Opinion
No. 53771-7-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-09315-3. Judgment or order under review. Date filed: 12/12/1997 Judge signing: Hon. Steven C. Gonzalez.
Counsel for Appellant(s), David Allen(info Only), 1214 8th Ave_#409, Seattle, WA.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Kristen-Marie Freund, Attorney at Law, 209 NW 52nd St, Seattle, WA 98107.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
After being convicted of a drug offense, David Allen obtained a temporary release allowing him to leave the King County Jail for a few days to take care of some personal matters, including moving out of his apartment. Allen failed to return to the jail on the date required by the temporary release and was arrested six months later. Allen appeals his conviction for second degree escape, arguing that his counsel was ineffective for failing to obtain his medical records to prove he was unable to return to custody. He claims that when he brought this to the attention of the trial court at sentencing, the court should have appointed new counsel to represent him in arguing he was entitled to a new trial. But the record before this court does not raise sufficient factual issues for us to conclude that the trial court abused its discretion by declining to appoint new counsel to argue ineffective assistance of counsel. Accordingly, we affirm Allen's conviction. The State concedes that the trial court was without statutory authority to require a mental health evaluation as a part of Allen's sentence. We accept the concession and strike that portion of Allen's sentence.
Allen was ordered to return to jail by 9 a.m. on June 2, 2003. He signed a Temporary Release Agreement in which he agreed that failure to return by the appointed time would violate the escape statute. Allen did not return on June 2. On June 5, a warrant was issued for his arrest.
Allen was arrested on the warrant in December 2003. The State charged him with escape in the second degree based on his failure to return to custody. Allen waived his right to a jury, and a bench trial took place on February 4, 2004.
At trial, Allen claimed that uncontrollable circumstances prevented him from returning to custody. Allen testified that he suffered from a chronic medical condition affecting his digestive system. He said that when he was out of jail and in the process of moving out of his apartment, he experienced a sharp pain in his abdomen which turned out to be a hernia. He was incapacitated and a day or two later, on June 4 or June 5, an ambulance took him to the hospital. He was admitted to the hospital and had surgery. When he was released from the hospital four or five days later, he went to his aunt's house to recover. Allen also testified that just before he was arrested in December 2003 he was in the hospital again for a few days because of his condition.
Allen was somewhat unclear about when this occurred, but according to his testimony it happened on either June 3 or the night of June 2.
Allen admitted that in the back of his mind he knew he was supposed to return to jail. Nevertheless, he did not return nor contact the jail at any time during the six months he was out of custody.
Report of Proceeding 2/4/04 at 72.
Allen also testified that he had a head injury when he was young. As a result, he said he had a `chemical imbalance' for which he took two psychotropic medications. Allen stated that when he was in jail before his temporary release in May 2003, he had been unable to get his medications. He said he did not start taking his medications again until he returned to jail after his arrest in December 2003.
Report of Proceeding 2/4/04 at 60.
The court found Allen guilty as charged. At his sentencing hearing, Allen informed the court that he believed his defense counsel was ineffective. Allen stated that his counsel failed to obtain his medical records. He provided the court with a document showing that he had authorized the release of his medical records and another document listing various numerous reasons why he thought his legal representation was inadequate. Neither of these documents is in the record on appeal. In rejecting Allen's claim of ineffective assistance of counsel, the court pointed out that medical records would not have established Allen's defense of necessity because according to Allen's own testimony, no medical condition arose that prevented him from returning to jail until after 9 a.m. on June 2, 2003, the time Allen was supposed to report.
Failure to Appoint New Counsel
The decision of whether to appoint new counsel rests within the sound discretion of the trial court. State v. Stark, 48 Wn. App. 245, 252, 738 P.2d 684 (1987). An allegation of ineffective assistance does not automatically entitle a defendant to new counsel. Stark, 48 Wn. App. at 253. But where the record raises significant factual issues, it is an abuse of discretion to decline to appoint new counsel to argue the motion for a new trial. State v. Young, 62 Wn. App. 895, 907-908, 802 P.2d 829 (1991).
In his appeal, Allen contends the trial court failed in its duty to conduct a thorough examination to determine whether substitute counsel should be appointed.
In State v. Young, after the defendant was convicted of indecent liberties and statutory rape, he moved for a new trial based on ineffective assistance of counsel. Young alleged that his counsel failed to call two witnesses who would have testified that the victim told them he was innocent. Young also submitted affidavits that were not considered by the trial court. Apparently deciding that the ineffective assistance argument should be determined on appeal, the trial court denied Young's motion. Young, 62 Wn. App. at 908.
While Allen generally contends that his counsel should have investigated his medical records, there is no evidence in the record to support his assertion that his medical records would show that he was unable to return to custody on the morning of June 2 because of a medical or psychological condition. Unlike in Young, there is no evidence in the record that was not considered by the trial court and the record does not raise significant factual issues which required the trial court to appoint new counsel to investigate Allen's allegations. See State v. Rosborough, 62 Wn. App. 341, 347-48, 814 P.2d 679 (1991) (where the evidence counsel failed to pursue would not have demonstrated the defendant was innocent of the charged crime, the trial court did not abuse its discretion in denying a motion to appoint new counsel to argue a motion for new trial); see also State v. Allen, 57 Wn. App. 134, 141, 787 P.2d 566 (1990) (where there was no evidence that uncalled witnesses would have assisted the defendant in controverting the charges, it was not an abuse of discretion to deny the defendant's motion for new counsel to argue ineffective assistance).
Mental Health Evaluation
As a condition of his sentence, the trial court ordered Allen to undergo a mental health evaluation and follow any treatment recommendations. Allen argues this condition was imposed without statutory authority. We accept the State's concession of error. A mental health evaluation may be imposed in conjunction with community placement or community supervision, but no community placement was imposed as a part of Allen's sentence. See RCW 9.94A.505(9). Nor is the imposition of a mental health evaluation authorized by RCW 9.94A.505(8) as a crime-related prohibition. See State v. Julian, 102 Wn. App. 296, 304, 9 P.3d 851 (2000) (a crime-related prohibition may prohibit conduct directly related to the crime for which the offender has been convicted, but it may not order an offender to participate in rehabilitative programs or perform affirmative conduct).
We affirm Allen's conviction for second degree escape, and strike the portion of his sentence requiring a mental health evaluation.
BECKER, APPELWICK, COX, JJ.