Opinion
66118-3-I
04-16-2012
STATE OF WASHINGTON, Respondent, v. JASON LILLY VRIEZEMA Appellant.
UNPUBLISHED OPINION
Dwyer, J.
Jason Vriezema challenges the trial court's denial of his request to "discharge" his court-appointed counsel. The substitution of appointed counsel is warranted only where the defendant shows good cause for such substitution. Because Vriezema did not do so, the trial court did not err by denying his request.
I
By information filed on July 8, 2010, the State charged Vriezema with one count of robbery in the second degree. The information was later amended to include one count of assault in the third degree and one count of escape in the second degree. Trial was scheduled to begin on September 7.
At an August 3 hearing, Vriezema sought to "discharge" his appointed counsel. He told the trial court: "I don't think she has my best interests in mind. She has not come and seen me, not once; and, two, she is already making me plead out to a Rob II." The trial judge replied, "Nobody makes you plead . . . you choose whether you're going to plead." Vriezema then continued:
I mean, she haven't even went over-she haven't even heard my side of the story, you know what I mean, so-and I don't have no trust in her, you know, for one. She's already telling me to plead out. Come on, I mean, you don't even-you haven't even came and seen me yet. You haven't even heard my side of the story, you know what I mean? And I just don't feel that I feel comfortable going to trial with . . .
The trial court asked Vriezema's counsel, "[Y]ou got the case within the last two weeks, right?" Counsel replied in the affirmative. Counsel then informed the trial court that there had been "numerous contacts" between her and Vriezema and that she was representing him in two different matters then pending before the court. Counsel further informed the trial court that she believed that she had "had sufficient contact" with Vriezema. She told the court, "[I]t's also not my practice to advise my clients to plead guilty."
The trial court denied Vriezema's request.
Ultimately, a jury found Vriezema guilty of theft in the third degree and assault in the third degree. The jury additionally found by special verdict that Vriezema had committed the assault shortly after being released from incarceration. Vriezema pleaded guilty to the charge of escape in the second degree, which had been severed for trial. He was sentenced to 60 months of incarceration.
Theft in the third degree is a lesser included offense of robbery in the second degree, the crime with which Vriezema was charged.
He appeals.
II
Vriezema contends that his right to counsel, afforded by the Sixth Amendment and article I, section 22 of the Washington Constitution, was violated when the trial court denied his request to "discharge" his court-appointed counsel. We disagree.
The "essential aim" of the Sixth Amendment "is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). However, "if the relationship between lawyer and client completely collapses, the refusal to substitute new counsel violates [the defendant's] Sixth Amendment right to effective assistance of counsel." United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998) (emphasis added).
"A criminal defendant who is dissatisfied with appointed counsel 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, 734, 940 P.2d 1239 (1997). A conflict between the attorney and the defendant warrants the substitution of counsel "only when counsel and [the] defendant are so at odds as to prevent presentation of an adequate defense." Stenson, 132 Wn.2d at 734. An irreconcilable conflict justifying the substitution of counsel "occurs when the breakdown of the relationship results in the complete denial of counsel." State v. Schaller, 143 Wn.App. 258, 268, 177 P.3d 1139 (2007). Moreover, the substitution of counsel is not justified due solely to a "general loss of confidence or trust" by the defendant in his or her attorney. Stenson, 132 Wn.2d at 734. Nor is a defendant's "general dissatisfaction and distrust" with counsel's performance sufficient to warrant the substitution of counsel. State v. Varga, 151 Wn.2d 179, 200-01, 86 P.3d 139 (2004).
"Whether an indigent defendant's dissatisfaction with his court-appointed counsel is meritorious and justifies the appointment of new counsel is a matter within the discretion of the trial court." Stenson, 132 Wn.2d at 733. In determining whether the trial court erred by denying a request for substitution of counsel, we consider "(1) the extent of the conflict; (2) the adequacy of the [trial court's] inquiry; and (3) the timeliness of the motion." Moore, 159 F.3d at 1158-59; accord In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001).
