Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 80865-1
Title of Case: State v. Rafay
File Date: 12/10/2009
Oral Argument Date: 03/18/2008


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
95-1-05434-6
Honorable Charles W Mertel


JUSTICES
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Gerry L. Alexander Signed Majority
Charles W. Johnson Signed Majority
Barbara A. Madsen Signed Majority
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Signed Majority
Debra L. Stephens Majority Author


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Elaine L Winters
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Jason Brett Saunders
Gordon & Saunders PLLC
1111 3rd Ave Ste 2220
Seattle, WA, 98101-3213

Counsel for Respondent(s)
Deborah A. Dwyer
King Co Pros Ofc/Appellate Unit
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


Brian Martin Mcdonald
King County Prosecuting Attorney
516 3rd Ave Ste W554
Seattle, WA, 98104-2362

Counsel for Other Parties
David Bruce Koch
Nielsen Broman & Koch PLLC
1908 E Madison St
Seattle, WA, 98122-2842





IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

NO. 80865-1
Respondent,

v. EN BANC

ATIF RAFAY and GLEN SEBASTIAN
BURNS,
Filed December 10, 2009
Petitioners.

STEPHENS, J. -- Petitioner Glen Sebastian Burns1 was convicted of three

counts of aggravated first-degree murder in 2004. He appealed and requested to

appear pro se and allow counsel to withdraw. The Court of Appeals denied his

request. Before this court, he argues he has a constitutional right to represent

himself on appeal. We agree and hold that article I, section 22 of the Washington

State Constitution guarantees a right of self-representation on appeal. As with the

other constitutional guaranties, however, this right is not absolute. Because the

record does not reveal the basis for the Court of Appeals' order denying Burns's

1 Burns's case is captioned under the name of his codefendant, Atif Rafay.

State v. Rafay and Burns, 80865-1

motion, we remand for further proceedings consistent with this opinion.

Facts and Procedural History

Along with his childhood friend Atif Rafay, Burns was charged with the

murders of Rafay's parents and sister. On October 22, 2004, Rafay and Burns were

each convicted of three counts of aggravated first-degree murder and sentenced to

life in prison.

Burns was assigned appellate counsel through the Washington Appellate

Project and timely appealed his conviction. On August 20, 2007, after his attorneys

filed Burns's opening brief but before the State submitted its response brief, Burns

moved for an order to represent himself pro se during the appeal and have his

counsel withdraw pursuant to Rules of Appellate Procedure (RAP) 18.3(a)(1).

Along with the motion, Burns submitted a declaration averring that he understands

the impact of appearing pro se on appeal, particularly as an incarcerated person,

including the fact that he may not be allowed to present oral argument. The

prosecuting attorney opposed the motion.

A commissioner of the Court of Appeals initially granted Burns's motion by

notation on August 27, 2007. After the State submitted its response on September

5, 2007, the commissioner withdrew the ruling and referred the matter to a three-

judge panel for consideration. Burns filed a reply on September 13, 2007. On

October 8, 2007, the Court of Appeals panel denied the motion in a one-page order,

without setting forth its reasoning.

We granted Burns's motion for discretionary review of the Court of Appeals'

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decision.

Analysis

Burns claims a right of self-representation on appeal under article I, section

22 of the Washington State Constitution. He acknowledges that the Sixth

Amendment to the United States Constitution, while securing a right of self-

representation at trial, does not afford such a right on appeal. See Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Martinez v.
Court of Appeal, 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000).2

We have not before considered whether article I, section 22 of our state

constitution affords a right of self-representation on appeal. The parties analyze the

question under the six nonexclusive, neutral criteria of State v. Gunwall, 106 Wn.2d

54, 58, 720 P.2d 808 (1986): "(1) the textual language; (2) differences in the texts;

(3) constitutional history; (4) preexisting state law; (5) structural differences; and (6)
matters of particular state or local concern."3

Article I, section 22 of the Washington State Constitution provides:

