State Of Washington v. Louis Nelford Mcgowen ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69048-5-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
LOUIS MILFORD MCGOWEN,
Appellant. FILED: October 13, 2014
Appelwick, J. — McGowen appeals his conviction and felony judgment and
sentence after being sentenced as a persistent offender. He argues that his due process
rights were violated when the trial court found him competent to stand trial without first
hearing testimony from his mental health evaluator. He contends that the trial courterred
by misinterpreting his motion to substitute counsel as a request to proceed pro se. He
claims he should not have been sentenced as a persistent offender, because one of the
prior convictions upon which the sentence was based is facially invalid. We affirm.
FACTS
The State charged Louis McGowen with three counts of second degree assault
and two counts of felony harassment for his actions against his girlfriend.
On December 2, 2010, defense counsel requested a competency evaluation for
McGowen expressing concern about his ability to rationally assist with his own defense.
Defense counsel described McGowen's manic and pressured speech, paranoia, lack of
eye contact, and his refusal to discuss the case beyond saying, '"I didn't do it.'" Further,
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McGowen refused to see a defense psychiatrist. Overall, defense counsel argued that
"there are major issues with his inability to work with us." Following the hearing, the trial
court entered an order for a pretrial competency evaluation.
On December 22, 2010, Dr. Gregg Gagliardi, a psychologist at Western State
Hospital, produced an abbreviated written report finding McGowen competent. On
February 14, 2011, the trial court stated that based on the report and counsel's
arguments, McGowen's refusal to participate was a result of willfulness, not
incompetency. The court found McGowen competent to stand trial.
At this point, defense counsel asked McGowen if he still wanted them to be his
lawyers. McGowen said no and maintained that, "God is my lawyer from now on. I don't
know no lawyer." The trial court interpreted this as a request to proceed pro se. The
court entered a written order denying McGowen's motion indicating that his attempted
waiver of counsel was not knowing, intelligent, and voluntary.
During pretrial motions and jury selection, McGowen refused to wear street clothes
or acknowledge the court, placed earplugs in his ears, faced the wall, and ignored his
attorneys. Further, McGowen burst into a tirade during jury selection. Following this
outburst, McGowen's lawyers asked that he be reevaluated for competency. The court
ordered a second competency evaluation. Dr. Gagliardi again entered a report indicating
that McGowen was competent to stand trial. The trial court considered Dr. Gagliardi's
report, jail cell calls in which McGowen sounded lucid, McGowen's behavior, and the
arguments. It then determined that McGowen was competent.
The jury found McGowen guilty of three counts of second degree assault, one
count of felony harassment, and one count of misdemeanor harassment. At sentencing,
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the State alleged McGowen was subject to the Persistent Offender Accountability Act
(POAA) of the Sentencing Reform Act of 1981, ch. 9.94A RCW, due to his two prior
robbery convictions. It requested a sentence of life in prison without the possibility of
release. McGowen challenged his 1993 King County robbery conviction, arguing that it
was constitutionally invalid on its face and could not serve as a predicate conviction for a
persistent offender sentence. The trial court found that McGowen was a persistent
offender and imposed a sentence of life in prison without the possibility of release.
McGowen appeals
DISCUSSION
I. Competency Determination
McGowen argues the trial court erred in finding him competent to stand trial without
observing the procedural safeguards mandated by due process and statute. Specifically,
he contends the trial court failed to hold a formal evidentiary hearing in which Dr.
Gagliardi, the psychologist who submitted a report finding McGowen competent, could be
examined.
The trial court's determination that an accused is competent to stand trial will not
be reversed absent a manifest abuse of discretion. State v. Crenshaw, 27 Wn. App. 326,
330,617 P.2d 1041 (1980), affd, 98 Wn.2d 789, 659 P.2d 488 (1983). This court normally
defers to the trial court's competency determination, because the trial court can personally
observe the individual's behavior and demeanor. ]d. At competency hearings in
Washington, all that due process requires is compliance with the mandates of chapter
10.77 RCW. State v. Colev. 180 Wn.2d 543, 558-59, 326 P.3d 702 (2014).
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When there is reason to doubt a defendant's competency, the trial court must
appoint experts and order a formal competency hearing. See RCW 10.77.060(1)(a);
State v. Marshall. 144 Wn.2d 266, 278, 27 P.3d 192 (2001) abrogated on other grounds
by State v. Sisouvanh. 175 Wn.2d 607, 290 P.3d 942 (2012). The expert conducting the
evaluation must provide his or her report and recommendation to the court in which the
criminal proceeding is pending. RCW 10.77.065(1 )(a)(i). Experts or professional persons
who have reported may be called as witnesses at any proceeding. See RCW 10.77.100
(emphasis added).
