No. 23181-0-IIIThe Court of Appeals of Washington, Division Three.
Filed: October 3, 2006 UNPUBLISHED OPINION
Appeal from Grant Superior Court. Docket No: 03-1-00521-8. Judgment or order under review. Date filed: 06/08/2004. Judge Signing: Honorable Michael P Price
Counsel for Appellant(s), Janet G. Gemberling Gemberling
Dooris PS, Po Box 20129, Spokane, WA, 99204-7129.
Counsel for Respondent(s), Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, Po Box 37, Ephrata, WA, 98823-0037.
Teresa Jeanne Chen, Grant County Prosecutors Office, Po Box 37, Ephrata, WA, 98823-0037.
SWEENEY, C.J.
Jason Lyle Randall appeals his sentence for three counts of child molestation in the first degree. He argues that the trial court abused its discretion when it refused to grant a special sex offender sentencing alternative (SSOSA), RCW 9.94A.670. Mr. Randall had no right to a SSOSA sentence. Mr. Randall also argues that: (1) the trial court violated his due process rights when it denied his motion for an order of indigency and appointment of counsel (on appeal), (2) he received ineffective assistance of counsel, and (3) the prosecutor breached the plea agreement. Any denial of Mr. Randall’s due process rights was, however, corrected when this court remanded the case for appointment of new counsel for the appeal. Mr. Randall has not shown that he received ineffective assistance of counsel or that the prosecutor breached the plea agreement. We therefore affirm.
FACTS
Jason Lyle Randall pleaded guilty to three counts of child molestation in the first degree. The State reserved its recommendation for sentencing.
He asked the court to impose a SSOSA sentence. Michael L. Morris is a certified sex offender treatment provider. He examined Mr. Randall to determine whether he would be amenable to treatment under SSOSA. Mr. Morris prepared a report. It was generally unfavorable. The trial court read the report and refused to impose a SSOSA sentence.
Mr. Randall requested discretionary review. We accepted his request as a notice of appeal. Mr. Randall moved for an order of indigency in the trial court. The court denied his motion.
Mr. Randall’s trial counsel represented him on appeal, despite the denial of an order of indigency. That lawyer filed a motion to withdraw, nearly a year later, due to a conflict of interest. This court granted the motion to withdraw and remanded the case to the trial court for appointment of new counsel. The trial court concluded Mr. Randall was indigent and appointed new counsel for the appeal.
ANALYSIS Alternative Sentence under SSOSA
We review a trial court’s refusal to sentence a defendant under SSOSA for abuse of discretion. State v. Frazier, 84 Wn. App. 752, 753, 930 P.2d 345 (1997).
The Sentencing Reform Act of 1981 (chapter 9.94A RCW) grants a trial court broad discretion to “order an examination to determine whether the offender is amenable to treatment” under SSOSA. RCW 9.94A.670(3); former RCW 9.94A.120(8)(a)(i) (2000). It also grants the court discretion to determine whether an alternative sentence (under SSOSA) is appropriate, after it receives a report of the examination. Former RCW 9.94A.670(4) (2002); former RCW 9.94A.120(8)(a)(ii). The court must consider (1) “whether the offender and the community will benefit from” an alternative sentence under SSOSA and (2) whether the victim believes that the defendant should be sentenced under SSOSA. Former RCW 9.94A.670(4); former RCW 9.94A.120(8)(a)(ii). The court need not enter findings of fact or reasons for its determination. Former RCW 9.94A.670(4); former RCW 9.94A.120(8)(a)(ii); State v. Hays, 55 Wn. App. 13, 15-16, 776 P.2d 718 (1989).
Mr. Randall argues that the trial court abused its discretion when it denied his request to be sentenced under SSOSA because it did not make “any specific findings regarding why society would not benefit [him] receiving a SSOSA sentence.”
Appellant’s Br. at 6. He also argues that the court failed to weigh the benefits of a
SSOSA sentence.
Here, the trial court specifically passed on whether Mr. Randall could be rehabilitated and whether the community would benefit from an alternative sentence under SSOSA. It considered Mr. Morris’s report.
