Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED

                                                                           Feb. 02, 2012

                                                                    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

STATE OF WASHINGTON,                           )       No. 29055-7-III
                                               )
                      Respondent,              )
                                               )
              v.                               )       Division Three
                                               )
LEWIS ADAM LAWRENCE,                           )
                                               )       OPINION PUBLISHED
                      Appellant.               )               IN PART

       Korsmo, J.  --  The primary issues in this appeal from three convictions for 

attempted first degree murder involve the trial court's rulings finding Lewis Lawrence 

competent to stand trial and allowing him to represent himself.  Finding no error, we 

affirm.

                                      BACKGROUND

       The facts underlying the criminal charge can be briefly stated.  In March 2009, Mr. 

Lawrence had a disagreement with his friends, Michael and Yuteson Fuaau, over his 

contribution to the dinner they were planning together, and departed.  He returned around  

No. 29055-7-III
State v. Lawrence

midnight in the company of another friend.  He got out of his car and approached the 

Fuaaus' apartment armed with a 12-guage shotgun.  

       When Michael Fuaau opened the door, Lawrence shot him in the face and head 

with birdshot.  He fired two more shots into the apartment where Yuteson Fuaau and 

Ahferom Zerai were located.  They escaped injury.

       Idaho police arrested Mr. Lawrence shortly thereafter.  He told them he wanted to 

kill the Fuaau brothers, who had been his friends, because he believed they were part of a 

Samoan gang that had threatened his family.  Officers later determined that there had 

been no threat and that Mr. Lawrence was not involved in gang and drug trafficking as he 

had claimed.

       The prosecutor immediately filed three counts of attempted first degree murder 

with accompanying firearm allegations.  A lengthy sojourn through the mental health 

system ensued.  Defense counsel obtained an order directing a competency evaluation on 

March 27, 2009.  The sanity commission recommended that Mr. Lawrence be committed 

to Eastern State Hospital (ESH) for competency restoration.

       A formal hearing was held May 15.  Dr. William Grant testified that Mr. Lawrence 

was mentally ill and diagnosed him with "psychosis not otherwise specified." The trial 

court, the Honorable David Frazier, found Mr. Lawrence not competent to stand trial and 

                                               2 

No. 29055-7-III
State v. Lawrence

committed him to ESH for competency restoration.  The court directed use of 

antipsychotic or psychotropic medications as needed.

       ESH discharged Mr. Lawrence on July 22; the court considered the ESH report on 

August 20.  Mr. Lawrence had not been cooperative and the report found his competence 

a "close call." The evaluating doctors found that he had unrealistic thinking and bad 

judgment.  They determined that he suffered from antisocial personality disorder and 

narcissistic personality features rather than a mental disease or defect.  The trial court 

ruled that Mr. Lawrence was competent to stand trial.

       When the court announced that Mr. Lawrence was competent, Mr. Lawrence 

promptly asked the court whether his "UCC-1 form" had been filed.  This led to an

exchange with the court that raised concerns, but the court still signed the order finding 

Mr. Lawrence competent.

       Mr. Lawrence requested permission to represent himself on September 28.  

Counsel for both parties questioned his competence and the trial court again appointed a 

sanity commission.  Dr. Greg Wilson, who specializes in evaluating developmental 

disabilities, was added to the commission as an independent evaluator for the defense.  

Defense counsel advised the court that Mr. Lawrence's family had concerns that he might 

have fetal alcohol syndrome (FAS).  Report of Proceedings (RP) (Sept. 28, 2009) at 112. 

                                               3 

No. 29055-7-III
State v. Lawrence

       Over the next five weeks, Mr. Lawrence sent letters to the court, the prosecutor's 

office, and the clerk of court.  He accused the judge and prosecutor of being biased 

against him and stated that the judge was falsely accusing him because "the judge did not 

see him pull the trigger."  At a competency review on November 6, defense counsel 

advised the court that his client still desired to represent himself.  The court ruled that Mr. 

Lawrence was not then competent and could not represent himself.  ESH doctors reported 

that Mr. Lawrence refused to meet with them. Dr. Wilson, however, had been able to 

meet with Mr. Lawrence.

       Dr. Wilson testified at a competency hearing November 12.  Mr. Lawrence raised 

his voice and used profanity before voluntarily leaving the courtroom.  Dr. Wilson 

diagnosed Mr. Lawrence as having bipolar illness with psychotic features.  He was of the 

opinion that Mr. Lawrence understood the rudimentary components of the judicial 

process and could be found guilty.  Dr. Wilson also opined that due to his illness, Mr. 