Here, the extent of the purported conflict between Vriezema and his appointed counsel was clearly insufficient to warrant the substitution of counsel. Vriezema told the trial court that he did not feel "comfortable" going to trial while represented by his appointed counsel. He stated that this was both because she had not yet "come and seen [him]" or "heard [his] side of the story" and because she nevertheless suggested that he plead guilty to one of the charges. Neither of these professed reasons indicates that Vriezema's Sixth Amendment "guarantee [to] an effective advocate" was in jeopardy. See Wheat, 486 U.S. at 159.
"'[G]eneral discomfort with [counsel's] representation'" is not sufficient to warrant the substitution of appointed counsel. State v. Staten, 60 Wn.App. 163, 169, 802 P.2d 1384 (1991) (quoting State v. Sinclair, 46 Wn.App. 433, 436, 730 P.2d 742 (1986)). Moreover, although counsel's "inaccessibility" is a "legitimate grievance, it is not one that requires a trial judge to grant a motion to substitute." Staten, 60 Wn.App. at 170 n.7 (holding that the defendant was not entitled to substituted counsel where his stated grievance was that he "[had] yet to see [his] attorney anywhere but in court"). Vriezema did not provide the trial court with legitimate and sufficient grounds for substituting appointed counsel.
We do not intend to suggest that there are no circumstances in which appointed counsel's inaccessibility might justify the substitution of counsel. However, such a grievance, because it does not necessarily indicate a "complete breakdown" of communication between the attorney and the defendant, does not inevitably entitle a defendant to new counsel. The inquiry is not simply, "how many times has counsel visited the defendant?" Although such may be considered, the true inquiry is whether the result of the matter about which the defendant is dissatisfied prevents the defendant from being afforded his or her Sixth Amendment right to an effective advocate.
Vriezema additionally asserts that the trial court engaged in an inadequate inquiry of the purported conflict between him and his counsel, thus preventing the trial court from fully understanding the nature of that conflict. He contends that, "[f]or an inquiry regarding substitution of counsel to be sufficient, the trial court should question the attorney or defendant 'privately and in depth.'" United States v. Nguyen, 262 F.3d 998, 1004 (quoting Moore, 159 F.3d at 1160). In Nguyen, however, "the District Judge concluded that he would not continue the trial at a pretrial meeting that Nguyen did not attend or even know about, and then refused to grant Nguyen a full hearing on the issue." 262 F.3d at 1003. Moreover, there, the trial judge gave improper reasons for denying Nguyen's request-stating "'I didn't travel halfway around the world to continue this trial'"-and "improperly emphasized his own schedule at the expense of Nguyen's Sixth Amendment rights." Nguyen, 262 F.3d at 1003. Such are not the facts of this case.
Rather, here, the trial judge perceptively inquired of counsel how long it had been since she was assigned to Vriezema's case. Counsel affirmed the trial judge's belief that counsel had been assigned to the case for only two weeks. Counsel additionally informed the court that she had "had numerous contacts" with Vriezema and assured the court that it was "not [her] practice to advise [her] clients to plead guilty."
Based upon this inquiry, it was clear to the trial judge, as it is to us, that the purported conflict between Vriezema and his appointed counsel was not sufficient to justify the substitution of counsel. The fact that the inquiry was brief is not decisive, given that it provided the requisite information for the trial judge to accurately determine whether substitution of counsel was required in order to afford to Vriezema his constitutional right to an effective advocate. "Formal inquiry is not always essential where the defendant otherwise states his reasons for dissatisfaction on the record." Schaller, 143 Wn.App. at 271; accord Varga, 151 Wn.2d at 200-01 (sufficient that trial judge afforded defendant opportunity to explain his reason for dissatisfaction and questioned counsel about the merits of the complaint); In re Stenson, 142 Wn.2d at 731 (trial court's inquiry "appear[ed] to have been sufficiently searching" where the defendant and counsel were permitted to express their concerns).
The trial court's denial of Vriezema's request to "discharge" his court-appointed counsel did not violate Vriezema's constitutional right to counsel.
Affirmed.