State Of Washington v. Terry K. Pleasant ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ,
No. 78943-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
TERRY KEITH PLEASANT,
Appellant.
APPELWICK, J. — Pleasant appeals his convictions for violation of a no-
contact order. He waived his right to counsel without being advised of the
maximum potential sentence. We reverse and remand for a new trial.
FACTS
On August 22, 2017, the Snohomish County District Court entered a no-
contact order prohibiting Terry Pleasant from contacting his girlfriend Jessica
Fairchild. The order was in effect for five years, until August 22, 2022, and
prohibited Pleasant from contacting Fairchild as follows:
A. do not cause, attempt, or threaten to cause bodily injury to,
assault, sexually assault, harass, stalk, or keep under surveillance
the protected person
B. do not contact the protected person, directly, indirectly, in person
or through others, by phone, mail, or electronic means, except for
mailing or service of process of court documents through a third
party, or contact by the defendant's lawyers.
C. do not knowingly enter, remain, or come within 300 feet (1,000
feet if no distance entered) of the protected person’s residence,
school, workplace.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 78943-1-I/2
On November 3, 2017, Pleasant and Fairchild were sharing a motel room
in south Everett, and offered to share the room with Stephanie Mancinii and
Mancinii’s two young daughters. The next morning, Mancinii was awakened by
Pleasant and Fairchild arguing. At one point, Pleasant grabbed Fairchild’s luggage
and threw it off the second story balcony into the parking lot. Mancinii was scared
the situation would escalate, so she told her daughters if she gave them a certain
look, she wanted them to go downstairs and call 911. When Pleasant pushed
Fairchild and she fell down, scraping her face, Mancinii gave the signal to her
daughters. They left, pretending to get a soda, but instead they called 911.
Pleasant then threatened Fairchild, saying, “‘Bitch, you think you’re going to
survive this?’” When the girls came back, Pleasant told Fairchild, “‘Let’s go. The
cops are coming.’” Pleasant grabbed his bike and left while Fairchild went to the
parking lot to collect her luggage.
Everett police officers responded to the 911 call. Officer Ryan Hogue
contacted Fairchild outside the motel room. Fairchild did not want to cooperate or
tell him what happened. Hogue saw a scratch on the side of her face and asked
her about it, but she covered it up and was resistant to having it photographed. A
second officer, Joshua Doonan, arrived and spoke with Manicinii in the motel room.
Doonan then left to search for Pleasant and found him on his bike about eight or
nine blocks from the motel.
Doonan stopped Pleasant, arrested him, and advised him of his rights.
Pleasant said he understood his rights and was willing to talk to Doonan. Doonan
2
No. 78943-1-I/3
detained Pleasant in the patrol car while Hogue retrieved Mancinii to identify him.
Mancinii identified him as the person who assaulted Fairchild.
A third officer, Jared Corson, arrived to book Pleasant into jail. Corson
confirmed that Doonan had read Pleasant his Miranda1 rights and that Pleasant
was willing to talk with the officer. Pleasant told Corson he had been across the
street raking leaves for an unnamed woman. When Corson suggested the motel
might have surveillance video, Pleasant admitted he had been at the motel looking
for work, but denied seeing Fairchild. In the meantime, officers learned from
dispatch that Pleasant had a no-contact order with Fairchild.
Doonan then took Pleasant back to the motel so he could be transferred to
Corson’s patrol car. When they arrived at the motel, Fairchild was in the parking
lot. As Pleasant was being transferred to Corson’s car, he yelled at Fairchild,
asking her if she had called the police and telling her to bail him out. Hogue and
Doonan warned him if he continued to speak to Fairchild he might face additional
charges of violating the no-contact order. Pleasant ignored their warnings and
continued to yell at her.
On the way to the jail, Pleasant repeatedly asked Corson if Fairchild told
them he assaulted her. Corson told Pleasant he could not answer that question,
but Pleasant continued to ask, adding, “‘She knows better than that. She better
not have.’”
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
No. 78943-1-I/4
The State charged Pleasant with one count of felony violation of a no-
contact order and one count of misdemeanor violation of a no-contact order. The
felony count was based on the assault in the motel room and the misdemeanor
count was based on the communication in the parking lot. Pleasant proceeded to
trial, represented by public defense counsel.
Following jury selection and just before opening statements, Pleasant
asked the court to dismiss his attorney and allow him to proceed pro se. The court
told Pleasant, “I have a few questions so I can understand whether you’re making
a knowing, voluntary, and intelligent waiver of your right to a lawyer.” The court
asked Pleasant about his legal training, cautioned him about the risks of self-
representation, and warned him the court would not assist him at trial. At no point
did the court—or anyone—inform Pleasant of the sentence he faced if convicted
on either count. The court found that Pleasant made a knowing, voluntary and
intelligent waiver of the right to counsel and released defense counsel.
