Personal Restraint Petition Of Kenneth Wayne Sandholm ( 2017 )

COURT OF APPEALS DIV
STATE OF WASI-il!10;1
201111AR -6 Ali 9: 04
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE PERSONAL
RESTRAINT OF No. 69598-3-1
KENNETH WAYNE SANDHOLM, DIVISION ONE
Petitioner. UNPUBLISHED OPINION
FILED: March 6, 2017
SPEARMAN, J. — In this personal restraint petition, Kenneth Sandholm
challenges his 2012 conviction for driving under the influence (DUI). He contends that
he was denied his Sixth Amendment right to counsel and to effective assistance of
counsel during plea negotiations. We disagree and deny the petition.
FACTS
In February 2012, a jury found Kenneth Sandholm guilty of one count of felony
driving under the influence (DUI) in King County Superior Court No. 09-1-06703-8
KNT, and the court imposed a 60 month term of confinement. In December 2012,
while his direct appeal was pending, Sandholm filed this timely personal restraint
petition, alleging that he was effectively denied his Sixth Amendment right to counsel
during unsuccessful plea negotiations that occurred in January 2012. Sandholm also
claims that he was denied effective assistance during the plea negotiations.
Consideration of the petition was stayed pending a final decision on
Sandholm's direct appeal. Our supreme court affirmed Sandholm's judgment and
No. 65998-3-1/2
sentence on December 3, 2015, and the mandate issued on December 28, 2015.
See State v. Sandholm, 184 Wn.2d 726, 364 P.3d 87(2015).
DISCUSSION
In this 2012 petition, Sandholm challenges the judgment and sentence
entered after his felony conviction for DUI. He requests "specific performance"' of the
State's proposed plea agreement, which he claims would have resulted in a 2013
release date rather than a 2014 release date under the terms of the sentence that the
court imposed after the jury verdict.
The procedural history of this case is convoluted. Sandholm was represented
by several different attorneys during the course of the proceeding and was self-
represented on at least two occasions. The case also involved a hung jury and
mistrials.
On January 13, 2012, five days before the second trial was to begin, the
deputy prosecutors met with Sandholm, who was self-represented, and
communicated a plea offer. Under the terms of the plea agreement, the State would
have recommended a 30 month sentence for the felony DUI conviction. The
proposed plea agreement also resolved several pending district court charges from
2003 and 2006. The charges had been dismissed in 2009, but reinstated in late
2011. Sandholm understood that the State's offer was good until January 17, the day
on which trial was to begin.
The parties disagree on precisely what was said during the next few days. It
appears to be undisputed, however, that the deputy prosecutors informed Sandholm
1 In re Sandholm Petition at 8.
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No. 65998-3-1/3
that they had discussed the offer with the district court prosecutor, that all of the
deputy prosecutors were from the same office, and that the offer was valid and
binding. Nor is there any dispute that Sandholm understood the terms of the State's
offer. In his declaration, Sandholm asserts that he expressed interest in the offer but
informed the State that he needed to discuss the matter with his family and to verify
the "authenticity"2 of the district court provisions.
At the time of the plea offer in superior court, proceedings on the district court
matters had just resumed. Before the 2009 dismissal, attorney Philip Tavel had
represented Sandholm in the district court. When Sandholm first appeared in district
court after the reinstatement on November 8, 2011, he informed the court that he had
had no contact with Tavel since 2009. The district court appointed Society of Counsel
Representing Accused Persons(SCRAP)to represent Sandholm. SCRAP later
withdrew because of a conflict. The record indicates that Tavel appeared in district
court on January 23, 2012, and informed the court that he had had no contact with
Sandholm since 2009. According to Sandholm, Tavel also told the court at that time
that he had always remained Sandholm's district court counsel.
Sandholm claims that in the days after the plea offer, he made a concerted
effort to determine whether the plea offer was authentic and enforceable. Among
other things, Sandholm alleges that he attempted to ascertain who his counsel was in
district court and to contact Tavel. He asserts that all he needed to accept the plea
was advice from "any licensed lavvyer3 that the misdemeanor provisions were valid.
2 Declaration of Sandholm at 1.
3 Memorandum in Support of PRP at 13.
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No. 65998-3-1/4
On January 17, 2012, the day that the DUI trial was to begin, Sandholm claims
that he informed the deputy prosecutors that he "remained ready" to accept the
agreement "upon verification by counsel" that the offer was authentic. At this point,
the State withdrew the plea offer.
Sandholm maintains that he is entitled to specific performance of the plea
agreement because he was completely denied the right to counsel in the district court
matters. Sandholm also claims that he was essentially denied effective assistance of
counsel during the plea negotiations.
In his petition, Sandholm alleges grounds that could not have been presented
in a direct appeal because the supporting facts were not in the appellate record.
Accordingly, to obtain collateral relief, Sandholm must demonstrate that his restraint
is unlawful under the criteria set forth in RAP 16.4(c). See State v. Sandoval, 171
Wn.2d 163, 169,249 P.3d 1015(2011). Under RAP 16.4(c)(2), restraint is unlawful if
a conviction or sentence "was imposed or entered in violation of the Constitution of
the United States or the Constitution or laws of the State of Washington." The
evidence supporting a personal restraint petition must be based on "more than
speculation, conjecture, or inadmissible hearsay." In re Pers. Restraint of Rice, 118
Wn.2d 876, 886, 828 P.2d 1086 (1992).
Under both the federal and state constitutions, a defendant is entitled to the
assistance of counsel at all critical stages of criminal proceedings. U.S. CONST.
AMEND. VI; WASH. CONST. ART. I, § 22; Missouri v. Frye, 566 U.S. 133, 132 S. Ct.
1399, 1405, 182 L. Ed. 2d 379(2012); State v. Heddrick, 166 Wn.2d 898, 909-10,
4 Memo in Support of PRP at 5.
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No. 65998-3-1/5
215 P.3d 201 (2009). Sandholm maintains that he was denied his right to counsel
during the plea negotiations because his counsel for the district court matters
abandoned him. The claim is without merit.
The plea offer made by the State involved a plea of guilty to the charge
pending in superior court. And because Sandholm was representing himself in that
proceeding, he bore the burden of seeking any information that he needed to
determine whether he would accept or reject the offer. "Generally, defendants who
are afforded the right to self-representation cannot claim ineffective assistance of
counsel for the obvious reason they become their own counsel and assume complete
responsibility for their own representation." State v. McDonald, 143 Wn.2d 506, 512,
22 P.3d 791 (2001). Thus, Sandholm is precluded from even raising the claim he
urges here. Because he chose to act as his own counsel, a claim of ineffective
assistance of counsel is not available to him.5
The personal restraint petition is denied.
WE CONCUR:
-17Nlcuty/ c(
5 To the extent Sandholm argues that the representation by his district court counsel was
constitutionally deficient, that claim also fails. While that counsel's actions or inaction might
be relevant to the resolution of Sandholm's district court charges, they are not relevant to the
superior court proceedings in which Sandholm represented himself.
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