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In State v. McCabe, 25 Wn.App. 2d 456, 466, 523 P.3d 271 (2023), this court explained, "allegations of poor performance, no matter how poor, cannot form the basis of a Cronic claim.
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No. 84635-3-I
01-30-2023
STATE of Washington, Respondent, v. Joshua Lee MCCABE, Appellant.
Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507-6490, for Appellant. Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, Rachael Rogers, Clark County Prosecuting Attorney's Office, P.O. Box 5000, Vancouver, WA, 98666-5000, for Respondent.
Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507-6490, for Appellant.
Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, Rachael Rogers, Clark County Prosecuting Attorney's Office, P.O. Box 5000, Vancouver, WA, 98666-5000, for Respondent.
OPINION PUBLISHED IN PART
Dwyer, J.
¶1 Joshua McCabe appeals from the judgment entered on a jury's verdict finding him guilty of one count of child molestation in the first degree, one count of child molestation in the second degree, one count of incest in the second degree, and one count of bail jumping. The State concedes that McCabe's bail jumping conviction was not supported by sufficient evidence and that multiple errors require McCabe to be resentenced. We accept the State's concessions and remand for dismissal of McCabe's conviction for bail jumping. We affirm the remainder of McCabe's convictions and also remand for resentencing.
I
¶2 When McCabe's daughter S.M. was in high school, she reported to a school guidance counselor that her father had, on three separate occasions, inappropriately touched her genital area while she was attempting to sleep. After a forensic interview was conducted with S.M., the State charged McCabe with two counts of child molestation in the first degree, one count of child molestation in the second degree, and one count of incest. When McCabe failed to appear for a pretrial hearing, the State amended the information to add a charge of bail jumping.
¶3 The jury acquitted McCabe on one count of child molestation in the first degree, but convicted on all other charges. McCabe appeals. II
A
¶4 McCabe first asserts that he was constructively deprived of his constitutional right to counsel, in violation of his right to counsel under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), due to an alleged exceptionally poor performance by his defense attorney. However, he specifically disclaims a claim of ineffective assistance of counsel within the ambit of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
¶5 Applying the legal standards applicable to a deprivation of counsel claim—as opposed to an ineffective assistance of counsel claim—we conclude that McCabe does not demonstrate an entitlement to appellate relief.
B
¶6 On May 14, 1984, the United States Supreme Court filed its opinion in Strickland. As noted by the Court, the right to counsel is included in the Sixth Amendment as a means of ensuring that the accused receives his fundamental right to a fair trial. Strickland, 466 U.S. at 684, 104 S.Ct. 2052. "[A] fair trial," the Court stated, "is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Strickland, 466 U.S. at 685, 104 S.Ct. 2052. The right to counsel is a crucial part of ensuring a fair trial, because the knowledge and skill of counsel allows the accused to challenge the prosecution's case on an even footing. Strickland, 466 U.S. at 685, 104 S.Ct. 2052. "That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command." Strickland, 466 U.S. at 685, 104 S.Ct. 2052. Accordingly, the Court has recognized that the right to counsel encompassed in the Sixth Amendment is the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.Ct. 2052.
¶7 In Strickland, David Washington, a criminal defendant sentenced to death in Florida for three counts of murder, filed a habeas petition alleging ineffective assistance of counsel at his sentencing hearing. 466 U.S. at 678, 104 S.Ct. 2052. Until that point, the Supreme Court had not had the occasion to address a claim of " ‘actual ineffectiveness’ " of counsel that did not involve a conflict of interest or interference by the government. Strickland, 466 U.S. at 686, 104 S.Ct. 2052.
¶8 The Court first recognized that any claim of actual ineffectiveness must be guided by the purpose of the right to counsel—to ensure a fair trial. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. With this purpose in mind, the Supreme Court announced the following test applicable to claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
¶9 On the same day that it filed its opinion in Strickland, the United States Supreme Court also issued its opinion in Cronic. There, the Court of Appeals had held that the defendant had been completely denied counsel because the attorney appointed for him was inexperienced and lacked sufficient time to prepare for trial and, accordingly, reversal was required regardless of the quality of the defense counsel's actual performance. Cronic, 466 U.S. at 652-53, 104 S.Ct. 2039. The Supreme Court in Cronic overturned the Court of Appeals’ decision.
¶10 In reversing the appellate court decision, the Supreme Court noted, consistent with its opinion in Strickland, that the Sixth Amendment is not implicated absent an effect of the challenged conduct on the reliability of the trial process. Cronic, 466 U.S. at 658, 104 S.Ct. 2039 ; see also Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052 ("The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding."). Ordinarily, the burden to prove an effect on the reliability of the trial process rests with the defendant. Cronic, 466 U.S. at 658, 104 S.Ct. 2039 ; Strickland, 466 U.S. at 687, 104 S.Ct. 2052. However, the Court recognized that there exists a limited set of "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658, 104 S.Ct. 2039. Only when one of these circumstances applies will prejudice be presumed and the defendant relieved of his burden under Strickland. Cronic, 466 U.S. at 658, 104 S.Ct. 2039.
