                                                                            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JOSE PEDRO LINARES,                           )         UNPUBLISHED OPINION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.

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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
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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.




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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).

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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:




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