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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )   No.  65648-1-I
                       Respondent,          )
                                            )   DIVISION ONE
             v.                             )
                                            )
DERRICK HILLS,                              )   UNPUBLISHED OPINION
                                            )
                       Appellant.           )   FILED:  January 23, 2012
                                            )

       Becker, J.  --  After the trial court denied his motion for substitute counsel, 

Derrick Hills repeatedly expressed his desire to proceed pro se.  Because Hills

unequivocally asserted his right to self-representation and knowingly and 

voluntarily waived his right to counsel, the trial court did not abuse its discretion 

in permitting Hills to proceed pro se.  We also conclude that the trial court 

properly exercised its discretion when it refused Hills's request for an 

exceptional mitigated sentence.  We therefore affirm his conviction for one count 

of possession of cocaine with intent to deliver. 

                                        FACTS
       On February 3, 2010, Seattle Police officers arrested Derrick Hills after 

observing him engage in what appeared to be three drug transactions in the  

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Belltown area of Seattle.  During the arrest, officers recovered two small rocks of 

suspected cocaine and a small amount of cash.  Officers field-tested the rocks 

and then sent them to the crime laboratory, which determined that the substance 

was 3.9 milligrams (.0039 gram) of cocaine.

       The State charged Hills with one count of possession of cocaine.  At case 

setting hearings on March 8 and March 15, 2010, Hills expressed his 

dissatisfaction with appointed counsel.  After the trial court denied his motion for 

new counsel, Hills moved to proceed pro se.  After a lengthy colloquy, the trial 

court concluded that Hills had knowingly, intelligently, and voluntarily waived his 

right to counsel.

       When the parties appeared for trial on May 4, 2010, the trial court 

conducted another lengthy colloquy.  Hills refused the court's offer to appoint 

counsel and acknowledged that he would "proceed on my own."

       At trial, Seattle police officers testified that they had observed Hills 

approach three individuals and exchange what appeared to be drugs for money.  

In reference to the small amount of cocaine recovered during Hills's arrest, the 

officers indicated that they had seen similar "crumbs" sold on the street and that 

it was not unusual for people to buy such small amounts of cocaine.

       The jury found Hills guilty as charged.  The court denied his request for 

an exceptional mitigated sentence based on the small amount of drugs and 

imposed a low-end standard range sentence.

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No. 65648-1-I/3

                                      DECISION

       Hills contends that the trial court deprived him of his right to counsel and 

due process when it permitted him to proceed pro se without an unequivocal 

request.  He argues that because he repeatedly asked for new counsel, his 

requests to proceed pro se were conditional and equivocal and he did not validly 

waive his right to counsel.  The record fails to support these contentions.

       March 8, 2010

       Hills began the first case setting hearing on March 8, 2010, by advising 

the court that he wanted "to be reappointed." He explained that he had 

repeatedly and unsuccessfully tried to speak with his appointed counsel and that 

it was "not in my best interest or fairness to receive any kind of legal thing with 

her." After learning that Hills had been represented for only two weeks and had 

refused to see his appointed counsel earlier that day, the trial court denied the 

motion to substitute counsel and continued the hearing for a week to allow Hills 

to speak with counsel.

       Apparently objecting to the court's decision, Hills said that he was ready 

for trial and asked, "What about me being -- I would like to go." The court 

responded:

       Sir, if what you're saying is you want to represent yourself, you 
       have a constitutional right to do that, but I'm not going to hear your 
       motion today.  I want you to talk with [your attorney], and then I 
       have a fairly large number of questions I need to ask you to make 

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No. 65648-1-I/4

       sure that's what you're really asking to do.  So let's -- let's set that 
       aside for the minute, but we'll see you in one week.
       March 15, 2010

       At the beginning of the next hearing on March 15, 2010, Hills indicated 

that he was moving to proceed pro se:

