Opinion
No. 28588-6-II consolidated with 29605-5-II
Filed: December 2, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 96-1-01945-5. Judgment or order under review. Date filed: 02/21/2002.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Robert Dukowitz appeals his exceptional resentence for first degree attempted murder, arguing that the trial court erred in refusing to allow substitute counsel. In a consolidated personal restraint petition, he also claims that the trial court denied him effective assistance of counsel, a speedy trial, and due process of law. Finding no abuse of discretion, we affirm the exceptional sentence and deny the petition.
FACTS I. History
A jury convicted Dukowitz of first degree attempted murder. The trial court imposed an exceptional sentence. Dukowitz appealed.
We affirmed the conviction and four bases for the trial court's imposition of an exceptional sentence. We remanded for resentencing, however, because the trial court had violated the real facts doctrine. State v. Dukowitz, 1999 WL 450914 (1999).
Deliberate cruelty, impact on children, lack of remorse, and ongoing pattern of abuse.
On resentencing, the trial court imposed the same exceptional sentence as before. State v. Dukowitz, 2001 WL 567696 (2001). Dukowitz appealed again.
This time we remanded for resentencing by a different judge, because the trial court failed to give Dukowitz an opportunity to speak at the sentencing hearing. State v. Dukowitz, 2001 WL 567696 (2001).
II. Motion for Substitution of Counsel
Before resentencing, Dukowitz moved for substitution of appointed counsel. In a letter to the court, he asserted that (1) he and his attorney, Linda Sullivan, were unable to communicate; (2) Sullivan had been belligerent toward him; and (3) she had made errors at trial and on appeal.
The new sentencing court conducted a hearing on Dukowitz's motion. Sullivan, who had represented Dukowitz since the beginning of this case, opined that Dukowitz sought new counsel because he thought that her caseload was too full and that she had not given him time to argue key issues on his second appeal. She expressed frustration that Dukowitz continued to pressure her to argue speedy trial issues, in spite of the appellate court's ruling that there had been no speedy trial violation.
At the hearing, Dukowitz persisted in arguing that his speedy trial rights had been violated and that his sentence was improper. The sentencing court denied Dukowitz's motion for substitution of counsel, stating that Sullivan was a very competent attorney and that Dukowitz was well represented.
Several days later, Sullivan moved to withdraw as Dukowitz's counsel, citing a conflict of interest because Dukowitz had made a credible threat to sue her, and citing the Rules of Professional Conduct (RPC's). The court conducted a second hearing, at which both Sullivan and Dukowitz presented essentially the same points as before. The court again denied the request for substitution of counsel.
III. Last Resentencing
On resentencing, the court considered trial transcripts of witness testimony agreed on by counsel, the trial exhibits, and Dukowitz's testimony. At the conclusion of the hearing, the court imposed the same exceptional sentence that the previous court had imposed. Later, the court issued Findings of Fact and Conclusions of Law for Exceptional Sentence.
Before the sentencing hearing, Sullivan had argued that the new sentencing judge had no authority to enter findings of fact based on any testimony heard by a predecessor judge. She also sought to have relevant witnesses reappear, in particular the victim, at an evidentiary hearing. The court rejected this argument but advised counsel to agree on testimony that he would consider. He explained that he would consider arguments on disputed testimony and would consider allowing additional testimony as necessary. Sullivan told the court that she would indicate the material facts in dispute and would determine if Dukowitz needed to present any additional witnesses.
Dukowitz now appeals the denial of his request for substitute counsel at the last resentencing. We have consolidated his related personal restraint petition, in which he argues that he was denied the right to a speedy trial, effective assistance of counsel, and due process.
ANALYSIS I. Substitution of Counsel
Whether to allow appointment of new counsel is a matter within the trial court's discretion. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998) (Stenson I). We will not disturb the trial court's decision absent a showing of abuse of discretion. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991). Abuse of discretion occurs when the trial court's discretion is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We find no abuse here.