Mr. Morris made a number of findings and drew a number of conclusions that the court used: He reported that Mr. Randall was in denial “all the way along.” Report of Proceedings (RP) (June 8, 2004) at 16. Mr. Randall had “a significant anger problem.'” Id. at 4; Clerk’s Papers (CP) at 18. And “Mr. Randall’s presentation was shallow and difficult to believe.'” RP (June 8, 2004) at 4. “There were indications of deceit throughout the evaluation. Mr. Randall distorted the truth and he manipulated without concern for the rights of others.'” Id. “There was a minimal display of remorse'” and “[t]here was no display of empathy.'” Id. at 4-5. “[Mr. Randall] did not accept full responsibility. He projected blame on others and maintained innocence or minimized his crime.'” Id. at 5. Mr. Morris concluded his report by recommending a standard range sentence, instead of an alternative sentence under SSOSA, since there were “several factors that indicate [Mr.] Randall is a risk to community safety.” CP at 29.
The court also “considered the input from the victim’s family, the young age of the victim,” and the fact the crime occurred over a span of “at least . . . two years.” Id. at 16.
The victim’s father asked for “the high end [for sentencing] due to the nature of what happened and due to the longevity of what happened.” Id. at 7. The court further “consider[ed] . . . the reports from the [presentence investigation] provider.” Id. at 17.
The record amply supports the trial court’s decision to deny SSOSA. Due Process Rights Order of Indigency
Mr. Randall next claims that he was denied due process of law because he was denied counsel on appeal. We review his challenges de novo. State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127
(2006).
A criminal defendant has a constitutional right to be represented by counsel in a direct appeal (appeal as a matter of right). State v. Mills, 85 Wn. App. 285, 290, 932 P.2d 192
(1997). Counsel must be provided at the public’s expense if the defendant is found to be indigent. Id. This constitutional right does not extend beyond a direct appeal. Id. The Washington legislature has, however, expanded the right to counsel beyond the constitutional requirements. Id. Counsel may be appointed if an appellate court accepts either discretionary review or a petition for a collateral attack. RCW 10.73.150.
Mr. Randall argues that the trial court violated his due process rights when it denied his motion for an order of indigency and appointment of counsel on appeal. The State responds that Mr. Randall’s counsel is to blame because he filed a motion for discretionary review, not a direct appeal. And he did not inform the trial court that the notice for discretionary review had been accepted as a notice of appeal, thereby entitling Mr. Randall to appointment of counsel. We accepted Mr. Randall’s notice for discretionary review as a notice of appeal. And before that his trial counsel represented him on appeal.
Mr. Randall’s appellate lawyer reviewed the record and filed an appropriate supplemental brief.
Mr. Randall was not denied counsel on appeal. He has been fully represented and he has not shown otherwise. Ineffective Assistance of Counsel
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We begin with a strong presumption that defense counsel’s performance was effective. Id. A defendant has the burden to overcome that presumption. State v. McFarland, 127 Wn.2d 322, 335, 337, 899 P.2d 1251 (1995).
A defendant must meet two elements to prove a claim for ineffective assistance of counsel. Id. at 334-35. He must first show that “defense counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances.” Id. This must be shown based upon the trial record. Id. at 335. The defendant must also show that he or she was prejudiced by the deficient representation. Id. at 335, 337. There must be “a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 334-35.
Mr. Randall argues he received ineffective assistance of counsel from both his trial counsel and his appellate counsel. He argues that his trial counsel was “hampered by the need to curtail the record” (since he worked without compensation) and by “[a] real or potential conflict of interest.” Appellant’s Supp. Br. at 7. Mr. Randall also argues that his representation by his appellate counsel was adversely affected by the delay in the court’s appointment of counsel. He argues that the delay caused him to be less available to his current counsel since he was transferred to Minnesota. And the delay “created scheduling difficulties and confusion for the court and for present counsel.” Id. at 8.