              THE COURT:  Tell me why you want to go pro se.
              MR. HILLS:  I feel that because due to her scheduling and 
       me being represented fairly and getting a fair trial and being held 
       up, I see it in my best interest, I guess, if I can't be reappointed to
       represent myself.  I don't know law or nothing. I'm not that good, 
       but I see that I --
              THE COURT:  Well, even if you had to go pro se and we set 
       your trial today, within speedy trial, your speedy trial expiration 
       looks to be May 14th.  So you'd have a trial in early May. Going 
       pro se isn't going to make it any sooner.
              MR. HILLS:  Well, and it would start from the 22nd?
              . . . .
              THE COURT:  It started from the last hearing you had.  So 
       your expiration is 5/14. So going pro se I don't think is going to 
       speed it up.
              MR. HILLS:  Okay.  Like I say, it's probably in the best and 
       for my fairness, I still will probably have to be reappointed or go pro 
       se.  I don't have a problem with that.  I do want to be able to say
       something in my own case and my own defense if I have to, and 
       not being not able to. But also would like to be represented fairly 
       to have a fair trial. And I feel I would not receive that.
At this point, appointed counsel informed the court that she and a supervisor had 

visited Hills separately during the previous week, and Hills had told the 

supervisor he wanted to proceed pro se.

       The court then conducted a lengthy colloquy in which it discussed with 

Hills his lack of knowledge about the law and the rules of evidence, the nature of 

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the crime, the potential punishment, and the court's inability to assist him during 

the trial.  When Hills asked whether "I [can] be pro se with side counsel," the 

court advised him that "we appoint standby counsel," but that did not relieve Hills 

of the obligation to select the jury, question the witnesses, prepare jury 

instructions, and present closing argument.  When Hills responded "Okay," the

court told him that she thought it was a "terrible decision," that pro se defendants 

usually do not do very well in the courtroom or when presenting a viable 

defense, and that she strongly encouraged him to work with his attorney.

              MR. HILLS:  Yeah.  But I don't feel that it's in my best 
       interest.  I don't feel I'm going to receive a fair trial that way.
              THE COURT:  So in light of the penalty you might suffer if 
       you are found guilty, and the fact that you don't know anything 
       about trying a case and the difficulties of representing yourself, is it 
       still your desire to be pro se in this case? 
              MR. HILLS:  I feel I'm at a bind (sic) not having a choice to 
       go ahead with pro se.
              THE COURT:  I find that the defendant has knowingly and 
       voluntarily waived right to counsel.  I will permit him to represent 
       himself.  So is it your desire, sir, to set your case for trial today?
              MR. HILLS:  Yes.
       The court then set the case for trial on May 3, 2010. The court permitted 

appointed counsel to withdraw based on Hills's lack of trust.

       April 23, 2010

       At the omnibus hearing on April 23, 2010, Hills served the State with a 

motion to suppress, which the court reserved for the start of trial.  Hills also 

scheduled a bail reduction hearing for the following week.

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No. 65648-1-I/7

       May 4, 2010

       The parties appeared for trial on May 4, 2010.  The trial judge, who was 

not the same judge who had conducted the earlier hearings, asked Hills about 

his decision to proceed pro se.  Hills explained that it was all a "mix up" because 

he was just trying to "get relief" from his appointed counsel who he believed 

would be unable to arrange a "fair trial." He claimed that all he wanted was 

another counsel for "better" representation and that "they left me to go pro se."  

Hills also complained that he had been offered the same appointed counsel as 

"my side counsel."

       The court explained to Hills that he did not have a right to select a specific

court-appointed counsel but offered to appoint new counsel.  Hills declined the 

offer because he "would have to surrender my rights to a continuance."

       The court then told Hills that she was not attempting to talk him out of 

proceeding pro se but just wanted "to go through these questions to satisfy 

myself that you really are choosing to do this on your own. Okay?"  Hills 

responded, "Okay."  After reviewing in detail with Hills the nature of the charge, 

the potential punishment, and his knowledge of the criminal trial process, the 

court inquired:

              THE COURT:  All right.  Just, again, wanted to make sure 
       that you know and -- which causes me some concern about you 
       proceeding on your own without counsel.  And I know that you want 
       to get this done and you want to get it over with but, Mr. Hills, at 
       the same time, the penalty is so serious and severe which is why 
       having an attorney can assist you in forcing the State to put on its 

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No. 65648-1-I/8

       evidence. And if you haven't studied law and you're not familiar 
       with the rules of procedure and the rules of evidence, the likelihood 
       of you being successful may not be great.  
              MR. HILLS:  I understand.
              THE COURT:  And when we -- all right. So do you still want 
       to proceed on your own?
              MR. HILLS:  Proceed on my own.
When the court asked Hills whether there was "anyone who's coerced you or 

trying to force you into doing this without an attorney," Hills replied, "No, ma'am.  

