Opinion
No. 57688-7-I.
April 9, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-13176-2, Julie Spector, J., entered January 30, 2006.
Affirmed by unpublished per curiam opinion.
William Cummings entered an Alford plea on two drug related charges. At sentencing, he asked the court for a continuance so he could have a new attorney appointed to explore the option of withdrawing his plea based partly on ineffective assistance of counsel. He claimed to have new evidence showing that the State's main witness had been unavailable to testify at the time of his scheduled trial. He contends that the prosecutor did not reveal the unavailability or that his attorney failed to inform him of this critical evidence. The trial court found that Cummings' contention had no merit and proceeded through sentencing. Cummings claims his constitutional right to effective counsel was violated. We affirm.
FACTS
Cummings was charged with three counts of delivery of cocaine and one count of possession of cocaine with intent to deliver. Prior to trial he made a motion to withdraw counsel because of "a total breakdown of communications" with his attorney. Cummings claimed that the prosecutor's witness was setting him up. He wanted his attorney to have an investigator watch the witness and gather evidence that the witness was lying. His defense attorney informed him, and the court, that her agency did not have the resources for surveillance of the confidential informant. Cummings appeared angry and frustrated that such surveillance was impossible. The trial court denied the motion because it did not find an irreparable breach in the relationship and also believed that substitution of counsel would not remedy the disagreement.
On October 11, 2005, the parties appeared for trial but Cummings entered an Alford plea instead. Cummings pled to one charge of delivery of cocaine and one charge of possession with intent to deliver. In exchange, the State agreed to dismiss two of the charges for delivery of cocaine. Cummings also asked for a Drug Offender Sentencing Alternative (DOSA), which the State opposed. The judge conducted a plea colloquy and determined that Cummings knowingly, intelligently and voluntarily entered the pleas, and accepted the plea.
The parties appeared for sentencing on January 27, 2006. At that time, defense counsel stated that Cummings wanted to withdraw his plea. Cummings asked for the court "to hold over the sentencing until I can have another attorney appointed to look into this new evidence that I have found so that I could look into maybe some ineffective assistance of counsel." He claimed that the prosecution's material witness was not available on the day his trial was scheduled to begin and that neither the prosecutor nor his attorney informed him of the key witness' unavailability. The State needed to obtain material witness warrants in order to secure the informant's testimony in two other trials scheduled about two weeks after Cummings' trial. Cummings believes that the need to obtain warrants to compel testimony in the other cases indicates that the State had difficulty locating the witness for his trial and that the confidential informant was not available to testify at his trial. Cummings expressed concern that this material information was withheld from him prior to entering his plea and may have influenced his decision. Cummings thinks that some of the continuances in his case were based on the State's inability to locate the witness and that this may have violated his speedy trial rights.
Cummings' attorney stated that on October 10, 2005, the prosecutor and a police officer in the case both verified that the confidential informant was available for trial the next day. The witness did not become unavailable until two or three weeks after the trial date when Cummings entered his plea. The prosecutor also confirmed that her office had contact with the witness at the time of trial and that they were prepared for trial on October 11, 2005.
The trial court denied Cummings' motion to continue finding "[t]here's nothing that I've heard that is persuasive that indicates that somehow you were duped into pleading guilty." Cummings was not given new counsel to explore withdrawing his plea. The judge denied the DOSA and sentenced Cummings to 80 months.
DISCUSSION
Cummings contends that the trial court erroneously denied his motion to withdraw his plea without appointing new counsel. We review a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966). "A defendant does not have a constitutional right to withdraw a plea." Id. at 118. Withdrawal of a guilty plea is only required when necessary to correct a manifest injustice. State v. Watson, 63 Wn. App. 854, 856, 822 P.2d 327 (1992). Four indicia of manifest injustice are (1) denial of effective assistance of counsel, (2) plea was not ratified by the defendant, (3) the plea was involuntary, and (4) the prosecution did not honor the plea agreement. Id. at 857 (citing State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974)). Here, Cummings alleges ineffective assistance of counsel which requires a showing of both deficient performance by counsel and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In addition, "[t]he determination of whether or not the dissatisfaction with his court-appointed counsel by an indigent accused person is justified and warrants appointment of another attorney rests in the sound discretion of the trial court." State v. Shelton, 71 Wn.2d 838, 840, 431 P.2d 201 (1967) (citing State v. Lytle, 71 Wn.2d 83, 426 P.2d 502 (1967).
