                                                                                                  FILED
                                                                                          COURT OF APPEALS
                                                                                                DIVISION II
                                                                                      2015 MAR 31      AM 8: 36
                                                                                         STA'        AS
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                                                                                                              GTON



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                  DIVISION II


 STATE OF WASHINGTON,                                                 No. 45509 -9 -II


                                       Respondent,


          v.

                                                                UNPUBLISHED OPINION
 JAYLIN JEROME IRISH,


                                       Appellant.




         SUTTON, J. —    Jaylin Jerome Irish appeals his convictions following guilty pleas for first

degree assault and first degree rendering criminal assistance. Irish argues that ( 1) the information

failed to include all the essential elements of first degree rendering criminal assistance and ( 2) the

trial court violated his right to counsel when it denied his trial counsel' s motion to withdraw.'

Holding that the information contained all the essential elements of first degree rendering criminal
assistance but that the trial court violated Irish' s right to counsel, we vacate Irish' s sentence,

remand to allow him to move to withdraw his guilty plea, and order the trial court to appoint Irish

new counsel.




1 Irish also argues that he pled guilty involuntarily. Because we vacate Irish' s sentence and order
the trial court to appoint Irish new counsel, giving him the opportunity to move to withdraw the
plea,   we do   not consider   this   argument.
No. 45509 -9 -II



                                                         FACTS


                 I. THE STATE' S CHARGING DOCUMENT AND IRISH' S GUILTY PLEAS

        The State charged Irish with three counts of first degree assault and one count of drive -by

shooting,   all while   acting    as an accomplice.        The State later amended its information to add one


count of first degree rendering criminal assistance. In his statement of defendant on plea of guilty,

Irish explained why he was guilty of these charges:

        On March 24, 2012, in the City of Tacoma, I drove my car, a white Honda Accord
        with license plate 368XKL to the area of South 45th Street bordered by South
        Lawrence Street      and    South Alder Street[.]         I went there because I heard there was
        going to be a fight in that location. When I arrived I saw several people fighting. I
        then saw one person pull out a gun and fire one shot towards some of the people he
        had been fighting with. The shooter got into my car and I drove him north on South
        Alder Street to get him away from the scene so he could avoid apprehension by law
        enforcement. As we reached the intersection of South Alder Street and South 43rd
        Street, the shooter told me to stop and let him out of the car so that he could fire
        another round at      the   people     he had previously      shot at.   I agreed and let him out.
        When I drove off I heard a gunshot.


Clerk' s Papers ( CP) at 22.


        On the day that trial was to begin, the State and Irish reached a plea agreement that reduced

Irish' s charges to one count of first degree assault and one count of first degree rendering criminal

assistance.    Both the amended information and the guilty plea statement included the same

language for first degree rendering             criminal    assistance:   Irish "   did unlawfully and feloniously

render criminal assistance         to [   another],   a person who committed or was being sought for First

Degree Assault,    a    Class A   felony, by    providing    such person with ...     means of avoiding discovery

or apprehension."       CP at 12 -13.


         At the hearing to enter Irish' s guilty plea, Irish' s trial counsel, Zenon Olbertz, told the trial

court   that he and Irish discussed the guilty               plea,   which   had been    reached   after " protracted




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No. 45509 -9 -II



discussions   and negotiations [ with            the State]."   Verbatim Report of Proceedings ( VRP) at 71.


During his colloquy with the trial court, Irish answered in the affirmative that he understood the
elements of     first degree      assault and     first degree rendering       criminal assistance.    The trial court


accepted Irish' s guilty plea and found that Irish made it knowingly, intelligently, and voluntarily.

                   II. SENTENCING: TRIAL COURT FINDS No CONFLICT OF INTEREST

        Olbertz opened Irish' s sentencing hearing by asking the trial court to appoint Irish new

counsel. Olbertz explained that shortly after the entry of Irish' s guilty plea, Irish expressed desire

to   withdraw   it because "[ Irish] had been          pressured      into entering the    plea."   VRP   at   84.   Irish' s


request prompted Olbertz to ask the Department of Assigned Counsel ( DAC) to assign new

counsel for Irish because Olbertz felt he had become a witness to Irish' s allegation of pressure.