Lawrence was unable to understand the need for representation by counsel.  Dr. Wilson 

did not offer testimony about FAS or other developmental disabilities. The court 

determined that Mr. Lawrence was not competent and again committed him to ESH for 

competency restoration.

       The trial court found Mr. Lawrence competent at a hearing on February 5, 2010, 

                                               4 

No. 29055-7-III
State v. Lawrence

following a report from ESH.  Although expressing his own concerns about the 

defendant's condition, Judge Frazier stated that he would "defer to the professionals"

who spent greater time evaluating the defendant.  RP (Feb. 5, 2010) at 182.  Mr. 

Lawrence renewed his motion to proceed pro se on February 17.  Despite continuing 

reservations about Mr. Lawrence's mental health, the court granted the request after 

conducting a colloquy on the record.  Five days later, Mr. Lawrence changed his mind 

and requested counsel.  The trial court reappointed defense counsel.

       On March 26, one week before the scheduled trial, Mr. Lawrence learned that his 

statements to the police would be admitted and that the court had denied his motion to 

suppress the evidence found in his car.  He requested that the court appoint new counsel 

for him at public expense.  The motion was denied and a heated exchange with the trial 

court ensued.  The trial court also denied a renewed request to proceed pro se, with the 

court noting that Mr. Lawrence did not have the ability to properly represent himself.

       Three days later Mr. Lawrence, with the assistance of counsel, filed an affidavit of 

prejudice against Judge Frasier.  Judge Frasier honored the affidavit.  Judge William 

Acey then was assigned the case.

       Mr. Lawrence again sought to represent himself.  After engaging in the standard 

colloquy, Judge Acey accepted the waiver of counsel.  The case proceeded to trial with 

                                               5 

No. 29055-7-III
State v. Lawrence

Mr. Lawrence representing himself.  He testified as the sole defense witness and told 

jurors that at the time of the shooting he had been on the other side of town robbing six 

men of their black diamonds.  He refused to disclose where the diamonds were hidden.

The Fuaau brothers and Mr. Lawrence's passenger all identified him as the shooter.  Mr. 

Lawrence's admissions to Idaho authorities were also put before the jury.

       No lesser included offenses were sought by either party. The jury concluded that 

Mr. Lawrence was guilty as charged.  He continued to represent himself at sentencing.

       The State sought a mid-range sentence of 67.5 years.  Mr. Lawrence reiterated that 

he had not committed the crimes, because if he had, the victims would have been dead.  

He also referred to them:

       [M]y revenge in my heart will come and strike.  And when it comes time 
       when I do become released, Michael, you may think in your heart that I did 
       this crime to you, but I did not.  But my vengeance will come up on your 
       and your family . . . . I will get my chance.  And then all you can put the 
       finger at me when it comes time to. . . .  And that's the truth. . . .  I promise 
       to get my justice against Michael and Yutie Fuaau.  I'm going to do it in 
       broad daylight when it comes, and then I'm going to turn myself in. 

RP (Apr. 21, 2010) at 1634-1637. Mr. Lawrence also requested that he be sentenced 

above the standard range to a life sentence.  RP (Apr. 21, 2010) at 1618, 1619.

       Amidst on-going interruption from Mr. Lawrence, the trial court attempted to 

impose sentence.  The judge initially noted that "because they are serious violent 

                                               6 

No. 29055-7-III
State v. Lawrence

offenses, and different victims, I don't have any choice but to run Counts 1, 2, and 3 

consecutive; I'm required by law to run them consecutive.  My only question is, do I give 

you low end of the range, high end of the range, or mid-range." RP (Apr. 21, 2010) at 

1644.  While initially disposed to impose the requested mid-range sentence, Judge Acey 

changed his mind after listening to Mr. Lawrence: "But I am convinced that you are still 

so angry about this, and hold so much vile hatred in your heart -- that I have no 

choice -- have no choice but to sentence you to the maximum under the law. . . .  I cannot 

trust you out on the streets, sir.  So I'm giving you what I hope will be a life sentence to 

you.  Because that's the only thing safe for society."  RP (Apr. 21, 2010) at 1647. The 

court imposed consecutive high-end 300 month terms.

       The case was timely appealed.  Appointed counsel represents Mr. Lawrence in this 

court.

                                         ANALYSIS

       This appeal raises five issues, which we will address in the order they arose before 

the trial court.  Mr. Lawrence attacks the trial court's competency determination on 

multiple grounds, and also takes issue with the decision to permit him to represent 

himself, the failure to instruct on lesser degree offenses, the special verdict form, and the 

sentencing decision.

