State Of Washington, Res. v. Robert Angel Merino, App. ( 2014 )

201*5 NOV 2U- h.i 7=51
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70236-0-1
Respondent,
DIVISION ONE
v.
ROBERT A. MERINO, UNPUBLISHED OPINION
Appellant. FILED: November 24, 2014
Becker, J. — A criminal defendant effectively waives his right to counsel if
the court makes him aware of the dangers and disadvantages of self-
representation and he persists in his request to appear pro se. The record in this
case shows the appellant's decision to represent himself was voluntarily and
knowingly made.
Appellant Robert A. Merino was charged with two counts of rape of a child
in the first degree-domestic violence, one count of rape of a child in the second
degree, and one count of child molestation in the first degree-domestic violence,
arising out of events that occurred between January 2005 and July 2008.
Trial was set for March 6, 2013. In February 2013, Merino requested to
proceed pro se. The trial court engaged in the following colloquy with him on
February 21, 2012, to determine whether he knowingly and voluntarily waived his
right to counsel.
No. 70236-0-1/2
MR. MERINO: Good morning. Yes, I'd like to go pro se,
your Honor.
THE COURT: All right, Mr. Merino. When is the trial date?
MR. WYNNE: The current trial date is the -
THE COURT: I think it's March 6th, so it's right around the
comer; is that correct?
MR. WYNNE: Yes. I was thinking it was the 11th.
THE COURT: Okay. And, Mr. Merino, what kind of charge is
this? Can you tell me?
MR. MERINO: The charges?
THE COURT: Yeah. What's the charge?
MR. MERINO: It's rape of a Child 1, and rape of a Child 2.
THE COURT: Okay. And you understand how serious those
charges are?
MR. MERINO: Yes.
THE COURT: And you understand that you have a trial date
in a week and a half, two weeks at most?
MR. MERINO: Yes.
THE COURT: All right. So can you help me understand how
you plan on representing yourself?
MR. MERINO: Well, Ijust --1 just need my information is all,
my discovery. And I'm innocent of these charges. Ijust need to go
to court. I just need to go to trial and state my case.
THE COURT: Okay. But do you understand what -- have
you ever been to trial before?
MR. MERINO: Yes.
THE COURT: All right. So do you understand how to select
the jury?
MR. MERINO: Yes.
THE COURT: And how do you do that?
MR. MERINO: Well, I've been selected for a juror before, so
I know the process as far as the Prosecutor and the Defense going
through that.
THE COURT: Do you understand that nobody will be there
to help you?
MR. MERINO: Yes.
THE COURT: Do you understand that if you go to trial, if you
actually represent yourself, you're going to be responsible for the
Rules of Evidence? Are you familiar with those?
MR. MERINO: A little bit, yes. I've been going to the law
library and studying a little bit on that.
THE COURT: Okay. So I've been doing this for a number of
years and I'm here to tell you, I still don't understand all ofthe
Rules of Evidence. You need to understand you're going to be held
accountable, just as if you were an attorney. Do you understand
that?
No. 70236-0-1/3
MR. MERINO: Yes, ma'am.
THE COURT: You will also be held accountable for all of the
Washington State Court Rules. Do you have any questions about
that?
MR. MERINO: No.
THE COURT: I need for you to understand something. The
Court of Appeals and the Supreme Court has told us that if you
really want to go to trial on your own, even though I think it is the
silliest thing that you could do in your entire life, I have to let you do
that. So you need to understand if I decide to let you do that even
though I know, in my opinion at least -
MR. MERINO: Yes.
THE COURT: - you will not have a clue what to do, and it
will be to your disadvantage and you're looking at some very, very
serious charges and some decent time. So you need to
understand -
MR. MERINO: I understand.
THE COURT: - I think you're being very foolish.
MR. MERINO: I understand. Thank you.
The court then asked the prosecutor to "lay out all of the charges and lay
out what the maximum penalties are." The prosecutor, Mr. Wynne, did so.
MR. WYNNE: ... So, Mr. Merino, I'm going to go through a
couple of things. If you could just answer out loud, this is all being
recorded.
