No. 44974-5-I.The Court of Appeals of Washington, Division One.
Filed: April 23, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION. AMENDED.
Appeal from Superior Court of King County, No. 98-1-00852-7, Hon. Patricia H. Aitken, June 16, 1999, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Sabrina K. Housand, 320 Central Bldg, 810 3rd Ave, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Catherine M. McDowall, Rm W554, 516 3rd Ave, Seattle, WA 98104.
MARLIN J. APPELWICK, J.
Justin Haynes appeals his conviction for two counts of first degree child molestation, as well as his exceptional sentence. Haynes argues that the trial court erred in failing to inquire into a potential conflict of interest between him and his attorney, and that he was denied his constitutional right to counsel when his attorney `testified’ against him at his guilty plea withdrawal hearing. Haynes also argues that his exceptional sentence should be reversed and remanded because one of the trial court’s two reasons for imposing the sentence is improper. We affirm.
FACTS
In late 1997, Child Protective Services received a report that Justin Haynes had sexually and physically abused his eight-year-old stepdaughter, M.D. After an investigation, the State charged Haynes with two counts of first degree rape of a child and one count of fourth degree assault.
In exchange for Haynes’s agreement to plead guilty, the State reduced the charges against him. Haynes pleaded guilty to two counts of first degree child molestation. The State agreed to recommend to the court that Haynes receive a sentence at the upper limit of the standard sentence range.
The parties appeared before the trial court for a sentencing hearing on May 14, 1999. At that time, Haynes requested and the court granted a continuance of the hearing. The court also indicated that, on its own motion, it was considering imposing an exceptional sentence upward.
On June 14, 1999, the parties reconvened for an evidentiary hearing on the sentencing issue. At the beginning of the hearing, Haynes’s attorney informed the court that Haynes wished to withdraw his guilty plea due to ineffective assistance of counsel. Claiming a potential conflict of interest if he continued to represent Haynes at the sentencing hearing, defense counsel asked to withdraw as Haynes’s attorney. The court denied this request, but indicated that defense counsel would be permitted to withdraw after the sentencing hearing.
The court proceeded to hear testimony on the sentencing issue. Dr. Rebecca Wiester, the consulting physician for the King County Sexual Assault Resource Center’s sexual assault clinic, testified. Dr. Wiester examined and interviewed M.D. in January 1998. According to Dr. Wiester, M.D. said at the interview that Haynes had touched her on her `bottom’ more than once while her mother was in the hospital giving birth to her little sister, K. M.D. told Wiester that Haynes made her suck on his penis and that he `put his . . . wee-wee in my bottom.’ M.D. also reported various incidents of physical abuse that Haynes committed against her.
Kelly Gann, M.D.’s aunt, and Rebecca Dickey, M.D.’s mother, also testified at the hearing. Gann corroborated much of Dr. Wiester’s testimony. According to Gann, M.D. told her that Haynes made her `look at dirty magazines’ and made her `suck on popsicles to show me how to suck on his penis.’ M.D. also said that Haynes `laid in bed naked and he told me to get on top of him, and then he had sex.’ Gann further testified about several incidents of physical abuse by Haynes that M.D. had described to her. Dickey testified that she had witnessed Haynes physically abuse M.D. on various occasions.
Finally, Justin Haynes testified at the hearing. Haynes denied ever sexually or physically abusing M.D.
At the conclusion of the hearing, the court imposed an exceptional sentence of 178 months on each count, to run concurrently. The standard sentence range was 67 to 89 months on each count. The court relied on two factors in imposing the exceptional sentence. First, the court found that Haynes `used his position of trust to facilitate the charged offenses.’ Second, the court found that `[t]he charged offenses involved domestic violence, as defined by RCW 10.99.020, and were part of an ongoing pattern of physical and psychological abuse of the victim.’
With the assistance of new counsel, Haynes filed a written motion to withdraw his guilty plea. He claimed that his former attorney was ineffective in advising him in regard to the guilty plea, because the attorney did not inform Haynes `of the real possibility of an exceptional sentence in his case or of any factors (other than a request by the State) which could be considered by the Court in determining whether or not to impose a sentence outside the standard range.’ Haynes claimed that if he had been so informed, he would not have pleaded guilty.
On July 22, 1999, the court held a hearing on the motion to withdraw the guilty plea. At the conclusion of the hearing, the court denied Haynes’s request to withdraw his guilty plea. The court found that Haynes was aware that although it was unlikely he would receive an exceptional sentence, the court had the power to impose an exceptional sentence. The court concluded that Haynes’s counsel was not ineffective in failing to advise Haynes of the possible grounds for imposing an exceptional sentence.
Haynes appeals.
ANALYSIS I. Right to Counsel at Sentencing Hearing
Haynes first argues that he was denied his constitutional right to counsel when the trial court required his attorney to continue representing him at the sentencing hearing, after the attorney had asserted a potential conflict of interest. Haynes argues that the court erred by failing to inquire into the nature and potential consequences of the asserted conflict of interest.
