Opinion
No. 36665-7-II.
October 28, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-1-00624-7, Nelson E. Hunt, J., entered August 15, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton and Armstrong, JJ.
UNPUBLISHED OPINION.
Robert Lewis Ray III appeals the trial court's denial of his motion to withdraw his guilty plea. We affirm the trial court's denial.
FACTS
On August 21, 2005, Chehalis Police Officer Marsh arrived in the parking lot of an apartment complex on SW 13th Street. A woman, later identified as Rachel Leisure, ran up to Officer Marsh and yelled, "He tried to kill me! He had his hands on my neck and tried to choke me!" Suppl. CP at 310. Leisure then told Officer Marsh that the individual was still inside her apartment. She pointed toward her apartment and yelled, "[T]here he is!" Suppl. CP at 310. Officer Marsh observed a man dart by the doorway and run alongside the building.
Officer Denham arrived on the scene to assist, saw the fleeing man, and attempted to cut him off. The man ran across a street and a field, eventually stopping when Officer Denham yelled at the man that he was under arrest. The officers identified the man as Robert Lewis Ray.
Leisure told Officer Marsh that she had a valid protection order against Ray and that he was at her apartment for about two hours the previous evening to see their daughter. When Leisure returned home from work the following day, she found that an intoxicated Ray had let himself back inside her apartment. He attacked Leisure and then pounded his own head into her wall. Leisure stated that Ray threatened to kill her and that he was out of control. She said she tried to run into the bathroom to hide, but Ray barged into the room, pinned her up against the wall, tackled her when she attempted to flee, and put his knee on her jaw. He then flipped her over, covered her mouth, and grabbed at her genital area. He began choking her and smothering her and then grabbed a butcher knife from the kitchen and told Leisure that he was going to gut her.
Officer Marsh could see a "half dollar sized" bump on Leisure's forehead, swelling on her lower lip, and redness on the sides of her neck. Suppl. CP at 311. Officer Marsh also observed a hole in the wall where Ray had hit his head. Officer Denham observed red marks on Ray's nose and forehead.
Ray claimed he spent the night with Leisure and left in the morning but returned to the apartment while she was gone. He admitted that he knew about the valid no-contact order. The State's probable cause affidavit states that Ray had a pending charge for violating a protection order for an earlier event that occurred on July 23, 2005.
The State charged Ray with first degree burglary while armed with a deadly weapon, indecent liberties with forcible compulsion while armed with a deadly weapon, second degree assault while armed with a deadly weapon, unlawful imprisonment while armed with a deadly weapon, and felony harassment while armed with a deadly weapon. The State amended the information several times and added a charge of bail jumping based on Ray's failure to appear in court on March 16, 2006.
Jonathan Meyer, Ray's assigned counsel, sent letters dated April 4, 2006, June 2006, August 31, 2006, and October 2, 2006, to the State asking the prosecutor to arrange a defense interview with Leisure. Meyer began his interview with Leisure on October 9, 2006. That meeting either ended early or started late, but Meyer claimed that he was unable to complete the interview. The parties agreed to a follow-up interview and the trial court continued the trial date from October 16, 2006, to the week of January 8, 2007.
On January 4, 2007, the parties appeared for a confirmation hearing, during which the parties acknowledged that Meyer had not yet had his follow-up interview with Leisure. During the confirmation hearing, Meyer claimed that he had new information about phone calls from Leisure to Ray and he wanted to question Leisure about it, in addition to completing the previous interview. Meyer told the trial court, in Ray's presence, that he needed a continuance in order to provide effective assistance. The trial court continued the trial to January 10, 2007, so that Meyer could continue the Leisure interview.
On January 8, 2007, Meyer finished the Leisure interview. He claimed that Leisure changed her version of the story and disclosed additional names of potential witnesses. At the January 10, 2007 confirmation hearing, Meyer claimed that based on Leisure's claim that she called Ray only two times, he would need to "fly in . . . an expert from the cell phone company to verify records to prove her story is inaccurate." Ex. 16, at 2-3. Meyer also stated that he needed to investigate Leisure's dismissal from her former job.
