STATE v. JORDAN, 140 Wn. App. 1003 (2007)

THE STATE OF WASHINGTON, Respondent, v. ROSCOE KENDRICK JORDAN, Appellant.

Nos. 34847-1-II; 34857-8-II.The Court of Appeals of Washington, Division Two.
August 7, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeals from a judgment of the Superior Court for Pierce County, No. 04-1-05986-2, Frederick W. Fleming, J., entered May 5, 2006.

Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Hunt, JJ.

VAN DEREN, A.C.J.

Roscoe Kendrick Jordan appeals the trial court’s denial of his request to appoint a new attorney and to hold an evidentiary hearing on his motion to withdraw his guilty plea to second degree child rape[1] under Pierce County Superior Court cause number 04-1-05986-2. We affirm.

FACTS
In Pierce County Superior Court cause number 04-1-05986-2, the State charged Jordan with second degree child rape arising from Jordan’s sexual relations with TP, [2] a 13-year old minor, on June 29, 2004.[3] TP gave birth to a child and, according to the State, the child could be established as Jordan’s through DNA evidence.

On the first day of trial, Jordan’s counsel interrupted the State’s direct examination of TP and informed the court that Jordan wished to plead guilty. The trial court conducted a lengthy colloquy with Jordan; Jordan indicated that he understood that he was giving up certain rights, understood that the trial court did not have to follow the State’s or defense counsel’s sentencing recommendations, and freely and voluntarily was pleading guilty. The trial court accepted his guilty plea to one count of second degree child rape.

At sentencing before the trial judge who had heard the trial testimony and accepted his guilty plea, Jordan’s counsel informed the trial court that Jordan wanted to present a pro se motion to appoint new counsel and allow relief from judgment, based on his counsel’s misleading advice and Jordan’s confusion about the proceedings and his legal rights. Jordan’s counsel told the court that he did not and would not assist Jordan with the motion because he felt that he ethically could not join in it.

The trial court denied Jordan’s motion to withdraw his plea, his motion to appoint new counsel, and his request for an evidentiary hearing, finding that Jordan entered his guilty plea knowingly, intelligently, and voluntarily. It then proceeded to sentencing with his counsel representing him.

Jordan appeals.[4]

ANALYSIS I. Defendant’s Right to Counsel for Motion to Withdraw Plea
Jordan argues that he was denied the assistance of counsel on his motion to withdraw his guilty plea to second degree child rape. The United States and Washington State constitutions guarantee the defendant a right to counsel and due process of law.[5] The criminal defendant is guaranteed the right to counsel at all critical stages of the criminal proceeding State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90
(2005); CrR 3.1(b)(2).[6] A pre-sentencing plea withdrawal hearing is a critical stage of the criminal proceeding and the defendant has the constitutional right to be assisted by counsel at the hearing. State v. Harell, 80 Wn. App. 802, 804, 911 P.2d 1034 (1996); see Robinson, 153 Wn.2d at 698
n. 7 (noting that if the defendant had sought to withdraw his plea prior to judgment, instead of in a post-judgment motion, “he would arguably still be entitled to counsel constitutionally because there is a right to counsel through sentencing”).

We presume that a defendant was denied his constitutional right to counsel when counsel “[is] either totally absent or prevented from assisting the accused during a critical stage of the [criminal] proceeding.” United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). And we will presume this error is prejudicial and will not conduct a harmless error analysis when the trial court outright denies the defendant a right to counsel. Harell, 80 Wn. App. at 805.

In Harell, the defendant pleaded guilty and, before the court sentenced him, he brought a motion to withdraw his pleas, alleging ineffective assistance of counsel at the plea stage of the criminal proceeding, and the trial court granted a hearing on his motion.[7] 80 Wn. App. at 803. Harell’s defense counsel refused to assist him at the hearing; the trial court ordered that the attorney-client privilege was waived and Harrell’s defense counsel testified as a witness for the State Harell, 80 Wn. App. at 803. Thus, Harell acted pro se at the hearing on his motion. Harell, 80 Wn. App. at 805. Division One of our court held that “Harell was clearly without counsel while appointed counsel testified as a witness against him. 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. Thus, the court remanded for a new hearing on Harell’s motion to withdraw his guilty plea and required the trial court to appoint new counsel for him. Harell, 80 Wn. App. at 805.

Here, at his sentencing hearing, Jordan’s defense counsel informed the trial court that Jordan wanted to obtain a hearing and new counsel for a motion to withdraw his guilty plea to second degree child rape in cause number 04-1-05986-2, alleging ineffective assistance of counsel, and that he was bringing his motions pro se.[8]

Defense Counsel: First off, Your Honor, my client would like the court to review his pro se motions. This is a motion under Cause Number 04-1-05986-2. A motion [and] declaration in support of hearing for appointment of counsel and for hearing on defendant’s motion for relief from a judgment or an order. And this is Mr. Jordan’s own motion; Although, we gave him the opportunity and the paper to prepare it, it’s in his own words, and I did not assist him because I feel, ethically, I couldn’t join it.
The Defendant: I told him I needed help, but he didn’t help me.
Defense Counsel: I tried to assist him through this. I don’t think I can ethically help him back out of it. So if I could show this to the Court, please. I have shown it to counsel.

Report of Proceedings (RP)[9] at 78-79.

Jordan’s defense counsel asked the trial court to allow Jordan to respond to the State’s argument opposing his motions. RP at 80. Jordan stated that he wished to withdraw his plea because he was told if he “signed some papers” that “they would recommend a low end for me,” and, had he not been told that, he would not have accepted the plea. RP at 80. He also argued that his counsel told him that he was guilty and that there was nothing that he (his counsel) could do for him. RP at 80. In addition, Jordan argued that he was “forced” to take the deal because his counsel’s defense strategy was to “pin it” on his brother. RP at 83. Jordan’s defense counsel did not present any argument to the trial court on this motion, but assisted Jordan during sentencing.

Jordan’s statements were tantamount to an offer of proof regarding why the trial court should hold a hearing on his motion to withdraw his plea. The trial judge stated that he remembered the trial proceedings and Jordan’s plea, and that there was “no question in my mind that you knew what you were doing; that you wanted to take responsibility. You did it voluntarily, and you did it, in my mind, intelligently.” RP at 82. Finding that the record reflected that Jordan’s plea was made freely, voluntarily, intelligently, and with the assistance of counsel, the trial court denied Jordan’s motions.[10]
Implicit in the trial court’s denial of Jordan’s motion for a hearing was its finding that withdrawal was not warranted to correct a manifest injustice. See Harell, 80 Wn. App. at 804. We affirm.[11]

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.

BRIDGEWATER, J., HUNT, J., concur.

[1] RCW 9A.44.076(1) provides:

A person is guilty of rape of a child in the second degree when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.

[2] RCW 10.52.100, RCW 10.97.130, RCW 13.50.050(24), and RCW 42.17.31901 protect child victims of a sexual assault. The statutes require that the name of a victim of a sexual assault who was younger than 18 years old at the time of the assault not be disclosed. RCW 10.52.100 specifically applies this proscription to “appellate proceedings,” which by implication includes case captions and court opinions.

[3] Jordan was born on February 27, 1986, and was 18 years old when he committed second degree child rape against TP. TP was born on September 10, 1990.

[4] Although Jordan appeals from both Pierce County Superior Court cause number 04-1-05986-2 and cause number 04-1-06016-0, in which he pleaded guilty to a gross misdemeanor, Jordan’s appellate brief appears to argue only that we should reverse for an evidentiary hearing on his motion to withdraw his guilty plea on second degree child rape under cause number 04-1-05986-2. Further, his appellate brief is convoluted. Jordan argues that he “was denied the assistance of counsel at the hearing on his pre-judgment motion to withdraw his guilty plea to first degree child rape,” even though he was convicted only of second degree child rape and a gross misdemeanor. Br. of Appellant at 7. Later, he argues that he was entitled to “a full evidentiary hearing to determine whether vacation of the guilty plea to the second degree child rape charge was warranted.” Br. of Appellant at 10. In his discussion of why his trial counsel was ineffective and why he should have been appointed new counsel in his motion to withdraw his guilty plea, he discusses an error that occurred in cause number 04-1-06016-0, which was subsequently corrected in the trial court, and the impact it may have had on cause number 04-1-05986-2. But he fails to assign error to the gross misdemeanor conviction in cause number 04-1-06016-0. Furthermore, Jordan informed the trial court at sentencing that, although he had filed a letter to withdraw his plea in cause number 04-1-06016-0, he did not wish to withdraw his plea in that case, but had erroneously filed his letter under that cause number because he did not know the proper cause number. After intense study, we conclude that he presents no argument under cause number 04-1-06016-0. “[T]his court will not review issues for which inadequate argument has been briefed or only passing treatment has been made.” State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (citations omitted); RAP 10.3(g) (“The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.”). Therefore, we do not review the trial court’s ruling in cause number 04-1-06016-0.

