State of Washington v. Jose Pedro Linares ( 2019 )


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  •                                                                             FILED
    JULY 2, 2019
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                          )
    )         No. 35484-9-III
    Respondent,              )
    )
    v.                                     )
    )
    JOSE PEDRO LINARES,                           )         UNPUBLISHED OPINION
    )
    Appellant.               )
    KORSMO, J. — Jose Linares appeals from a conviction for third degree assault of a
    corrections officer, challenging the trial court’s failure to appoint a new attorney for him
    and the decision to run his sentence consecutive to an earlier conviction. We affirm.
    FACTS
    Mr. Linares was incarcerated in the Yakima County Jail awaiting trial on a charge
    of second degree assault. On the evening of April 27, 2016, Mr. Linares punched a
    corrections officer, Daniel Jennings. A charge of third degree assault for this incident
    was filed the following week. The attorney representing Mr. Linares on the second
    degree assault charge also was appointed counsel to represent him on the new third
    degree assault charge.
    No. 35484-9-III
    State v. Linares
    Defense counsel moved for six continuances of the third degree assault trial in
    order to conduct an investigation and interview witnesses.1 Mr. Linares on twelve
    occasions sought to have a new attorney appointed to represent him, arguing that he did
    not want his case continued and that he and his attorney were not communicating.
    However, the only reason he gave to explain the lack of communication was that he did
    not want to speak to his attorney. The attorney likewise explained to the court that his
    client refused to discuss the case with him. Finding lack of good cause to change
    counsel, the court denied the request.
    Mr. Linares was convicted of second degree assault in the original case and
    sentenced for that offense on May 25, 2017. This case proceeded to jury trial beginning
    May 30, 2017. On both days of the trial, Mr. Linares informed the court he would not
    attend and trial was conducted in his absence. The jury convicted Linares of assaulting
    Officer Jennings.
    The matter came on for sentencing on June 9, 2017. By that time, the newest
    charge had also been resolved by guilty verdict and both third degree assault charges
    awaited sentencing. When the court again declined to appoint new counsel, Mr. Linares
    1
    In the course of awaiting trial on the charges, Mr. Linares assaulted another
    corrections officer, Juan Calva, on December 18, 2016. That action resulted in the filing
    of an additional third degree assault charge and is the subject of the linked appeal in State
    v. Linares, No. 35485-7-III. Mr. Linares was represented by the same attorney at all
    three trials.
    2
    No. 35484-9-III
    State v. Linares
    kicked his attorney and was led back to jail. The attorney ultimately was replaced and
    sentencing conducted on the two third degree assault counts on August 1, 2017.
    The trial court sentenced Mr. Linares to concurrent 60 month prison terms for the
    two third degree assault convictions and directed that those sentences be served
    consecutively to the second degree assault sentence. Mr. Linares timely appealed each
    case.
    This court linked the two cases for resolution without hearing oral argument.
    ANALYSIS
    This appeal presents two issues. Mr. Linares first contends that the court erred in
    failing to grant him a new attorney. He also argues that the sentence needed to be served
    concurrently with the second degree assault conviction. We address the two arguments in
    the order listed.2
    Request for New Attorney
    Mr. Linares initially contends that the court erred in refusing to grant him a new
    attorney for trial. Since he did not present a legitimate reason for replacing counsel, there
    was no error.
    The law and the corresponding standard of review for this issue both are well
    settled. If a criminal defendant is dissatisfied with appointed counsel, the defendant must
    2
    Because the briefs in this file and in No. 35485-7-III are virtually identical, the
    opinions in these cases likewise are nearly identical.
    3
    No. 35484-9-III
    State v. Linares
    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). This
    court reviews a denial of a request for new counsel for abuse of discretion. Id. at 733.
    Typically, discretion is abused when it is exercised on untenable grounds or for untenable
    reasons. State ex rel. Carroll v. Junker, 
    79 Wn.2d 12
    , 26, 
    482 P.2d 775
     (1971).
    However, even a breakdown in communication is insufficient to warrant
    substitution of counsel when a defendant “simply refuses to cooperate with his