MR. WYNNE: Do you understand that you have the right to
be represented by a lawyer and if you cannot afford a lawyer, one
will be appointed to you? You actually have lawyers right now, but
do you understand that you have the right to have appointed
counsel?
MR. MERINO: Yes. Yes.
MR. WYNNE: Do you understand that you have a
Constitutional right to represent yourself as well?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that you're charged
currently in Count 1 with rape of a child in the first degree, and in
Count 2 with rape of a child in the second degree?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that the maximum
sentence for each of those counts is life and imprisonment and a
$50,000 fine on each count?
MR. MERINO: Yes.
No. 70236-0-1/4
MR. WYNNE: Do you understand that an attorney would
represent you and speak for you on your behalf in court?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that an attorney
would advise you as to your legal rights and options?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that an attorney will
explain and assist you with the legal and court procedures?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that an attorney would
investigate and explore possible defenses to the charges against
you that may or may not be readily apparent to you in your current
state?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that an attorney will
prepare and conduct your defense at any motion hearing or trial?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that if you represent
yourself, the Judge cannot be your attorney and cannot give you
any legal advice.
MR. MERINO: Yes.
MR. WYNNE: Do you understand that if you represent
yourself the prosecuting attorney, as represented by me a deputy
prosecuting attorney, cannot be your attorney and cannot give you
legal advice?
MR. MERINO: Yes, I understand that.
MR. WYNNE: Do you understand that the Judge, if you
represent yourself, the Judge, myself and court personnel are not
required to explain court procedures or the law to you?
MR. MERINO: I understand.
MR. WYNNE: Do you understand that if you represent
yourself, you'll be required to follow all legal rules, procedures,
including the Rules of Evidence?
MR. MERINO: Yes.
MR. WYNNE: Do you understand that if you represent
yourself, you have the right to remain silent; but if you do decide to
testify on your on behalf, you will be required to present your
testimony by asking questions to yourself?
MR. MERINO: Yeah.
MR. WYNNE: And what that means is you can't just sit up on
the stand and just say this is what happened. You actually have to
ask questions and answer them.
MR. MERINO: I understand, yes.
MR. WYNNE: Do you understand that if you represent
yourself, the Judge is not required to provide you with an attorney
as a legal advisor or standby counsel?
No. 70236-0-1/5
MR. MERINO: I understand.
MR. WYNNE: Do you understand what standby counsel is?
MR. MERINO: Like an assistant or a full counsel.
MR. WYNNE: Do you understand that if you represent
yourself and you later change your mind and decide that you do
want an attorney to represent you, the Judge may require you to
continue to represent yourself without the assistance of a lawyer?
MR. MERINO: Yes.
MR. WYNNE: Just describe for us, if you will, any legal
training and experience that you have prior to representing yourself
here.
MR. MERINO: I've had two or three cases with the
Hernandez family that I represented myself, and I came out
successful.
MR. WYNNE: So you represented yourself in Family Court?
MR. MERINO: Yes, Family Court.
MR. WYNNE: Any criminal experience?
MR. MERINO: No.
MR. WYNNE: Are you making your decision to represent
yourself knowingly and voluntarily?
MR. MERINO: Yes.
MR. WYNNE: Do you feel that you have all the knowledge
that you need to make this decision?
MR. MERINO: I think I'll be fine.
MR. WYNNE: No, that's a different question. Do you feel
like you have all the knowledge that you need to make this decision
here today?
MR. MERINO: Oh, yes. Uh-hum.
MR. WYNNE: And is anyone pressuring you in any way,
threatening you in any way to make you proceed pro se?
MR. MERINO: Just the circumstances.
MR. WYNNE: And so by the circumstances, meaning that
you're currently in custody?
MR. MERINO: Yes, and just by counsel and just the way
things have been going in the last 15 months.
MR. WYNNE: Okay. So I have to follow-up on that or maybe
the Court wishes to follow-up on that in terms of whether or not
you're being pressured into doing this --
MR. MERINO: I'm not being pressured.