The State adamantly opposed the continuance because it had filed the charges in August 2005, the trial court had already granted numerous continuances to allow Ray to interview witnesses, and Ray's failure to appear at multiple trial confirmations caused undue delay. Meyer responded that he was not ready to go to trial and, after the trial court denied his requested continuance, stated that his performance at trial would constitute ineffective assistance. He then asked to withdraw as counsel because he would be the best witness as to what occurred during the Leisure interview if the trial court would not give him enough time to gather the phone records. Specifically, Meyer intended to attack Leisure's credibility about the number of phone calls she made to Ray. The trial court continued the trial date to January 16, 2007.
At the January 11, 2007 confirmation hearing, the State testified that it spoke to Leisure and that she told the State that she had been drinking when she made the two calls to Ray and that she may have made more calls, thus reducing Meyer's need for the cell phone records for impeachment purposes. Even so, Meyer insisted that he needed another continuance so that Ray would get a fair trial. The trial court denied Meyer's request.
On January 16, 2007, the parties appeared for trial and Meyer opened by requesting another continuance, again because he would not be able to provide effective assistance without further investigation. The trial court denied his motion. Meyer then asked to withdraw because he could not effectively represent Ray, which the trial court denied.
Before the jury entered the courtroom, Meyer met privately with Ray and Ray's father to discuss a plea deal that the State offered the previous week. The terms of the agreement would require Ray to plead to first degree burglary domestic violence and to indecent liberties with forcible compulsion domestic violence. The State agreed to dismiss the assault charge, the unlawful imprisonment charge, the harassment charge, the bail jumping charge, and the deadly weapon enhancements. 1 CP at 4, 82-84; RP (Jan. 16, 2007) at 24. Ray would enter an Alford plea, which would allow him to plead guilty without admitting guilt because he believed that if the jury heard the State's evidence, they would likely convict him.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Following the meeting, Ray made an Alford plea. Ray agreed to allow the trial court to rely on the prosecutor's statement of probable cause to prove the factual basis for the plea. Ray told the trial court that he had been over each line of his statement of defendant on plea of guilty with Meyer. He told the trial court he did not have any questions about his plea. He stated that Meyer reviewed with him both counts and the elements to which Ray was pleading. Ray acknowledged the State's burden of proof at trial, all the constitutional rights that he was giving up, the State's sentencing recommendation, and its non-binding nature on the trial court.
The trial court then asked whether anyone was forcing Ray to agree to this plea deal, whether anyone had threatened harm to him or anyone else that would cause him to accept the plea deal, and whether anyone had made him any promises to cause him to accept the State's offer. He responded "[n]o" to each question. RP (Jan. 16, 2007) at 29. Ray agreed that the prosecutor's statement of probable cause accurately reflected the evidence available to the State. He stated his desire to take advantage of the State's favorable plea offer and pleaded guilty to both charges. After the trial court accepted his pleas, Meyer presented an attachment to the plea agreement containing the sex offender registration requirement. Ray signed the attachment, and the trial court asked him whether this attachment changed anything regarding his plea, to which Ray responded, "No." RP (Jan. 16, 2007) at 31.
Before sentencing, Ray obtained his own attorney and filed a motion asking the trial court to allow him to withdraw his plea agreement. The trial court heard Ray's motion on August 6, 2007, and heard testimony from three witnesses: (1) Meyer, (2) Ray, and (3) Ray's father. Ray presented multiple exhibits in support of his motion, including Meyer's letters to the State asking to interview Leisure and also Ray's telephone records showing the history of his incoming calls from Leisure.
Following argument, the trial court denied Ray's motion and sentenced Ray within the standard range. The trial court entered findings of fact and conclusions of law regarding Ray's motion.
ANALYSIS I. Voluntarily and Knowingly
Ray contends that the trial court erred by denying his motion to withdraw his guilty plea because he did not enter into the agreement voluntarily or knowingly. Ray presents two arguments in support of his contention: (1) the trial court's inadequate colloquy did not properly inform Ray of the consequences of his plea, and (2) Meyer's inability to prepare an adequate defense in light of the trial court's refusal to grant a continuance coerced Ray into entering the plea deal against his will. We review a trial court's denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). A trial court abuses its discretion if it bases its decision on clearly untenable or manifestly unreasonable grounds. Olmsted, 70 Wn.2d at 119.