                                               7 

No. 29055-7-III
State v. Lawrence

       Competency Determination

       Mr. Lawrence takes issue with Judge Frazier's ultimate ruling that he was 

competent to stand trial, arguing that the evaluation from ESH was flawed by its failure to 

discuss FAS and that the trial court also erred in finding him competent.  The record does 

not reveal any errors in the evaluation process.  There also is no basis for finding that the 

court abused its discretion.

       "Whenever . . . there is reason to doubt [a defendant's] competency, the court on 

its own motion or on the motion of any party shall" order an evaluation.  RCW 

10.77.060(1)(a).  A person is competent to stand trial if he understands the nature of the 

proceedings against him and can assist in his own defense.  State v. Hahn, 106 Wn.2d 

885, 895, 726 P.2d 25 (1986).  

       We review a trial court's competency determination for abuse of discretion.  State 

v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985), cert. denied, 476 U.S. 1144 (1986). 

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.  

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  Discretion also is 

abused when a court uses an incorrect legal standard in making a discretionary decision.  

State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995), review denied, 129 

Wn.2d 1003 (1996).

                                               8 

No. 29055-7-III
State v. Lawrence

       When the court refers a defendant for a competency evaluation, at least two 

experts shall be appointed to conduct the examination and report to the court.  RCW 

10.77.060(1)(a).  In long-standing common parlance, this evaluation committee is known 
as a "sanity commission."1 E.g., State v. Williams, 34 Wn.2d 367, 371, 209 P.2d 331 

(1949). By statute, the court may direct that the defendant's own "qualified expert or 

professional person" be allowed to witness the evaluation and report to the court. RCW 

10.77.060(2). Washington also requires that "a developmental disabilities professional"

shall be included on the commission "if the court is advised by any party that the 

defendant may be developmentally disabled." RCW 10.77.060(1)(a). 

       Mr. Lawrence begins his argument with this last requirement.  Dr. Wilson, who 

was appointed to the commission as the defense expert, was also a developmental 

disabilities professional.  He also was the one expert from the commission to testify at the 

November 12 competency hearing.  Neither the commission's report nor Dr. Wilson's 

testimony discussed FAS or addressed whether Mr. Lawrence had any developmental 

disabilities.  Because of these facts, Mr. Lawrence argues that the trial court erred in 

finding him competent since the experts (and the court) never addressed his 

       1 The statutory evaluation panel was referred to as a "commission to determine the 
sanity or insanity" of the defendants in State ex rel. Mackintosh v. Superior Court of King 
County, 45 Wash. 248, 252, 88 P. 207 (1907) (discussing Ballinger's Ann. Codes & St. § 
2660).
                                               9 

No. 29055-7-III
State v. Lawrence

developmental disability.  There are at least two problems with this argument.

       The first is factual.  While Mr. Lawrence argues that he was previously diagnosed 

with FAS, nothing in the record supports that claim.  The only evidence before the court 

was that family members believed he may have suffered from the condition, so an expert 

in the field was added to the sanity commission.  When the expert reported back to the 

court, no mention was made of the condition.  Similarly, the written report from the 

sanity commission did not touch on the topic.  On this record, there is simply no basis for 

believing that Mr. Lawrence has FAS.

       The second problem with the argument is legal.  He cites no authority requiring 

the sanity commission to address the developmental disabilities claim. The statute directs 

that the sanity commission address the issue of developmental disabilities only when it 

finds the defendant is not competent.  RCW 10.77.084(1)(b)(i) states:

       (b) A defendant found incompetent shall be evaluated at the direction of the 
       secretary and a determination made whether the defendant is an individual 
       with a developmental disability.  Such evaluation and determination shall 
       be accomplished as soon as possible following the court's placement of the 
       defendant in the custody of the secretary.
              (i) When appropriate, and subject to available funds, if the defendant 
       is determined to be an individual with a developmental disability, he or she 
       may be placed in a program specifically reserved for the treatment and 
       training of persons with developmental disabilities.

The apparent purpose of this requirement is to help direct people with developmental 

                                               10 

No. 29055-7-III
State v. Lawrence

disabilities into appropriate programs for restoring competency.

       The commission did not find Mr. Lawrence to be incompetent, so there was no 

requirement that he be evaluated for developmental disabilities as part of a treatment 

regime.  There also was no requirement in RCW 10.77.060 that the sanity commission 

otherwise address the issue of developmental disabilities.  Rather, since there was an 

allegation that such disabilities existed, the committee was required to have an expert in 

the field.  This committee did.

       It is understandable that the commission's report did not address the topic.  In 

addition to there being no mandate to do so under these factual circumstances, the report 

was directed at answering the question of competency -- did Mr. Lawrence understand the 

proceedings against him and was he able to assist counsel in his defense.  The existence 

of a developmental disability does not answer either of those questions.  A disability may 

explain an underlying condition that renders a defendant incompetent, and the disability 

most certainly will need to shape a treatment program, but the existence of a 

developmental disability does not itself answer the question of whether a person is unable 

to appreciate the proceedings against him or to assist counsel.

