Opinion
41413-9-II
01-24-2012
STATE OF WASHINGTON, Respondent, v. JOSEPH KOROSHES, Appellant.
UNPUBLISHED OPINION
Penoyar, C.J.
Joseph Koroshes appeals the trial court's denial of his counsel's motion to withdraw. Koroshes argues that the conditional terms of the State's plea offer interfered with his right to effective assistance of counsel under the United States and Washington Constitutions. We affirm the trial court's order denying defense counsel's motion to withdraw.
FACTS
On July 23, 2010, the State charged Koroshes with three counts of delivery of a controlled substance (amphetamine or methamphetamine) and one count of possession of a controlled substance other than marijuana.
In violation of RCW 69.50.401(1).
In violation of RCW 69.50.4013(1).
In cases involving a confidential informant, the Clallam County prosecutor's office provides plea offers at the lower end of the sentencing range. If the defendant does not accept the plea offer and seeks the confidential informant's identity, the office's policy is "to withdraw the plea offer and proceed to trial." Clerk's Papers (CP) at 7. If the defendant "seeks to proceed to trial, the confidential informant's identity will be disclosed in the course of discovery." CP at 7.
Consistent with this policy, the State presented Koroshes with a plea offer "conditioned on [Koroshes] not demanding the identity of the [confidential informant]. The State will comply with a demand for the [confidential informant's] identity, but once the [confidential informant's] identity is disclosed the offer is withdrawn and the State will proceed to trial as charged." CP at 24. According to the State, it provided Koroshes's defense counsel with the following discovery: investigative police reports, crime lab reports analyzing the drugs the confidential informant purchased from Koroshes, transcripts of recorded conversations between the confidential informant and Koroshes, a summary of the confidential informant's credibility, and a copy of the confidential informant's agreement with law enforcement.
The State offered to dismiss one count of delivery of a controlled substance (amphetamine or methamphetamine), not to charge school bus route enhancements, and to recommend a low-end, standard-range sentence in exchange for Koroshes's plea of guilty.
On September 28, 2010, defense counsel filed a motion to withdraw as counsel and for certification for appeal. Defense counsel argued that, after reviewing the discovery, "it became clear that the case would be greatly influenced by the confidential informant and that informant's credibility." CP at 58. He thus sought to withdraw, asserting that the plea offer prevented him from ascertaining whether a conflict existed, adequately advising his client, and complying with his ethical duties. The trial court denied the motion to withdraw but allowed defense counsel to seek discretionary review.
Defense counsel also moved to stay the proceedings pending a decision of this court regarding his petition for discretionary review and to certify the case, under RAP 2.3(b)(4), as involving a controlling question of law as to which there is substantial ground for a difference of opinion. The trial court entered an order staying the proceedings and certifying the question at issue in defense counsel's motion for withdrawal.
Koroshes filed a motion for discretionary review of the trial court's denial of defense counsel's motion to withdraw. We accepted review.
ANALYSIS
Koroshes argues that the trial court erred in denying his motion for the withdrawal of counsel because "the State's action has created a situation in which [defense counsel] cannot obey the requirements of the Rules of Professional Conduct [(RPCs)] while continuing to represent the defendant." Pet'r's Mot. for Discretionary Review at 4. Thus, he contends, the State's plea offer, which is conditioned on the nondisclosure of a confidential informant's identity, interferes with his right to assistance of counsel under the Washington and United States Constitutions. We disagree.
We review a trial court's ruling on an attorney's motion to withdraw for abuse of discretion. See State v. Hegge, 53 Wn.App. 345, 350, 766 P.2d 1127 (1989). The trial court abuses its discretion when the basis for its decision is manifestly unreasonable or based on untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A criminal defendant has a right to the assistance of counsel at every critical stage of a criminal proceeding. U.S. Const. amend. VI; Wash Const. art. I, § 22; State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005). "[T]he right to counsel is the right to the effective assistance of counsel." United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).
To prove ineffective assistance of counsel, the defendant must show that (1) his counsel's performance fell below an objective standard of reasonableness and (2) counsel's performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "Effective assistance of counsel includes assisting the defendant in making an informed decision as to whether to plead guilty or to proceed to trial." State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010) (citing State v. S.M., 100 Wn.App. 401, 413, 996 P.2d 1111 (2000)). "[A] defendant's counsel cannot properly evaluate the merits of a plea offer without evaluating the State's evidence." A.N.J., 168 Wn.2d at 109.
"The presence of counsel during all stages of plea bargaining is mandated by the courts." State v. Swindell, 93 Wn.2d 192, 198, 607 P.2d 852 (1980). But, "[a] defendant does not have a constitutional right to plea bargain." State v. Wheeler, 95 Wn.2d 799, 804, 631 P.2d 376 (1981) (citing Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)).
Koroshes argues that A.N.J., 168 Wn.2d 91, "requires counsel [to] assist defendants in making informed decisions whether to accept plea offers. The plaintiff's policy of making plea offers contingent on not seeking or obtaining full discovery regarding confidential informants frustrates defense counsels' ethical duties under A.N.J." Pet'r's Mot. for Discretionary Review at 5. In A.N.J., the State offered the defendant a plea deal: if the defendant would plead guilty to one count of first degree child molestation, the State would recommend a special sex offender disposition alternative; and, if the defendant finished treatment, the charge would be reduced to second degree child molestation. 168 Wn.2d at 101. Defense counsel spent as little as less than an hour with the defendant before the plea hearing, did no independent investigation, did not review the plea agreement carefully, and did not consult with experts. A.N.J., 168 Wn.2d at 102. The defendant pleaded guilty but after hiring a new attorney, moved to withdraw his guilty plea. A.N.J., 168 Wn.2d at 102. The trial court denied his motion. A.N.J., 168 Wn.2d at 105. Our Supreme Court concluded that the defendant received ineffective assistance of counsel and held that "at the very least, counsel must reasonably evaluate the evidence against the accused and the likelihood of a conviction if the case proceeds to trial so that the defendant can make a meaningful decision as to whether or not to plead guilty." A.N.J., 168 Wn.2d at 109, 111-12.