"Due process requires that a defendant's guilty plea be knowing, voluntary, and intelligent." In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). Likewise, CrR 4.2(d) mandates that the trial court not accept a guilty plea without first determining that a criminal defendant has entered into the plea voluntarily, competently, and with an understanding of the nature of the charge and the consequences of the plea. See also State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (stating that for a plea to be knowing and voluntary, a criminal defendant must be informed of all direct consequences of his plea).
A strong presumption that a plea is voluntary exists when a defendant completes a plea agreement and admits to reading, understanding, and signing that plea agreement. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). "When [a] judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable." State v. Perez, 33 Wn. App. 258, 262, 654 P.2d 708 (1982).
Notwithstanding this presumption of validity, CrR 4.2(f) provides that the court shall allow a defendant to withdraw the plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice. A manifest injustice is obvious and directly observable, an overt injustice, and not an obscure one. State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974). Manifest injustice includes instances where (1) the defendant received ineffective assistance of counsel, (2) the plea was not voluntary, (3) the prosecution did not honor the plea agreement, or (4) the defendant did not ratify the plea. Taylor, 83 Wn.2d at 597.
Direct Consequences
Ray argues that the trial court failed to inform him of any consequences of his plea. Due process requires that a defendant be advised of the direct consequences of his plea. Ross, 129 Wn.2d at 284. Direct consequences are those that represent a definite, immediate, and largely automatic effect on the range of the defendant's punishment. State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980). A plea is not involuntary based on a failure to advise a defendant of an indirect consequence. In re Personal Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999).
Specifically, Ray claims that the trial court did not inform him of the statutory maximums for the charges to which he pleaded guilty and did not inform him that under RCW 9.94A.712, "the court would sentence the defendant to life in prison and lifetime community custody." Br. of Appellant at 16. Ray also claims that the trial court failed to inform him that under RCW 9.94A.712, he would be required to serve a minimum mandatory time before being considered for release.
Under CrR 4.2(g), "[a] defendant must be informed of the statutory maximum for a charged crime, as this is a direct consequence of his guilty plea." State v. Weyrich, 163 Wn.2d 554, 557, 182 P.3d 965 (2008). Case law is dispositive that "[k]nowledge of the direct consequences of a guilty plea can be satisfied . . . by the plea documents." In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 266, 36 P.3d 1005 (2001) (citing Wood v. Morris, 87 Wn.2d 501, 507, 554 P.2d 1032 (1976)). The second page of Ray's statement of plea on guilty provides the standard ranges, enhancements, maximum terms, and community custody ranges for both of the charges to which Ray pleaded guilty. Further, Meyer informed the trial court at the change of plea hearing that he explained to Ray that RCW 9.94A.712 controlled the indecent liberties with forcible compulsion charge and that the trial court could sentence him to life, but that the State would recommend 72 months. Accordingly, we hold that Ray knew the direct consequences of his plea.
Coercion
Ray next contends that both Meyer and the trial court coerced him into entering his plea. Coercion may render a guilty plea involuntary. State v. Frederick, 100 Wn.2d 550, 556, 674 P.2d 136 (1983), overruled on other grounds by Thompson v. Dep't of Licensing, 138 Wn.2d 783, 794, 982 P.2d 601 (1999). Ray's denial of improper influence in open court does not prevent him from claiming coercion here. State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984). But a bare allegation of coercion is insufficient. Osborne, 102 Wn.2d at 97. Further,
[A] defendant who seeks to later retract his admission of voluntariness will bear a heavy burden in trying to convince a court or jury that his admission in open court was coerced. The task will be especially difficult where there are other apparent reasons for pleading guilty, such as a generous plea bargain or virtually incontestable evidence of guilt.
Frederick, 100 Wn.2d at 558. Ray claims that the trial court's denial of his motion for a continuance prevented Meyer from gathering necessary evidence, thus rendering Meyer's assistance ineffective. He claims that this situation coerced him to accept the plea offer against his will.
At the motion to withdraw guilty plea hearing, Ray acknowledged that Meyer's statements that Meyer would provide ineffective assistance because of the trial court's denial of the continuance were not the reasons that he decided to accept the State's offer. Instead, he chose to plead so that he could see his daughter sooner rather than later. Ray's replacement counsel examined Ray:
Q Did you hear what Mr. Meyer was advising the court about whether he was prepared to go to trial or not, whether or not he was going to be effective assistance of counsel?