       The argument that the competency determination was flawed because the court did 

not consider the question of FAS or developmental disabilities is without foundation in 

                                               11 

No. 29055-7-III
State v. Lawrence

fact or law.  The trial court was not required to consider the issue in the absence of any 

party presenting evidence and argument on the relevancy of FAS to Mr. Lawrence's 

ability to understand his pending legal situation.

       The remaining question is whether the trial court erred in finding him competent to 

stand trial under the circumstances of this case.  Mr. Lawrence argues that Judge Frazier 

deferred to the experts instead of making his own determination.  We disagree.  In 

context, the judge deferred to the evidence and opinion of the professionals rather than 

rely upon his own concerns:

              But the reason that I made the decision, on two occasions, to send 
       Mr. Lawrence to Eastern State Hospital for an evaluation is because I have 
       no training in psychology, very little training in psychology, none in
       psychiatry; I do not have the professional expertise to make a diagnosis. I 
       certainly, I think, have the ability to be concerned, be suspicious, that 
       someone is not able to represent themselves or to assist counsel in their 
       defense, or to understand the proceedings. But that's why we have
       professionals, and I feel I must defer to the professionals that have spent a 
       lot of time conducting testing and examination of Mr. Lawrence.

RP (Feb. 5, 2010) at 182-183.

       Far from abdicating his responsibility, Judge Frazier dutifully applied the evidence 

presented to the legal question before him -- did Mr. Lawrence understand the nature of 

the proceedings and was he able to assist his counsel.  The compelling evidence was that 

of the professionals who understood mental health issues and had evaluated Mr. 

                                               12 

No. 29055-7-III
State v. Lawrence

Lawrence.  "Deferring" to the experts simply meant acknowledging that they were in a 

better position than the trial judge to understand Mr. Lawrence's situation.

       The expert opinion that Mr. Lawrence was competent provided a tenable basis for 

the trial court's legal ruling.  There was no abuse of discretion.

                                               13 

No. 29055-7-III
State v. Lawrence

       Self-Representation

       Mr. Lawrence strenuously argues that the trial court erred in permitting self-

representation at trial, arguing that his mental condition should have precluded the trial 

court from accepting his waiver of the right to counsel.  We disagree.  Trial judges have 

permissive authority to deny self-representation to those suffering from mental illness.  It 

is not error when a trial judge, as here, allows a mentally ill defendant to waive the right 

to counsel.

       The Sixth Amendment right to counsel carries with it the implicit right to self-

representation.  Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525

(1975). Article I, section 22 of the Washington constitution creates an explicit right to 

self-representation.  State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).  In order 

to exercise the right to self-representation, the criminal defendant must knowingly and 

intelligently waive the right to counsel; that waiver should include advice about the 

dangers and disadvantages of self-representation.  Faretta, 422 U.S. at 835.  A thorough

colloquy on the record is the preferred method of ensuring an intelligent waiver of the 

right to counsel.  City of Bellevue v. Acrey, 103 Wn.2d 203, 211, 691 P.2d 957 (1984).  

       While courts must carefully consider the waiver of the right to counsel, an 

improper rejection of the right to self-representation requires reversal.  Madsen, 168 

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No. 29055-7-III
State v. Lawrence

Wn.2d at 503.  Courts should engage in a presumption against waiver of counsel.  Id. at 

504.  However, 

              [t]his presumption does not give a court carte blanche to deny a 
       motion to proceed pro se. The grounds that allow a court to deny a 
       defendant the right to self-representation are limited to a finding that the 
       defendant's request is equivocal, untimely, involuntary, or made without a 
       general understanding of the consequences.  Such a finding must be based 
       on some identifiable fact; the presumption in [In re Det. of ]Turay[,139 
       Wn.2d 379, 986 P.2d 790 (1999)] does not go so far as to eliminate the 
       need for any basis for denying a motion for pro se status. Were it otherwise, 
       the presumption could make the right itself illusory.

Id. at 504-505. The defendant's "skill and judgment" is not a basis for rejecting a request 

for self-representation.  Hahn, 106 Wn.2d at 890 n.2.