No, your Honor."

       The case then proceeded to trial.

       The State and federal constitutions guarantee a criminal defendant both a 

right to counsel and the right to self-representation.  State v. Madsen, 168 

Wn.2d 496, 229 P.3d 714 (2010).  But the right to self-representation is not self-

executing, and "a criminal defendant who desires to waive the right to counsel 

and proceed pro se must make an affirmative demand, and the demand must be 

unequivocal in the context of the record as a whole."  State v. Modica, 136 Wn. 

App. 434, 441, 149 P.3d 446 (2006), aff'd, 164 Wn.2d 83, 186 P.3d 1062 (2008).  

A court must indulge in "every reasonable presumption" against a defendant's 

waiver of the right to counsel.  In re Det. of Turay, 139 Wn.2d 379, 396, 986 

P.2d 790 (1999) (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 

51 L. Ed. 2d 424 (1977)), cert. denied, 531 U.S. 1125 (2001).  We review the 

trial court's decision to grant the defendant's motion to proceed pro se for an 

abuse of discretion.  Modica, 136 Wn. App. at 442.

       Here, the record shows that Hills's requests to proceed pro se remained 

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No. 65648-1-I/9

clear and unequivocal through all of the pretrial hearings.  From the very first 

hearing, Hills expressed his frustration with appointed counsel and his doubts 

about her ability to represent his "best interest" or ensure a fair trial.  But he

never identified any specific deficiencies or conflicts that would have required 

the court to investigate the need for new counsel, and Hills does not allege that 

the trial court abused its discretion in denying his motion to substitute counsel.  

A general loss of confidence or trust, without more, is not a legitimate reason to 

substitute new counsel.  State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239

(1997), cert. denied, 523 U.S. 1008 (1998); see also State v. DeWeese, 117 

Wn.2d 369, 376, 816 P.2d 1 (1991) (when indigent defendant fails to provide 

court with legitimate reasons for substitute counsel, court may require defendant 

to either continue with current counsel or proceed pro se).

       Moreover, contrary to Hills's assertions, his request to proceed pro se 

was not equivocal merely because he combined it with an alternative request to 

have new counsel "reappointed."  See Madsen, 168 Wn.2d at 507.  Hills 

repeatedly asserted his desire to proceed pro se after participating in two 

extensive colloquies, during which the trial judges questioned him about his 

understanding of the charge, the potential punishment, and his lack of familiarity 

with criminal procedure.  Although Hills was well aware of the possibility of 

standby counsel, he did not request standby counsel after the court allowed his 

original appointed counsel to withdraw.  The "bind" that Hills described was the 

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No. 65648-1-I/10

result of his own unwavering insistence, for no legitimate reason, that he would 

not accept appointed counsel and his refusal to accept any continuance of the 

trial date.

       Viewed in light of the foregoing circumstances, Hills's steadfast assertion 

of his desire to proceed pro se was unequivocal and accompanied by a knowing, 

intelligent, and voluntary waiver of his right to counsel.

       Hills's comparison of this case to State v. Stenson is unpersuasive.  In 

Stenson, the defendant orally moved to proceed pro se after the trial court 

denied his motion to substitute counsel.  The defendant then followed up with a 

written request for new counsel.  Our Supreme Court agreed that the request to 

proceed pro se was equivocal in light of the following circumstances:

       Here, almost all of the conversation between the trial judge and the 
       Defendant concerned his wish for different counsel. He repeatedly 
       discussed which new counsel should be assigned.  He explained 
       he had contacted a number of attorneys and had asked for 
       permission to talk with his newly-selected counsel. He told the trial 
       court he did not want to represent himself but that the court and his 
       counsel had forced him to do that. More importantly, the 
       Defendant did not refute the trial court's final conclusion that he 
       "really [did] not want to proceed without counsel."
Stenson, 132 Wn.2d at 742 (alteration in original).  The defendant's affirmative 

efforts in Stenson to obtain new counsel differ fundamentally from Hills's

repeated and unambiguous requests to proceed pro se, which were coupled 

only with general complaints about appointed counsel.