Here, the trial court properly followed the statutory procedures for determining
competency as outlined in chapter 10.77 RCW. The court ordered that McGowen
undergo a psychological evaluation and that the expert provide a written report. After
receiving the report by Dr. Gagliardi, the trial court held a hearing on McGowen's
competency. The court reviewed two separate competency evaluation reports made by
Dr. Gagliardi. The trial court noted that on both occasions Dr. Gagliardi found McGowen
competent to stand trial.
Moreover, the trial court considered additional evidence regarding his competency.
It listened to telephone calls made by McGowen from jail in which he showed that he had
the ability to communicate effectively with a friend. Further, the trial court had the ability
to observe McGowen's appearance and conduct in court proceedings. At the
competency hearing, the court heard argument from the parties. McGowen did not
attempt to call Dr. Gagliardi as a witness. He cites no authority for his claim that his due
process rights were violated by the absence of testimony from Dr. Gagliardi, testimony
which he had the power to obtain.
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The trial court afforded McGowen all ofthe necessary protections in chapter 10.77
RCW. Therefore, there was no violation of due process and the trial court did not abuse
its discretion in finding McGowen competent.
II. McGowen's Motion to Substitute Counsel
McGowen argues that the trial court erred in denying his request to discharge
counsel in violation of his Sixth Amendment right to counsel. He claims that the trial court
improperly treated this motion—which he characterizes as a motion to substitute new
counsel—as a request to proceed pro se and consequently applied the wrong legal
standard.
Where the decision or order of the trial court is a matter of discretion, it will not be
disturbed on review except on a clear showing of abuse of discretion. State v.
MacDonald. 138 Wn.2d 680, 696, 981 P.2d 443 (1999). This court reviews both a denial
of a motion to discharge counsel and a denial of a request to proceed pro se for abuse of
discretion. See State v. Stenson. 132 Wn.2d 668, 737, 940 P.2d 1239 (1997); State v.
Breedlove. 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
In determining whether to grant a motion to substitute counsel, the trial court must
consider the following factors: (1) the extent of the conflict between the attorney and
defendant, (2) the adequacy of the inquiry, and (3) the timeliness of the motion. In re
Pers. Restraint of Stenson. 142 Wn.2d 710, 724, 16 P.3d 1 (2001). In deciding whether
to grant a request to proceed pro se, the court will consider whether the request to waive
counsel is knowingly and intelligently made, unequivocal, and timely. Breedlove, 79 Wn.
App. at 106. The trial court relied on McGowen's statements in making its determination.
While the parties were in court, defense counsel asked McGowen if he still wanted his
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current defense counsel to represent him. McGowen responded by saying, "I don't know
no lawyer" and "God is my lawyer from now on." Defense counsel then characterized
McGowen's motion as a "pro se motion to discharge counsel." McGowen agreed with
that characterization. McGowen clarified his position later in the proceeding when he
stated, "I don't want these people representing me. God is my representative."
The trial court reasonably interpreted McGowen's statements as a request to
proceed pro se. First, McGowen never requested the appointment of a new lawyer or
made any indication that he wanted a new lawyer if the trial court were to discharge his
counsel at the time. Further, McGowen's statements indicate that he no longer wanted
his attorneys to represent him, and preferred God to represent him. God was not a viable
option for legal representation. The trial court did not abuse its discretion by
characterizing the request as a request to proceed pro se.
The trial court applied the proper legal standard in determining whether McGowen
made a knowing and intelligent decision to waive counsel and proceed pro se. During
McGowen's conversation with the judge, he said, "I don't know what I'm charged with."
Further, in response to the judge's question about whether he understood the maximum
penalty for his crimes, he replied, "No, I don't understand that either." In light of
McGowen's purported confusion, the trial court did not abuse its discretion by denying his
request to proceed pro se.
III. Persistent Offender
McGowen argues that his life sentence without possibility of release must be
vacated, because one of the prior convictions upon which his current sentence is based
is facially invalid.
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McGowen primarily bases his argument on the alleged invalidity of his 1993 King
County robbery sentence. Under the POAA, a defendant who commits a "most serious
offense" faces a mandatory life sentence without the possibility of parole if he has two
prior convictions for "most serious offenses." RCW 9.94A.030(32), (37)(a); RCW
9.94A.570. A defendant's criminal history consists of the defendant's "prior
convictions ... whether in this state, in federal court, or elsewhere." RCW 9.94A.030(11).