       The existence of two competing and contradictory rights often leaves trial judges 

in a very difficult position. When the would-be pro se defendant also suffered from 

mental illness issues, the trial court is presented an even more difficult problem.  The 

United States Supreme Court subsequently faced that problem in Indiana v. Edwards, 554 

U.S. 164, 171 L. Ed. 2d 345, 128 S. Ct. 2379 (2008).  There the trial court had denied 

self-representation to the defendant, who was competent to stand trial but whose mental

illness prevented him from conducting the trial proceedings by himself.  The Supreme 

Court agreed, noting that Faretta did not require allowing a mentally ill defendant to 

undertake representation when he "lacks the mental capacity to conduct his defense 

                                               15 

No. 29055-7-III
State v. Lawrence

without the assistance of counsel." 554 U.S. at 175-176.  Instead, the court concluded 

that a state could deny self-representation to a defendant who was competent to stand trial 

but was not "competent" to represent himself.  Id. at 174, 178.  

       Edwards referred to defendants who are competent to stand trial but whose mental 

illness raises questions about "mental fitness for another legal purpose" as falling in a 

"gray area."  Id. at 172.  The court had previously addressed another "gray area"

defendant in Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (1993).  

There the question had been whether a higher standard of mental functioning was 

required to plead guilty or waive counsel than to stand trial.  509 U.S. at 391.  The court 

concluded that there was not a higher standard and permitted the defendant to waive 

counsel and plead guilty.  Id.  Edwards concluded that although Godinez permitted a state 

to allow self-representation to a "gray area" defendant, it did not require the state to do 

so.  554 U.S. at 173-174.

       It was against this backdrop that the Washington Supreme Court addressed the 

Edwards problem in In re Personal Restraint of Rhome, 172 Wn.2d 654, 260 P.3d 874 

(2011).  There a defendant with a history of mental illness who was found competent to 

stand trial had been permitted to waive his right to counsel and represent himself in a 

murder trial.  The court's colloquy did not directly address the defendant's mental health 

                                               16 

No. 29055-7-III
State v. Lawrence

issues. He was convicted and later filed a personal restraint petition, arguing that 

Washington law required a court to consider a competent defendant's mental illness 

before permitting a waiver of counsel.  Id. at 657, 664.  He based his argument in large 

part on a pre-Faretta case, State v. Kolocotronis, 73 Wn.2d 92, 436 P.2d 774 (1968).  

       The Rhome court turned to Washington precedent and analyzed both Kolocotronis

and Hahn.  In Kolocotronis, the court had considered a mentally ill defendant's medical 

history and only partially allowed him to represent himself.  Counsel also took part in the 

trial proceedings and had successfully submitted an insanity defense over the defendant's 

objections.  73 Wn.2d at 93-96.  In Hahn, the defendant's mental illness history was not a 

part of the colloquy when the trial court permitted the defendant to represent himself.  

106 Wn.2d at 886-888, 896 n.9.  The Rhome court summed up Edwards, Kolocotronis, 

and Hahn this way:

       Read together, these three cases stand for the proposition that a defendant's 
       mental health status is but one factor a trial court may consider in 
       determining whether a defendant has knowingly and intelligently waived 
       his right to counsel, but they do not require us to find that an independent 
       determination of competency for self-representation is a constitutional 
       mandate.

172 Wn.2d at 665.

       Rhome acknowledged that it might be possible to require "a more stringent 

                                               17 

No. 29055-7-III
State v. Lawrence

waiver of counsel for a defendant whose competency is questioned."  Id.  

However, it declined to do so in Rhome's case because of the limitations on 

declaring new rules of criminal procedure in a collateral proceeding.  Id. at 665-

666 (citing Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 

(1989)).  

       Mr. Lawrence now asks us to answer the question the Rhome court had to decline 

to address and hold that Washington law requires trial courts to consider a mentally ill 

defendant's ability to represent himself at trial before accepting a waiver of counsel.  This 

admittedly goes beyond the rule of Edwards and Kolocotronis by requiring trial judges to 

do what those cases merely permit a judge to do.  For several reasons, we decline to 

create a new requirement for trial courts.

       First, the requested rule is inconsistent with Hahn.  There the court found a valid 

waiver of counsel despite the trial court's failure to address the defendant's mental illness 

during the colloquy.  As recognized in Rhome, the creation of a new rule would require 

the court to at least "reconsider" Hahn.  172 Wn.2d at 664.  This court is not in a position 

to overturn a decision of the Washington Supreme Court.  E.g., State v. Gore, 101 Wn.2d 

481, 487, 681 P.2d 227 (1984).  If Hahn is to be changed, that court must do so.  This 

court lacks that authority.  Id.

