State v. Mehrabian, 68138-9-I

CourtCourt of Appeals of Washington
PartiesSTATE OF WASHINGTON, Respondent, v. SASSAN MEHRABIAN, Appellant.
Docket NumberNO. 68138-9-I,68138-9-I
Decision Date25 March 2013


NO. 68138-9-I


FILED: March 25, 2013


LAU, J. —A jury convicted Sassan Mehrabian of five counts of first degree theft, one count of attempted first degree theft, and one count of witness tampering. He appeals the judgment and sentence, claiming that (1) the trial court erred in finding that he unequivocally waived his right to counsel, (2) count I's "to convict" instruction improperly permitted the jury to convict him of acts committed beyond the statute of limitations, (3) insufficient evidence supports his theft convictions, and (4) two first degree theft convictions constitute the same criminal conduct. The State cross appeals the trial court's failure to include Mehrabian's 1992 first degree theft conviction in his offender score. Viewing the record as a whole, Mehrabian unequivocally waived his right to counsel. His remaining arguments lack merit. We affirm the jury convictions, but because the trial court improperly excluded Mehrabian's prior theft conviction from his offender score, we remand for resentencing consistent with this opinion.

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The City of Woodinvilie hired Sassan Mehrabian as its information technology (IT) manager in 2000. Mehrabian's supervisors, Deborah Knight and Jim Katica, were unaware that he ran a side business dealing in computer equipment. As IT manager, Mehrabian was solely responsible to buy and inventory new computer equipment. The City's extensive written purchasing policies required Mehrabian to provide three competitive bids and obtain approval from his supervisors before purchasing computer equipment. City policy prohibited employees from engaging in business with the City— either themselves or through their companies—without first disclosing the arrangement.

Despite this prohibition, Mehrabian bought computer equipment on eBay, using third party vendor GeekDeal to invoice himself at the City for similar equipment at a substantial markup. The City paid GeekDeal, which would then pass the money on to Mehrabian. On several occasions, Mehrabian either invented price quotes to support his purchases or forged invoices from GeekDeal. He also delivered to the City equipment inferior to what his supervisors approved, equipment not under warranty, or no equipment at all. The City discovered Mehrabian's scheme after he left City employment in 2008. The City contacted police when it inventoried its equipment and discovered discrepancies between the equipment it thought it had and the equipment it actually had.

The State charged Mehrabian by third amended information with five counts of first degree theft (counts I, IV, V, VII, and VIII), one count of attempted first degree theft

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(count VI), and one count of witness tampering (count III).1 The jury convicted Mehrabian as charged on all counts.


Waiver of Right to Counsel

Mehrabian contends he was denied his state and federal constitutional right to counsel. The State responds that Mehrabian repeatedly demanded to represent himself and the request was unequivocal in light of the entire record.

Relevant Facts

Mehrabian expressed his dissatisfaction with counsel on December 17, 2010, during a hearing before Judge Palmer Robinson. At that time, Mehrabian was represented by public defender Paul Vernon. Mehrabian told the court that he wanted a new lawyer or to hire private counsel because he and counsel did not agree on trial strategy and because counsel failed to obtain documents necessary to his defense. He also objected to his counsel's repeated requests for continuances. He stated that he lacked "confidence in . . . the public defenders' office trying [to] represent [him]." Judge Robinson denied Mehrabian's request to dismiss Vernon as counsel but made no ruling on whether Mehrabian could hire private counsel.

On February 25, 2011, Mehrabian appeared before Judge Ronald Kessler with retained counsel Jon Zulauf. Mehrabian requested that Zulauf be allowed to substitute for appointed counsel Vernon. Vernon joined in Mehrabian's request, stating that his relationship with Mehrabian was "problematic" and would only get worse at trial. Judge Kessler granted the motion and continued the trial date to enable Zulauf to prepare but