A Do I remember hearing it?
Q Did you hear all that?
A Yes, I heard all that.
Q You heard him repeat that several times?
A Several times.
Q How did that make you feel?
A It made me feel empty, made me feel discouraged, it made me feel like I didn't have any choices.
Q But you still wanted to go to trial?
A But that was my choice was to go to trial.
Q Even though you heard your attorney make these comments about not being prepared and ineffective?
A Yes.
RP (Aug. 6, 2007) at 74-75. In addition:
Q You just heard [Meyer] tell the court on a number of occasions he wasn't ready, he would be ineffective, why on earth would you want to go to trial?
A Because I'm not guilty, and the only way I can prove that I'm not guilty is to go to trial.
RP (Aug. 6, 2007) at 76.
Instead, Ray testified that he changed his mind about proceeding to trial only when Meyer discussed Ray's daughter. RP (Aug. 6, 2007) at 76.
Q Did he say anything about your daughter?
A Yeah, he told me that if I wanted to see my daughter before she was married that I take the plea, because if I didn't she was going to be married by the time I got out of prison. But if I took the plea I would at least get to see her start the first grade.
RP (Aug. 6, 2007) at 76.
During cross-examination, the following interaction took place:
A The incentive was seeing my daughter.
Q To get out early?
A Seeing my daughter, I guess, yes.
Q So this was an incentive for you to take the deal?
A I guess, I guess.
RP (Aug 6, 2007) at 91. We hold that Ray's claim fails due to his own admission that Meyer's statements regarding ineffective assistance did not affect his decision to plead guilty.
II. Ineffective Assistance
Ray contends in his statement of additional grounds (SAG) that Meyer provided ineffective assistance because Meyer had not used the previous 17 months to prepare for trial and because Meyer did not tell him about the sexual offender registration requirement until after Ray agreed to accept the State's offer. Neither argument has merit.
RAP 10.10.
The test for ineffective assistance of counsel is whether (1) the defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). The Strickland test applies to claims of ineffective assistance of counsel in the plea process. In re Peters, 50 Wn. App. 702, 703, 750 P.2d 643 (1988) (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)). In the context of a guilty plea, the defendant must show that his counsel failed to "`actually and substantially [assist] his client in deciding whether to plead guilty.'" [Osborne, 102 Wn.2d at 99] (quoting State v. Cameron, 30 Wn. App. 229, 232, 633 P.2d 901 [, review denied, 96 Wn.2d 1023.] (1981)), and that but for counsel's failure to adequately advise him, he would not have pleaded guilty, Hill, 106 S. Ct. at 370; Peters, 50 Wn. App. at 708. The reviewing appellate court must indulge in a strong presumption that counsel's performance is within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689; Peters, 50 Wn. App. at 704.
State v. McCollum, 88 Wn. App. 977, 981-82, 947 P.2d 1235 (1997), review denied, 137 Wn.2d 1035 (1999).
Meyer and the State addressed the trial court about the delay in interviewing Leisure. It appears from the record that Meyer affirmatively attempted on several occasions to get the State to set up a complaining witness interview, both by letter and by conversation. Ray has not established that Meyer's representation fell below an objective standard of reasonableness. McCollum, 88 Wn. App. at 981-82.
Ray next claims that Meyer did not tell him about the sexual offender registration requirement until after he accepted the State's offer. Essentially, he argues that Meyer steamrolled him into signing the sex offender form. But the trial court remedied any possible prejudice to Ray when it discussed the form with him:
MR. MEYER: My client has signed Attachment A. We would simply ask it be attached.
THE COURT: Mr. Ray, this has to do with the sex offender registration requirement. You understand that is a requirement of any sentence that is pronounced as a result of this plea? Is that your understanding?
[RAY:] Yes.
THE COURT: Does that change anything about what you are doing today?
[RAY:] No.
RP (Jan. 16, 2007) at 31. Again, Ray fails to establish ineffective assistance.