MR. WYNNE: - he's indicated that "by counsel."
MR. MERINO: I'm not being pressured.
THE COURT: Well, I have to say I'm watching Mr. Merino,
and he seems very calm and he seems very intent on moving
forward with this.
MR. MERINO: Thank you.
THE COURT: Is that correct?
No. 70236-0-1/6
MR. MERINO: Yes.
THE COURT: All right. Counsel, did you want to proceed?
MR. WYNNE: Yes, your Honor, I do. I'm just making sure,
one final thing.
Mr. Merino, I have in my hand a two-page document entitled
Waiver of Counsel. Have you read through this document
yourself?
MR. MERINO: Yes, I have.
MR. WYNNE: And have you read through it with your
attorney, Mr. Schmidt?
MR. MERINO: Yes.
MR. WYNNE: Did he answer any questions that you may
have had about this document?
MR. MERINO: I didn't have any questions.
MR. WYNNE: Did you have an opportunity to ask any
questions about this?
MR. MERINO: Yeah.
MR. WYNNE: You had that opportunity?
MR. MERINO: Yes.
MR. WYNNE: Okay. I'm just confirming that. Is it your
decision, at this point, you want to proceed pro se and represent
yourself?
MR. MERINO: Yes.
MR. WYNNE: Your Honor, the State doesn't have any
further colloquy necessary.
The court granted Merino's request to proceed pro se, finding that he
understood the risks of self-representation.
THE COURT: Mr. Merino, so am I hearing you correctly, that
you understand that you could be found guilty, the maximum
penalty is to life and it is still your desire to represent yourself -
MR. MERINO: Yes.
THE COURT: - because you're nodding in the affirmative --
MR. MERINO: Yes, ma'am.
THE COURT: - and it appears to me that you have
absolutely no hesitancy whatsoever?
MR. MERINO: No.
THE COURT: All right. Well, I think I've already suggested
to you that I think it's unwise. I would wish that you would stay with
counsel. On the other hand, as I stated to you, the Courts have
indicated that you have every right to represent yourself so I am
going to find that you are knowingly and voluntarily waiving your
right to counsel. I will allow you to represent yourself. I think this is
No. 70236-0-1/7
unequivocal. I think you know exactly what it is that you're doing.
Am I correct in that assessment?
MR. MERINO: Yes, ma'am.
THE COURT: Any doubts whatsoever?
MR. MERINO: No.
THE COURT: No more questions that I can ask you? You're
shaking your head, no.
MR. MERINO: No, not at this moment.
THE COURT: Do you want to ask the two attorneys standing
next to you any questions?
MR. MERINO: No, no questions.
THE COURT: I will grant that request. And you may sign, if
you will, the document that the Prosecutor's handing you. It's the
document that he's just been over with you; if you want to read it
over again, let me know. You're signing it.
THE COURT: All right. Well, I don't know what else to ask,
so I think you're set on what it is that you're going to do. Sir?
MR. SCHMIDT: And, your Honor, I would note for the record,
my signature on the document that Mr. Merino has just signed
indicates that I did review the document with him prior to going on
the record this morning.
In light of the Court's resolution of Mr. Merino's motion to
proceed pro se, Ms. Dillon and I would ask the Court to grant our
motion to withdraw as counsel of record.
THE COURT: All right. Well, I am finding that the defendant
is competent. I am signing this document granting his request, and
I will sign those two documents as well.
On March 19, 2013, a jury convicted Merino as charged. Merino was
sentenced to a total of 240 months in prison.
On appeal, Merino contends the trial court violated his right to counsel by
accepting an invalid waiver of that right.
A criminal defendant is constitutionally guaranteed the right to assistance
of counsel. U.S. Const, amends. VI, XIV; Gideon v. Wainwriqht, 372 U.S. 335,
345, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). A criminal defendant also enjoys a
correlative right to proceed without appointed counsel when he voluntarily and
intelligently elects to do so. Faretta v. California. 422 U.S. 806, 836, 95 S. Ct.