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also warned Mehrabian that "[t]here will be no other[] [substitutions of counsel]." The case proceeded to trial before Judge Richard Eadie in May 2011. Shortly after trial began, the court granted the defense's motion for mistrial due to a death in Zulauf's family. At another hearing before Judge Eadie on June 28, 2011, Zulauf indicated that Mehrabian wished to discharge counsel and proceed pro se. Judge Eadie conducted an extensive colloquy regarding Mehrabian's request. During the colloquy, Mehrabian answered "yes" when the court asked if he wanted to represent himself at trial. Judge Eadie warned Mehrabian that he had no constitutional right to standby counsel. When asked why he wanted to proceed pro se, Mehrabian explained that he knew the case better than anyone else did. He stated:

All the intricacies involved with this case is known to me and me only because I've studied those 900-something pages, page-by-page, and I know them by heart because I've had close to two years to study them. And as the Court is aware, I had every intention for Mr. Zulauf to represent me, but those few days I noticed that Mr. Zulauf is missing out on many of those little details that I wholeheartedly believe that are crucial during the question and answer procedures. And it was rather nerve-wracking for me to sit here and see Mr. Zulauf not asking those appropriate questions. . . . And honestly, with my financial resources completely depleted because of this case for three and a half years, you know, shattering my life, not being able to work a full-time job, you know, at any place . . . so that's the only option that I'm left with.

Judge Eadie asked Mehrabian whether he knew he could have counsel appointed at public expense. Mehrabian responded that had no faith in, and did not want, a public defender. Specifically, he stated:

I started with that, unfortunately I didn't see the . . . the ethical and dedication on my attorney's behalf for putting a battle for my side of the story. He was far more interested in entering into some sort of plea bargain than anything else. And, you know, through my investigation I found out that's what the Public Defender does. They just do, you know, primarily do plea bargains. So I lost my faith in Mr. Vernon.

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He continued, "The Public Defenders don't put up a fight, you know, that Defendants expect from their attorneys."

Judge Eadie advised Mehrabian that he would be better off with a lawyer and strongly urged him not to represent himself. Judge Eadie then asked, "Now in light of the penalties that you might suffer if you were found guilty and in light of all of the difficulties of representing yourself, is it still your desire to represent yourself and give up your right to be represented by a lawyer?" Mehrabian responded, "Yes, Your Honor, at this time." The court found that Mehrabian "knowingly and voluntarily waived his right to Counsel" and granted his request to proceed pro se. Mehrabian signed a waiver of counsel.

A short time later, Judge Eadie again asked Mehrabian whether he truly wanted to represent himself. At that point, Mehrabian was less sure:

I want to be really honest. Up to today I was determined to be . . . to go that pro se. But after listening to you I'm not quite sure to be honest with you. And it's a difficult case as, you know, you understand that I'm at a crossroads in my life that I cannot make, you know, definite decisions at this time.

The State then expressed concern that Mehrabian's request to represent himself was equivocal. After further colloquy and discussion with Zulauf, Mehrabian asked to proceed pro se with Zulauf as standby counsel. The court repeatedly asked Mehrabian what he wanted to do and he consistently said he wanted to proceed pro se with Zulauf as standby counsel. See Clerk's Papers (CP) at 239 ("RE [Richard Eadie]: Okay. Mr. Mehrabian? If Mr. Zulauf does stay on as standby Counsel, do you want to represent yourself at this time? SM [Sassan Mehrabian]: Yes, Your Honor."); CP at 240 ("RE: Well my understanding] is, Mr. Mehrabian, that you want to represent yourself and you're firm in that, but . . . And are you firm in wanting to represent yourself? SM: Yes,

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Your Honor. Yes. RE: As opposed to going back to the Office of Public Defense? SM: Yes, Your Honor. Absolutely."); CP at 240 ("RE: And . . . do you still want to represent yourself? SM: Yes, Your Honor, I do. . . . RE: And your option is you want to represent yourself at this time, is that correct? SM: Yes. Yes please.").

The court granted Mehrabian's request and appointed Zulauf as retained standby counsel. Judge Eadie handwrote on Mehrabian's waiver form, "Jon Zulauf is appointed standby counsel." At that point, the court found Mehrabian's "waiver of counsel to be knowingly, intelligently and voluntarily made."

Two weeks later, on July 13, the parties appeared before Judge Ronald Kessler for a scheduling hearing. Zulauf indicated that Mehrabian was not happy with his representation and he was not being paid for his services as standby counsel. Mehrabian told the court he preferred to have Zulauf as...

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