       Hills's reliance on United States v. Kienenberger, 13 F.3d 1354, 1356 (9th

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No. 65648-1-I/11

Cir. 1994), is equally misplaced.  In Kienenberger, the defendant's requests to 

be "counsel of record" were always coupled with his insistence that the court 

appoint "advisory" or "standby" counsel to assist him on procedural matters.  

Hills's requests to proceed pro se were never conditioned in this manner.

       Hills next contends that the sentencing court failed to exercise its 

discretion when it denied his request for an exceptional sentence downward 

based on the small amount of cocaine he possessed at the time of arrest.  See

State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995) (an 

"extraordinarily small amount" of a controlled substance and a defendant's "low 

level of involvement" in committing the crime may each constitute a substantial 

and compelling reason justifying a departure from the standard range).  He 

argues that the court wanted to impose an exceptional mitigated sentence but 

mistakenly believed that it lacked the authority based on a misunderstanding of 

the law.  Our review of the sentencing court's decision is "limited to 

circumstances where the court has refused to exercise discretion at all or has 

relied on an impermissible basis for refusing to impose an exceptional sentence 

below the standard range." State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 

P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).  

       Citing State v. Alexander, Hills requested an exceptional sentence below 

the standard range of 60 to 120 months.  In Alexander, the defendant acted only 

as a facilitator for the sale of .03 gram of cocaine by someone else.  Our

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No. 65648-1-I/12

Supreme Court held that an "extraordinarily small amount" of a controlled 

substance and a defendant's "low level of involvement" in committing the crime 

could each constitute a substantial and compelling reason justifying a departure 

from the standard range.  Alexander, 125 Wn.2d at 727-29.  The court expressly 

noted, however, that it was not determining whether the defendant's possession 

of .03 gram of cocaine was in fact "an extraordinarily small amount" because the 

trial court's finding to that effect was unchallenged on appeal. Alexander, 125 

Wn.2d at 728 n.18.  The State opposed Hills's request, noting that even though 

he possessed a small amount of cocaine at the time of his arrest, the 

circumstances surrounding his participation in the offense distinguished it from 

the defendant's actions in Alexander.

       During the course of its denial of Hills's request, the sentencing court 

acknowledged that Hills possessed only a "small" amount of cocaine at the time 

of his arrest, but stressed the existence of the "three transactions" that had 

preceded Hills's arrest.  The court concluded that 

              I absolutely feel that I can't and I don't have the power to do 
       anything else but stay within the standard range, so the sentence 
       I'm imposing today is the low end of the standard range.
       Based on these comments, Hills contends that the court mistakenly 

believed it could not impose an exceptional sentence as a matter of law.  He

asserts the court may have confused the grounds for an exceptional sentence 

discussed in Alexander or erroneously considered the amount of cocaine that 

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No. 65648-1-I/13

Hills might have delivered immediately before his arrest.  But when viewed in 

context, the court's comments fail to support such speculation.

       Prior to imposing sentence, in a veiled reference to the long standard-

range sentence that Hills faced, the court expressed some concerns about the 

State's charging decision, limitations that the Sentencing Reform Act of 1981 

imposes on judicial sentencing discretion, and the general difficulties in imposing 

sentences in drug cases.  The court then expressly recognized that Alexander

supported the existence of some exceptions, "but the facts of that case are not 

like this, which is why I'm struggling."  The court acknowledged the small amount 

of cocaine that Hills possessed, but explained:

       the evidence by the officers indicated that they observed three
       transactions before there was a decision to arrest you.  That was 
       the testimony that went unrebutted.  And the State chose to charge 
       you in the way that they did.
       When the decision is viewed in context, there is no indication that the 

court had any misunderstandings about its legal authority to impose an 

exceptional sentence or that it misunderstood the grounds for an exceptional 

sentence in Alexander.  Rather, the court reviewed the facts of the offense, 

including the unrebutted evidence of several apparent drug transactions

immediately prior to Hills's arrest and testimony that the street sale of small 

amounts of drugs was not uncommon.  The court then concluded that those facts

did not differentiate Hills's offense from other crimes in the same statutory 

category.  A sentencing court has exercised its discretion where it has 

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No. 65648-1-I/14

considered the facts and concluded that no basis exists to impose a sentence 

outside the standard range.  Garcia-Martinez, 88 Wn. App. at 330. 

       Affirmed.

WE CONCUR:

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