The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.’ The constitutional right to counsel includes the right to assistance of counsel free from conflicts of interest. State v. Davis, 141 Wn.2d 798, 859, 10 P.3d 977 (2000). A conflict of interest can arise `when a defense attorney owes duties to a party whose interests are adverse to those of the defendant.’ State v. White, 80 Wn. App. 406, 411-12, 907 P.2d 310 (1995). A conflict of interest can exist when a defendant’s interests are adverse to those of defense counsel himself. In re Personal Restraint of Benn, 134 Wn.2d 868, 890, 952 P.2d 116 (1998).
When a defense attorney asserts to the trial court that he has a potential conflict of interest, the court must appoint substitute counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant substitute counsel. See Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The court’s failure to take these steps deprives defendant of the guarantee of assistance of counsel. Holloway, 435 U.S. at 484. Our Supreme Court has stated the rule as follows: `[A] trial court commits reversible error if it knows or reasonably should know of a particular conflict [of interest] into which it fails to inquire.’ In re Personal Restraint of Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983).
Here, at Haynes’s sentencing hearing, defense counsel, Mark Prothero, asserted that he had a potential conflict of interest and requested to withdraw as Haynes’s attorney. Prothero informed the court that Haynes intended to file a motion to withdraw his guilty plea, on the basis of ineffective assistance of counsel. Prothero explained that Haynes believed Prothero had been ineffective in rendering advice on the entry of his guilty plea. Haynes argues on appeal that Prothero’s statements gave the court a reasonable basis to believe a conflict of interest could arise at the sentencing hearing, because `it was obvious that Prothero would have to withdraw,’ and `it was clear that Prothero would most likely become a witness’ at the future plea withdrawal hearing. According to Haynes, the trial court did not adequately inquire into the nature and potential consequences of the asserted conflict of interest.
We are not persuaded by Haynes’s argument. The trial court understood that Haynes wanted to withdraw his guilty plea; that Haynes was alleging Prothero’s assistance as counsel was ineffective specifically with regard to the advice to enter the guilty plea; that Prothero would have a conflict of interest in any proceeding to decide the motion to withdraw the guilty plea; and that substitution of counsel would be necessary before such a proceeding. Further, before proceeding on the motion to vacate the guilty plea, the trial court did allow Prothero to withdraw and did appoint substitute counsel.
The trial court’s inquiry was adequate to inform the court of the basis of the alleged conflict of interest and the need to replace counsel. Haynes’s Sixth Amendment rights were not violated by any lack of inquiry by the trial court into the alleged conflict of interest.
The question is whether the trial court violated Haynes’s Sixth Amendment rights by proceeding with the sentencing hearing before allowing Prothero to withdraw. The trial court explained its decision to proceed with sentencing by stating:
If it’s [counsel’s conduct] ineffective, I presume that it must have occurred in the past and the advice he [Prothero] gave him [Haynes] wouldn’t be occurring today [at sentencing], so I don’t see any reason not to go [forward with the sentencing hearing], if it was ineffective [assistance of counsel] it would set aside the whole thing [plea, verdict and sentencing]. If it wasn’t [ineffective assistance of counsel], I see no problem in him [Prothero] going ahead today. I really did not want to continue this matter since we continued it once already.
Nothing presented to the trial court suggested that Prothero’s conduct as counsel at the sentencing hearing would conflict with the interests of his client. The trial court correctly noted that if Haynes were successful at a later hearing on the withdrawal of the plea, this would require that the sentence also be vacated. If withdrawal of the plea were denied because Prothero’s assistance had not been ineffective in advising Haynes about the plea, Prothero’s performance at the sentencing could still be subject to further challenge for ineffectiveness.
Haynes did not demonstrate to the court that Prothero would have an actual conflicting interest at the sentencing hearing. The challenges available to Haynes protected his right to counsel at every stage. Further, we note that the trial court found Prothero’s assistance on the plea issue was not ineffective and that Haynes raises no challenge to Prothero’s actual performance at sentencing.
The decision of the trial court to proceed to sentencing under these facts did not abridge the Sixth Amendment right to counsel in any way.
II. Right to Counsel at Plea Withdrawal Hearing
Haynes next argues that he was denied his constitutional right to counsel at the plea withdrawal hearing. Haynes’s substitute counsel, Virginia Faller, represented Haynes at that hearing. At one point during the hearing, Faller told the court about her own practices when advising a client whether or not to plead guilty. She stated that her practice was to counsel clients that if the State does not recommend an exceptional sentence, the likelihood that the court would impose an exceptional sentence is `very tiny.’ She also stated that although she did not know of any attorney who advises a client of the possible statutory bases for imposing an exceptional sentence, when the facts are compelling, the attorney should nonetheless do so. Haynes contends that he was denied the effective assistance of counsel because, in effect, Faller was acting as an expert witness against him when she made these statements.
