Opinion
No. 23489-4-III.
June 29, 2006.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 00-1-00013-5, William D. Acey, J., entered October 13, 2004.
Counsel for Appellant(s), James Edward Egan, James E Egan PS, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Respondent(s), Joseph Michael Golden, Walla Walla Pros Attorney, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kato, JJ.
Simply showing error in the trial court is not enough to warrant reversal of a conviction. More is required. The appellant must show that the error worked some prejudice on him. Here, Sylvester C. Lopez, Sr., appeals the denial of his motion for relief of judgment (CrR 7.8) on grounds that the court failed to appoint a lawyer to represent him in this request for post-conviction relief. But what is missing is what if anything would have been appropriately argued in support of his motion that would have been of arguable merit. We then need not reach the issue of whether he was inappropriately denied assistance of counsel since there is no showing on this record that it would have made any difference. We therefore affirm his conviction.
Procedural History
A jury convicted Sylvester C. Lopez of two counts of assault in the first degree, two counts of assault in the second degree, and one count of unlawful possession of a firearm. In June 2000 he appealed that conviction. We reversed the unlawful possession of firearm conviction concluding that he was ineffectively assisted by his lawyer. And we vacated the persistent offender sentence and remanded for resentencing. State v. Lopez, 107 Wn. App. 270, 280, 27 P.3d 237 (2001). The State petitioned for review by our Supreme Court. The Supreme Court affirmed our decision and remanded for sentencing. State v. Lopez, 147 Wn.2d 515, 55 P.3d 609 (2002). A new judgment and sentence was imposed on February 5, 2003. Mr. Lopez appealed arguing that the two counts of first degree assault constituted the same criminal conduct for sentencing purposes. We concluded that the crimes did not constitute the same criminal conduct as each involved a separate victim. State v. Lopez, noted at 121 Wn. App. 1015 (2004). Mr. Lopez again petitioned the Washington State Supreme Court for review. The Washington State Supreme Court denied his petition for review. State v. Lopez, noted at 153 Wn.2d 1004 (2005).
Mr. Lopez moved pursuant to CrR 7.8 for relief of judgment after his second appeal to this court. His only argument in support of that motion was that the evidence was insufficient to support his convictions. The court denied his motion.
The court may relieve a party from a final judgment for mistakes, newly discovered evidence, fraud, a void judgment, or for any other reason justifying relief. CrR 7.8(b).
Discussion
The only grounds asserted by Mr. Lopez in the trial court to support his motion for relief from judgment was that the evidence was insufficient to support his convictions for two counts of assault in the first degree and two counts of assault in the second degree. Here on appeal his lawyer appropriately concedes that challenges to the sufficiency of the evidence are not the proper subject matter for a motion for relief from judgment in the trial court. Appellant's Br. at 7-8. He nonetheless contends that the case should be remanded for appointment of counsel and argument. Mr. Lopez argues that he was denied his constitutional right to counsel at all stages of the proceedings when the court failed to appoint counsel.
There are two problems with Mr. Lopez's argument. First, the only grounds advanced in this record to support his motion for relief from judgment was insufficiency of evidence. And clearly that is not the appropriate subject for such a motion. State v. Robinson, 153 Wn.2d 689, 695, 107 P.3d 90 (2005). Second, even if we were to assume that he was improperly denied the right to counsel in this request for post-conviction relief, Mr. Lopez fails to state what potentially meritorious argument should have and would have been properly brought to the attention of the trial court. And reversal is appropriate only if `within reasonable probabilities, the outcome of the [motion] would have been materially affected had the error not occurred.' State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); Robinson, 153 Wn.2d at 698. So while counsel notes that Mr. Lopez did not `argu[e] proper grounds for relief in his [CrR 7.8] motion' (Appellant's Br. at 8), he only suggests (at oral argument) that we might revisit our Supreme Court's decision in State v. Wilson, 125 Wn.2d 212, 883 P.2d 320 (1994). And, of course, this we may not do. State v. Burkins, 94 Wn. App. 677, 701, 973 P.2d 15 (1999).
Mr. Lopez also raises a number of assignments of error as additional grounds for our review.
Ineffective Assistance of Counsel
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). Mr. Lopez must overcome a strong presumption that defense counsel's performance was reasonable based on the trial record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); Shaver, 116 Wn. App. at 382. The appellant must show that defense counsel's performance fell below the objective standard of reasonableness. McFarland, 127 Wn.2d at 334-35; Shaver, 116 Wn. App. at 382. This must be shown based upon the trial record. McFarland, 127 Wn.2d at 335. The record must contain no strategic or tactical reasons that would support defense counsel's conduct. Id. at 336. The appellant must also show he was prejudiced by the deficient representation. Id. at 334-35. There must be `a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' Id.
Mr. Lopez argues he received ineffective assistance of counsel from his appellate counsel because: (1) counsel argued an issue that has already been decided against Mr. Lopez; (2) counsel demanded payment for copies of the clerk's papers even though Mr. Lopez was declared indigent; (3) counsel reduced the clerk's papers available to Mr. Lopez from 657 to 11 when counsel discovered that Mr. Lopez was indigent; (4) counsel violated the Rules of Professional Conduct `by filing numerous motions for extension of time to file appellant's brief, and . . . without authorization exceeding the time provided by the court to file appellant's brief'; and (5) counsel violated the Rules of Professional Conduct when he failed to explain the issue raised in the appellate brief to Mr. Lopez. Statement of Additional Grounds for Review at 3-6.
Mr. Lopez has not, however, shown that `the result of th[is] proceeding would have been different' had appellate counsel acted differently. McFarland, 127 Wn.2d at 334-35. Mr. Lopez raises no additional issues that counsel could have (or should have) raised on appeal. He also does not argue that counsel denied him the right to essential clerk's papers.
Sufficiency of the Evidence
Mr. Lopez argues that the superior court erred when it denied his CrR 7.8 motion. He argued there was insufficient evidence to support his convictions. Again, this issue cannot be raised in a CrR 7.8 motion. Robinson, 153 Wn.2d at 695 n. 4. A defendant cannot attack the validity of an underlying judgment in a CrR 7.8 motion based on `errors in law.' Robinson, 153 Wn.2d at 695 n. 4 (`Relief for errors of law must be sought under CrR 7.5 (motion for a new trial), by an appeal or a [personal restraint petition]'). Mr. Lopez acknowledges this in his appellate brief: `Insufficiency of the evidence is a subject for an appeal or a personal restraint petition and is not a proper ground for relief from the judgment or order under CrR 7.8.' Appellant's Br. at 7-8.
Merger (Double Jeopardy) and `Same Criminal Conduct' (Sentencing)
Our review of a CrR 7.8 motion is limited to only those issues raised in the motion. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002).
Mr. Lopez argued in his CrR 7.8 motion that a conviction must be reversed if there is insufficient evidence to support it. He did not specifically argue that his convictions should have merged under a double jeopardy analysis or that the crimes were the `same criminal conduct' for sentencing purposes. He raises these arguments for the first time on review of his CrR 7.8 motion. Statement of Additional Grounds for Review at 9-10. Mr. Lopez's arguments are not properly before this court since they were not raised in the motion on review. Gaut, 111 Wn. App. at 881.
Further, these issues address `errors in law,' which cannot be raised in a CrR 7.8 motion. Robinson, 153 Wn.2d at 695 n. 4. It should also be noted that we addressed Mr. Lopez's `same criminal conduct' issue, with regard to his two convictions for assault in the first degree, in his second appeal to this court in 2004. Lopez, noted at 121 Wn. App. 1015.
We affirm the order of the trial court.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KATO, J., concur.