Opinion
No. 50027-9-I, Consolidated with No. 51910-7-I.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-1-09899-2. Judgment or order under review. Date filed: 01/18/2002. Judge signing: Hon. Terry Lukens.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St., Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St., Seattle, WA 98122.
Robert Northup (Appearing Pro Se), Mc Neil Island Corr.CENTER #761654, P.O.BOX 881000, Steilacoom, WA 98388-1000.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Lee Davis Yates, Pros Atty Offc/Appellate Unit, 700 5th Ave Ste 1850, Seattle, WA 98104.
When a criminal defendant's former lawyer becomes counsel for a person accused of being an accomplice to the same crime, and negotiates a plea bargain in which the accomplice agrees to become a witness against the defendant, is new counsel for the defendant ineffective for failing to move to suppress the testimony of the accomplice? Absent a showing of prejudice resulting from the former attorney's conflicted representation of the accomplice, the answer is no.
The State brought charges against appellant Robert Northup for a home invasion robbery in which he and two accomplices allegedly kidnapped a woman and shot her. Trial was set to begin March 16, 2000. Just before trial, police apprehended Michael Fernandez, one of the alleged accomplices. The State arraigned him on the same charges as Northup, and indicated to Northup's attorney, Debra Redford, that Fernandez would likely plead guilty and testify against Northup.
Redford had been assigned to represent Northup after the withdrawal of his former attorneys at the Kuvara law firm. Redford learned that Fernandez was being represented by Terri Stickney, who had worked for the Kuvara firm as a Rule 9 intern during the time the firm had represented Northup. She moved to disqualify Stickney based on a conflict of interest.
The motion to disqualify also named Adena Atwood, Stickney's law partner. Atwood worked for the Kuvara firm at the same time as Stickney.
The court held a hearing on the motion to disqualify on March 20, 2000. At that point, pretrial proceedings had begun, but a jury had not yet been empanelled. Northup supported the motion with a declaration that Stickney had worked on his file while she was at the Kuvara firm and had substantive conversations with him about defense strategy, potential witnesses, and the contents of police reports. Stickney testified at the hearing and denied any substantive involvement in Northup's case. She acknowledged having answered his telephone calls to the firm and having, on one occasion, delivered papers to him at the jail. But she said she never spoke to him about the facts of his case, did not work on his case, did not look at his file, and did not know the details of his case. Based on Stickney's testimony, the State maintained there was no conflict of interest, and opposed the motion to disqualify.
Without resolving the factual dispute about the extent of Stickney's contact with Northup, the trial court did appoint substitute counsel to represent Fernandez with respect to his plea negotiations with the State and any testimony he might give in Northup's trial. The court ordered Stickney and her law partner not to discuss any details of Northup's case with substitute counsel. The court delayed the beginning of trial, in part so that the defense could investigate Northup's concerns that Stickney might have influenced the testimony Fernandez would give.
Within days, Fernandez pleaded guilty to charges arising from the home invasion incident. As part of the plea bargain he agreed to testify against Northup. Redford interviewed Fernandez the day after he entered his plea. What she learned during that interview is not reflected in the record. Northup then entered a guilty plea to first degree kidnapping, second degree assault with a firearm, and first degree burglary. The court imposed a standard range sentence of 267 months.
Five months later, Northup moved to set aside his guilty plea. Through new counsel, Mark Tackitt, Northup argued that his trial attorney, Redford, had been ineffective by failing to move to suppress Fernandez' testimony due to the conflict of interest. He also argued the prosecutor committed misconduct by bargaining for the testimony of Fernandez despite knowledge of the conflict of interest.
After reviewing the record of the disqualification hearing, the trial court denied the motion. The court noted that Northup had not introduced any facts substantiating his suspicion that Stickney had transmitted to Fernandez confidential information she had learned during her representation of Northup. Nor had he shown that the prosecutor took advantage of confidential information allegedly given to Fernandez. Northup appeals from this decision.
Northup's pro se personal restraint petition, filed in February 2003, raises the same issues as this direct appeal and has been consolidated with it.
INEFFECTIVE ASSISTANCE
A motion to withdraw a plea, when made after judgment, is a motion for relief from that judgment and is therefore governed by Criminal Rule 7.8(b). We review a trial court's decision on a CrR 7.8(b) motion for an abuse of discretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996).
The rule permits a court to relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;
Formerly CrR 7.6. Renumbered as CrR 7.5, effective December 26, 2000.
(3) Fraud . . ., misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment.
CrR 7.8(b).
The State contends that because the first four subsections do not specifically mention ineffective assistance or conflict of interest claims, Northup's claim should be analyzed under the catchall provision, subsection (5): `Any other reason justifying relief from the operation of the judgment.' And, according to the State's argument, relief under that subsection is barred under the holding of State v. Cortez, 73 Wn. App. 838, 871 P.2d 660 (1994).
In Cortez, the trial court granted a motion to vacate brought under CrR 7.8(b)(5) by a defendant who said that when he pled guilty, the court did not sufficiently warn him that under federal law his conviction would subject him to deportation proceedings. This court reversed, first noting that a vacation under subsection (5) is limited to extraordinary circumstances not covered by any other section of the rule, and then pointing out that Cortez knew when he pleaded guilty that deportation was a potential consequence of conviction. `There is no reason in law or policy which suggests that a conviction should be vacated for circumstances existing at the time the judgment is entered.' State v. Cortez, 73 Wn. App. at 842. See also State v. Gomez-Florencio, 88 Wn. App. 254, 259, 945 P.2d 228 (1997) (State sought to resentence defendant after discovering he had additional criminal history; held, citing Cortez, that subsection (b)(5) `does not apply when the circumstances allegedly justifying the relief existed at the time the judgment was entered.') The State argues that Northup's situation is analogous because at the time he entered his plea, he was aware of all the circumstances that he now presents as the basis for his claim of ineffective assistance.
The motion to vacate in Cortez was not based on a claim of ineffective assistance, and we decline to extend its rationale to such a claim. Counsel's failure to take a certain action for example, a failure to make a suppression motion will always be a circumstance existing at the time the judgment of conviction is entered. See, e.g., In re Personal Restraint of Brett, 142 Wn.2d 868, 882-83, 16 P.3d 601 (2001) (reversing conviction on collateral attack on the basis that trial counsel was ineffective for failing to reasonably investigate the defendant's psychiatric and medical condition during trial preparation.) The effect of adopting the State's position would be to severely limit, if not entirely preclude, trial courts from granting post-conviction relief based on claims of ineffective assistance. The State offers no reason why this result would be desirable, and as it is not a result compelled by the language of the rule, we reject the State's argument.
The parties' briefing is inadequate to support a conclusive determination as to whether Northup's claim belongs, as he contends, under subsection (1) as a form of mistake or inadvertence; or whether it belongs under subsection (5) as a matter extraneous to the action of the court, see State v. Aguirre, 73 Wn. 682, 688, 871 P.2d 616 (1994); or whether it fits one of the other subsections. The proper classification would be significant in a case where the claim was brought beyond the one-year time limit which applies to subsection (1) but not to subsection (5), where a `reasonable time' is the limit. In the present case, we will assume without deciding that Northup's petition is properly grounded in CR 7.8(b), because it makes no difference to the outcome. Considering the merits of Northup's claim that his conviction must be set aside because Redford did not move to suppress the testimony of Fernandez, we reject it and affirm the trial court.
To prevail on a claim of ineffective assistance, Northup must establish that Redford's performance was both deficient and prejudicial. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1955). Representation is prejudicial if `there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' McFarland, 127 Wn.2d at 335. Absent an affirmative showing, based on the record developed in the trial court, that a motion to suppress `probably would have been granted', the failure of counsel to bring the motion will not be deemed prejudicial. McFarland, 127 Wn.2d at 337 and n. 4.
We begin with the premise that Stickney, formerly a Rule 9 intern in a firm that represented Northup, had a conflict of interest when she later undertook the representation of Fernandez, the alleged accomplice. A Rule 9 intern is admitted to the limited practice of law and is subject to the Rules of Professional Conduct in the same manner as a licensed attorney. Admission to Practice Rule 9(c). An attorney who has formerly represented a client in a matter may not thereafter, without that client's consent, represent in the same matter another person who has materially adverse interests. Rule of Professional Conduct 1.9. Fernandez, who stood to benefit by cooperating with the State and giving testimony against Northup, had interests that were materially adverse to Northup's. Stickney should not have agreed to represent Fernandez.
As Stickney's former client, Northup was entitled to have her disqualified from representing Fernandez without proving that she disclosed confidential information to Fernandez:
The plain language of RPC 1.9 indicates actual proof of disclosure of confidential information is not necessary if the matters are substantially related. The weight of authority from other jurisdictions similarly interprets the rule as not requiring proof of disclosure of confidential information. We agree and hold that under RPC 1.9(a), former clients need not prove that actual confidences were divulged.
