State v. Sanabria, 46685-6-II
| Decision Date | 03 May 2016 |
| Docket Number | 46685-6-II |
| Parties | STATE OF WASHINGTON, Respondent, v. EXPY SANABRIA, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Expy Sanabria appeals his conviction and sentence for one count of unlawful possession of a controlled substance with intent to deliver. He argues that the trial court erred by (1) violating his right to self-representation, (2) denying his motion to suppress evidence gathered under a search warrant (3) denying his motion to compel the discovery of police reports, (4) denying him a continuance to obtain testimony from a witness, and (5) imposing legal financial obligations (LFOs) without inquiring into his ability to pay them. The State concedes that the court erred by failing to inquire into Sanabria's ability to pay discretionary LFOs. In a pro se statement of additional grounds (SAG), Sanabria claims that (6) the prosecutor committed misconduct and (7) the trial court should have excluded two telephone calls made from jail.
We disagree with each of these arguments except the argument about LFOs. We accept the State's concession that the trial court erred by failing to inquire into Sanabria's ability to pay. Therefore, we affirm his conviction, but we remand to the trial court for consideration of Sanabria's ability to pay discretionary LFOs.
In early November 2013, a confidential informant (CI) notified officers that a man with the street name "X" was selling methamphetamine. Clerk's Papers (CP) at 131. The CI described X as Puerto Rican, possibly residing in Lakewood, and driving a four-door 2004 black Acura TL with a license plate beginning with "311." CP at 131. Officers, including Lakewood Police Officer Sean Conlon arranged with the CI to conduct a controlled purchase of drugs from X. Meanwhile, officers located a vehicle matching the CI's description of the Acura driven by X. The Acura was parked in the driveway of a residential double-wide trailer in Lakewood.
At the time of the planned controlled buy, officers conducting surveillance saw a Hispanic male matching X's description leave the double-wide in Lakewood and enter the black Acura. The officers followed the subject as he drove directly to the location where the CI had arranged to buy drugs from X. After the transaction, officers followed X as he drove directly back to the double-wide. The CI provided the methamphetamine purchased from X to the officers. Officers later conducted a second controlled buy. Again, the same man matching X's description left the double-wide, entered the black Acura drove directly to the CI's location, sold the CI methamphetamine, then returned directly to the double-wide.
Officer Jeff Martin of the Tacoma FBI South Sound Gang Task Force filed an affidavit in support of an application for a search warrant to seek evidence of X's unlawful possession and delivery of a controlled substance.[1] The affidavit alleged the facts described above: that the CI had described X and the Acura and had stated that X possibly lived in Lakewood, and that the two controlled transactions had occurred as described above. Based on the circumstances outlined in the affidavit, Officer Martin believed that X had committed unlawful possession and delivery of a controlled substance, contrary to RCW 69.50.401(2)(b). The application sought to search the interior of the double-wide and the Acura and to seize evidence of the illegal sale of methamphetamine. A judge issued the requested search warrant.
On November 20, 2013, officers searched the premises and Acura pursuant to the warrant. In the double-wide, they found methamphetamine, marijuana, currency, ammunition, and various drug paraphernalia. Specifically, Officer Conlon found methamphetamine in a cooler in the double-wide.[2] Inside the double-wide, officers also found some of Sanabria's documents, including Sanabria's driver's license, photo identification cards (IDs), and photographs of him.[3]
At the beginning of the search, officers arrested Sanabria as he drove the Acura described in the search warrant toward the double-wide and searched him incident to arrest. They found methamphetamine and $781 in cash in Sanabria's pockets. The Acura revealed no evidence.
The State charged Sanabria by amended information with one count of unlawful possession of a controlled substance with intent to deliver (methamphetamine).[4] Trial was set for January 13, 2014.
