STATE v. HAYNES

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Court of Appeals of Washington,Division 1.

STATE of Washington, Respondent, v. Justin D. HAYNES, Appellant.

No. 44974-5-I.

Decided: February 12, 2001

Eric Broman, Sabrina Katie Housand, Nielsen Broman & Assoc Pllc, Seattle, for Appellant. Catherine Marie McDowall, King County Prosecuting Attorney for Respondent.

OPINION

PUBLISHED IN PART

Justin Haynes appeals his conviction for two counts of first degree child molestation, as well as his exceptional sentence.   Haynes argues that the trial court erred in failing to inquire into a potential conflict of interest between him and his attorney, and that he was denied his constitutional right to counsel when his attorney “testified” against him at his guilty plea withdrawal hearing.   Haynes also argues that his exceptional sentence should be reversed and remanded because one of the trial court's two reasons for imposing the sentence is improper.   We affirm.

FACTS

In late 1997, Child Protective Services received a report that Justin Haynes had sexually and physically abused his eight-year-old stepdaughter, M.D. After an investigation, the State charged Haynes with two counts of first degree rape of a child and one count of fourth degree assault.

In exchange for Haynes's agreement to plead guilty, the State reduced the charges against him.   Haynes pleaded guilty to two counts of first degree child molestation.   The State agreed to recommend to the court that Haynes receive a sentence at the upper limit of the standard sentence range.

The parties appeared before the trial court for a sentencing hearing on May 14, 1999.   At that time, Haynes requested and the court granted a continuance of the hearing.   The court also indicated that, on its own motion, it was considering imposing an exceptional sentence upward.

On June 14, 1999, the parties reconvened for an evidentiary hearing on the sentencing issue.   At the beginning of the hearing, Haynes's attorney orally informed the court that Haynes wished to withdraw his guilty plea due to ineffective assistance of counsel.   Haynes had not yet submitted a written motion to that effect.   Claiming a potential conflict of interest if he continued to represent Haynes at the sentencing hearing, defense counsel asked to withdraw as Haynes's attorney.   The court denied this request, but indicated that defense counsel would be permitted to withdraw after the sentencing hearing.

The court proceeded to hear testimony on the sentencing issue.   Dr. Rebecca Wiester, the consulting physician for the King County Sexual Assault Resource Center's sexual assault clinic, testified.   Dr. Wiester examined and interviewed M.D. in January 1998.   According to Dr. Wiester, M.D. said at the interview that Haynes had touched her on her “bottom” more than once while her mother was in the hospital giving birth to her little sister, K. M.D. told Wiester that Haynes made her suck on his penis and that he “put his ․ wee-wee in my bottom.”   M.D. also reported various incidents of physical abuse that Haynes committed against her.

Kelly Gann, M.D.'s aunt, and Rebecca Dickey, M.D.'s mother, also testified at the hearing.   Gann corroborated much of Dr. Wiester's testimony.   According to Gann, M.D. told her that Haynes made her “look at dirty magazines” and made her “suck on popsicles to show me how to suck on his penis.”   M.D. also said that Haynes “laid in bed naked and he told me to get on top of him, and then he had sex.”   Gann further testified about several incidents of physical abuse by Haynes that M.D. had described to her.   Dickey testified that she had witnessed Haynes physically abuse M.D. on various occasions.

Finally, Justin Haynes testified at the hearing.   Haynes denied ever sexually or physically abusing M.D.

At the conclusion of the hearing, the court imposed an exceptional sentence of 178 months on each count, to run concurrently.   The standard sentence range was 67 to 89 months on each count.   The court relied on two factors in imposing the exceptional sentence.   First, the court found that Haynes “used his position of trust to facilitate the charged offenses.”   Second, the court found that “[t]he charged offenses involved domestic violence, as defined by RCW 10.99.020, and were part of an ongoing pattern of physical and psychological abuse of the victim.”

With the assistance of new counsel, Haynes filed a written motion to withdraw his guilty plea.   He claimed that his former attorney was ineffective in advising him in regard to the guilty plea, because the attorney did not inform Haynes “of the real possibility of an exceptional sentence in his case or of any factors (other than a request by the State) which could be considered by the Court in determining whether or not to impose a sentence outside the standard range.”   Haynes claimed that if he had been so informed, he would not have pleaded guilty.

