of our court was
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/19
asked by a defendant on appeal to decide the issue that the Supreme Court had
declined to address. That appellant urged the appellate court to hold that
“Washington law requires trial courts to consider a mentally ill defendant’s ability
to represent himself at trial before accepting a waiver of counsel.” State v.
Lawrence, 166 Wn. App. 378, 392, 271 P.3d 280 (2012) (emphasis added). The
appellate court refused to do so. Lawrence, 166 Wn. App. at 392.
The court cited several reasons for this refusal. The first reason cited by
the court was that requiring the trial court to inquire into a defendant’s mental
competency to represent himself would impose a duty inconsistent with the
results of earlier cases in which the Supreme Court had upheld a defendant’s
waiver of counsel even when the trial court had not inquired of the defendant’s
mental health in its colloquy.5 Lawrence, 166 Wn. App. at 392. The second
reason given was that the facts presented by Lawrence did not warrant
announcement of a new rule. Lawrence, 166 Wn. App. at 393. And the third
reason given was that any such rule would be difficult, if not impossible, to apply
in practice. Lawrence, 166 Wn. App. at 394. The appellate court noted that not
every case warrants an inquiry into the defendant’s mental health and it would be
difficult to craft a rule that applied to some defendants and not to others. The
court further noted that current precedent already allows the trial court discretion
to reject a defendant’s request for self-representation if mental illness hinders the
defendant’s ability to knowingly, voluntarily, and intelligently waive his right to
counsel. Lawrence, 166 Wn. App. at 395. Accordingly, the court held that
5 See, e.g., State v. Hahn, 106 Wn.2d 885, 893, 726 P.2d 25 (1986).
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/20
“[m]andating the use of that discretionary authority in some difficult-to-define
subset of these types of cases will only limit trial court discretion at a time when it
is most needed and will not provide for any meaningful review.” Lawrence, 166
Wn. App. at 395.
Our precedent demonstrates that the trial court had no duty to inquire into
Phan’s mental health when assessing the validity of his waiver of counsel. So
long as, after engaging in a colloquy, the trial court was satisfied that Phan’s
waiver of counsel is knowing, voluntary, and intelligent, it was not required to
inquire further. Similarly, the trial court had no duty to reassess the validity of
Phan’s waiver of counsel absent any indication that he was no longer competent
to stand trial. The record contains no indication that the trial court suspected that
Phan was incompetent to stand trial, and Phan neither asserts nor establishes
that he decompensated to any such degree. There was no error.
IV
Phan finally argues that the trial court erred by not imposing an
exceptional sentence downward due to his failed mental health defense. This
Sentences within the standard range are ordinarily not appealable. RCW
9.94A.585(1). A limited exception exists when the trial court refuses to exercise
its discretion or relies on an impermissible basis for refusing to impose a
downward exceptional sentence. State v. Schloredt, 97 Wn. App. 789, 801, 987
P.2d 647 (1999). “The court may impose a sentence outside the standard
sentence range for an offense if it finds, considering the purpose of this chapter,
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/21
that there are substantial and compelling reasons justifying an exceptional
sentence.” RCW 9.94A.535. The trial court may impose a downward
exceptional sentence if it finds by a preponderance of the evidence that
mitigating circumstances exist. RCW 9.94A.535(1). Additionally, when the
defendant asserts mental health as the basis for a downward exceptional
sentence, the record must establish that the condition significantly impaired the
defendant’s ability to appreciate the wrongfulness of the conduct or conform their
conduct to the law. RCW 9.94A.535(1)(e); accord Schloredt, 97 Wn. App. at
801-02.
Phan argues that the trial court abused its discretion by not granting his
request to impose an exceptional downward sentence. But abuse of discretion is
not the standard by which we review standard range sentences. Instead, Phan
must demonstrate that the trial court refused to exercise any discretion or utilized
an impermissible basis for denying an exceptional downward sentence. He
demonstrates neither. Phan does not identify any legally impermissible basis
upon which the trial court acted. Nor does he show that the trial court refused to
exercise its discretion.
To the contrary, the record indicates that the trial court did consider
Phan’s mental health when imposing sentence. In recounting the offense and its
effects, the trial court stated that Phan’s actions were “absolutely” fueled by
mental illness and delusion, but that “it wasn’t the kind of behavior that amounts
to either diminished capacity or insanity.” The trial court expressed some
concern that Phan may still possess an unhealthy obsession with the victims and
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82708-1-I/22
that this was concerning for their safety. The trial court also noted that, having
heard all of the evidence, “the state could have charged this more aggressively
than they did,” and Phan could have faced a much higher sentence.
Ultimately, the trial court found that Phan’s mental illness warranted a
lower sentence than it would otherwise have been inclined to impose, but did not
justify a sentence below the standard range. Because the trial court did not fail
to exercise its discretion and it did not impose a sentence on an unlawful basis,
Phan’s standard range sentence is not appealable.
Affirmed.
WE CONCUR: