Opinion
No. 63947-1-I.
Filed: September 27, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-12269-3, Mary Yu, J., entered July 29, 2009.
Affirmed in part and remanded by unpublished opinion per Becker, J., concurred in by Grosse and Schindler, JJ.
David Smith was convicted of four counts of Felony Violation of a Court Order and sentenced to 60 months. Finding sufficient evidence to prove Smith's knowledge of the no-contact order and no error in the decision to deny his motion for substitute counsel, we affirm the conviction. Because the State failed to prove the comparability of a prior out-of-state conviction and this could affect Smith's sentence, we remand for recalculation of the offender score.
According to the testimony at trial, Ashley Calyxto received a text message from her friend, Christina Smith, at about 7:30 a.m. on November 16, 2008. In response to receiving this message, she called the police to relay information received from Christina, including Christina's address. Shortly thereafter, police went to Christina's residence and found Christina's estranged husband, David Smith, outside the residence. Smith was arrested for violation of a court order forbidding him to contact Christina. As stipulated by the parties, Smith had twice previously been convicted of violating a no-contact order. While in jail, Smith called Christina numerous times. These calls were recorded. Based on these events, Smith was ultimately charged with four counts of Felony Violation of a Court Order — Domestic Violence, RCW 26.50.110.
Forty-seven days before trial was scheduled to start, Smith moved to discharge his appointed counsel and have new counsel appointed. The motion was denied. At trial, Smith was found guilty as charged and was sentenced to 60 months, the statutory maximum. Smith appeals.
Sufficiency of the Evidence
Smith argues the State failed to provide sufficient evidence to prove the required element that he had knowledge of the court order.
In determining whether there is sufficient evidence to support a conviction, the test is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The State's evidence is taken as true and all reasonable inferences are drawn in favor of the State. Salinas, 119 Wn.2d at 201. The State may prove its case through circumstantial evidence. Circumstantial evidence and direct evidence are equally reliable in determining the sufficiency of the evidence. State v. Kintz, Nos. 81688-3, 81689-1, 2010 WL 3341260 (Wash. August 26, 2010).
One of the essential elements of violation of a no-contact order is knowledge by the accused of the order. See RCW 26.50.110(1) ("Whenever an order is granted . . . and the respondent or person to be restrained knows of the order, a violation of any of the following provisions of the order is a [crime]."); see also State v. Phillips, 94 Wn. App. 829, 833, 974 P.2d 1245 (1999) ("The defendant must, among other things, know of the order of protection.").
Neither Smith nor Christina testified at the trial. A certified copy of an order barring David L. Smith from contacting Christina Smith, dated and filed in King County on October 27, 2006, was admitted into evidence. This document has a signature that appears to read "David Smith." The State asserts that the signature on the certified no-contact order is sufficient evidence to establish that Smith had knowledge of the order. Smith argues that this document is insufficient to establish that he had knowledge of the order. He contends the insufficiency is illuminated by evidence that upon being informed by the police there was a no-contact order against him, Smith responded there was "no order with Christina."
A certified copy of a no-contact order containing the signature of the defendant is sufficient evidence to establish knowledge. State v. France, 129 Wn. App. 907, 911, 120 P.3d 654 (2005). In France, the defendant had made an uncounseled custodial statement admitting knowledge of a no-contact order. France, 129 Wn. App. at 911. The admission of the tainted confession was held to be harmless error, however, because the record also contained a certified copy of the no-contact order with the defendant's signature on it. France, 129 Wn. App. at 911. Following France, we conclude the certified copy of the no-contact order with Smith's signature upon it was sufficient evidence to prove the element of knowledge.
Motion to Discharge and Substitute Counsel
On March 5, 2009, Smith moved to discharge his attorney and have a new attorney appointed. At the time, he was facing only one felony count. Trial was set to begin on April 21, 2009. In making the motion, Smith stated that there was a breakdown of communication and he felt he was not being represented right. The court asked for more details. Smith said his paperwork had been tampered with, his attorney was not paying attention to him, and he and his attorney were having problems communicating. He also felt the State was threatening him by attempting to bring more charges against him. Smith finally stated he didn't understand what was going on.
The court explained that the State offers plea deals and that if they are not accepted, charges are typically added. The court told Smith this was not the fault of his attorney. The court denied the motion. Smith's counsel then intervened and informed the court that Smith had last spoken to her on February 19 and he had since refused to talk to her, but he had been going through her supervisor. The court asked why Smith was refusing to talk to his lawyer. Smith replied, "We don't see eye to eye." The court then confirmed its decision to deny the motion, to which Smith has assigned error.
A trial court's determination of whether a defendant's dissatisfaction with court appointed counsel warrants appointment of substitute counsel is discretionary and will not be overturned on appeal absent an abuse of discretion. State v. Rosborough, 62 Wn. App. 341, 346, 814 P.2d 679, review denied, 118 Wn.2d 1003 (1991). A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997) (citing State v. DeWeese, 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991)), cert. denied, 523 U.S. 1008 (1998). To justify appointment of new counsel, a defendant "`must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.'" State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004), quoting Stenson, 132 Wn.2d at 734. A mere showing that a defendant has lost trust or confidence in his counsel is an insufficient reason to justify appointing new counsel. Varga, 151 Wn.2d. at 200.
In determining whether a motion to discharge and substitute counsel was properly denied, a reviewing court will examine (1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion. In re Pers. Restraint of Stenson (Stenson 2), 142 Wn.2d 710, 723-24, 16 P.3d 1 (2001), citing United States v. Moore, 159 F.3d 1154, 1158 n. 3 (9th Cir. 1998). Consistent with Moore, we have held that the trial court must conduct a "penetrating and comprehensive examination" of the defendant's allegations in order to decide whether different counsel must be appointed for direct representation at trial or for standby purposes. State v. Dougherty, 33 Wn. App. 466, 471, 655 P.2d 1187 (1982), review denied, 99 Wn.2d 1023 (1983).
The examination the trial court conducted in this case was sufficiently thorough given the vagueness of the reasons Smith gave for why he believed a substitution was necessary. Pressed by the trial court to explain the alleged breakdown in communication in more detail, Smith had no details to offer. A mere allegation that problems exist is insufficient to require substitution. The record furnishes no basis to conclude that a more prolonged interrogation by the trial court would have brought forth material information. We conclude the trial court did not abuse its discretion in denying Smith's motion.
Offender Score
In using prior convictions to determine an offender score, it is the burden of the State to prove the existence of prior convictions by a preponderance of the evidence. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005). If the prior conviction is from another jurisdiction, the State must prove the conviction is comparable to a Washington crime. Cadwallader, 155 Wn.2d at 876. Failure to do so is error.
The State admits that it failed to prove the comparability of Smith's prior California conviction. However, the State argues that such error was harmless. An error in calculating an offender score is harmless if the score does not change the standard sentencing range. State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996).
Smith was found guilty of four counts of a felony violation of a court order, which is a class C felony and carries a maximum penalty of five years in prison. See RCW 26.50.110. Smith was sentenced based on an offender score of nine. According to the judgment and sentence, the crime he was convicted of carries a seriousness level of five. The parties concluded that, under the sentencing grid of RCW 9.94A.510, this resulted in a standard sentencing range of 72 to 96 months, which is above the statutory maximum of 60 months. Accordingly, the trial court was required to sentence Smith to 60 months. See RCW 9.94A.599 ("If the presumptive sentence duration given in the sentencing grid exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence.").
The State asserts that Smith's offender score would have been an eight without the California conviction. If so, the standard range for an offense with a seriousness level of five would be 62 to 82 months, still above the statutory maximum of 60 months. See RCW 9.94A.510. But the State has not demonstrated that Smith's score is necessarily eight if the California conviction is removed. If it is seven, for instance, then Smith's standard range would be 51 to 68 months, which is below the maximum. If so, then the error would not be harmless. Remand is necessary so that the trial court can determine whether the State's assertion is or is not correct and to resentence if necessary.
The conviction is affirmed. Because of the error in calculating Smith's offender score, we remand to the trial court for recalculation of Smith's offender score and resentencing if necessary.
WE CONCUR: