Opinion
No. 30054-1-II.
Filed: March 16, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-04880-5. Judgment or order under review. Date filed: 02/14/2003. Judge signing: Hon. Stephanie a Arend.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Errol Bobby Mayers appeals his conviction of first degree escape, arguing that the evidence was insufficient to establish that he "knowingly escaped from custody," and that the trial court erred when it denied his motion to substitute counsel. In a Statement of Additional Grounds (SAG), he further argues that he was subject to double jeopardy because the same events also resulted in a probation violation. We affirm.
RAP 10.10.
Facts
On October 15, 2002, while being transported to McNeil Island Corrections Center for community custody violations, Mayers opened the back door of a Department of Corrections transport vehicle and fled. The State charged Mayers with first degree escape.
After continuing the original trial date twice, the trial court set a trial date of Thursday, January 30, 2003. On that day, Mayers moved for substitution of his appointed counsel and asked for a continuance to allow his family to find money to hire private counsel.
Mayers advised the trial court that he was not "comfortable" going to trial with his appointed counsel because appointed counsel had told him that he would lose. I Report of Proceedings (RP) at 2. He believed that because appointed counsel had already decided he would lose, he would not get a fair and impartial trial. He also advised the court that he did not "see eye-to-eye on this situation" with his appointed counsel and that he believed he had found authority supporting his case even though counsel did not. I RP at 2. In the alternative, he asked to represent himself.
The trial court found that Mayers had failed to show that substitution of counsel was necessary, stating that appointed counsel had adequately represented other defendants in the court and the fact Mayers did not like his counsel's advice was not sufficient grounds to allow substitute counsel. The court also expressed concern about the timing of Mayers's motion, noting that appointed counsel had been assigned on December 4. But, after some discussion, the trial court granted Mayers's request to act pro se and it designated appointed counsel as standby counsel. After addressing some preliminary matters, the trial court recessed for the day.
When the trial court reconvened the following Monday, Mayers stated that he was unable to represent himself adequately and that he had located private counsel who agreed to represent him if he could get a continuance.
After noting that proposed counsel was not present to verify that he had agreed to represent Mayers, the trial court denied the continuance. It did, however, reappoint appointed counsel.
At trial, the parties stipulated that on October 15, Mayers was on community custody status following a felony conviction. Mayers's Community Corrections Officer (CCO), Linda McGrann, testified that she had been meeting with Mayers on a weekly basis and that prior to the October 15, 2000 meeting, she had decided to take Mayers into custody for his failure to comply with his community custody requirements.
McGrann further testified that shortly after Mayers arrived, two male CCOs asked him to step out into the hall, took him "into custody," and handcuffed him. II RP at 84. Mayers then remained in McGrann's office while she processed a detainer, notified the prison, and arranged for his transport. McGrann also testified that as a CCO, she had legal authority to arrest Mayers.
The CCOs then placed Mayers in the back of a "'cage car,'" and headed toward the ferry to McNeil Island. II RP at 85. As they approached the ferry dock, Mayers began yelling, screaming, and kicking at the right rear passenger door with both feet.
As McGrann called 911 to request backup, Mayers managed to unroll the rear window and open the door from the outside while the car was still in motion. When the officers stopped the car, he jumped out and ran away.
But, deputies took him back into custody later that day after finding him lying on his stomach behind a blackberry patch.
Mayers did not present any witnesses, and the jury found him guilty as charged.
Discussion I. Sufficiency of the Evidence
Mayers first contends that there was no evidence he knew he was under "arrest" at the time he escaped from the car and, thus, there was no evidence that he knowingly escaped from custody. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Under RCW 9A.76.110(1), "[a] person is guilty of escape in the first degree if he or she knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense." (Emphasis added.) RCW 9A.76.010(1) defines the term "custody" as "restraint pursuant to a lawful arrest or an order of a court, or any period of service on a work crew." Mayers argues that RCW 9A.76.010(1) establishes that the phrase "knowingly escapes from custody" required the State prove he knew he was under arrest at the time he fled from the car and that the evidence fails to establish (1) that he was ever lawfully arrested, or (2) that he knew he was under lawful arrest.
RCW 9A.76.110(1) and RCW 9A.76.010(1) do not necessarily require that the defendant be under arrest at the time of the escape. These statutes require only proof that the defendant was under "restraint pursuant to a lawful arrest or an order of a court." (Emphasis added.)
At the time of his escape, Mayers was under restraint pursuant to alleged community custody violations related to his prior felony conviction; thus, he was under restraint pursuant to a lawful court order — his judgment and sentence, which set out his community custody requirements. Further, a reasonable jury could conclude that Mayers not only knew that he was under restraint, which was apparent because he was physically restrained, but that this restraint was pursuant to a lawful court order because he had been reporting to McGrann weekly for several months as required by his community custody terms, and he was present in McGrann's office as she processed the detainer. Additionally, Mayers's attempt at flight, at some risk to himself, and his hiding from law enforcement officers, strengthens the inference that he knew he was potentially subject to further incarceration for violating his community custody requirements and was attempting to avoid it.
Because the evidence was sufficient to establish that Mayers knew he was in custody and that this custody was pursuant to his community custody requirements, his sufficiency challenge fails.
II. Motion to Substitute Counsel
Mayers next contends that the trial court erred in denying his motion to substitute counsel because he established that there was an irreconcilable conflict and a complete breakdown of communication.
The decision to replace appointed counsel lies within the trial court's sound discretion. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991). A reviewing court will not fault the trial court's refusal to appoint new counsel if the defendant has not supplied "legitimate and sufficient grounds" for the substitution. State v. Staten, 60 Wn. App. 163, 169, 802 P.2d 1384 (1991). Unsupported general allegations of deficient representation are inadequate, particularly when the motion to substitute comes shortly before or during trial; thus "[a] trial-delaying substitution is ordinarily justifiable only when counsel has not prepared a defense or has a conflict of interest, or there is a complete breakdown in communication between defendant and counsel such that defendant's right to a fair trial is threatened." Staten, 60 Wn. App. at 170 n. 7.
Here, on the day trial was to begin, Mayers advised the trial court that he did not think his appointed counsel would provide an adequate defense because counsel had already decided that the jury would find him guilty. He also disagreed with his counsel's evaluation of the case and said that he had found law that would establish his innocence.
These allegations did not establish irreconcilable differences or a complete breakdown of communications and the trial court did not abuse its discretion in denying the motion. Moreover, the record contains no indication that counsel's representation was compromised.
Because the trial court properly denied Mayers's motion to substitute counsel, we need not address whether the trial court properly denied his requests for continuances.
III. Double Jeopardy
Finally, in his SAG, Mayers argues that he was subject to double jeopardy because his escape conviction and sentence and his community custody violation and resulting incarceration were both based on the same facts. We decline to review this issue because its resolution depends on matters outside the record. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (issues involving matters outside the record must be raised by means of a personal restraint petition).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and ARMSTRONG, J., concur.