A defendant has a constitutional right to appointed counsel at all critical stages of a criminal prosecution. State v. Harell, 80 Wn. App. 802, 804, 911 P.2d 1034 (1996). A plea withdrawal hearing is a critical stage of a criminal prosecution. Harell, 80 Wn. App. at 804.
Haynes relies on State v. Harell in arguing that his attorney’s statements amount to an outright denial of effective assistance of counsel. 80 Wn. App. 802, 911 P.2d 1034 (1996). An outright denial of the right to counsel is presumed prejudicial and warrants reversal without a harmless error analysis. Harell, 80 Wn. App. at 805. But the facts here differ significantly from those in Harell. In that case, the defendant was denied the right to counsel outright because his attorney declined to assist him with his motion to withdraw his guilty plea, and the attorney testified as a witness for the State at the plea withdrawal hearing. Harell, 80 Wn. App. at 805. Here, in contrast, Faller assisted Haynes with all aspects of the plea withdrawal hearing and did not formally testify against him.
Where there is no outright denial of the assistance of counsel, the defendant must show that (1) trial counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant, in that there is a reasonable probability that but for counsel’s errors, the outcome of the proceeding would have been different. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). We begin with the `strong presumption that counsel has rendered adequate assistance and has made all significant decisions in the exercise of reasonable professional judgment.’ State v. Glenn, 86 Wn. App. 40, 45, 935 P.2d 679 (1997).
Haynes has not demonstrated that Faller’s performance was deficient.
The overall tenor of Faller’s argument was that although attorneys generally do not advise defendants of the possible grounds for an exceptional sentence, the facts in this case warranted such advice. Apparently, Faller, owing a duty of candor to the court, was attempting to maintain her credibility with the court by conceding that her position was contrary to what she knew about the practice of other attorneys. Haynes has failed to explain why this was improper argument.
Further, Haynes has not shown that Faller’s statements at the hearing affected the trial court’s decision to deny the motion to withdraw the guilty plea. Ample evidence, including Haynes’s own admission, supported the court’s conclusion that Haynes was aware that the court could impose an exceptional sentence. Haynes has not demonstrated ineffective assistance of counsel at the plea withdrawal hearing.
III. Exceptional Sentence
Finally, Haynes argues that the trial court erred in imposing an exceptional sentence upward, because one of the court’s two stated reasons for imposing the exceptional sentence was improper. Specifically, Haynes contends that the court erred in concluding that the offenses to which he pleaded guilty were domestic violence offenses under RCW 10.99.020. Haynes argues that the court’s error requires reversal and remand for re-sentencing.
The State concedes that at the time of the sexual abuse, Haynes was not a `[f]amily or household member’ of the victim, as defined in RCW 10.99.020(1). Haynes was not the victim’s father and was not married to the victim’s mother at the time the sexual abuse occurred. Thus, these crimes do not technically involve `[d]omestic violence.’ RCW 10.99.020(3).
The trial court improperly relied upon the `[d]omestic violence’ aggravating factor as a ground for imposing an exceptional sentence. RCW 9.94A.390(2)(h).
Thus, the issue is whether the trial court’s second reason for imposing an exceptional sentence is alone a sufficient ground to uphold the sentence. The court’s second stated reason for imposing the exceptional sentence was that Haynes `used his position of trust to facilitate the charged offenses.’
A reviewing court may reverse a sentence outside the standard range, if it finds either that the reasons given by the sentencing judge are not supported by the record or that those reasons do not justify a sentence outside the standard range. RCW 9.94A.210(4).
Although Haynes assigns error to the court’s conclusion that Haynes used his position of trust to commit the offenses, and that this justified an exceptional sentence, Haynes does not support the assignment of error with argument or citation to authority. Thus, we do not consider this assignment of error. See State v. Peerson, 62 Wn. App. 755, 778, 816 P.2d 43 (1991) (reviewing court will not consider assignments of error that are unsupported by argument or citation to authority).
If a reviewing court determines that only one of a trial court’s reasons for imposing an exceptional sentence is proper, the court may nonetheless uphold the exceptional sentence if it is satisfied that the trial court would have imposed the same sentence based solely on the proper factor. State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57 (1996). Where a trial court specifically states that any of its stated factors standing alone would be a substantial and compelling factor justifying an exceptional sentence, a reviewing court may decline to remand the sentence. E.g., Cardenas, 129 Wn.2d at 12; State v. Negrete, 72 Wn. App. 62, 71, 863 P.2d 137 (1993).
Here, in its written findings of fact supporting the exceptional sentence, the trial court stated that `each of these substantial and compelling reasons, standing alone, is sufficient justification for the length of the exceptional sentence.’ The court further stated, `In the event that an appellate court affirms at least one of the substantial and compelling reasons, the length of the sentence should remain the same so there is no need for a remand.’ The court imposed an exceptional sentence that was twice the standard range sentence. Under these circumstances, we affirm the exceptional sentence.[1]
The conviction and sentence are affirmed.
WE CONCUR: BAKER, J., ELLINGTON, J.