Dukowitz has not shown good cause warranting substitution of counsel. Stenson I, 132 Wn.2d at 734. We address each component of good cause in turn.
A. No Irreconcilable Conflict
Whether there is an irreconcilable conflict warranting substitution of counsel depends on three factors: '(1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion.' In re Personal Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001) (Stenson II) (adopting the test set forth in United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)). Even though Sullivan generally agreed with Dukowitz that they were having problems communicating, Dukowitz has not shown a complete breakdown in communication or other irreconcilable conflict. State v. Hegge, 53 Wn. App. 345, 351, 766 P.2d 1127 (1989).
Nothing in the record shows that Dukowitz and Sullivan were not speaking to or otherwise communicating with one another. Rather, Dukowitz characterizes as a lack of communication his many disagreements with Sullivan over legal issues. A mere lack of rapport between an attorney and her client or a disagreement over legal strategy does not justify substitution of counsel, even where the attorney and client agree to counsel's withdrawal. See State v. Peele, 75 Wn.2d 28, 32-33, 448 P.2d 923 (1968). Here, a primary 'conflict' with counsel was Dukowitz's futile insistence that she raise the speedy trial issue again, even though the appellate court had already rejected that argument. Such a disagreement is not a failure of communication justifying substitution of counsel.
Moreover, nothing in the record suggests that Sullivan was unprepared or hindered in her competent representation of Dukowitz by the alleged lack of communication. As the sentencing court aptly noted, Sullivan presented the issues and the law to the judge in a thorough, diligent, and professional manner.
Dukowitz next argues that the sentencing court's inquiry was inadequate because it 'focused on the adequacy of counsel rather than the degree of conflict.' This complaint does not describe a cognizable deficiency. See, e.g., Stenson II, 142 Wn.2d at 728-31 (focus on defense counsel's diligence and competence). On the contrary, the trial court conducts an adequate inquiry when it allows the defendant and counsel to express their concerns. Stenson II, 142 Wn.2d at 731. Such was the case here, where the trial court considered the parties' briefs and allowed Dukowitz and Sullivan to express their concerns at not one, but two separate hearings.
As for the third element of the test, there is no issue concerning timeliness of the motion to substitute counsel. Stenson II, 142 Wn.2d at 724. Thus, we do not address it further.
Dukowitz has not shown an irreconcilable conflict with his attorney or any prejudice. Moreover, any communication problems they had were harmless in light of Sullivan's clearly competent representation.
B. No Conflict of Interest
A change in counsel is warranted if the attorney and client have an actual conflict of interest. Stenson I, 132 Wn.2d at 734. Dukowitz argues that there was a conflict of interest because he had threatened to file a malpractice lawsuit against Sullivan. Dukowitz also impliedly threatened Sullivan with physical harm if she remained on the case. Sullivan thought she was obligated to withdraw under RPC 1.15(b)(3) because the potential review of her professional actions in a future lawsuit might hamper her ability to represent Dukowitz effectively.
RPC 1.15(b)(3)describes the situation where the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent.
But threats of a lawsuit or physical harm do not, by themselves, create an actual conflict of interest. Moore, 159 F.3d at 1158. See also State v. Sinclair, 46 Wn. App. 433, 437, 730 P.2d 742 (1986), review denied, 108 Wn.2d 1006 (1987) (defendant's filing of a formal bar association complaint against his attorney did not create a conflict sufficient to require substitution of counsel). Although Dukowitz's threats of a lawsuit or physical harm implied a deteriorating relationship, they did not create an actual conflict or render counsel ineffective so as to require substitution of new counsel.
Moreover, such a rule would allow defendants to create conflicts at will. Moore, 159 F.3d at 1158.
We hold, therefore, that the trial court did not abuse its discretion in denying Dukowitz's request for a new attorney.