Koroshes asserts that "[i]n this case, counsel cannot give any meaningful advice related to acceptance or rejection of the plea offer, or evaluate the strengths and weaknesses of the State's case against the defendant without the information requested in the demand for discovery." Pet'r's Mot. for Discretionary Review at 3. But the State persuasively contends that Koroshes's defense counsel had sufficient evidence to effectively advise his client. Through discovery, Koroshes's defense counsel obtained investigative police reports, crime lab reports analyzing the drugs the confidential informant purchased from Koroshes, transcripts of recorded conversations between the confidential informant and Koroshes during two of the alleged drug sales, a summary of the confidential informant's credibility, and a copy of the confidential informant's agreement with law enforcement. The credibility summary included the confidential informant's drug use history, criminal history, and motivation to work with the Olympic Peninsula Narcotics Enforcement Team. Further, defense counsel could have interviewed the investigative officers. We conclude that, with this evidence, defense counsel could have reasonably evaluated the evidence against Koroshes and effectively assisted Koroshes in making an informed decision as to whether to plead guilty or go to trial.
Even if Koroshes had received no information about the informant, the result would be the same. The missing information is simply part of what defense counsel may discuss with the client as they consider the State's offer.
We note the difficulty in formulating a bright line rule for when counsel has insufficient information to provide competent advice in the plea bargaining process. While we can determine that there was sufficient information here and insufficient information in A.N.J., future cases will have to be evaluated on a case-by-case basis.
Koroshes also asserts that disclosure of the confidential informant's identity is necessary to prevent defense counsel from violating the RPCs. Koroshes's argument is entirely speculative, as he presents no RPC provision that his counsel could even hypothetically run afoul of where, as here, counsel not only does not know the confidential informant's identity but has requested and even sought a court order to obtain that information. Accordingly, it is difficult to see how an attorney could violate the RPCs by failing to identify a conflict in this circumstance.
Furthermore, the law does not require the State to disclose the confidential informant's identity. In State v. Moen, 150 Wn.2d 221, 225, 76 P.3d 721 (2003), the defendant argued that "the State's policy of refusing to plea bargain with a criminal defendant who successfully compels disclosure of the State's confidential informant in a civil forfeiture action chills his right to obtain discovery in the civil case and thus violates due process." Our Supreme Court held that the policy did not violate the defendant's due process rights. Moen, 150 Wn.2d at 231.
In reaching its conclusion, the court recognized the contractual nature of plea bargains, reasoning that "[a] plea bargain is a contract and both sides to the agreement must perceive an advantage to entering the bargain." Moen, 150 Wn.2d at 230 (internal citation omitted). Further, the court noted the legitimate State interest in protecting the identity of confidential informants. Moen, 150 Wn.2d at 230 (citing State v. Casal, 103 Wn.2d 812, 815, 699 P.2d 1234 (1985)). "When the State is compelled to disclose an informant's identity, it loses a valuable asset or tool of law enforcement. Under the policy, the State gains protection of its informants and, in exchange, the defendant receives the opportunity to bargain for a reduction or dismissal of charges." Moen, 150 Wn.2d at 230.
We recognize that the prosecutor's policy requires the defendant to forgo his right to request disclosure of an informant's identity. However, a condition insisted on by the State that requires a defendant to give up a constitutional right does not, by itself, violate due process. "Agreements to forgo seeking an exceptional sentence, to decline prosecuting all offenses, to pay restitution on uncharged crimes, and to waive the right to appeal are all permissible components of valid plea agreements." State v. Lee, 132 Wn.2d 498, 506, 939 P.2d 1223 (1997); see State v. Perkins, 108 Wn.2d 212, 737 P.2d 250 (1987). The theoretical basis for all plea bargaining is that defendants will agree to waive their constitutional rights.Moen, 150 Wn.2d at 230-31.
Koroshes argues that his case is distinguishable from Moen because (1) here the State decided to plea bargain, but in Moen, the State refused to plea bargain; (2) Moen involved a civil forfeiture suit brought by the City of Spokane, but here "all action is attributable to the State"; and (3) here defense counsel sought withdrawal as a remedy rather than dismissal of all charges. Pet'r's Mot. for Discretionary Review at 4. While the facts of Moen are, in fact, distinguishable from this case, the reasoning of the Moen court persuasively supports the conclusion here that the State's plea offer was proper. First, a plea bargain is a contract, and the terms of the offer at issue presented advantages to both parties: Koroshes would have received the benefit of a lenient sentence and, in exchange, the State would have received the benefit of protecting the identity of its informant. Further, while the offer required Koroshes to waive his right to request disclosure of the informant's identity, waivers are necessary components of plea agreements. See Moen, 150 Wn.2d at 230-31. Accordingly, because the State's plea offer did not preclude Koroshes's defense counsel from providing effective assistance of counsel and because the law did not require the State to disclose the confidential informant's identity before Koroshes decided whether to accept the plea offer, the trial court correctly denied Koroshes's counsel's motion to withdraw.
Affirmed.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Van Deren, J. Worswick, J.