Teja v. Saran, 68 Wn. App. 793, 799-800, 846 P.2d 1375 (1993) (footnote omitted) (held, it is immaterial to a disqualification motion that the attorney denies disclosing confidences of the former client to the new client).
Northup's new attorney, Redford, did recognize Stickney's conflict and did move to disqualify her. The issue presented by Northup's appeal is whether Redford should have sought the further remedy of suppression of Fernandez's testimony. Northup contends such a motion would have been granted without any necessity for him to show that Fernandez's testimony was actually influenced by Stickney's knowledge of confidential information about Northup.
Northup argues that Stickney committed an ethical violation; that it was the State's burden to prove that she did not disclose confidences to Fernandez, not his burden to prove the contrary; and therefore, Fernandez' testimony must be presumed to be `tainted'. This argument is drawn from the disqualification cases and Teja's holding that, in the context of the rules of professional conduct, former clients need not prove that actual confidences were divulged in order to be entitled to disqualification. It does not necessarily follow that disclosure of the former client's confidences would be presumed in the context of a motion to suppress the testimony of the new client. See State v. White, 80 Wn. App. 406, 412-13, 907 P.2d 310 (1995) (rejecting contention that adverse impact on counsel's performance must be presumed from breach of RPC 1.7(b); the RPC violation `may provide grounds' for disqualification on the trial level, but `does not embody the constitutional standard for effective assistance of counsel' when that issue is raised on appeal).
Northup relies on State v. Hunsaker, 74 Wn. App. 38, 41, 873 P.2d 540 (1994). That case did involve, at the trial court level, a controversy about whether the trial court could properly suppress the testimony of a State's witness as a remedy for an alleged conflict of interest. But it is not clear that the trial court actually decided that issue when it excluded the witness from testifying, and the appellate court reversed the order of exclusion on grounds other than the alleged conflict of interest. Thus, Hunsaker provides no guidance.
Teja, albeit a civil case, suggests that the `per se' presumption of prejudice is limited to the context of disqualification motions. In Teja, a lawyer improperly represented a new client in a case against his former client. This court affirmed a judgment in favor of the new client, even while recognizing that the conflict would have justified granting a motion to disqualify the attorney had such a motion been brought before judgment was entered. Because the former client did not raise the issue of disqualification until after judgment was entered, and did not establish that he was prejudiced by the breach of ethics, he was not entitled to relief from the judgment. Teja, 68 Wn. App. at 800 (citing First Small Business Inv. Co. of Cal. v. Intercapital Corp. of Or., 108 Wn.2d 324, 331-32, 738 P.2d 263 (1987)).
Teja contends that such a rule will force clients to disclose confidences in order to show prejudice. We do not, however, hold that a client must divulge confidential information to establish prejudice. Rather, we require the client to identify any portion of the record where it appears a confidence may have been utilized. If a confidence appears to have been employed, but the nature of its prejudice is unclear, then the presumption of prejudice will apply. Teja, 68 Wn. App. at 801.
In requiring a showing of prejudice as a prerequisite for relief from a judgment, Teja is consistent with National Bank of Commerce v. Fountain, 9 Wn. App. 727, 733, 514 P.2d 194 (1973). There, the defendant appealed from a decree of mortgage foreclosure, and argued that the trial court erroneously allowed plaintiff's counsel to remain on the case although he had previously represented the defendant in matters involving the foreclosure. This court found that a conflict had been established, but affirmed the trial court because the record did not contain evidence of the utilization of any confidential information:
There may be an appearance of conflict of interest but there is no record of the discussion held in chambers. Therefore, any adequate basis upon which to conclude there was an abuse of discretion by the trial court is not present. Additionally . . . we have the record of the representation of plaintiff's counsel in trial and find no substantial evidence of the utilization of any confidential information acquired by his prior relationship with defendant Fountain.
Fountain, 9 Wn. App. at 733.
Like the claims for relief in Teja and Fountain, Northup's claim of ineffective assistance depends on a showing of actual prejudice based on the record developed in the trial court. We can assume, based on an affidavit submitted by Northup in support of his personal restraint petition, that he would not have pled guilty if Fernandez's testimony had been suppressed. But this is peripheral to the main issue, which is whether the trial court likely would have granted a motion to suppress on the record developed in the trial court.