In criminal prosecutions the accused shall have the right to appear and
defend in person, or by counsel, to demand the nature and cause of the
accusation against him, to have a copy thereof, to testify in his own behalf,

2 In Faretta, the United States Supreme Court concluded that the right of self-
representation at trial is "necessarily implied" by the structure of the Sixth Amendment.
422 U.S. at 819. But because the Sixth Amendment does apply to appellate proceedings,
that Court in Martinez concluded, "[i]t necessarily follows that the Amendment itself
does not provide any basis for finding a right to self-representation on appeal." 528 U.S.
at 160.
3 In Gunwall we noted that these criteria are useful in "helping to insure that if this
court does use independent state constitutional grounds in a given situation, it will
consider these criteria to the end that our decision will be made for well founded legal
reasons and not by merely substituting our notion of justice for that of duly elected
legislative bodies or the United States Supreme Court." Gunwall, 106 Wn.2d at 62-63.

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State v. Rafay and Burns, 80865-1

to meet the witnesses against him face to face, to have compulsory process
to compel the attendance of witnesses in his own behalf, to have a speedy
public trial by an impartial jury of the county in which the offense is
charged to have been committed and the right to appeal in all cases . . . .

We agree with Burns that a textual analysis of this provision supports finding a right

of self-representation on appeal. First, it expressly acknowledges the accused's

right "to appear and defend in person, or by counsel." This disjunctive phrasing

was deliberately chosen by the framers of our constitution, who rejected a prior

draft that read, "'and by counsel.'" Quentin Shipley Smith, Analytical Index to The

Journal of the Washington State Constitutional Convention 1889, at 511 (Beverly

Paulik Rosenow ed., 1999). Article I, section 22 also contains an express right to

appeal among the rights of the accused. Ours was the first state constitution to

include such language. James E. Lobsenz, A Constitutional Right to an Appeal:

Guarding Against Unacceptable Risks of Erroneous Conviction, 8 U. Puget Sound

L. Rev. 375, 376 (1985).

The State argues there is no connection between the provision's guaranty of a

right to appear and defend in person in criminal prosecutions and its guaranty of a

right to appeal in all cases. State's Suppl. Br. at 6-7. In sum, the State contends the

right to appeal is not personally held by the defendant because the right is not

contained in the same clause as the words "in person." This reading of article I,

section 22 is untenable; the words "in person" are similarly separated from the other

guaranties that follow the opening clause, yet these are necessarily personally held

rights. For example, we do not need the words "in person" to describe the personal

nature of an accused's right to testify in his own behalf and confront witnesses

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State v. Rafay and Burns, 80865-1

against him.

Regardless of the grammatical distance between the "right to appeal" and the

words "defend and appear in person," the right to appeal is no less a personally held

right than are the other guaranties found in article I, section 22. Courts have long

recognized the importance of individual autonomy with respect to the rights of the

accused. As the United States Supreme Court has observed:

The right to defend is personal. The defendant, and not his lawyer or the
State, will bear the personal consequences of a conviction. It is the
defendant, therefore, who must be free personally to decide whether in his
particular case counsel is to his advantage. And although he may conduct
his own defense ultimately to his own detriment, his choice must be
honored out of "that respect for the individual which is the lifeblood of the
law."

Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S. Ct.

1057, 25 L. Ed. 2d 353 (1970) (Brennan, J., concurring)). This reasoning is

persuasive whether the defendant wants to make his own case at trial or on appeal.