II. Effective Assistance of Counsel
Dukowitz similarly argues in his personal restraint petition that he was denied effective assistance of counsel at both trial and sentencing because counsel failed (1) to assist him in presenting his speedy trial argument before the superior court; (2) to seek a hearing on a potential conflict of interest; and (3) to present mitigating evidence and to ensure that the sentencing court conducted a proper evidentiary hearing.
To prevail in a request for collateral relief based on a constitutional challenge, a petitioner must show actual prejudice resulting from the alleged violation. In re Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). To prove a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Dukowitz has failed to meet this burden. We combine our discussion of the underlying legal issues as we examine their interplay with Dukowitz's ineffective assistance claims.
A. Speedy Trial
We previously held that Dukowitz's speedy trial rights were not violated. State v. Dukowitz, 1999 WL 450914, 3-4 (1999). As we noted above, the resentencing court conducted two hearings on the alleged conflict of interest, but it found no conflict requiring substitution of counsel.
Moreover, Dukowitz has not demonstrated a valid reason for us to revisit this issue and, therefore, we decline to do so. See In re Vandervlugt, 120 Wn.2d 427, 432-34, 842 P.2d 950 (1992) (a significant change in the law warrants reconsideration of a previously decided issue).
B. Conflict of Interest Hearing
Dukowitz complains that Sullivan failed to ensure a factual hearing on his allegations of conflict of interest before his third sentencing. This contention lacks merit. The record shows that Sullivan argued extensively that the court should conduct such a hearing.
C. Mitigating Factors and Evidentiary Hearing
Dukowitz argues that he was denied his right to a jury trial, due process, and equal protection because the trial court failed to conduct an evidentiary hearing before imposing an exceptional sentence. To prevail on these constitutional challenges, Dukowitz must show actual prejudice resulting from the alleged violations. Cook, 114 Wn.2d at 813. Dukowitz fails to demonstrate prejudice of any kind. He, therefore, has failed to carry his burden.
Dukowitz contends that the resentencing court erred in refusing to conduct an evidentiary hearing. Before sentencing, Sullivan had argued to the court that she believed that an evidentiary hearing was necessary because Dukowitz disputed material facts. Although the court denied the request, it agreed to consider argument before reviewing any disputed testimony. The court then considered the agreed-on testimony in reaching its decision on Dukowitz's sentence.
Dukowitz claims generally that counsel failed to present mitigating factors at his sentencing. He does not explain what these factors are; nor has he asserted facts to guide our review of the validity of his claims. Bare assertions and conclusory allegations are insufficient to command judicial consideration in a personal restraint proceeding. In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992).
See RAP 16.7(a)(2)(i); In re Personal Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988) (petitioner must state with particularity facts that, if proven, would entitle him to relief, and he must present evidence showing that his factual allegations are based on more than speculation and conjecture).
Similarly, Dukowitz does not support his argument that the sentencing court based its 'deliberate cruelty' finding on erroneous information. He claims that the court based its 'lack of remorse' finding on incomplete information, because he was under the influence of prescription medications that affected his mood. But Dukowitz's mood and lack of remorse were not factors in the court's imposition of the exceptional sentence. Rather, the court imposed an exceptional sentence based on Dukowitz's (1) failure to take responsibility for his actions; (2) attempts to blame others, including the victim, for the attack; (3) attempts to rationalize his behavior; and (4) attempts to manipulate the system. Consequently, Dukowitz was not prejudiced by the court's failure to consider that he was taking mood-altering drugs.
Dukowitz also fails to demonstrate prejudice in the resentencing court's consideration of the 'ongoing pattern of abuse' and 'impact on the children' as factors warranting an exceptional sentence. He does not indicate which evidence was incomplete or incorrect, or what impact such information may have had on the sentencing. Moreover, Dukowitz has failed to demonstrate prejudice. Thus, his petition fails.
Accordingly, we affirm the exceptional sentence and deny the personal restraint petition.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J. and HOUGHTON, J., concur.