Mr. Randall has not, however, shown that his lawyers acted or failed to act in a manner that was deficient or that prejudiced him. McFarland, 127 Wn.2d at 334-35. He has not shown that his trial counsel failed to obtain the necessary record for the appeal or that he failed to fully review and analyze the case. He has also not shown that counsel acted inappropriately once he believed that a conflict of interest existed. Counsel withdrew. Mr. Randall has further failed to show that he was unable to communicate with his current counsel or that his current counsel had scheduling and/or deadline difficulties that were not accommodated by the court. His current lawyer filed only one motion for an extension of time. We granted that motion.
Mr. Randall has not shown that he received ineffective assistance of counsel. McFarland, 127 Wn.2d at 334-35, 337.
ADDITIONAL GROUNDS FOR REVIEW Breach of Plea Agreement
We will review the breach of a plea agreement for the first time on appeal since it presents an issue of constitutional magnitude. State v. Van Buren, 101 Wn. App. 206, 211-12, 2 P.3d 991 (2000); RAP 2.5. A plea agreement binds the State to recommend an agreed upon sentence to the court. State v. Sledge, 133 Wn.2d 828, 840, 947 P.2d 1199 (1997); Van Buren, 101 Wn. App. at 213. A defendant’s due process rights are violated if the State fails to adhere to the terms of the plea agreement. In re Pers. Restraint of Lord, 152 Wn.2d 182, 189, 94 P.3d 952 (2004).
We use an objective standard to review the record for a breach of the plea agreement. Van Buren, 101 Wn. App. at 213.
The remedy for a breach of a plea agreement is to remand to the trial court and allow the defendant to either withdraw his guilty plea or demand a new sentencing hearing before a different judge. Id. at 217-18. A defendant is entitled to specific performance of the plea agreement if he chooses to demand a new sentencing hearing. Id. (prosecutor must recommend the sentence in the plea agreement).
Mr. Randall argues that the prosecutor breached the plea agreement when he failed to recommend the “agreed upon terms . . . in the . . . agreement.” Statement of Additional Grounds at 6. He argues that the prosecutor instead recommended that the court sentence Mr. Randall on the higher end of the standard sentencing range.
Mr. Randall’s plea agreement was not made part of the record. Our review must be based on the actual record here on appeal. Mr. Randall must provide this court with an adequate record. State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986).)
The prosecutor here did not agree to make any specific sentencing recommendation. The prosecutor reserved his recommendation:
• “THE STATE RESERVES RECOMMENDATION.” CP at 9.
• “[Defense Counsel:] I was just checking with my client about some last-minute twists that the prosecuting attorney put into it and I think my client understands those. He’s in agreement with those. Just the last part was that the state was going to reserve the right to make any recommendation or too if Mr. Randall is eligible for treatment to even argue against it, and I need to make sure that Mr. Randall understands and he does understand that ultimately it’s up to the court and that he is willing to go forward with the proposed agreement that the state has offered.” RP (April 27, 2004) at 2.
• “[Prosecutor:] The defendant is going to be entering a guilty plea to those charges. It results in a sentencing range of 98 to 130 months. The state is reserving its recommendation at this time.” Id. at 5-6.
• “[Defense Counsel:] [W]hen [Mr. Randall] did enter his plea we didn’t even have a recommendation with the State that they’d recommend anything whatsoever. But in talking to [Mr. Randall] about this he decided he didn’t want to bring everybody here to trial and he didn’t think that was necessary at all. That he would enter his plea of guilty, which he did.” RP
(June 8, 2004) at 10-11.
The prosecutor told the trial court (at sentencing) that the standard sentencing range was 98 to 130 months. He also advised the court that the presentencing investigation report recommended a sentence of 116 months. He then recommended a sentence on the high end of the standard range.
This record shows that the prosecutor did not agree to make any specific recommendation and reserved the right to make a recommendation. He then recommended a sentence within the standard sentencing range.
We affirm the conviction and sentence.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J., SCHULTHEIS, J., and KULIK, J., Concur.