7
No. 70236-0-1/8
2525, 45 L. Ed. 2d 562 (1975). To show the defendant validly waived his right to
counsel, he or she should be made aware of the dangers and disadvantages of
self-representation so that the record establishes that "'he knows what he is
doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835, quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L.
Ed. 268(1942).
A colloquy on the record is the preferred means of assuring that
defendants understand the risks of self-representation. City of Bellevue v. Acrev,
103 Wn.2d 203, 211, 691 P.2d 957 (1984). At a minimum, the colloquy should
consist of informing the defendant of the nature and classification of the charge,
the maximum penalty upon conviction, and that technical rules exist which will
bind the defendant in the presentation of his case. Acrev, 103 Wn.2d at 211.
Merino relies on State v. Chavis. 31 Wn. App. 784, 644 P.2d 1202 (1982).
In Chavis. the defendant represented himself in his trial for third degree statutory
rape. The reviewing court considered the following colloquy in determining
whether Chavis validly waived his right to counsel:
"THE COURT:... I also have an Order waiving your right to
counsel. Do you understand, Mr. Chavis, that you do have a right
to an attorney, is that correct?
MR. CHAVIS: Yes.
THE COURT: These rights, I take it, have been explained to
you in some previous hearing have they not?
MR. CHAVIS: Yes.
THE COURT: Mr. Chavis, what is your experience, have you
ever been a law student or anything like that?
MR. CHAVIS: No, sir, I haven't.
THE COURT: Have you ever conducted a trial on your own?
MR. CHAVIS: Yes.
No. 70236-0-1/9
THE COURT: You do understand you have a right to act as
your attorney, but you are still bound to follow the same rules as the
attorneys follow. You understand that?
MR. CHAVIS: Yes, sir."
Chavis, 31 Wn. App. at 785-86. The court determined that "these single answer
responses do not satisfy us that Mr. Chavis fully understood the 'dangers and
disadvantages of self-representation.'" Chavis, 31 Wn. App. at 789, quoting
Faretta, 422 U.S. at 835. Accordingly, the court concluded that Chavis had not
validly waived his right to counsel and reversed.
This case is not like Chavis. There, the court asked the defendant five
questions designed to elicit yes or no answers and then allowed him to proceed
pro se. The questions focused on the defendant's legal experience. They did
not adequately gauge the defendant's understanding of the risks of proceeding
pro se. Here, the court and the prosecutor asked wide-ranging questions
designed to allow the court to fully assess Merino's understanding of the risks of
proceeding pro se. The mere fact that Merino answered some questions with
"yes" or "no" does not render Chavis applicable.
The superior court, and the prosecutor at the court's direction, informed
Merino of the nature and classification of each count he was charged with and
the maximum penalty upon conviction for each count. They explained that he
would be bound by the rules of court even if he did not understand them. The
colloquy establishes that Merino was aware of the risks and disadvantages of
self-representation. The colloquy satisfies the requirements articulated in Faretta
and Acrev. We conclude that Merino validly waived his right to counsel.
No. 70236-0-1/10
Merino filed a pro se statement identifying three additional grounds for
review pursuant to RAP 10.10.
First, Merino contends that the trial court erred by denying his pretrial
request for standby counsel. But as the court stated before denying the request,
Merino explicitly indicated that he understood that he would not be entitled to
standby counsel if he proceeded pro se. We find no basis for review.
Second, he asserts that the trial court denied him access to the courts
when he was given a laptop with only one hour of battery life to view discovery,
limited his access to the law library, and caused him to have no contact with his
investigator. Because this issue involves facts or evidence not in the record, it is
not appropriate to raise it in a statement of additional grounds. State v. Calvin,
176 Wn. App. 1, 26, 302 P.3d 509, 316 P.3d 496 (2013).
Third, he contends that his right to a public trial was violated when the trial
court closed the courtroom during voir dire to question potential juror numbers
10, 11, 12, and 55 individually. These four potential jurors spoke to the court
outside the presence of other potential jurors but in open court. This record does
not raise an issue of court closure.
Affirmed.
&d^c-.
WE CONCUR: V
10