It remains he who bears the personal cost if his bid is unsuccessful. Because the

right to appeal, like the other rights enumerated in article I, section 22, must be

personally held, the provision as a whole must be construed as guaranteeing a right
of self-representation on appeal.4

State constitutional and common law history bolsters this conclusion. Though

lower courts have observed with respect to article I, section 22 that "[s]cant

accessible history exists regarding the intentions of the framers of the Washington

Constitution," State v. Silva, 107 Wn. App. 605, 619, 27 P.3d 663 (2001), we are

not entirely without guidance. It is clear, for example, that Washington was the first

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State v. Rafay and Burns, 80865-1

state to set forth an express right to appeal among the rights of the accused, though

almost all of the states historically recognized some form of discretionary appellate

review. Martinez, 528 U.S. at 159 n.7; Lobsenz, supra, at 376. From this we may

fairly surmise that where an appeal is concerned, the framers of our constitution

intended to provide for broader rights under article I, section 22 than those

guaranteed under the Sixth Amendment. See generally Robert F. Utter & Hugh D.

Spitzer, The Washington State Constitution: A Reference Guide 36 (2002) (noting

that with regard to an appeal right, article I, section 22 provides greater protection

than its federal counterpart). The very deliberate choice to include a right to appeal

among the panoply of other personally held rights thus provides some historical

evidence favoring recognition of a right of self-representation on appeal.

In support of its assertion that state common law forecloses a constitutional

right of self-representation on appeal, the State cites State v. Mode, 55 Wn.2d 706,

709, 349 P.2d 727 (1960), which emphasizes the value of having counsel on appeal.

State's Suppl. Br. at 7-8. But the court in Mode did not address article I, section 22

and did not evaluate the important concerns surrounding autonomy and the

4 For the same reason, recognition of a right of self-representation on appeal does
not arise mechanically from the single clause providing the right to appeal. "The
inference of rights is not, of course, a mechanical exercise." Faretta, 422 U.S. at 819
n.15; see also Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630
(1965). Rather, the right of self-representation is implicit in the structure of article I,
section 22 just as it is in the Sixth Amendment. See Faretta, 422 U.S. at 819-20. It
extends to appellate proceedings because article I, section 22, unlike the Sixth
Amendment, applies to appellate proceedings. But, it is no more accurate to say the right
is an outgrowth of the right to appeal than to say the Sixth Amendment self-
representation right at trial arises from a defendant's power to waive assistance of counsel
at trial. Faretta, 422 U.S. at 820 n.15. We read article I, section 22 as a whole.

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State v. Rafay and Burns, 80865-1

personally held right to defend -- whether against a charge at trial or a conviction on

appeal. In the years since Mode, we have acknowledged the personal nature of the

right to appeal. See State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978) (rejecting

presumption favoring waiver of defendant's right to appeal); State v. Tomal, 133

Wn.2d 985, 948 P.2d 833 (1997) (holding dismissal of appeal for attorney's failure

to file notice violated defendant's right to appeal). Given the value we place on the

accused's personal decision-making in this area, we cannot agree that state

constitutional and common law history favor the rejection of a right of self-

representation on appeal. To the contrary, such history reinforces the textual

support for recognition of the right. Today, we expressly recognize the existence of

a right of self-representation on appeal under article I, section 22.

Having done so, we also recognize the interplay between this right and other,

sometimes dissonant, rights. Specifically, the right of self-representation is the other

side of the coin of the right to counsel. The right to counsel attaches at all critical

stages of criminal proceedings -- including the first appeal -- under article I, section

22. See State v. Robinson, 153 Wn.2d 689, 107 P.3d 90 (2005) (recognizing first

appeal as critical stage). We have recognized that a criminal defendant may waive

counsel and proceed pro se so long as this waiver is knowing, intelligent, and

voluntary. State v. DeWeese, 117 Wn.2d 369, 375-77, 816 P.2d 1 (1991). Thus, in

both trial and appellate proceedings, courts must carefully balance the dissonant

rights to counsel and to self-representation when a defendant seeks to proceed pro

se. To this end, courts should be guided by the substantial body of law addressing

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State v. Rafay and Burns, 80865-1

appointment and waiver of counsel at all critical stages of criminal

proceedings.

