                                                                                  FILED
                                                                            COURT OF APPEALS
                                                                                DIVISION II

                                                                           1015 FEB - 3   AM 8: 51

                                                                           STATE OF WASHINGTON

                                                                            BY
                                                                                   DEP.   Y




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

 STATE OF WASHINGTON,                                                        No. 44562 -0 -II


                                  Respondent,


           v.



RICHARD ANTHONY CARPENTER,                                             UNPUBLISHED OPINION


                                   Appellant.


         JOHANSON, C. J. —       Richard Anthony Carpenter appeals his jury convictions for first

degree   assault,   first degree robbery,   and second      degree   unlawful possession of a   firearm. - He


argues that the trial court violated his public trial rights when it permitted the parties to exercise


their peremptory challenges in writing and his .right to counsel when it denied his motion to
                                                        1
substitute counsel without an adequate       inquiry.

         We hold that the trial court did not violate Carpenter' s public trial right regarding

peremptory juror challenges because those challenges do not implicate the public trial right and




1 This case is linked for appeal with No. 44569 -7 -II and the two arguments in this appeal are
identical to the first two arguments in that appeal. Therefore, the language of the two opinions is
similar.
No. 44562 -0 -II



did not violate his Sixth Amendment right to counsel because Carpenter' s reasons for substituting

counsel were clear     from the     record and a        formal   inquiry   was not   necessary.   Accordingly, we

affirm Carpenter' s convictions.


                                                         FACTS


         In December 2011,         Robert Bisom opened his front door to an unknown Carpenter


knocking, and Carpenter pushed his way into Bisom' s house. Carpenter asked Bisom for his keys

and when Bisom did not comply, a fight ensued. Finally Bisom surrendered and opened the safe

where he kept his car keys and a pistol. Carpenter threatened Bisom with the pistol, left the house


taking the keys and pistol with him, and was arrested later on unrelated charges. The State charged
                                             2
Carpenter   with   first degree   assault,       first degree robbery,3   and second degree unlawful possession

of a firearm.4

         On May 11, 2012, during a pretrial status hearing, Carpenter' s counsel expressed concerns

about Carpenter' s competency. Although two mental health evaluators had found Carpenter to be

competent, his counsel sought a new evaluation because they were unable to communicate.

Because Carpenter refused to cooperate with his counsel and the mental health evaluators, it took

three visits before the second evaluation was accomplished. The court ordered the third evaluation.

         The trial court also asked Carpenter' s counsel about his difficulties communicating with

Carpenter.    Carpenter' s counsel explained that, in his opinion, Carpenter' s position was that " he




2 RCW 9A.36. 011.

3 RCW 9A.56. 200.

4
    Former RCW 9. 41. 040( 2)(     a) (   2011).



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No. 44562 -0 -II



should go home now and that if [Carpenter' s counsel] can' t do that, [he is] not doing anything for

him."    Report       of   Proceedings ( RP) (    May       11, 2012)     at   1.    Carpenter     responded   that "[ w] e don' t


have    a, we   don' t have       a   relationship, Judge.        We    cannot conversate [ sic]         with each other."     RP


 May    11, 2012)      at   5.    Carpenter asked for a new attorney and the trial court told him to put his

motion for substitution of counsel in writing so that the court could consider it and the State could

respond.




         On May 18, 2012, at a second competency status hearing, the trial court learned that

although Carpenter was willing to talk with the new evaluator, he was willing to discuss only topics

that   were " acceptable"          to him and    refused     to talk    about       his   case.   Due to Carpenter' s failure to


cooperate during the evaluation, the evaluator could not determine the cause of his inability to

work with       his   counsel.        Carpenter' s counsel also told the court that Carpenter had been involved


in two j ail incidents in the 24 hours preceding the hearing, including an incident where he spat on
a corrections officer.            Seven corrections officers were needed to escort Carpenter to court, and


because of his behavior, Carpenter had been charged with six counts of custodial assault.


Lieutenant James, a corrections officer, stated that he thought Carpenter might have " some mental


health issues" and that the mental health supervisor at the jail thought Carpenter probably had a

mood     disorder.         RP (   May     18, 2012)    at   12.     Lieutenant James also observed, however, that


Carpenter       was   willing to        cooperate at   times      and   usually " understood         what was   going   on."   RP


 May 18, 2012) at 13.