    attorneys.” State v. Schaller, 
    143 Wn. App. 258
    , 271, 
    177 P.3d 1139
     (2007). In that
    regard, this case is similar to some earlier decisions.
    In State v. Thompson, the defendant filed a motion to dismiss counsel due to a
    conflict of interest and a breakdown in communication; the trial court denied his motion.
    State v. Thompson, 
    169 Wn. App. 436
    , 457-464, 
    290 P.3d 996
     (2012). On appeal, this
    court held that because “the conflict and communication breakdown were attributable
    entirely to Thompson and could not be reasonably expected to resolve with substitution
    of counsel, the court did not abuse its discretion by denying Thompson’s motions.” Id. at
    463. The Thompson court elaborated:
    The collapse of the attorney-client relationship may so degrade the quality
    of the defense as to deny the accused effective representation. But that was
    clearly not so here. Despite Thompson’s unrelenting insolence, verbal
    abuse, and refusal to cooperate, [defense counsel] remained a capable and
    determined advocate. He filed motions to suppress evidence. He
    4
    No. 35484-9-III
    State v. Linares
    vigorously opposed the State’s efforts to present evidence of Thompson’s
    past sex crimes. He used cross-examination and closing argument to
    highlight gaps in the State’s evidence. [Defense counsel] even managed to
    “accommodate Mr. Thompson’s view that he was a victim of a conspiracy”
    in the rape case. Tavel, the attorney appointed as liaison counsel,
    performed Thompson’s direct examinations and attempted to minimize the
    damage resulting from his testimony while still allowing Thompson to
    express his view of the cases. And during closing arguments, [defense
    counsel] attempted to explain Thompson’s obviously untruthful testimony
    in a way the jury might understand. Thompson was effectively represented
    in spite of the breakdown in the relationship.
    Id. at 463-464 (footnotes omitted).
    A similar situation occurred in State v. Shelton, 
    71 Wn.2d 838
    , 839-840, 
    431 P.2d 201
     (1967). There, the defendant argued that the court erred by denying his request after
    jury selection to have his counsel resign because he could not put his confidence in the
    defense counsel. 
    Id.
     Because the defendant “gave no reason for his lack of confidence in
    his counsel; pointed to no area of disagreement between them; and failed to point out
    wherein counsel had in any way failed or refused to adequately advise or aid him,” there
    was no abuse of discretion. 
    Id. at 839-840
    .
    Here, Mr. Linares refused to explain why he needed a new attorney and simply
    refused to cooperate. This is an insufficient basis on which to grant a request, and, thus, a
    very tenable reason to deny it. The trial court did not abuse its discretion by refusing to
    appoint new counsel.
    5
    No. 35484-9-III
    State v. Linares
    Consecutive Sentences
    Mr. Linares also argues that the trial court erred by directing that the third degree
    assault sentences run consecutively to the second degree assault sentence. The trial court
    did not abuse its discretion.
    Convictions entered or sentenced on the same day as the convictions currently
    before the court are considered “other current offenses.” RCW 9.94A.525(1). The order
    of sentences under the Sentencing Reform Act of 1981 (SRA) is controlled by RCW
    9.94A.589. Subsection (1) of that statute directs that sentences imposed on the same day
    be served concurrently. With respect to sentences imposed at an earlier time, subsection
    (3) is the governing provision. RCW 9.94A.589(3) expressly states that a trial judge has
    discretion to impose a consecutive sentence when entering a judgment and sentence after
    another judgment was previously entered. When the judge fails to expressly state the
    order of sentences, they run concurrently. 
    Id.
     Under this provision, the trial court has
    “total discretion” in the ordering of a sentence. State v. Klump, 
    80 Wn. App. 391
    , 396,
    
    909 P.2d 317
     (1996) (citing cases).
    The two third degree assault convictions ran concurrently with each other since
    they were imposed on the same day. RCW 9.94A.589(1). Those sentences were
    imposed nine weeks after the second degree assault sentence. Accordingly, the decision
    to run the third degree assault sentences consecutively to the term of the second degree
    assault sentence was within the trial court’s discretion. RCW 9.94A.589(3).
    6
    No. 35484-9-III
    State v. Linares
    The conviction and sentence are affirmed.
    A majority of the panel has determined 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.
    WE CONCUR:
    7
    

Document Info

Docket Number: 35484-9

Filed Date: 7/2/2019

Precedential Status: Non-Precedential

Modified Date: 7/2/2019