But, a prior conviction that is constitutionally invalid on its face may not be considered in
a sentencing proceeding. State v. Ammons. 105 Wn.2d 175, 187-88, 713 P.2d 719, 718
P.2d 796 (1986). A conviction is constitutionally invalid on its face if without further
elaboration it evidences infirmities of a constitutional magnitude, jd. at 188.
McGowen argues that the judgment and sentence for the 1993 robbery is invalid
on its face, because it reflects a miscalculation of the offender score and corresponding
standard range sentence. He claims this is so, because the trial court miscalculated his
1993 offender score by improperly including a previous Colorado robbery conviction.
McGowen contends that the Colorado robbery should not have been included, because
it is not comparable to a Washington robbery offense.1
But, in defining a persistent offender, it is the validity of the prior conviction that is
determinative of that status—not the validity of the sentence. See RCW
9.94A.030(37)(a)(ii). A "persistent offender" is one who has been convicted on at least
two prior occasions of a "most serious offense." jd. The act defines "conviction" as, "an
1 After McGowen was convicted of another robbery in Washington in 1997, this
court ruled that the Colorado robbery conviction was not comparable to a Washington
robbery for offender score calculation purposes. State v. McGowen. noted at 95 Wn.
App. 1072, 1999 WL36405, at *1. McGowen contends that this later ruling is evidence
that the Colorado robbery should not have been included in his 1993 offender score.
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adjudication of guilt... and includes a verdict of guilty, a finding of guilty, and acceptance
of a plea of guilty." RCW 9.94A.030(9). Therefore, even if McGowen were able to
demonstrate that his 1993 sentence was invalid because of an improperly calculated
offender score, he would still need to show evidence that the underlying robbery
conviction on its face evidences infirmities of a constitutional magnitude. See Ammons.
105Wn.2dat188.
McGowen does challenge the validity of the conviction itself by claiming that he
was misinformed of the standard sentencing range when he pleaded guilty. He contends
that this resulted in an involuntary and constitutionally infirm guilty plea. Due process
requires that a guilty plea be entered knowingly, intelligently, and voluntarily. State v.
Ross. 129 Wn.2d 279, 284, 916 P.2d 405 (1996).
A plea may be involuntary when it is based on a mutual mistake regarding the
offender score or standard sentencing range. In re Pers. Retraint of Codiga, 162 Wn.2d
912, 925, 175 P.3d 1082 (2008). McGowen relies on State v. Mendoza. 157 Wn.2d 582,
589, 141 P.3d 49 (2006), to support the proposition that his guilty plea was involuntary
and unconstitutional. In Mendoza, the court held that where a guilty plea is based on
misinformation regarding the direct consequences of the plea, the defendant may
withdraw the plea based on involuntariness. id. at 584. Mendoza's misunderstanding of
his sentencing consequences occurred because of an error in calculation out of his
control, jd. at 584-85. A prior conviction that was listed and counted as an adult felony
conviction should have been counted as a juvenile felony conviction, id.
No. 69048-5-1/9
Mendoza's offender score was miscalculated based on prior convictions that were
brought to the State's attention at the time of the offender score calculation, and Mendoza
relied on that error when making his guilty plea. Id This was not the case here.
When McGowen entered his guilty plea, he failed to disclose his earlier robbery
convictions, or any criminal history whatsoever. Where the defendant fails to disclose
criminal history to the State, he assumes the risk that it will be discovered prior to
sentencing and used to increase his offender score and standard sentencing range.
Codiga. 162 Wn.2d at 929-30. Further, at the time of his plea, McGowen agreed that:
[l]f any additional criminal history is discovered, both the
standard sentence range and the prosecuting attorney's
recommendation may increase. Even so, my plea of guilty to
this charge is binding on me. I cannot change my mind if
additional criminal history is discovered even though the
standard sentencing range and the prosecuting attorney's
recommendation increase.
McGowen's plea agreement listed an offender score of "0." McGowen failed to disclose
his criminal history and knowingly, intelligently, and voluntarily entered a plea with the
understanding that his sentencing range was subject to change should the State discover
additional criminal history.
Even assuming the trial court improperly included the Colorado robbery conviction
during McGowen's 1993 sentencing, this error would not affect the validity of the plea he
entered. McGowen fails to identify a constitutional infirmity in the 1993 conviction. The
trial court did not err in considering this conviction when sentencing McGowen in the
present case.
The trial court did not abuse its discretion in finding McGowen competent. The
court did not err in characterizing McGowen's statements as a motion to proceed pro se
No. 69048-5-1/10
and denying that motion. The court properly sentenced McGowen as a persistent
offender. We affirm.
WE CONCUR:
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