          The trial court found Carpenter to be competent and asked him why he had not submitted

a written motion for new counsel. When Carpenter informed the court that he was not allowed to

have a pencil or paper to prepare the motion, the court decided that " at this point I' m not going to


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No. 44562 -0 -II



allow    Mr. Carpenter to discharge Mr. DePan.              I think this is just partly his way of trying to

manipulate     getting   what   he   wants."   RP ( May 18, 2012)    at   14 -15.   After the May 18 hearing, the

issue of substitution of counsel was not raised again, although trial occurred over eight months


later.


           In January 2013, the trial court conducted voir dire in open court, and Carpenter and the

State questioned the venire and exercised their for -cause challenges. The State and Carpenter then


exercised their peremptory challenges on a written form that was later filed with the clerk.5 Based
on that written form, the trial court announced which jurors had been selected and excused the


others.




           The jury convicted Carpenter on all three counts. He now appeals those convictions.

                                                     ANALYSIS


              I. PEREMPTORY CHALLENGES Do NOT IMPLICATE THE PUBLIC TRIAL RIGHT


           Carpenter argues that the trial court violated his public trial rights when the parties


exercised     their peremptory       challenges   in writing.   We held in State v. Dunn, 180 Wn. App. 570,

575, 321 P. 3d 1283 ( 2014),         review    denied, No. 90238 -1 ( Wash. Jan. 7, 2015), and again in State


v.   Marks,          Wn.   App. ,       339 P. 3d 196, 200 ( 2014), that exercising peremptory challenges


does not implicate the public trial right. Accordingly, we hold that the trial court did not violate

Carpenter' s public trial rights by allowing counsel to make peremptory challenges at a sidebar

conference.




5 As the parties made their challenges, the trial court made small talk with the prospective jurors
on   the   record.   When the parties finalized their peremptory challenges with the clerk, the record
shows a "(    Pause)" in the    proceedings.      RP ( Voir Dire Examination) (Jan. 24, 2013) at 154.

                                                           4
No. 44562 -0 -II



                                                II. SUBSTITUTION OF COUNSEL

             Carpenter next argues that the trial court violated his Sixth Amendment rights when it


denied his motion to substitute counsel because it failed to conduct an adequate inquiry. We hold

that the trial court did not abuse its discretion when it denied Carpenter' s request for substitute


counsel because Carpenter' s reasons for substituting counsel were clear from the record, a formal

inquiry was not necessary, and it was reasonable for the trial court to find that there was not an

irreconcilable conflict or complete breakdown in communication.


                                         A. STANDARD OF REVIEW AND RULES OF LAW


             We review a trial court' s decision not to appoint new counsel for an abuse of discretion.


State   v.   Varga, 151 Wn.2d 179, 200, 86 P. 3d 139 ( 2004). A trial court abuses its discretion when


its decision is "' manifestly              unreasonable or     based   upon untenable grounds or reasons. "'            State v.


Garcia, 179 Wn.2d 828, 844, 318 P. 3d 266 ( 2014) ( internal                           quotation marks omitted) (       quoting


State   v.    Lamb, 175 Wn.2d 121, 127, 285 P. 3d 27 ( 2012)).                         Criminal defendants are generally

guaranteed       the   right   to   counsel.    U. S. CONST.    amend.   VI; WASH. CONST.         art.   I, § 22.   A defendant,

however, does          not   have    an absolute right "` to choose      any   particular advocate.'"       Varga, 151 Wn.2d


at   200 ( quoting State            v.   Stenson, 132 Wn.2d 668, 733, 940 P. 2d 1239 ( 1997), cent. denied, 523


U.S. 1008 ( 1998)).


             In order to justify substitution of counsel, the defendant must show good cause for the

substitution, such as "'            a conflict of interest, an irreconcilable conflict, or a complete breakdown in


communication. "'            Varga, 151 Wn.2d          at   200 ( quoting Stenson, 132 Wn.2d         at   734). A substitution


of counsel may be justified when the attorney -client relationship is plagued by things that suggest

that the attorney cannot                 provide   diligent   representation.     In   re   Pers. Restraint of Stenson, 142
No. 44562 -0 -II



Wn.2d 710, 724 -31, 16 P. 3d 1 ( 2001).              However, a defendant must show more than a general loss


of   trust   or confidence.       State   v.   Schaller, 143 Wn.     App.   258, 268, 177 P. 3d 1139 ( 2007),   review



denied, 164 Wn.2d 1015 ( 2008). The cause of the breakdown in communication matters as well,


and Carpenter must show that the breakdown is not because of his own refusal to cooperate.