On July 22, 1999, the court held a hearing on the motion to withdraw the guilty plea.   At the conclusion of the hearing, the court denied Haynes's request to withdraw his guilty plea.   The court found that Haynes was aware that although it was unlikely he would receive an exceptional sentence, the court had the power to impose an exceptional sentence.   The court concluded that Haynes's counsel was not ineffective in failing to advise Haynes of the possible grounds for imposing an exceptional sentence.

Haynes appeals.

ANALYSIS

I. Right to Counsel at Sentencing Hearing

Haynes first argues that he was denied his constitutional right to counsel when the trial court required his attorney to continue representing him at the sentencing hearing, after the attorney had asserted a potential conflict of interest.   Haynes argues that the court erred by failing to inquire into the nature and potential consequences of the asserted conflict of interest.

 The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to have the assistance of counsel for his defense.”   The constitutional right to counsel includes the right to assistance of counsel free from conflicts of interest.  State v. Davis, 141 Wash.2d 798, 859, 10 P.3d 977 (2000).   A conflict of interest can arise “when a defense attorney owes duties to a party whose interests are adverse to those of the defendant.”  State v. White, 80 Wash.App. 406, 411-12, 907 P.2d 310 (1995).   A conflict of interest can exist when a defendant's interests are adverse to those of defense counsel himself.  In re Personal Restraint of Benn, 134 Wash.2d 868, 890, 952 P.2d 116 (1998).

 When a defense attorney asserts to the trial court that he has a potential conflict of interest, the court must appoint substitute counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant substitute counsel.   See Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).   The court's failure to take these steps deprives defendant of the guarantee of assistance of counsel.  Holloway, 435 U.S. at 484, 98 S.Ct. 1173.   Our Supreme Court has stated the rule as follows:  “[A] trial court commits reversible error if it knows or reasonably should know of a particular conflict [of interest] into which it fails to inquire.”  In re Personal Restraint of Richardson, 100 Wash.2d 669, 677, 675 P.2d 209 (1983).

 Here, at Haynes's sentencing hearing, defense counsel, Mark Prothero, asserted that he had a potential conflict of interest and requested to withdraw as Haynes's attorney.   Prothero informed the court that Haynes intended to file a motion to withdraw his guilty plea, on the basis of ineffective assistance of counsel.   Prothero explained that Haynes believed Prothero had been ineffective in rendering advice on the entry of his guilty plea.   Haynes argues on appeal that Prothero's statements gave the court a reasonable basis to believe a conflict of interest could arise at the sentencing hearing, because “it was obvious that Prothero would have to withdraw,” and “it was clear that Prothero would most likely become a witness” at the future plea withdrawal hearing.   According to Haynes, the trial court did not adequately inquire into the nature and potential consequences of the asserted conflict of interest.

We are not persuaded by Haynes's argument.   A careful review of the record persuades us that the trial court made a sufficient inquiry into the asserted conflict of interest.   When Prothero asked to withdraw as Haynes's attorney, the court questioned him and ascertained that Haynes had not yet filed a written motion to withdraw the guilty plea.   Because Haynes had not filed a formal motion to withdraw the plea, the court could not hear the ineffective assistance claim at that time.   Therefore, the conflict of interest that would be triggered by the filing of the motion to withdraw the plea was a mere possibility, not yet a reality.

Through its questioning, the court adequately informed itself that there was no basis to believe that the asserted conflict of interest existed at the time of the sentencing hearing.   The court ruled that Prothero could withdraw as defense counsel after the sentencing hearing, and that Haynes could thereafter file the motion to withdraw the plea with the assistance of new counsel.   Haynes has not provided a basis to believe that he did not receive adequate assistance of counsel from Prothero at the sentencing hearing.   Haynes has provided no other basis for this court to conclude that a conflict of interest existed at the sentencing hearing.   The court's decision to proceed with the sentencing hearing without appointing substitute counsel was, therefore, not in error.

The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

APPELWICK, J.

BAKER, J., and ELLINGTON, J., concur.

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