As with the right of self-representation at trial, the right of self-representation

on appeal is neither self-executing nor absolute. See State v. Kolocotronis, 73

Wn.2d 92, 98, 436 P.2d 774 (1968); see also State v. Fritz, 21 Wn. App. 354, 358-

63, 585 P.2d 173 (1978). In both Fritz and State v. Breedlove, 79 Wn. App. 101,

900 P.2d 586 (1995), the Court of Appeals considered common-sense procedures

for implementing the right of self-representation at trial. Fritz, 21 Wn. App. at 358-

63; Breedlove, 79 Wn. App. at 106-10. While the rules on appeal do not

specifically address waiver of counsel or self-representation, an appellate court has

broad discretion to proceed under RAP 17.1(a) or fashion an appropriate procedure
under RAP 1.1(i).5

Moreover, in this case, RAP 18.3(a)(1) provides the parameters for the

exercise of Burns's constitutional right to self-representation because Burns did not

request to proceed pro se until after counsel was appointed for him. See State v.

Hairston, 133 Wn.2d 534, 536, 946 P.2d 397 (1997) ("In this jurisdiction once

appellate counsel is appointed in a criminal matter counsel may withdraw only with

the court's permission. RAP 18.3(a)(1)."). Though a constitutional right is not

5The parties suggest that it may be necessary for a trial court to conduct a colloquy
to assure that a defendant asserting his right to self-representation on appeal makes a
knowing, intelligent, and voluntary waiver of his right to counsel. Consideration of this
issue is premature here in light of our conclusion, discussed below, that this case must be
remanded for further proceedings in the Court of Appeals. Nothing in our opinion
forecloses an appellate court from determining that a colloquy is necessary before
allowing a defendant to proceed pro se or that this colloquy should be undertaken in the
trial court.

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State v. Rafay and Burns, 80865-1

supplanted by a court rule, the court rule may incorporate the right and provide

guidance on how it should be effectuated. See T.S. v. Boy Scouts of Am., 157

Wn.2d 416, 430-32, 138 P.3d 1053 (2006) (a trial court's application of Superior

Court Civil Rule 26(c) necessarily involves weighing privacy interests protected by

article I, section 7).

RAP 18.3(a)(1) sets forth a good cause standard that a court should use in

determining when appellate counsel can withdraw and the defendant can proceed
pro se.6 Hairston, 133 Wn.2d at 536. "Good cause" is not defined in the rule, but

good cause generally depends on the circumstances and context at hand. See, e.g.,

State v. Dahl, 139 Wn.2d 678, 686, 990 P.2d 396 (1999) (noting that in the context

of revocation hearings, "good cause" for allowing hearsay testimony has been

defined in terms of the difficulty and expense of procuring live witnesses). As in

other contexts involving a withdrawal of counsel, courts have discretion to

determine whether the defendant presents good cause. Stenson, 132 Wn.2d at 737;

DeWeese, 117 Wn.2d at 379. In addition, even where good cause may exist, the

timing of the defendant's request may be so tardy as to compromise the execution of

an orderly and timely appeals process. See State v. Bebb, 108 Wn.2d 515, 524, 740

P.2d 829 (1987) (observing request to proceed pro se must be timely made). In a

situation where the defendant is not allowed to represent himself on appeal, he still

has the opportunity to file a pro se statement of additional grounds under RAP

10.10. See McDonald, 143 Wn.2d at 511 n.3 (noting that even if the right to self-

6 Of course, RAP 18.3(a) also contemplates a situation in which appellate counsel
withdraws in order to be replaced by different counsel.

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State v. Rafay and Burns, 80865-1

representation on appeal is denied, a defendant can raise separate issues in pro se
statement of additional grounds).7 Recognizing a hopeful pro se's procedural

opportunity for recourse short of complete self-representation is consistent with our

jurisprudence in the area of self-representation. It acknowledges that reasonable

limits on the right may be necessary in some cases because of countervailing

prudential and constitutional considerations. See, e.g., Kolocotronis, 73 Wn.2d at

98; Breedlove, 79 Wn. App. at 105-12. But where a defendant presents good cause

not outweighed by countervailing concerns, courts must proceed in a manner that

respects the defendant's exercise of the right to self-representation.