                                               18 

No. 29055-7-III
State v. Lawrence

       Second, the record is less than clear, but it appears that the respective trial judges 

already considered Mr. Lawrence's mental capacity when analyzing his requests to 

represent himself.  Judge Frazier clearly did so on both February 17 when he granted the 

request and on March 26 when he denied a renewed request for self-representation.  It is 

less clear that Judge Acey considered Mr. Lawrence's waiver in light of his mental 

illness. Judge Acey showed some familiarity with the court file in noting that Judge 

Frazier had once before granted Mr. Lawrence's request to represent himself, but the 

record of the hearing does not suggest whether or not Judge Acey was familiar with the 

mental competency issues in the case.  Nothing in Mr. Lawrence's behavior before Judge 

Acey was improper or otherwise suggested he was not competent to represent himself.  

       Mr. Lawrence argues now that the court file put Judge Acey on notice that he had 

mental health issues that should have been addressed during the colloquy.  This argument 

tends to undercut his position.  If Judge Acey was totally familiar with the record, then 

the mental health issues necessarily informed the waiver decision even if the court did not 

articulate them during the colloquy. If he was not familiar with the record, then there was 

no basis for believing there was any need for special consideration of mental health issues 

in assessing the waiver.

       On balance, the record does not assist Mr. Lawrence's argument.  It does, 

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No. 29055-7-III
State v. Lawrence

however, point to an issue that would tend to recur in this situation.  A defendant seeking 

to represent himself has no incentive to increase his burden by pointing out to the court 

that he has mental health issues. Neither defense counsel (if there is one) nor the 

prosecutor are true adversary parties to the waiver question since it is not their job to 

interfere with the defendant's exercise of the right to represent himself.  They likewise 

lack incentive to make a record of mental health concerns that are unknown to the trial 

judge.  

       Finally, applying Mr. Lawrence's proposed rule would be difficult in practice, 

particularly for reviewing courts.  Trial judges already have discretionary authority under 

Edwards and Kolocotronis to consider known mental health problems when addressing a 

waiver of counsel.  While it certainly would be possible to require trial courts to address

mental health issues as part of a colloquy, knowing when the court was required to do so

would be difficult.  Would there have to have been a competency hearing as (repeatedly) 

happened here  What if there had been competency or sanity issues in a previous case 

involving the defendant?  Would inquiry be required even if there were no objective 

reasons for raising the issue in the present case?  The situation of an individual with 

significant history of mental illness, unknown to the court and counsel, who does not 

manifest difficulties in court, would present another problem.  The history may call for an 

                                               20 

No. 29055-7-III
State v. Lawrence

inquiry, but the behavior does not.  Should the trial court be faulted for failing to do 

something it had no reason to believe it needed to do?

       Review of waiver decisions also would be difficult. Appellate courts already 

review these rulings for abuse of discretion.  Rhome, 172 Wn.2d at 667.  Typically, the 

failure to comply with a required obligation constitutes an abuse of discretion.  E.g., State 

v. Rivers, 129 Wn.2d 697, 706, 921 P.2d 495 (1996). Thus, assuming a standard can be 

agreed upon that would trigger the trial court's inquiry, a reviewing court could assess 

whether that duty was undertaken. However, the substance of the decision would be 

exceptionally difficult to review.  Assessment of a defendant's ability to represent himself

from the written pages of a transcript would be impossible except for the situation where 

the defendant could not communicate at all.  It would be equally difficult to assess a trial 

judge's determination that a defendant was or was not able to represent himself due to 

mental illness.  Just as we defer to credibility decisions made by the trier-of-fact who saw 

the witnesses in the courtroom and decided who to believe, we would have to defer to the 

similar choices made by the trial judge considering the evidence of the defendant's 

capacity to perform in the courtroom.  This competency determination would be 

essentially unreviewable because there would always be a tenable basis for the ruling 

whenever the judge stated "I believe you are/are not able to do the job."

                                               21 

No. 29055-7-III
State v. Lawrence

       In practice, Mr. Lawrence's suggested standard would be hard to apply and not be 

subject to meaningful review.  For that reason, also, we find his argument unpersuasive.

       Trial judges face exceedingly difficult choices when deciding whether to allow a 

defendant to waive the right to counsel in order to assert the right to self-representation.  

They already have discretionary authority to reject a waiver when mental illness prevents 

a defendant from having the ability to present his own case at trial.  Mandating the use of 

that discretionary authority in some difficult-to-define subset of these types of cases will 

only limit trial court discretion at a time when it is most needed and will not provide for 

any meaningful review.