On December 26, 2013, Sanabria wrote a letter to the trial court informing the court of a conflict with his counsel. At an omnibus hearing on January 10, 2014, apparently because of the December 26 letter, Sanabria's assigned counsel told the court that Sanabria wished to appear pro se and file several motions. Sanabria said: Verbatim Report of Proceedings (VRP) (Jan. 10, 2014) at 3. Sanabria explained the conflict with Ms. Melby: he felt that she was not providing the amount or kind of help he desired. The court inquired about whether Sanabria had been to law school and whether he had attempted to contact the Department of Assigned Counsel. Sanabria repeated: "With all due respect, Your Honor, I would still like to go pro se with another lawyer." VRP (Jan. 10, 2014) at 4. The court responded: VRP (Jan. 10, 2014) at 4. Sanabria reiterated that he felt he would not receive a fair trial if he continued with his current counsel. The court, apparently believing Sanabria desired a different lawyer, expressed concern about trial being delayed if Sanabria changed counsel.
After further colloquy, the court said: "If you want to go pro se, I'll let you go pro se, but I'm going to ask Ms. Melby to remain as standby." VRP (Jan. 10, 2014) at 8. The court noted that it thought Mr. Sanabria was "doing [himself] a disservice" by proceeding pro se. VRP (Jan. 10, 2014) at 9. It concluded: VRP (Jan. 10, 2014) at 10. Sanabria asked how much time he could have to think about it. The trial court informed Sanabria that trial had been continued for other reasons and concluded:
I'm going to deny the motion without prejudice at this time. Think about it, okay? And "without prejudice" means if you decide in a week that you just got [sic] to do it, then you can come back and try to do it. I don't want you to jam yourself up, though, and I think you're getting ready to hurt yourself.
VRP (Jan. 10, 2014) at 10. The trial court issued a continuance at the request of both parties, citing, "Discovery motions outstanding; Defendants may motion [sic] to go pro se." CP at 20.
About two weeks later, on January 24, Sanabria filed several handwritten, pro se documents, including 12 requests for discovery. One of the documents was entitled "Affidavit in Support of Motion to Proceed Pro Se." CP at 27. It stated in part that Sanabria CP at 27. Sanabria attached a proposed order granting his motion to represent himself. In an apparent attempt to note his motions, Sanabria included a "Motion to Set Docket" for January 28. CP at 21. The record does not show that Sanabria served the State with any of these documents, nor that the trial court saw them. The trial court did not hold a colloquy to consider Sanabria's request to proceed pro se after he filed this document.
Sanabria proceeded with assigned counsel. At subsequent pretrial hearings on March 11, April 14, and April 16, Sanabria did not reiterate his request to represent himself, nor did he call the trial court's attention to his January 24 document. On April 25, Sanabria again moved pro se to substitute counsel. The trial court denied this motion because trial was beginning. Sanabria reminded the trial court that he had previously "asked to go pro se also, " but that it was now too late for him to prepare to represent himself, given that the trial court had denied his motion to represent himself on January 10. VRP (May 1, 2014) at 8. Sanabria did not specifically mention his January 24 "Affidavit in Support of Motion" to proceed pro se. The trial court reiterated its ruling that it was too late for Sanabria to change counsel.
On March 21, Sanabria moved to suppress the evidence seized from the double-wide and from his person, arguing that the affidavit failed to establish probable cause to support the search warrant's issuance. In the same motion, Sanabria moved for a Franks[5] hearing alleging that the search warrant's affiant intentionally omitted material facts from the affidavit. The trial court denied both motions.[6] The trial court found that the controlled transactions as described in the affidavit established probable cause because during both transactions a man meeting X's description left the double-wide and traveled directly to the meeting place with the CI, sold the CI methamphetamine, then returned directly to the double-wide in the Acura. Thus, the trial court ruled that there was a sufficient nexus between the double-wide and Sanabria's violation of the controlled substances law. Regarding the request for a Franks hearing to ascertain the truth of the affidavit, the trial court ruled that Sanabria "could not establish by a preponderance of the evidence that there was [a material omission], intentional misrepresentation...
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