[5] The United States Constitution provides: “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” U.S. Const. amend.VI. And the Washington State Constitution provides: “In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel[.]” Wash. Const. art. 1, § 22.

[6] Criminal Rule (CrR) 3.1(b)(2) provides in relevant part: “A lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review.”

[7] The State argued on appeal that a hearing on the motion was unnecessary because Harell did not make a preliminary showing that his counsel was ineffective, warranting withdrawal of his pleas. Harell, 80 Wn. App. at 804. But where the trial court conducted a hearing, Division One of our court held that it did not need to “determine the degree of specificity required to be shown by a defendant who seeks to withdraw his plea based upon alleged ineffectiveness of counsel before the right to counsel attaches and a hearing is required” because “[i]mplicit in the trial court’s decision to hold a hearing is a finding that sufficient facts were alleged to warrant a hearing.” Harell, 80 Wn. App. at 804-05.

[8] A court will allow a defendant to withdraw his plea only to correct manifest injustice. CrR 4.2(f) (“The court shall allow a defendant to withdraw the defendant’s plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice.”). “We have recognized the following circumstances as amounting to manifest injustice: the denial of effective counsel, the defendant’s failure to ratify the plea, an involuntary plea, and the prosecution’s breach of the plea agreement.” State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006).

[9] Although both Pierce County Superior Court cases 04-1-05986-2 and 04-1-060160-0 are discussed here, only cause number 04-1-05986-2 is referenced in the Clerks Papers and Report of Proceedings.

[10] Jordan’s defense counsel erroneously filled out an order denying Jordan’s motions. Defense counsel checked the box stating:

1. ___The motion for a hearing and appointment of counsel is denied because the defendant has not presented sufficient facts to justify a hearing on his/her motion for relief from judgment or order pursuant to CrR 7.8.(c)(2); RCW 10.73.100, 140. State v. Harell, 80 Wn. App. 802, 911 P.2d 1034 (1996) (without initial showing by defendant in pleadings that she/he is entitled to a hearing, there is no right to appointed counsel); Toliver v. Olsen, 109 Wn.2d 607, 746 P.2d 809 (1987).

The correct box was:

3. The motion to withdraw the guilty plea under CrR 4.2(f) is hereby denied because a Court can only permit withdrawal of a plea to correct a manifest injustice. . . . The information presented by defendant does not support a finding of manifest injustice, nor does it support a finding that [the prosecuting standards set forth in] RCW 9.94A.430-460 has been violated. Accord, State v. Harell, 80 Wn. App. 802, 911 P.2d 1034 (1996) (without initial showing by defendant in pleadings that she/he is entitled to a hearing, there is no right to appointed counsel).

Clerk’s Papers (CP) at 66-67.

CrR 4.2(f) is the proper basis to deny Jordan’s motion because CrR4.2(f) concerns pre-sentencing motions, whereas CrR 7.8(c)(2) concerns procedures for vacating the judgment. Compare
CrR 4.2(f) (pleas) with CrR 7.8(c)(2) (relief from judgment or order). We question whether the form’s reference t Harell is accurate in the first paragraph because Harell’s motion was brought before he was sentenced, i.e., under CrR 4.2(f) and in Harell the court actually stated that there was an implicit finding that there were sufficient facts to warrant a hearing and that, it need not determine the degree of specificity required to be shown before the right to counsel in a pre-judgment motion attaches and a hearing is required.

[11] It is apparent that, because Jordan filed his two motions simultaneously, defense counsel and the trial court conflated the issues. The record would have been much clearer had the trial court first decided Jordan’s motion for new counsel. Had the trial court denied Jordan’s motion for new counsel, Jordan would have either had his defense counsel available for his argument for a hearing on his withdrawal motion or the ability to proceed pro se following a Faretta colloquy Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Woods, 143 Wn.2d 561, 585, 23 P.3d 1046 (2001). Furthermore, his counsel may have realized that he had a continuing obligation to represent Jordan until released by the trial court. Defense counsel is not allowed to withdraw from representation without “written consent of the court, for good and sufficient reason shown.” Criminal Rule 3.1(e). A request for leave to withdraw alerts the trial court to the issue of the defendant’s continuing representation by counsel and the issue of whether the proceeding is a critical stage.