Schaller, 143 Wn. App. at 271.

             Where the representation was inadequate, this court will presume prejudice. Schaller, 143


Wn.     App.       at   270.    If his counsel' s representation was adequate, however, Carpenter must


demonstrate          prejudice.   Schaller, 143 Wn.      App.   at   270. To determine whether the breakdown in


communication entitled             Carpenter to    new counsel, we examine        three factors: ( 1) the extent of the



conflict, (2) the adequacy of the trial court' s inquiry into the conflict, and ( 3) the timeliness of the

motion for substitution of counsel. State v. Cross, 156 Wn.2d 580, 607, 132 P. 3d 80, cert. denied,


549 U. S. 1022 ( 2006).


                                                        B. ANALYSIS


             1.         EXTENT OF THE CONFLICT


             We must first consider the extent and nature of the breakdown in communication and what


effect, if any, the breakdown had on the representation that Carpenter received. State v. Thompson,

169 Wn.           App. 436,    457, 290 P. 3d 996 ( 2012),   review     denied, 176 Wn.2d 1023 ( 2013); Schaller,


143 Wn. App. at 270. Carpenter does not argue that his counsel had a conflict of interest and fails

to demonstrate an irreconcilable conflict or a complete breakdown in communication for three


reasons.



             First, the record suggests that the reason for the breakdown in communication was


Carpenter' s own refusal to cooperate and not his counsel' s ill will or failure to engage or to try to


                                                                6
No. 44562 -0 -II



communicate.       The record shows that Carpenter refused to communicate with his counsel about


his case, was only willing to engage with the mental health evaluator about topics that were

 acceptable" to Carpenter and not about the charges pending against him, and that Carpenter did

not cooperate with     the     guards at   the jail.    In fact, because Carpenter refused to cooperate with


corrections officers, seven officers were needed                to   escort   him to   court.    Carpenter, therefore, did


not only struggle to communicate with his own counsel but was generally uncooperative and

struggled    to   communicate with everyone.             Carpenter, however, is not entitled to new counsel


simply because he      refused    to   cooperate.   Thompson, 169 Wn.             App.    at   457 -58 ( "` It is well settled


that a defendant is not entitled to demand a reassignment of counsel on the basis of a breakdown


in   communications where        he simply    refuses    to   cooperate with      his   attorneys. ' (   quoting Schaller,

143 Wn. App. at 271)).

         Second, during the May 11 and May 18, 2012 hearings, Carpenter' s counsel thought that

Carpenter' s failure to communicate might have been due, in part, to a competency problem. This

fact suggests that the nature of his failure to communicate was not a deep- seated, irreconcilable

conflict    with   counsel   but latent    mental      health   problems.        Carpenter' s counsel sought a new


evaluation and different medication to identify and to remedy these problems so that he could

provide     more   effective   representation.      The nature of the conflict between Carpenter and his


counsel is, therefore, at best, the result of Carpenter' s mental health problems and, at worst, due to


Carpenter'   s general   intransigence.       Neither fact suggests that Carpenter and his counsel had a

complete breakdown in communication that prevented diligent, adequate representation.


           Finally, there was no evidence at the time of Carpenter' s motion that this problem

prevented    his   counsel   from providing     adequate representation, and             Carpenter      does   not argue   that
No. 44562 -0 -II



his   counsel' s continued representation prejudiced                    him.   Carpenter' s counsel agreed that he had


 not     been   able   to   converse with       Mr. Carpenter regarding the facts          of   this   case, ...   his ability to

work with his attorney is zero, and I have no ability to unless Mr. Carpenter' s behavior changes."

RP ( May 18, 2012)            at   5 - 6.   But he continued to represent Carpenter diligently. The record from

just the May 11 and May 18 hearings shows that Carpenter' s counsel made multiple attempts to

visit    him to try to       work on        their   case.    Carpenter' s counsel sought an additional mental health


evaluation and different medications to try to address their communication problem.