While the State’s first witness was on the stand, Pleasant asked the court
to reappoint counsel. The court denied the request, telling Pleasant that the court
tried to tell him it was a bad choice to proceed without an attorney but he had
already decided to make this “terrible choice.” The court did not consider whether
Pleasant’s attorney was still available or whether a reappointment of counsel would
cause undue delay. Before the verdict, Pleasant made two more requests to have
counsel reappointed, which were denied.
4
No. 78943-1-I/5
The jury convicted Pleasant on both counts. The court sentenced him to 57
months’ confinement on the felony conviction with a consecutive sentence of 90
days’ confinement on the misdemeanor conviction. Over Pleasant’s objections,
the court included several prior convictions from California in his offender score.
The court also issued a postconviction domestic violence no-contact order
prohibiting contact with Fairchild and imposing fees totaling $715 ($500 victim
assessment, $100 DNA (deoxyriboneucleic acid) collection fee, $100 domestic
violence penalty, and $15 violation of domestic violence order fee).
Pleasant appeals.
DISCUSSION
Pleasant contends his waiver of the right to counsel was not knowing,
intelligent, and voluntary because he was not advised of the maximum penalty for
the charged offenses. We agree and reverse his convictions.
Under both the federal and state constitutions, a criminal defendant has the
right to self-representation. State v. Silva, 108 Wash. App. 536, 539, 31 P.3d 729
(2001). But, trial courts “must ‘indulge in every reasonable presumption against a
defendant’s waiver of his or her right to counsel’ before granting a defendant’s
request to waive the right to assistance of counsel and proceed pro se.” State v.
Curry, 191 Wash. 2d 475, 486, 423 P.3d 179 (2018) (internal quotation marks
omitted) (quoting State v. Madsen, 168 Wash. 2d 496, 504, 229 P.3d 714 (2010)). In
doing so, the court must find that the request for self-representation is timely and
unequivocal, and that the defendant knowingly, voluntarily, and intelligently waived
the right to counsel. Curry, 191 Wash. 2d at 486. A waiver is not knowing and
5
No. 78943-1-I/6
voluntary when there is no evidence the defendant was advised of the statutory
maximum penalty for the offense. See Silva, 108 Wash. App. at 539.
The State concedes, and we agree, that Pleasant’s waiver was not knowing,
intelligent, and voluntary because there was no evidence that he was advised of
the maximum penalty for the offenses. Accordingly, we reverse his convictions
and remand for a new trial on both counts. Silva, 108 Wash. App. at 542
(“‘deprivation of the right to counsel is so inconsistent with the right to a fair trial
that it can never be treated as harmless error.’” (quoting Frazer v. U.S., 18 F.3d
778, 782 (9th Cir. 1994)).
Pleasant urges us to dismiss count II, the misdemeanor count, rather than
remand for trial, contending the evidence was insufficient to support the conviction.
See State v. Hescock, 98 Wash. App. 600, 604-605, 989 P.2d 1251 (1999) (double
jeopardy bars retrial when a conviction is reversed for insufficient evidence). We
disagree.
Evidence is sufficient to prove the elements of a criminal offense when,
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. State v. Vasguez, 178 Wash. 2d 1, 6, 309 P.3d 318 (2013). When
evaluating a challenge to the sufficiency of the evidence, we draw all reasonable
inferences from the evidence in favor of the State and interpret it mostly strongly
against the defendant. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.3d 1068
(1992). A defendant challenging the sufficiency of the evidence admits the truth
of all of the State’s evidence. State v. Cardenas-Flores, 189 Wash. 2d 243, 265, 401
6
No. 78943-1-I/7
P .3d 19 (2017).
To convict Pleasant of violation of a court order as charged in count II, the
State was required to prove the following elements beyond a reasonable doubt:
(1) That on or about November 4, 2017, there existed a no-
contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly
violated a restraint provision of the order prohibiting contact with a
protected party; and
(4) That the defendant’s act occurred in the State of
Washington.
The State presented sufficient evidence to establish each element. A no-
contact order was in effect at the time and Pleasant knew of its existence. The
order was effective until August 17, 2022 and signed by Pleasant. Pleasant
testified that he lied to police because he did not want to get in trouble for violating
the order and that he and Fairchild knew they could not be together. Pleasant
violated the order by yelling at Fairchild in the parking lot when he was being
transferred to Corson’s patrol car.
Pleasant contends that his contact with Fairchild was not “a willful, volitional
act” because the only reason he came into contact with Fairchild again in the
parking lot was because the police brought him there. But, the misdemeanor count
was not based simply on Pleasant’s proximity to Fairchild in the parking lot. It was
based on his verbal contact with her. Moreover, Pleasant’s contact was willful: he
continued to yell at Fairchild after the officers specifically told him not to speak her
and warned him it could be another violation of the order.
7
No. 78943-1-I/8
We decline to reach the remaining issues raised in the briefing and in
Pleasant’s Statements of Additional Grounds.2
We reverse and remand for a new trial.
WE CONCUR:
2Pleasant claims additional errors relating to the offender score, judgment
and sentence, information, jury instructions, verdict forms, and sufficiency of the
evidence.
8