       Having rejected Mr. Lawrence's standard, we still must consider whether Judge 

Acey abused his discretion in granting the request for self-representation. The record 

reveals there were tenable bases for granting the motion.  Mr. Lawrence presented well 
and did not display any untoward behavior in the courtroom.2 He engaged in an extended 

colloquy with Judge Acey and essentially explained he wanted to be able to present his 

own theory of the case rather than rely upon counsel, whom he did not believe was 

working in his best interests.  His explanation is one rather commonly seen among those 

       2 His behavior remained good until sentencing.  Although irrelevant to our 
discussion, Mr. Lawrence was able to represent himself at trial and his illness does not 
appear to have hampered the presentation of his unusual defense to the jury.
                                               22 

No. 29055-7-III
State v. Lawrence

who desire to represent themselves.  In short, there was nothing out of the ordinary that 

would have permitted Judge Acey to veto Mr. Lawrence's decision to represent himself.

       Mental illness is often a fluid situation with the condition of the afflicted changing 

repeatedly over time.  Edwards, 554 U.S. at 175.  That fluidity was demonstrated in this 

case.  Judge Frazier had twice found Mr. Lawrence not competent to stand trial, and 

twice found that he was.  Judge Frazier once found that Mr. Lawrence was capable of 

representing himself without counsel, and one time determined that he was not.  Just as 

none of these decisions settled the issue once and for all, none of these prior rulings 

establish that Judge Acey erred in permitting self-representation in April 2010.  Mr. 

Lawrence was competent to represent himself at the time Judge Acey inquired of him and 

accepted his waiver of counsel.  Whatever his mental condition earlier, the record 

supports the court's ruling that he was able to represent himself in April 2010.

       Mr. Lawrence has not established that the trial court abused its discretion in 

granting his request to represent himself at trial.

       Affirmed.

       A majority of the panel having determined that only the foregoing portion of this 

opinion will be printed in the Washington Appellate Reports and that the remainder 

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it 

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No. 29055-7-III
State v. Lawrence

is so ordered.

       Lesser Included Offenses

       Mr. Lawrence also argues that the court erred in not giving a lesser included 

offense instruction on first degree assault.  He never requested such an instruction and 

cannot now complain that the court should have given one sua sponte.  His argument also 

fails because first degree assault is not a lesser included offense of attempted murder.

       By statute, either party in a criminal case is entitled to an instruction on a lesser 
included offense in appropriate circumstances.  RCW 10.61.006.3 In order to instruct on 

an included offense, the crime actually must be an included offense and there must be a 

factual basis for believing that the lesser crime was committed.  State v. Workman, 90 

Wn.2d 443, 447-448, 584 P.2d 382 (1978).  These are known as the "legal" and "factual"

prongs.  State v. Berlin, 133 Wn.2d 541, 545-546, 947 P.2d 700 (1997).  

       Trial courts appear to have authority to instruct sua sponte on lesser included 

offenses, but they may not do so over the objection of a defendant.  State v. Hoffman, 116 

Wn.2d 51, 111, 804 P.2d 577 (1991).  Because a lesser included offense is a statutory

right, the failure to request such an instruction at trial precludes review on appeal.  Id. at 

111-112 & n.90.  

       3 Statutes also provide that parties are entitled to instructions on inferior degree 
offenses and attempted crimes.  RCW 10.61.003, .010.
                                               24 

No. 29055-7-III
State v. Lawrence

       Hoffman identifies the first problem for Mr. Lawrence's argument.  He did not 

request an instruction on any included offense.  In his briefing he identifies an objection 

he made to the "substantial step" instruction and argues that it is actually a request for an 

instruction on first degree assault.  It is not.  In context, he appears to be asking how the 

instruction would apply to a situation where a defendant intended to wound, not kill, the 

victim.  That is a far cry from asking the court to instruct on a lesser included offense, 

particularly where the lesser included offense would be at odds with his own testimony 

that he was in a different part of town committing a different crime at the time the victims 

were shot.  This argument is not preserved.  Id.  

       The argument also fails the legal prong of the Workman test.  In order for one 

crime to be an included offense under the legal prong, every element of the lesser offense 

must be an element of the greater crime.  Berlin, 133 Wn.2d at 548.  That is not the case

here.  The elements of attempted first degree murder, as instructed in this case, required 

proof that Mr. Lawrence took a substantial step toward killing the victims and that he 

acted with the intent to commit first degree murder.  Clerk's Papers (CP) at 257-260 (jury 

instructions 7-10). The elements of first degree assault, as relevant to this case, are (1) 

with intent to inflict great bodily harm, the defendant either (2) (a) assaults another with a 

firearm or (b) assaults another and inflicts great bodily harm.  RCW 9A.36.011(1).    

                                               25 

No. 29055-7-III
State v. Lawrence

       The problem here, as with nearly every attempt offense, involves the substantial 

step element.  Because a substantial step could amount to any act moving the crime 

beyond mere preparation, the element is satisfied by conduct that is less than that needed 

to complete the lesser offense.  Here, a substantial step does not also amount to actually 

assaulting another with a firearm or with inflicting great bodily harm.  For instance, the 

substantial step in this case of attempted murder was satisfied by the act of driving up to 

the house, armed, with the intent to kill.  It is possible to prove attempted murder without

proving any assault occurred.  Thus, first degree assault is not an included offense of 

attempted murder.

