State of Washington v. Jared Anthony Winterer

FILED
MAY 30, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35854-2-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JARED ANTHONY WINTERER, )
)
Appellant. )
PENNELL, J. — Jared Anthony Winterer appeals his conviction for stalking,
arguing he did not validly waive his right to counsel. While the record reflects
Mr. Winterer made an unequivocal request to proceed to trial without counsel, there
are not sufficient facts to conclude his waiver of counsel was knowing, voluntary,
and intelligent. We therefore reverse Mr. Winterer’s conviction and remand for retrial.
FACTS
Jared Winterer was convicted of a single count of stalking after he represented
himself at a jury trial. Prior to trial, Mr. Winterer was represented by several attorneys.
His dissatisfaction with the attorneys resulted in several changes of counsel and,
ultimately, Mr. Winterer’s pro se status.
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Mr. Winterer’s first attorney was appointed on August 9, 2016. At that time,
Mr. Winterer was charged with one count of stalking, two counts of misdemeanor
harassment, seven counts of felony harassment, and six counts of second degree
malicious mischief. Mr. Winterer began complaining about his attorney almost
immediately after counsel’s appointment. The attorney moved to withdraw on
November 28, 2016. At the hearing on counsel’s motion to withdraw, 1 Mr. Winterer
requested new counsel. He also asked the court to sign an order he had prepared.
This created confusion as to whether Mr. Winterer was asking to represent himself.
The court eventually interpreted Mr. Winterer’s actions as a request to proceed pro se.
Once it was determined that Mr. Winterer was requesting self-representation,
the court engaged Mr. Winterer in a colloquy. The court discussed the procedural
expectations of self-representation. Mr. Winterer was told he would be held to the
same rules as an attorney and that his decision to proceed without counsel was likely
disadvantageous. However, the court never discussed the penalties Mr. Winterer might
face if he was convicted at trial. At the end of the colloquy, Mr. Winterer confirmed
that he wanted to represent himself with the help of standby counsel. The court ruled
1
The hearing was also scheduled to address competency. The court found Mr.
Winterer competent to stand trial.
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that Mr. Winterer would be permitted to represent himself. It explained that this meant
the prosecuting attorney would be able to contact Mr. Winterer directly. The court also
explained standby counsel’s limited role. The proceedings were then adjourned.
Mr. Winterer continued pro se for four months. During that time he made several
filings with the court. But by March 10, 2017, Mr. Winterer expressed misgivings about
his pro se status. He sought to revoke his waiver of the right to counsel. The court
acquiesced to Mr. Winterer’s change of heart and appointed new counsel on March 14.
After a series of fits and starts, Mr. Winterer once again changed his mind about
self-representation. He complained about his attorney and stated his desire to revert to
pro se status. The court addressed Mr. Winterer’s request for self-representation on
January 5, 2018. 2 The trial court expressed concern about Mr. Winterer vacillating on
the issue of self-representation. Mr. Winterer stated he needed a standby attorney to
help subpoena witnesses and discuss the rules of evidence, but he wanted to show the
jury the evidence and explain his defense. Mr. Winterer assured the court that he would
not change his mind on self-representation again. The court reserved ruling on Mr.
Winterer’s request and asked defense counsel to research whether Mr. Winterer could
2
The January 5 hearing was also held for sentencing on a separate charge. Mr.
Winterer had been represented by counsel throughout trial on the separate case.
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waive his right to counsel for a second time. Defense counsel provided that research
to the court.
Mr. Winterer’s request for self-representation was re-addressed on February 2,
2018. The court began by confirming that Mr. Winterer still wished to represent
himself with the assistance of standby counsel. The court then went on to explain the
procedural expectations of Mr. Winterer. Among other things, the court explained that
the prosecutor sought to restrict Mr. Winterer’s method of cross-examination of the
complaining witness (a corrections officer). The court also explained the limited role
of standby counsel. After this discussion, the court ruled Mr. Winterer would be
allowed to represent himself at trial and permitted his defense attorney to withdraw as
his representative and to serve as standby counsel. At no point during the February 2
hearing did the court discuss the penalties Mr. Winterer might face if he was convicted
as charged.
The case proceeded to trial on February 6, 2018. On the day of trial, the State
amended Mr. Winterer’s information. The amendment reduced the charges to a single
count of stalking. It also added a criminal history aggravator. 3 Mr. Winterer was advised
3
During the February 2 hearing, the prosecutor mentioned that she would be
amending the charges down to one count of stalking. No mention was made of the
aggravator during the February 2 hearing.
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of the contents of the amended information and entered a not guilty plea. The court did
not question Mr. Winterer about whether the amended information changed his position
on self-representation. Nor did the court explain the potential penalties applicable to the
amended information. Mr. Winterer indicated that he did not understand the change to
the information or its consequences.
The jury convicted Mr. Winterer on the single count of stalking. The trial
court found the aggravator was present and justified an exceptional departure upward
in Mr. Winterer’s sentence. It sentenced him to the statutory maximum of 120 months’
confinement.
Mr. Winterer brings this timely appeal from his judgment and sentence.
ANALYSIS
Criminal defendants enjoy competing rights to counsel and self-representation.
State v. Curry, 191 Wash. 2d 475, 482-83, 423 P.3d 179 (2018). The default right is the
right to counsel. In order for the right to counsel to give way to the right to self-
representation, two things must happen: (1) the defendant must make a timely and
unequivocal request for self-representation, and (2) the trial court must establish that the
defendant has made a knowing, voluntary, and intelligent waiver of the right to counsel.