¶11 Although it did not purport to create an exclusive list of these circumstances, the Supreme Court did discuss three situations in which a presumption of prejudice is warranted. The first of these situations is when the defendant has been completely denied counsel at a critical stage of the proceedings. The Supreme Court listed multiple examples of cases that fell under this exception, including Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), wherein the trial court prohibited the defendant from speaking to his counsel overnight during the trial, and Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), in which the defendant did not have a private attorney nor was an attorney appointed to represent him at his arraignment. Cronic, 466 U.S. at 659 n.25, 104 S.Ct. 2039.
¶12 The second situation discussed in Cronic arises when the circumstances are such that "the likelihood that any lawyer, even a fully competent one, could provide effective assistance" is minimal. Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. As an example of this situation, the Supreme Court noted Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), wherein the trial court first appointed the entire Alabama bar as counsel for eight defendants charged with a capital offense, then, on the day of trial (only six days after arraignment), instead appointed an attorney from Tennessee who was not licensed to practice law in Alabama. Cronic, 466 U.S. at 660, 104 S.Ct. 2039.
¶13 The third and final situation discussed in Cronic arises when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Cronic, 466 U.S. at 659, 104 S.Ct. 2039. If the defendant cannot establish that his case is sufficiently similar to one of these three situations, then the claim of denial of assistance of counsel is subject to the standard announced in Strickland, Cronic’s companion case, and a showing of actual prejudice is required.
C
¶14 The Supreme Court elaborated on what it means for counsel to " ‘entirely fail[ ] to subject the prosecution's case to meaningful adversarial testing’ " in Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (quoting Cronic, 466 U.S. at 696, 104 S.Ct. 2039). There, the defendant argued that he had been denied his Sixth Amendment right to counsel at his death penalty sentencing hearing because his attorney did not present mitigating evidence and waived closing argument. Bell, 535 U.S. at 692, 122 S.Ct. 1843. The federal circuit court determined that because Bell's counsel had not asked for mercy following the prosecution's closing argument, the defense attorney had failed to subject the prosecution's call for the death penalty to "meaningful adversarial testing" and, accordingly, ruled that no showing of actual prejudice was required to establish a violation of the right to counsel. See Bell, 535 U.S. at 693, 122 S.Ct. 1843 (citing Cone v. Bell, 243 F.3d 961, 979 (6th Cir. 2001) ). The Supreme Court reversed the decision of the Court of Appeals. Bell, 535 U.S. at 693, 122 S.Ct. 1843.
¶15 In so doing, the Supreme Court clarified that "[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete ." Bell, 535 U.S. at 696-97, 122 S.Ct. 1843 (emphasis added). When assessing whether a complete failure has occurred, the Court indicated that the specific proceeding must be viewed "as a whole," not by assessing any claimed ineffectiveness "at specific points." Bell, 535 U.S. at 697, 122 S.Ct. 1843. With respect to the case at hand, the Supreme Court stated that "[t]he aspects of counsel's performance challenged by respondent—the failure to adduce mitigating evidence and the waiver of closing argument—are plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components." Bell, 535 U.S. at 697-98, 122 S.Ct. 1843.
¶16 As Bell indicates, the cited exception is a narrow one and cases in which there is a complete failure to subject the prosecution's case to meaningful adversarial testing will be few and far between. Indeed, cases in which this exception has been properly applied are limited to those in which the defendant's counsel was so uninvolved that the attorney may as well have not been present in court at all. See Lewis v. Zatecky, 993 F.3d 994, 1006 (7th Cir. 2021), cert. denied sub nom. Reagle v. Lewis, ––– U.S. ––––, 142 S. Ct. 897, 211 L. Ed. 2d 605 (2022) (counsel's only comment during sentencing hearing was " ‘Judge, I'm going to defer to Mr. Lewis if he has any comments. I don't have anything to add.’ "); Burdine v. Johnson, 262 F.3d 336, 338-39 (5th Cir. 2001) (counsel slept through trial); Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir. 1989) (counsel was silent through entire trial); Martin v. Rose, 744 F.2d 1245, 1250 (6th Cir. 1984) (counsel refused to participate in trial).
¶17 On the other hand, federal courts have been consistent in holding that allegations of poor performance are subject to the Strickland analysis and actual prejudice must be demonstrated in order for the defendant to obtain relief. See, e.g., Darden v. United States, 708 F.3d 1225, 1230 (11th Cir. 2013) (no presumption of prejudice when attorney conceded guilt on one charge and defended against others); McDowell v. Kingston, 497 F.3d 757, 763 (7th Cir. 2007) (counsel allowed client to testify in narrative form); United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (counsel conducted incomplete investigation, asked open-ended questions of witnesses, and was unfamiliar with federal rules); United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir. 2005) (counsel conceded guilt on one charge while defending on others); United States v. Griffin, 324 F.3d 330, 363 (5th Cir. 2003) (counsel repeatedly deferred to counsel of co-defendant); Moss v. Hofbauer, 286 F.3d 851, 862 (6th Cir. 2002) (counsel did not conduct witness interviews, gave no opening statement, and conducted limited examination of State's witnesses). As one circuit court observed, "bad lawyering, regardless of how bad, does not support the presumption [of prejudice]; more is required." McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990).