       This issue was not preserved by a timely request for a lesser included offense.  The 

proposed lesser included offense does not satisfy the legal prong of the Workman
standard.  For both reasons, there was no error.4

       4 While normally shooting at another person would provide a factual basis for 
either attempted murder or first degree assault, it is doubtful that the factual prong was 
satisfied in this case.  The factual prong is satisfied when there is affirmative evidence 
showing that only the lesser crime actually was committed.  State v. Speece, 115 Wn.2d 
360, 362-363, 798 P.2d 294 (1990); State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 
(1990).  The factual prong is not established merely by the fact that the jury might 
disregard some of the evidence in the case.  "Instead, some evidence must be presented 
which affirmatively establishes the defendant's theory on the lesser included offense 
before an instruction will be given."  Fowler, 114 Wn.2d at 67. There was no testimony 
that Mr. Lawrence shot at the victims with intent other than to kill and no affirmative 
basis for believing that something other than attempted murder occurred here.
                                               26 

No. 29055-7-III
State v. Lawrence

       Firearm Instruction

       Mr. Lawrence also argues that the firearm enhancement instruction erroneously 

required the jury to be unanimous in order to reject the enhancement. He did not 

challenge the instruction at trial.

       This court has previously determined that this error is not an issue of constitutional 

magnitude that can be asserted for the first time on appeal per RAP 2.5(a)(3).  State v. 

Guzman Nunez, 160 Wn. App. 150, 248 P.3d 103, review granted, 172 Wn.2d 1004

(2011).  The Washington Supreme Court recently heard argument on this issue and will 

ultimately decide it.  We see no reason to revisit Guzman Nunez at this time.

       The issue cannot be presented initially in this appeal.

       Sentencing

       Last, Mr. Lawrence argues that he should be resentenced because the trial judge 

did not realize he could impose an exceptional sentence.  We do not read the judge's 

comments in the same manner as Mr. Lawrence.  We also conclude in light of the entirety 

of the court's remarks that it would impose the same sentence in order to protect the 

public, so if there was any error, it was harmless.

       The relevant portions of the sentencing hearing are detailed earlier in this opinion.  

Mr. Lawrence bases his argument on Judge Acey's statement that "I don't have any 

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No. 29055-7-III
State v. Lawrence

choice" but to impose consecutive sentences.  RP (Apr. 21, 2010) at 1644.  He correctly 

notes that serious violent offenses can be served concurrently if the trial court uses its 

exceptional sentence authority to mitigate the sentence.  In re Pers. Restraint of 

Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007).  Because of that fact, he argues that 

Judge Acey erred in not considering a mitigated sentence.

       His argument would have some appeal if the trial court had been asked to impose a 

mitigated sentence.  There was no such request, so the context of this statement does not 

support the argument. Instead, the proper reading of this statement is that the trial court 

was required by law to impose consecutive sentences in this context -- i.e., when 

imposing a standard range sentence.  It also appears, as supported by the statement quoted 

in the next paragraph, that Judge Acey uses the phrase "I have to" to describe the course 

of action he has decided to take rather than use it to describe the requirements of the law.

       Even if we agreed with the defendant's construction of the comment, it would not 

provide him any relief.  That is because Judge Acey's comments, after hearing Mr. 

Lawrence ask for a life sentence and state that he would seek vengeance against the

victims, made clear that a mitigated sentence would not protect the public.  "I have no 

choice . . . but to sentence you to the maximum under the law. . . .  I cannot trust you out 

on the streets, sir.  So I'm giving you what I hope will be a life sentence to you.  Because 

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No. 29055-7-III
State v. Lawrence

that's the only thing safe for society."  RP (Apr. 21, 2010) at 1647.  A mitigated sentence 

was simply out of the question in this case.

       A resentencing need not be ordered when the appellate court is convinced that the 

trial court would impose the same sentence on remand.  E.g., State v. Fisher, 108 Wn.2d 

419, 429, 739 P.2d 683 (1987).  In light of the trial court's detailed explanation for its 

ruling, there is no question but that it would impose the same sentence again.  Thus, even 

if the "don't have any choice" comment was a mischaracterization of the law, it was 

harmless in this case.  A mitigated sentence was not under consideration, and Mr. 

Lawrence's veiled threats at sentencing confirmed the need to protect the victims with a 

high-end sentence.

       There was no error.

       Affirmed.

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Sweeney, J.

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