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Id.; see also State v. Burns, No. 95528-0, slip op. at 14 (Wash. Apr. 18, 2019),
https://www.courts.wa.gov/opinions/pdf/955280.pdf. “Both the United States Supreme
Court and [the Washington Supreme Court] have directed courts to indulge in ‘every
reasonable presumption against a defendant’s waiver of his or her right to counsel.’”
Burns, slip op. at 13 (internal quotation marks omitted) (quoting In re Det. of Turay,
139 Wash. 2d 379, 396, 986 P.2d 790 (1999)). Mr. Winterer challenges both aspects of
the trial court’s self-representation decision. We review the trial court’s determination
for abuse of discretion. Curry, 191 Wash. 2d at 483.
The trial court did not abuse its discretion in finding Mr. Winterer unequivocally
asserted the right to self-representation. By the time Mr. Winterer proceeded to trial in
February 2018, he had already experienced what it was like to proceed without counsel
during his first pro se stint. He repeatedly and explicitly requested the court to allow him
to represent himself at trial. The court engaged Mr. Winterer in several discussions over
the course of multiple hearings in order to confirm Mr. Winterer wanted to waive his right
to counsel and proceed to trial pro se. This process amply satisfied the threshold inquiry
of whether Mr. Winterer’s request for self-representation was unequivocal. See Curry,
191 Wash. 2d at 491-95.
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Where the trial court fell short was in the second step of the waiver process. Once
a trial court determines the defendant has made a timely and unequivocal request for self-
representation, the court “must then determine if the request is knowing, voluntary, and
intelligent.” Burns, slip op. at 14. The general method for doing so is to engage in an on-
the-record colloquy. “The colloquy should generally include a discussion of the nature of
the charges against the defendant, the maximum penalty, and the fact that the defendant
will be subject to the technical and procedural rules of the court in the presentation of his
[or her] case.” Id.
Here, the trial court never engaged Mr. Winterer in a full colloquy regarding
whether his waiver of counsel was knowing, voluntary, and intelligent. Although the
court discussed the legal rules Mr. Winterer would be expected to follow at trial, there
was no mention of possible penalties.
The lack of a full colloquy is not necessarily fatal. Where no colloquy exists, we
may examine the record to determine whether the defendant made an informed choice
about the waiver of counsel. City of Bellevue v. Acrey, 103 Wash. 2d 203, 211, 691 P.2d
957 (1984). To uphold the validity of a waiver of counsel in the absence of a colloquy,
the record must somehow “show that the defendant understood the seriousness of the
charges and knew the possible maximum penalty. The record should also show that the
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defendant was aware of the existence of technical [legal] rules and that presenting a
defense is not just a matter of telling one’s story.” Id. This type of record review is
exacting and will “only rarely” result in affirming the validity of a waiver. Id.
The record here is not sufficient to permit an inference of a valid waiver. Nowhere
in the existing record is there any indication that Mr. Winterer was advised of maximum
penalties prior to being allowed to proceed pro se. Even after the State filed an amended
information on the eve of trial, and Mr. Winterer expressed confusion about the meaning
of the aggravating circumstance allegation, no advice of maximum penalties occurred.
Based on the foregoing, the trial court failed to satisfy the second portion of the
waiver inquiry. We recognize that Mr. Winterer was a difficult litigant. He also made
very clear that he wanted to proceed pro se. However, the gaps in the record pertaining
to whether Mr. Winterer knowingly, voluntarily, and intelligently waived counsel require
reversal.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Pursuant to RAP 10.10, Mr. Winterer has submitted a statement of additional
grounds for review (SAG). The majority of Mr. Winterer’s claims are either rendered
moot by our reversal of conviction, reliant on facts outside the record, or both.
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In addition, to the extent Mr. Winterer has legal challenges to the State’s charge or
evidentiary claims, those can be raised on remand.
The one challenge that must be addressed at this time is Mr. Winterer’s claim that
the State presented insufficient evidence to justify his conviction. If Mr. Winterer was to
succeed on this claim, double jeopardy4 would require dismissal of Mr. Winterer’s case
with prejudice. State v. Rodgers, 146 Wash. 2d 55, 60, 43 P.3d 1 (2002).
Mr. Winterer claims there was no evidence he actually sent the corrections officer
the harassing messages that formed the basis for his stalking charge. He also challenges
the credibility of the corrections officer’s trial testimony. However, Mr. Winterer’s
argument fails to acknowledge that witness testimony is evidence. See Loyola Univ. v.
Sun Underwriters Ins. Co. of N.Y., 93 F. Supp. 186, 190 (E.D. La. 1950), aff’d, 196 F.2d
169 (5th Cir. 1952); State v. White, noted at 135 Wash. App. 1013, 2006 WL 2859376, at
*3. The corrections officer testified that she received messages from Mr. Winterer while
he was in jail and in prison. A claim of insufficiency admits the truth of that evidence.
State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). Moreover, Mr. Winterer’s
attack on the corrections officer’s credibility is not reviewable on appeal. State v.
Cardenas-Flores, 189 Wash. 2d 243, 266, 401 P.3d 19 (2017). Because a reasonable juror
4
U.S. CONST. amend V; WASH. CONST. art. I, § 9.
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State v. Winterer
could find that these messages were sent by Mr. Winterer, based on the corrections
officer's testimony, the evidence was sufficient to justify Mr. Winterer's conviction.
State v. Boyle, 183 Wash. App. 1, 6, 335 P.3d 954 (2014).
CONCLUSION
We reverse and remand for a new trial.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, C.J.
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