Opinion
No. 58413-8-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10870-0, Jay V. White, J., entered June 19, 2006.
Affirmed by unpublished per curiam opinion.
Appellant argues that he was denied his constitutional right to conflict-free representation when the trial court denied his attorney's posttrial motion to withdraw and appoint substitute counsel for a potential motion for new trial based on ineffective assistance of counsel. We affirm.
FACTS
Appellant Craig Burton was charged with two counts of taking a motor vehicle without permission (TMV) in the second degree. The facts of the crime are not necessary to the outcome of this appeal. Burton was represented during pre-trial and trial proceedings by Marvin McCoy, a public defender employed by the Society of Counsel Representing Accused Persons (SCRAP). Burton's trial by jury was set for May 17, 2006. During pretrial proceedings, Burton expressed dissatisfaction with McCoy several times. McCoy also expressed concern about his ability to represent Burton due to Burton's unwillingness to follow his suggestions. McCoy was also compelled by Criminal Rule (CrR) 4.7 to tell the trial court that Burton had, without his authorization, removed his case file from McCoy's office and brought it home with him overnight. Neither Burton nor McCoy, when asked explicitly by the trial court, stated that withdrawal and appointment of substitute counsel was necessary. However, Burton's interruptions and continued outcry led to an order for contempt, for which he spent the weekend in jail.
After the weekend in jail, Burton and McCoy both initially expressed that they could continue with trial. However, Burton then made several statements regarding his concerns with McCoy's representation. The trial court, after offering Burton another chance to seek a new attorney, allowed Burton and McCoy to discuss what they wanted to do. After Burton and McCoy conferred, McCoy stated that he believed that Burton wanted a new attorney. The court asked McCoy whether he believed that the attorney-client relationship had broken down to the point where McCoy was asking permission to withdraw. McCoy replied that he was not asking to withdraw, but that he "would have a difficult time representing [Burton]" and that "[w]e don't see eye to eye as to the defense of this case. I don't think Mr. Burton is going to allow me to handle the case the way I think it should be handled, and try to communicate to him why it should be handled in certain ways and why it shouldn't be. He's not listening to me. In fact, up until this point he's pretty much been doing the opposite of anything I recommend." At the court's questioning, Burton agreed with McCoy.
The State asked the court to deny Burton's apparent request to end his attorney-client relationship based on the factors outlined in State v. Rosborough, 62 Wn. App. 341, 814 P.2d 679 (1991). When questioned as to whether he wanted to proceed pro se, Burton replied "no" — he wanted to be represented by an attorney. Burton suggested to the court that he wanted to talk to another attorney about the case to become more informed on certain legal issues, but he could not afford to hire a different attorney.
The court decided that a basis did not exist in the record to support a termination of the attorney-client relationship. The court noted that McCoy was acting competently and had disclosed Burton's unauthorized removal of his case file as required by the ethical and court rules. The court also indicated that it would be unreasonable to terminate the relationship because it would significantly delay trial. Despite expressing concern about the impaired communication between Burton and McCoy, the court distinguished such impairment from ineffective assistance. The court explained that while it was Burton's right not to follow legal advice, such a choice did not render McCoy incompetent.
The jury convicted Burton of both counts. Soon after the verdict but before sentencing, McCoy made a motion to withdraw and for appointment of new counsel in anticipation of Burton's likely filing of a CrR 7.5 motion for new trial based on ineffective assistance of counsel. McCoy argued that he had a conflict of interest because Burton was claiming that McCoy had done a "poor job" at trial. McCoy stated that he did not believe that he could "bring forward an issue of ineffective assistance." Burton provided no additional information supporting his ineffective assistance claim beyond that which he presented at pre-trial.
The court denied McCoy's motion to withdraw, finding nothing obvious that would suggest to the court that McCoy was ineffective. Without examples of ineffectiveness, the court ruled that it was within its discretion to deny the motion to withdraw. Burton did not file a motion for new trial based on ineffective assistance of counsel.
The court sentenced Burton on June 19, 2006, but stayed the execution of the Judgment and Sentence and allowed Burton to remain free based on a personal recognizance appeal bond. Burton timely appeals the denial of McCoy's motion to withdraw, requesting remand and appointment of conflict-free counsel to handle his motion for new trial based on ineffective assistance of counsel.
