STATE v. BROWN, 58312-3-I (Wash.App. 6-11-2007)

No. 58312-3-I.The Court of Appeals of Washington, Division One.
June 11, 2007.

Appeal from a judgment of the Superior Court for King County, No. 05-1-12034-4, Richard D. Eadie, J., entered May 11, 2006.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

Richard Brown pled guilty to attempted second degree theft. At sentencing Brown’s attorney moved for a continuance to allow Brown to explore the possibility of withdrawing his guilty plea. After briefly enquiring into the factual and legal basis for Brown’s request, the court denied the motion. Finding no error, we affirm.

I.
Brown was hired as a live-in caretaker for Paul Ostrom, who suffers from multiple sclerosis and is confined to a wheelchair. On May 8, 2005, Ostrom asked Brown to take his credit card to withdraw money from an ATM machine. Brown took the card but did not return with the card or money. Ostrom’s sister contacted the credit card company and discovered that $800 had been withdrawn from the card and that the PIN number had been changed. When police contacted Brown, he admitted using Ostrom’s card to withdraw $200 from an ATM near Kenmore and admitted that he was responsible for not returning the card to Ostrom.

Brown was charged with theft in the second degree. After plea negotiations, the State agreed to reduce the charge to the gross misdemeanor of attempted theft in the second degree in exchange for Brown’s promise to plead guilty and not to request a deferred sentence. The State recommended a one-year suspended sentence on the conditions that Brown serve 15 days in jail, 24 months probation, and comply with other conditions.

On March 13, 2006, Brown pled guilty to the amended information. Brown signed a written statement acknowledging that his plea was made freely and voluntarily. He also stated that he was not threatened or promised anything outside of the plea agreement to induce his guilty plea, that he and his attorney had reviewed the plea statement, and that she had answered all of his questions about the form and the plea.

On May 5, 2006, the parties appeared for sentencing. Brown’s attorney told the court that Brown had contacted her the day before, stating that he had “some concerns” and wanted “to explore the possibility of withdrawing his plea.” Brown’s attorney requested a continuance of the sentencing date and asked the court to appoint new counsel “so he can get an independent eye as to his withdrawal of his plea.” The State objected to the continuance and asked what the basis for the plea withdrawal would be. Brown’s attorney responded that he “felt pressured, and felt that this [plea] was not a good option.” When the court asked Brown’s attorney for the legal basis of a plea withdrawal, she said that she was “not prepared to litigate whether or not Mr. Brown has adequate grounds for withdrawing the guilty plea.” She also stated that “one of the grounds for which a not guilty plea [sic] may be ineffective assistance of counsel” and that if that were the case, she “may be in conflict” to represent Brown.

The court denied the motion to continue and proceeded to sentencing. After the State gave its sentencing recommendation, Brown’s attorney renewed the motion to continue because Brown had just informed her for the first time that he had found a witness in the case. The court again denied the motion to continue the sentencing hearing, ruling that “the plea was determined both [sic] by the judge to be freely and voluntarily made, intelligently made, and that there is not a basis to withdraw his plea at this time.” Brown’s attorney then made a sentencing recommendation and asked the court to defer a decision on restitution, which the court granted. When the court asked Brown if he had anything to say regarding sentencing, he stated “I will go ahead and go forward, Your Honor.” The court then imposed the sentence and set a date for the restitution hearing. On June 8, 2006, the restitution order was signed and filed with the court. Defense counsel filed a notice of withdrawal on June 20, 2006. Brown did not raise a post-sentencing motion to withdraw his plea; instead, he filed this appeal.

II.
The only motion raised before the trial court was Brown’s motion to continue the sentencing hearing. We review a trial court’s decision on a motion to continue for abuse of discretion.[1] This includes review of continuances sought to obtain new counsel.[2] “The decision to deny the defendant a continuance will be disturbed on appeal only upon a showing that the defendant was prejudiced or that the result of the trial would likely have been different had the motion been granted.”[3]

Brown argues that the trial court abused its discretion by summarily denying his motion to continue the sentencing hearing without an inquiry. We disagree. Brown had notice of the sentencing date for almost two months, and members of the victim’s family were present to address the court. The trial court listened as Brown’s attorney answered the prosecutor’s question regarding the basis for withdrawing the plea. The court then asked the prosecutor to review the legal standard for plea withdrawals, and asked defense counsel whether she had any information to show that Brown’s plea was involuntary. Defense counsel replied that Brown felt pressured and that the plea was not a good option, but that she was not prepared to litigate whether Brown had adequate grounds for withdrawal. She also emphasized that Brown was not seeking to withdraw his plea at the sentencing hearing, only a continuance to “explore the option” of withdrawing it in the future. Nothing in the court’s ruling would have prevented Brown from exploring the possibility of withdrawing his plea after sentencing. Furthermore, the alleged new witness that Brown suddenly mentioned toward the end of his sentencing hearing, if actually produced, would be highly unlikely to relieve him of liability for the charged crime. The trial court’s inquiry was sufficient under the circumstances, and the trial court did not abuse its discretion in denying a continuance.

Nor do we accept Brown’s contention that the trial court denied him effective assistance of counsel. If a trial court knows or reasonably should know of a defense attorney’s potential conflict of interest, the court must conduct an inquiry to determine the nature of the conflict.[4]
Reversal is not mandated when a trial court knows of a potential conflict but fails to inquire; the defendant must show that the conflict adversely affected the attorney’s performance.[5] The decision whether to appoint substitute counsel is within the trial court’s discretion.[6] A defendant cannot force the appointment of substitute counsel merely by expressing a desire to raise a claim of ineffective assistance of counsel.[7]

Brown’s contention that the trial court failed to conduct an adequate inquiry is unfounded. Neither Brown nor his attorney asserted that an actual conflict existed or that there was a breakdown of communication. Defense counsel merely noted that if Brown eventually decided to withdraw his plea, and if one of the bases for withdrawing his plea was alleged ineffective assistance of counsel, then she would not be able to represent him. On appeal, Brown speculates that a different attorney might have been able to argue for a lesser sentence. But Brown’s attorney managed to get his charge reduced from a felony to a gross misdemeanor, with credit for jail time served and minimal probationary restrictions. Given the facts of this case, it is unlikely that another attorney would have been able to achieve a more favorable result.

AFFIRMED.