In this case, Northup has not identified any portion of the record indicating that any particular confidences or secrets of his were or could have been used to his disadvantage by Stickney in the course of her representation of Fernandez. He has not shown even by inference what the substance of Fernandez's allegedly tainted testimony against him might have been, if the case had gone to trial. See McFarland, 127 Wn.2d at 334-37. On such an undeveloped record, with no showing of prejudice, and no citation to authority persuasively demonstrating that in such a context prejudice must be presumed, it cannot be said that a motion to suppress Fernandez's testimony would likely have been granted. Thus, Northup's claim of ineffective assistance fails under McFarland
PROSECUTORIAL MISCONDUCT
As an alternative basis for the motion to withdraw his plea, Northup alleged `misconduct of an adverse party', namely the prosecuting attorney. CrR 7.8(b)(3).
A defendant may obtain relief from a final judgment under CrR 7.8(b)(3) based on fraud, misrepresentation, or misconduct of an adverse party. Such allegations must be established by clear and convincing evidence, as this rule is the counterpart of CR 60(b)(4). See State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d (1996), citing Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990), review denied, 116 Wn.2d 1009 (1991). As the trial court observed, there is no right to a vacation of judgment for misconduct that does not relate to the procurement of the judgment. Therefore, the issue is whether the prosecutor committed misconduct by bargaining with Stickney for a plea by Fernandez, while knowing that Stickney had formerly represented Northup; and further, whether such misconduct caused Northup to enter into the plea which was the basis of the judgment. The trial court found that Northup did not meet his burden of establishing these allegations.
Northup relies on two cases where a defendant established misconduct by showing an intrusion by the State into confidential communications between an accused and his attorney. State v. Cory, 62 Wn.2d 371, 377, 382 P.2d 1019 (1963); State v. Granacki, 90 Wn. App. 598, 959 P.2d 667 (1998). In Cory, officers eavesdropped on confidential conversations between the defendant and his counsel via a microphone hidden in his holding cell. In Granacki, a bailiff saw a detective looking at defense counsel's notes during a recess in trial proceedings. In both cases, the reviewing court held that prejudice was presumed and dismissal of the charges was the proper remedy. The present circumstances do not involve a deliberate effort by the State to intercept privileged communications between defense attorney and client. Rather, Stickney voluntarily shared with the prosecutor her concern that her prior representation of Northup might create a conflict of interest with respect to her representation of Fernandez. Being on the receiving end of this communication from Stickney did not, in itself, amount to misconduct.
Northup contends that the State wrongfully exploited Stickney's violation, as shown by the fact that the State speedily secured Fernandez' testimony against Northup while knowing of Stickney's conflict. But the timing of events does not establish misconduct. The State's haste to reach a plea bargain with Fernandez is readily explained by the fact that police apprehended him just as Northup's trial was set to begin. Northup has not explained how the State's knowledge of Stickney's conflict did, or could have, made it easier to obtain the cooperation of Fernandez. And because his allegation of misconduct is devoid of concrete facts, he is also unable to demonstrate that misconduct caused him to enter into the plea. The court did not err in rejecting misconduct as an alternative basis for Northup's motion to withdraw his plea.
MOTION TO WITHDRAW INEFFECTIVE ASSISTANCE
Finally, Northup contends that attorney Mark Tackitt, who litigated his motion to withdraw his plea, rendered ineffective assistance. This claim is without merit. Although counsel brought the motion under the wrong court rule, the record shows that the parties identified the error and that defense counsel acknowledged that CrR 7.8 was the applicable law. It is also clear from the trial court's written ruling that it applied that rule in deciding Northup's motion.
Counsel did not file affidavits supporting the motion. A court may deny a CrR 7.8 motion if the supporting affidavits fail to present sufficient facts warranting relief, State v. Winston, 105 Wn. App. 318, 323, 19 P.3d 495 (2001), but the failure to file affidavits was not the basis of the trial court's ruling in this case, and therefore it cannot serve as the basis for a claim of ineffective assistance. The facts alleged in support of the withdrawal motion were the same as those alleged by Redford when she moved to disqualify Stickney, and the trial court was able to consider the declarations previously filed in connection with that motion. Because Northup does not now set forth other relevant facts that counsel could have presented by filing additional declarations, he does not establish the probability of a different outcome.
The order denying relief from judgment is affirmed. The personal restraint petition is denied.
GROSSE and COX, JJ., Concur.