Mr. Young, a convicted sex offender, was charged with felony failure to register. At trial, he was initially represented by appointed counsel, but moved to waive his right to counsel. A very brief colloquy with the trial judge occurred: a colloquy, it turns out, that was too brief. The court heard that Mr. Young was 83 years of age, a college graduate, had not studied law, but understood he had to comply with procedural rules and the rules of evidence if representing himself. He understood he was entitled to a lawyer because he was charged with a crime. He informed the Court representing himself was something he “absolutely” wanted to do.
Mr. Young proceeded to trial as his own attorney. Not surprisingly, the jury found him guilty. He appealed, claiming his waiver of right to counsel was not knowing, intelligent and voluntary because the trial judge did not determine whether he knew or understood the maximum penalties that could result from a conviction. The State, on appeal, conceded error. The Division II Appellate Court relied upon this language in State v. Burns, 193 Wn. 2d 190, 203 (2019):
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 case.
Division II then validated Mr. Young’s appeal by reciting from State v. Howard, 1 Wn. App 2d 420, 429 (2017):
Failure to inform the defendant of the maximum penalty for the charged crime, and where the defendant is not otherwise aware of the maximum penalty, invalidates the defendant’s waiver of right of counsel.
State v. Burns lists other “nonexhaustive factors,” Id. 203, 204, which Division II found did now support waiver in this case. The State conceded there was no showing or adequate record that Mr. Young knowingly and intelligently waived his right to counsel.
Conviction reversed, and Mr. Young was remanded for a new trial.
The Burns and Howard decisions clearly place responsibility for the defendant being allowed to represent himself on the shoulders of the trial judge. However, the State is faced with the unfortunate result of having to go to trial with Mr. Young AGAIN. Which is why the State does not like pro se defendants trying their own cases. Perhaps, during the colloquy, the State can (and, indeed should) interject information on the record that “Mr. Young should know that the maximum possible punishment for this offence is five years and $10,000 fine.” Since Mr. Young skated on his conviction because of an inadequate record, there’s nothing stopping the State in pro se cases from supplementing the Court’s colloquy with more information, ‘on the record.’