III. Indecent Liberties with Forcible Compulsion
Ray next argues that the trial court erred by accepting his Alford plea to the indecent liberties with forcible compulsion charge because the State failed to establish a factual basis to believe that he committed the offense, thus rendering his plea involuntary. CrR 4.2(d) provides:
The court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
The trial court does not need to be convinced of the defendant's guilt beyond a reasonable doubt to determine that a factual basis exists. State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505 (1991). A factual basis exists if there is sufficient evidence for a jury to conclude that the defendant is guilty. Saas, 118 Wn.2d at 43. At a plea hearing, the trial court may consider any reliable source of information in the record including the prosecutor's statement of probable cause to determine whether sufficient evidence supports the plea. Saas, 118 Wn.2d at 43; Osborne, 102 Wn.2d at 95.
Ray pleaded guilty to indecent liberties with forcible compulsion. RCW 9A.44.100 (1)(a) provides:
(1) A person is guilty of indecent liberties when he or she knowingly causes another person who is not his or her spouse to have sexual contact with him or her or another:
(a) By forcible compulsion.
RCW 9A.44.010(2) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." Ray contends that the prosecutor's statement of probable cause fails to provide any information about sexual motivation. Br. of Appellant at 25. The prosecutor's statement of probable cause provides:
Ms. Leisure stated that [Ray] was out of control. Ms. Leisure tried to run into the bathroom and hide. Mr. Ray barged into the room and pinned her up against the wall. She tried to flee but he tackled her to the ground. He put his knee into her jaw. He then flipped her over, covered her mouth and grabbed at her genital area. Suppl. CP at 311.
The State counters that the phrase "grabbed at her genital area" speaks for itself and notes that Ray provides no authority stating that grabbing the genitals could not be for sexual gratification. Br. of Resp't at 17. Further, Ray admitted that he had read and agreed with the elements that he hand-wrote on his statement on plea of guilty. He wrote:
Indecent Liberties — DV
The elements are: that on 8/21/05 in Lewis Co., WA, the defendant, by forcible compulsion, had sexual contact with another w/whom the defendant shared a family/household relationship with.
1 CP at 61. We hold that the prosecutor's statement of probable cause, Ray's handwritten list of the elements for indecent liberties, and Ray's admission that he understood the elements established a factual basis for the trial court to accept Ray's plea.
IV. Substantial Evidence
Ray contends that substantial evidence failed to support the trial court's findings of fact 2, 3, 4, 5, 6, and 7. We review whether substantial evidence supported the trial court's findings of fact. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Vickers, 148 Wn.2d at 116. We do not review credibility determinations on appeal and we leave the persuasiveness of the evidence to the trier of fact. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Ray challenges finding of fact 2, which provides, "Mr. Ray was not distraught at the change of plea hearing." 1 CP at 16. Ray contends that the evidence at the motion to withdraw guilty plea hearing provides that he was distraught, especially based on his testimony and that of his father and Meyer. But, the trial court stated in its decision that it remembered the change of plea hearing and that Ray never indicated that he was confused or distraught. We do not review credibility determinations on appeal. Thomas, 150 Wn.2d at 874-75. Substantial evidence supports this finding.
Ray next challenges finding of fact 3, which provides, "Mr. Ray admitted at the hearing to withdraw plea that he was not forced to plead and that he did so voluntarily." 1 CP at 17. Ray testified at the motion to withdraw guilty plea hearing that, as discussed above, nobody forced him to enter the plea agreement and that he voluntarily chose to do so on his own. Substantial evidence supports this finding.
Next, Ray challenges finding of fact 4, which provides, "Mr. Ray pled for particular reasons including a very favorable plea offer that resulted in reduction of his possible prison term, dismissal of charges, and the opportunity to see his daughter while she was still a child." 1 CP at 17. Again, Ray testified that the opportunity to see his daughter was the primary reason he chose to plead guilty. Meyer testified that he told Ray that he would potentially avoid an additional 180 months of prison by accepting the plea offer based on the State's offer of 72 months versus the standard sentence up to 216 months. In addition, Ray answered yes when the trial court asked him whether he chose to plead guilty to the two counts to take advantage of what he believed to be a favorable plea offer from the State. Substantial evidence supports this finding.