           Carpenter does not argue that his representation was inadequate, only that there was a

breakdown in communication and the trial court' s inquiry was inadequate to determine the extent

of the breakdown. He fails to address the facts in the record, does not claim that they demonstrate

that any alleged breakdown in communication caused deficient representation, and did not.renew

his motion for new counsel in the more than eight months between his first motion and the start of


trial.


           The nature and extent of the alleged conflict does not weigh in favor of substitution of

counsel because Carpenter failed to demonstrate that there was a breakdown in communication


that affected his representation.


           2.          ADEQUACY OF THE TRIAL COURT' S INQUIRY


           Carpenter argues that the trial court conducted no inquiry at all into the nature and extent

of his conflict with his attorney. We conclude that the record here provided sufficient information

for the trial court to determine the nature and extent of the conflict.


           An adequate inquiry includes a " full airing of the concerns" and a " meaningful inquiry by

the trial   court."         Cross, 156 Wn.2d          at    610. However,   a "[   fJormal inquiry is not always essential


                                                                    8
No. 44562 -0 -II



where    the defendant       otherwise states       his   reasons   for dissatisfaction   on   the   record."   Schaller, 143


Wn. App. at 272.

          Here, the trial court did not extensively inquire into Carpenter' s reasons for wanting new

counsel, but the reasons Carpenter sought new counsel were clear from the record. As Carpenter


stated, he and his counsel did not "have a relationship" and were struggling to communicate about

his   case.    RP ( May 11, 2012)       at   5.    Carpenter' s counsel agreed with Carpenter' s characterization


of their relationship but continued to try to work with Carpenter and with the court so that he could

provide effective representation.                 From the record of the May 11 and May 18 hearings, the trial

court was also aware of Carpenter' s many struggles to cooperate with his mental health evaluators

and corrections officers as well as his own counsel.


          The nature and extent of Carpenter' s conflict with his counsel was evident, and the trial


court did not abuse its discretion when it did not conduct additional, formal inquiry into the

conflict.




          3.          TIMELINESS OF THE MOTION


          Carpenter argues that the trial court did not consider timeliness as a factor when it denied

his motion to substitute counsel and that, regardless, timeliness was not an issue because at the

time of his motion, no trial date had been set.


          An untimely motion to substitute counsel weighs against a defendant' s attempt to establish

that an irreconcilable conflict existed. Stenson, 142 Wn.2d at 732. In this case, Carpenter asked

the   court    for   a new   attorney   on   May     11, 2012,   and    the court denied   his   request on     May   18.   Jury

selection for Carpenter' s trial did not begin until January 24, 2013, more than eight months later.




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No. 44562 -0 -II



Timeliness, therefore, weighs in favor of Carpenter' s argument that the trial court erred when it

denied his motion.


          4.       SUMMARY


          The extent of Carpenter' s conflict with his counsel was substantial but not irreconcilable.

The nature of their conflict was, at best, because of Carpenter' s mental health problems and, at


worst, because Carpenter simply refused to cooperate with everyone, and this conflict did not

prevent    Carpenter'   s counsel   from providing      adequate representation.    The nature and extent of


their conflict was clear from the record and from Carpenter' s own statements.


          The trial court denied Carpenter' s motion on May 18 because it found that the motion was

intended to "   manipulate   getting   what   he   wants,"   presumably to   manipulate    the trial   process.   RP


 May 18, 2012) at 15. The trial court did not find a complete breakdown in communication or an

irreconcilable conflict and, based on the May 11 and May 18 hearings, these determinations were

not an abuse of discretion.


          The trial court did not abuse its discretion when it denied Carpenter' s request for new

counsel    because ( 1) Carpenter'   s reasons     for substituting   counsel were clear   from the    record, ( 2)   a


formal inquiry was not necessary, and ( 3) it was reasonable for the trial court to find that there was

not an irreconcilable conflict or complete breakdown in communication. Accordingly, Carpenter' s

argument fails.




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No. 44562 -0 -II



        We affirm.


        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 in accordance with RCW 2. 06. 040,

it is so ordered.




 We concur:




 MAX




SUTTON, J.




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