ANALYSIS
Burton's only assignment of error is that he was denied his constitutional right to conflict-free representation when the trial court denied McCoy's motion to withdraw and appoint substitute counsel subsequent to his conviction. He does not contend that the trial court erred in concluding, prior to trial, that the pre-trial record did not show that Burton wanted to fire McCoy.
Because Burton does not assign error to the trial court's pre-trial conclusions, they are verities on appeal. Silverstreak, Inc. v. Wash. State Dep't of Labor Indus., 159 Wn.2d 868, 154 P.3d 891 (2007). As such, this outcome in this case is guided by Rosborough, 62 Wn. App. at 346. There, this court affirmed that a defendant's allegation of ineffective assistance does not create an inherent conflict of interest requiring the appointment of substitute counsel. Id. (citing State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987)). Accordingly, Burton's indication that he may file a motion for new trial based on ineffective assistance does not create an automatic conflict of interest requiring the court to allow McCoy's withdrawal and appoint substitute counsel. Because the possibility of filing such a motion was the only reason set forth in McCoy's motion to withdraw, and because Burton never actually filed such a motion, we conclude that the trial court did not err when it denied the motion for withdrawal and appointment of substitute counsel.
Statement of Additional Grounds
Burton's statement of additional grounds for review repeats several issues raised by appellate counsel. These issues merit no further discussion. The remaining issues are examined to the extent allowed by Burton's citations to case law and the record supplied on appeal.
When appealing a denial of a motion for substitution of counsel, a defendant may offer on appeal a material reason for dissatisfaction that would have been elicited had the trial court inquired further. State v. Sinclair, 46 Wn. App. 433, 436, 730 P.2d 742 (1986). While Burton offers several reasons for his dissatisfaction, none of them include his attorney's pretrial conduct. Further, they are neither material nor factually accurate.
First, he contends that his request to the trial court to appoint new counsel resulted in the order for contempt and custody. Burton claims that "[a]fter 5 days in jail, I was sufficiently intimidated not to persist," and "believe that Mr. McCoy at this point was likewise intimidated." However, the order for contempt and custody was not based on Burton's request for substitute counsel, which was not formally made. Instead, the record shows that Burton repeatedly interrupted the proceedings, asked for legal advice from the court, and did not comply with the court's continuous requests to desist in his interruptions and demands. This was the court's cause for its order of contempt. The trial court did not issue the order as a direct response to Burton's mere request, however vague, for substitute counsel.
Second, Burton contends that McCoy was incompetent in his cross-examination of the police witness during the CrR 3.5 hearing regarding Burton's Miranda rights and where he was taken after arrest. He alleges, without citation, that there were additional facts that would have been "effectively challenged by a competent lawyer." However, the record shows that both the prosecutor and McCoy questioned the police witness about his reading of the Miranda rights and Burton's unsolicited statements while in custody. In response to their questions, the officer testified that Burton was taken to Harborview Medical Center for treatment for his ankle and released from police custody. There is nothing on the record to show that McCoy was incompetent in his questioning or when he asked the court to suppress Burton's statements because his injuries at the time made it difficult to understand his Miranda rights. Further, because the officer's testimony was straightforward and consistent during both direct and cross-examination, there is nothing that indicates that additional evidence would have come forth under the questioning of another attorney.
Miranda v. Arizona, 384 U.S. 436, 86. S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Miranda, 384 U.S. 436.
Miranda, 384 U.S. 436.
Third, Burton argues that the trial court erred when it refused to consider evidence that Burton's former employer was withholding his pay and had lied when it testified that he had been fired. While the trial court limited discussion of this issue, Burton does not provide guidance to the record to show evidence as to why this would affect the outcome of his case. Any error would be harmless.
Finally, Burton repeats his allegations that McCoy was ill-prepared throughout the trial. He provides only two examples. First, he claims that when McCoy had Burton on the witness stand, he only asked him to "give my version of what happened," thus "feeding [him] to the prosecution." Next, he contends that "[i]n his summing up, he essentially said that I hadn't broken any laws, just made a number of bad choices. The prosecution had a field day." However, a review of the verbatim report of proceedings contains 53 pages of McCoy's direct examination of Burton, which consists of a detailed questions and answers. A review of his closing arguments shows that he worked with the facts available to him and presented a plausible defense. He also objected to statements made by the prosecutor in closing. Burton's allegations are not only insufficiently vague, they are incorrect. We reject his claims of ineffective assistance of counsel and conflict with counsel. We affirm.