Ray challenges finding of fact 5, which provides, "Mr. Ray's decision to plead guilty was an intentional, intelligent and voluntary decision." 1 CP at 17. Meyer testified that he believed Ray entered his plea voluntarily and knowingly. At the motion to withdraw guilty plea hearing, the trial court noted that it had conducted a full colloquy as required by relevant case law to ensure that Ray entered the plea knowingly, intelligently, and voluntarily. The trial court referenced State v. Perez, 33 Wn. App. at 260-61, where this court described the fundamental principles having to do with withdrawal of guilty pleas.
CrR 4.2(d) prohibits trial court acceptance of a guilty plea that is not voluntary, i.e., made voluntarily, competently, and with the defendant's understanding of the nature of the charges and the consequences of the plea. The rule provides further that there must be a factual basis for the plea and requires the trial judge to make sure the plea is voluntary. He must be sure the defendant reads and signs a statement on plea of guilty in substantially the form, and covering the many details, prescribed in CrR 4.2(g). We have previously suggested that the court should also personally interrogate the defendant concerning these matters. These strict requirements are designed to assure that guilty pleas will be voluntary, both under the rules of court and the constitution. Once the safeguards of the rules have been employed, however, a defendant will be permitted to withdraw a plea only upon a showing that withdrawal is necessary to avoid a manifest injustice.
Perez, 33 Wn. App. at 260-61 (emphasis omitted) (internal citations omitted). As described above, the trial court carefully followed this procedure. Substantial evidence supports this finding.
Ray challenges finding of fact 6, which provides, "The State's evidence against Mr. Ray was overwhelming." 1 CP at 17. The prosecutor's statement of probable cause provided all the evidence in this case. The factual summary above describes the plethora of evidence contained in the probable cause statement, including victim statements and personal police observations. Meyer testified that he discussed with Ray that the police caught him after he attempted to flee the scene. The trial court specifically stated that it reviewed the statement of probable cause and found the evidence overwhelming and we do not address credibility determinations on appeal. Thomas, 150 Wn.2d at 874-75. Substantial evidence supports this finding.
Ray challenges finding of fact 7, which provides, "Mr. Meyer was not unprepared for trial." 1 CP at 17. Meyer acknowledged that he informed the trial court on several occasions that he was not prepared for trial unless the trial court gave him time to gather evidence regarding the phone records. The trial court found that Meyer was unprepared only as it related to the phone records, but otherwise ready for trial. Meyer acknowledged that he needed the phone records primarily for impeachment purposes to show that Leisure lied and that he did not know how he might use them as direct evidence of guilt or innocence. The trial court stated:
It seems to me, and this is in my view then and is now, that [Meyer] was exaggerating the need for a continuance just because his client at that point wanted one or had just come up with evidence that he knew was not going to be, or that might have been helpful but may not have been but was not likely to carry the day in a motion for continuance, so he asked for a continuance to set up just this kind of a hearing. Well, I'm just going ahead here and I'm not prepared and it is ineffective assistance of counsel. So we set up the record and essentially what we would have here is that every time a defense attorney comes in who's been presented with evidence late and says, I'm not prepared, its [sic] going to be ineffective assistance of counsel.
RP (Aug. 6, 2007) at 135-36. We can infer from Meyer's acknowledgment and the trial court's opinion about Meyer's motion for a continuance that Meyer could have gone to trial without the phone records, although his case might not have been as strong. Substantial evidence supports this finding.
V. New Counsel
Ray contends in his SAG that the trial court erred by denying his request for new counsel after the trial court denied Meyer's motion for a continuance. If a defendant is dissatisfied with appointed counsel, the defendant must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant. State v. Stenson, 132 Wn.2d 668, 766, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
After the trial court denied Meyer's motion for a continuance the day of trial, Meyer asked to withdraw and Ray asked for new counsel. As an explanation for his requested withdrawal, Meyer claimed that, although he repeatedly attempted to secure the Leisure interview, he was unable to do so before the previous week and, thus, could not provide effective assistance. The trial court recognized that Meyer based his request on the trial court's denial of his motion for a continuance and, accordingly, denied his motion to withdraw. Ray also based his claim on the trial court's denial of Meyer's motion for continuance and he is unable to offer any good cause for the trial court to allow substitution the day of trial. We hold that the trial court did not err by denying either Meyer's motion to withdraw or Ray's request for new counsel.
Affirmed.
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.
Houghton, PJ., Armstrong, J., concur.