Cummings relies on State v. Harell to support his contention that he was entitled to "conflict-free" counsel to assist in his motion to withdraw his plea. Harell, 80 Wn. App. 802, 911 P.2d 1034 (1996). In Harell, the court granted a hearing on the motion to withdraw, based on an allegation of ineffective assistance of counsel. Id. at 803. Despite the fact that Harell's attorney did not assist at the hearing and even testified as a witness for the State, the trial court found the assistance was not ineffective and denied the motion to withdraw the plea. Id. This Court determined that "a plea withdrawal hearing is a critical stage giving rise to the right to assistance of counsel" and that Harrell had been denied his right to counsel at the hearing. Id. at 804-05.
Cummings contends that his allegations of ineffective assistance created a conflict of interest requiring appointment of "conflict-free" counsel. However, the courts have declined to adopt a rule that requires new counsel upon any claim of ineffective assistance. "[I]f a defendant could force the appointment of substitute counsel simply by expressing a desire to raise a claim of ineffective assistance of counsel, then the defendant could do so whenever he wished, for whatever reason." State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987) (citing State v. Sinclair, 46 Wn. App. 433, 436-37, 730 P.2d 742 (1986)). A mere allegation of ineffective assistance does not create an inherent conflict of interest requiring substitute counsel. State v. Rosborough, 62 Wn. App. 341, 346, 814 P.2d 679 (1991).
In Harell, the trial court was persuaded that the defendant had alleged sufficient facts to warrant a hearing on the claim of ineffective assistance of counsel and motion to withdraw the plea. Id. at 804. The hearing was "a critical stage of the prosecution" and required conflict-free counsel. Id. at 804-05. In this case, the trial court was not persuaded that Cummings alleged sufficient facts to warrant a hearing and denied Cummings' motion to continue the sentencing in order to have new counsel appointed. Cummings alleged that "the material witness that was in my case was not — it was actually not available, and the Court — or I mean the prosecution didn't let my — let the defense know this or, if they did, I wasn't told." His attorney informed the judge that she spoke with an officer who maintained that the confidential informant was available to testify the day before Cummings' scheduled trial. The informant apparently stopped calling the officers around two weeks after Cummings pled guilty. The State did not have to put out material witness warrants for the informant until November 3, 2005, almost a month after Cummings entered his plea. The prosecutor confirmed that "[w]e were in contact with the material witness at the time of trial. We came here prepared to go to trial, and he decided to enter a plea that day."
This information rebutted the bare allegations made by Cummings. The trial court correctly concluded that this evidence did not demonstrate a prima facie basis for a hearing on ineffective assistance of counsel. Given this conclusion, a full evidentiary hearing was not required and new counsel was not necessary. The trial court did not abuse its discretion in concluding that no basis existed to withdraw the plea.
Cummings also makes allegations of misconduct, violation of the Rules of Professional Conduct, and ineffective assistance of counsel in his statement of additional grounds. He claims that his attorney "failed to communicate several plea offers and failed to give [him] any of the court documents from the hearings, keeping [him] out of the loop of communication, leaving [him] without any type of defense." He also contends that his attorney violated the rules of conduct and was ineffective because she failed to do a standard background check of the State's main witness and refused to have an investigator look into the background and activities of the witness. He further claims that his attorney said she believed the witness instead of Cummings, despite his evidence that the witness had a prior conviction for possession of cocaine. He alleges that his attorney delayed his trial, despite his requests to begin trial. Finally he claims that his attorney did not allow him to enter the courtroom the day of his trial, kept "running in and out adding more stress to Cummings than he could handle", did not answer Cummings' question about whether the witness was in the courtroom and failed to tell him the range for the sentence he was facing.
However, Cummings provides no evidence or citations to the record to support any of his claims as required by RAP 10.3(a)(6). In fact, the record belies his claims. The trial court went through the plea agreement and its repercussions. Cummings confirmed that his attorney had been able to answer any questions he might have had about the plea, and that he understood the standard sentencing range for both counts, the State's recommendations and his request for a DOSA and its implications for sentencing. The court pressed the issue of his understanding of the DOSA and sentencing possibilities; Cummings stated that his attorney had made the possibilities "perfectly clear" to him. The judge continued to explore his understanding of the implications of his plea. "So you understand the stakes are pretty high because your offender range is so big, your minimum amount of time is five years and your maximum is ten years? Do you understand that?" Cummings again affirmed that he understood. The prosecutor and defense attorney both stated they believed the plea was knowingly, intelligently and voluntarily entered. Cummings told the judge that he wanted her to accept his guilty plea and that he had enough time to converse with his attorney and discuss his legal options. After this extensive colloquy, the trial court accepted the plea.
The evidence shows that Cummings clearly understood his plea and its consequences. The plea was entered knowingly, intelligently and voluntarily. Cummings has not shown evidence of either his attorney's deficient performance or resulting prejudice. There was no abuse of discretion in the denial of new counsel or withdrawal of plea.
We affirm.