D
¶18 The Washington Supreme Court has discussed Cronic on only one occasion. See In re Pers. Restraint of Davis, 152 Wash.2d 647, 101 P.3d 1 (2004). There, our Supreme Court rejected the petitioner's argument that the presumption of prejudice articulated in Cronic should apply to his 15 claims of ineffective assistance of counsel. Instead, the court held that "[a]bsent a complete denial of counsel or a breakdown in the adversarial process, Davis ‘can therefore make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.’ " Davis, 152 Wash.2d at 675, 101 P.3d 1 (quoting Cronic, 466 U.S. at 666, 104 S.Ct. 2039 ). The court then proceeded to analyze the petitioner's claims of ineffective assistance of counsel under the Strickland standard.
¶19 Our Supreme Court has never upheld a claim of denial of assistance of counsel based on counsel's performance without a showing of prejudice. Only in rare cases have we done so. In State v. Harell, 80 Wash. App. 802, 805, 911 P.2d 1034 (1996), we held that the defendant was denied the right to counsel when his attorney took the stand to testify against him. Similarly, in State v. Regan, 143 Wash. App. 419, 427, 177 P.3d 783 (2008), we held that the right to counsel was denied and we would presume prejudice when the defendant demonstrates an actual conflict of interest that adversely affected counsel's performance.
Although we did not cite Cronic in our opinion in Harell, the facts of that case fall squarely within the circumstances in which the United States Supreme Court has held that because a conflict of interest was present, assistance of counsel is denied and prejudice is presumed.
¶20 The sole appellate decision which relied on Cronic to find a deprivation of counsel without requiring a showing of prejudice was State v. Chavez, 162 Wash. App. 431, 257 P.3d 1114 (2011). There, Division Three considered a claim that the defendant was deprived of the assistance of counsel because his attorney filed an Anders brief in conjunction with the defendant's request to withdraw a guilty plea. Division Three held that counsel was denied because an Anders brief is not an appropriate filing in a trial court and the brief effectively conceded that the motion was frivolous. Chavez, 162 Wash. App. at 439-40, 257 P.3d 1114. The opinion did not address the issue of prejudice, instead remanding for further review of the defendant's motion to withdraw his guilty plea. Chavez, 162 Wash. App. at 440, 257 P.3d 1114.
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
¶21 Judge Korsmo dissented. In his dissent, Judge Korsmo concluded that counsel's filing of an Anders brief did not constitute a "complete denial of counsel at a critical stage of the proceedings" under Cronic whereby prejudice could be presumed. Chavez, 162 Wash. App. at 445, 257 P.3d 1114 (Korsmo, A.C.J., dissenting). This was so, Judge Korsmo stated, because counsel "did present the arguments to the court." Chavez, 162 Wash. App. at 445, 257 P.3d 1114 (Korsmo, A.C.J., dissenting).
¶22 Although we believe the dissent in Chavez had the better of this exchange, the majority opinion can charitably be read to hold that an issue of fact existed by virtue of counsel's concession that the motion was meritless. Nonetheless, we decline to adopt the approach taken by Division Three.
E
¶23 We turn now to the specific arguments made in this case. McCabe asserts that he was constructively denied the assistance of counsel because his attorney failed to alert the court that McCabe was falling asleep during trial, did not object to inadmissible evidence, did not cross-examine many of the State's witnesses, did not make an opening statement, did not move for dismissal of the bail jumping charge, was inattentive at sentencing, did not correct a miscalculated offender score, and argued for sentencing alternatives for which McCabe was not eligible.
¶24 All of McCabe's complaints concern his counsel's level of performance. Nevertheless, he specifically bases his claim on Cronic and affirmatively disclaims a Strickland claim. However, allegations of poor performance, no matter how poor, cannot form the basis of a Cronic claim. McInerney, 919 F.2d at 353. For such a claim to be presented, counsel must have been absent or entirely nonparticipatory. But McCabe makes no such allegation. On the contrary, McCabe's counsel clearly participated in the trial, even if not in a manner satisfactory to McCabe. Accordingly, McCabe's assertions of underperformance and "lack of dedication" are not cognizable under Cronic.
¶25 McCabe discusses his counsel's performance in a manner that is typical of a Strickland ineffective assistance of counsel claim. However, because he affirmatively disclaims advancing such a claim, we will not treat his claim as such.
McCabe fails to demonstrate that he was deprived of the assistance of counsel within the meaning of Cronic. His claim fails.
¶26 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Diaz, J.
Andrus, C.J.