We turn now to the question of whether the Court of Appeals in this case

properly denied Burns's motion. Where an appellate rule is discretionary, this court

reviews the lower court's application of the rule for abuse of discretion. See

Roberson v. Perez, 156 Wn.2d 33, 42, 44, 123 P.3d 844 (2005). A court abuses its

discretion when an "order is manifestly unreasonable or based on untenable

grounds." Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d

299, 339, 858 P.2d 1054 (1993). A discretionary decision "is based 'on untenable

grounds' or made 'for untenable reasons' if it rests on facts unsupported in the

record or was reached by applying the wrong legal standard." State v. Rohrich, 149

Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786,

7 Contrary to the State's argument, RAP 10.10 does not reflect the sum total of a
defendant's right to self-representation on appeal. See State's Suppl. Br. at 11-14. We
merely observed in McDonald that, given the ability to raise separate issues in pro se
briefing under RAP 10.10, a defendant is not entirely denied the opportunity to represent
himself. 143 Wn.2d at 511 n.3. We did not address the constitutional issues raised here.
Id.

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State v. Rafay and Burns, 80865-1

793, 905 P.2d 922 (1995)). Moreover, a court "would necessarily abuse

its discretion if it based its ruling on an erroneous view of the law." Fisons, 122

Wn.2d at 339.

Because the Court of Appeals was completely silent as to the reasons for

denying Burns's motion, we cannot say whether it rested its decision on facts

supported by the record. Nor can we be sure what legal standard the Court of

Appeals applied, as it did not specify whether it based its ruling on a belief that

Burns had no constitutional right to self-representation, or on RAP 18.3(a)(1), or on

some other basis entirely. Depending on what the Court of Appeals thought about

Burns's constitutional right, or to what extent the court did or did not incorporate

RAP 18.3(a)(1) into its reasoning, it may be that it abused its discretion per se based

on an erroneous interpretation of law. See Fisons, 122 Wn.2d at 339.

In some instances, we may overlook a court's abuse of discretion if its

decision can be affirmed on any ground within the pleadings and the proof.

Rohrich, 149 Wn.2d at 654 (recognizing that inappropriate dismissal of charges can

be affirmed on other grounds so long as defendant raised and proved sufficient

grounds for dismissal). But such a rule presupposes that we have some knowledge

of the reasons upon which the lower court based its decision, and the rule should not

apply where, as here, we have no insight into the lower court's reasoning. See State

v. Hampton, 107 Wn.2d 403, 409, 728 P.2d 1049 (1986) ("Because the trial court

did not provide any reasons for its decision, we cannot say it based its decision on

tenable grounds or reasons.").

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CONCLUSION

We hold that article I, section 22 guarantees a criminal defendant's right of

self-representation on appeal. As with other constitutional provisions, this right is

not without limits or qualifications. We reverse the order denying Burns's motion to

proceed pro se and remand to the Court of Appeals for further proceedings
consistent with this opinion.8

8 Burns also raises equal protection and due process claims, arguing disparate
treatment because a nonindigent defendant on appeal "would certainly have the right to
decline to retain counsel on appeal and be left to represent himself." Mot. for
Discretionary Review, App. B at 8. There is no disparate treatment here. Under our
holding, every defendant has a right to appeal, and, subject to limitation, every defendant
has a right to self-representation on appeal. Likewise, Burns's motion was governed by
RAP 18.3(a), which applies to withdrawal of any defendant's counsel, indigent or not.
Thus, there is no disparate treatment to offend a defendant's right to equal protection
under the law.

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AUTHOR:
Justice Debra L. Stephens

WE CONCUR:
Chief Justice Gerry L. Alexander Justice Susan Owens

Justice Charles W. Johnson Justice Mary E. Fairhurst

Justice Barbara A. Madsen Justice James M. Johnson

Justice Richard B. Sanders

Justice Tom Chambers