Olbertz understood that DAC had appointed a new attorney but he was unaware whether a notice

of substitution    had been filed      by   the time    of   the sentencing     hearing.   Olbertz told the trial court


that he thought he had a conflict of interest because he would be a witness at any potential hearing

or   proceeding   on   Irish' s   motion    to   withdraw    the    plea.   The trial court denied Olbertz' s request


because it did not have anything " firm" to make a conflict finding that would prevent proceeding

with   sentencing. VRP       at   85. The trial court then sentenced Irish. Irish appeals.


                                                        ANALYSIS


              I. INFORMATION CONTAINED ALL ESSENTIAL ELEMENTS. OF FIRST DEGREE
                                        RENDERING CRIMINAL ASSISTANCE


         For the first time on appeal, Irish argues that the State' s information failed to give him

notice of all the essential elements of first degree rendering criminal assistance. We disagree.




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No. 45509 -9 -II



         Under the Sixth Amendment to the United States Constitution and article 1, section 22 of

the Washington State Constitution, the State' s information must contain all the essential elements

of each charged crime and allege facts supporting those elements so that the accused may prepare

a   defense. State         v.   Zillyette, 178 Wn.2d 153, 158 -59, 307 P. 3d 712 ( 2013);                 State v. Lindsey, 177

Wn.    App.    233, 245, 311 P. 3d 61 ( 2013),                review   denied, 180 Wn.2d 1022 ( 2014).                An " essential


element" is an element that is necessary to establish the illegality of the behavior charged by the

State. Zillyette, 178 Wn.2d at 158.

                                                                                                                  2
         We     review challenges           to the sufficiency of a charging          document de         novo.       Lindsey, 177

Wn.    App.     at   244.       But, when reviewing such a challenge for the first time on appeal, we will

liberally   construe        the information       in favor     of   its validity. Zillyette, 178 Wn.2d           at   161.   We will

                                                                                 Kjorsvik3
uphold a       charging document if it           satisfies     the two -prong                 test: "(   1) [   D] o the necessary

elements appear            in any form,     or   by   fair   construction, on    the face   of   the document         and,   if   so, (   2)


can   the defendant         show    he   or she was    actually     prejudiced   by the   unartful   language."       Zillyette, 178

Wn.2d     at    162.       The State' s information contains all the necessary elements and Irish cannot

demonstrate actual prejudice.


                     A. Necessary Elements of First Degree Rendering Criminal Assistance

         Irish argues that the State' s information was insufficient because it alleged that he acted


    unlawfully       and   feloniously," which is insufficient to allege knowledge as required to prove first

degree rendering criminal assistance. CP at 12. We disagree.



2 A guilty plea does not waive the defendant' s right to appeal the sufficiency of the State' s charging
document. State v. Peltier, 181 Wn.2d 290, 294 -95, 332 P. 3d 457 ( 2014).


3 State v. Kjorsvik, 117 Wn.2d 93, 105 -106, 812 P. 2d 86 ( 1991).


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No. 45509 -9 -II



           A person renders criminal assistance if,


           with intent to prevent, hinder, or delay the apprehension or prosecution of another
           person who he or she knows has committed a crime ...      or is being sought by law
           enforcement officials for the commission of a crime ...   he or she [ p] rovides such
           person with ...   means of avoiding discovery or apprehension.

RCW 9A. 76. 050( 3) (      emphasis added).        To commit first degree rendering criminal assistance, the

defendant     must provide     assistance     to   a person       who   has   committed   a class   A   felony.   RCW


9A.76. 070( 1). 4 A person can be convicted of rendering criminal assistance only if he or she had

knowledge of the principal' s crime, but need not know the facts pertaining to the degree of crime.

State v. Anderson, 63 Wn. App. 257, 260, 818 P. 2d 40 ( 1991).

           We determine whether the defendant satisfies the first prong of the Kjorsvik test by reading

the information in a      commonsense manner.             Zillyette, 178 Wn.2d      at   162.   The information need


not use the exact words of the applicable statute as long as it uses words that convey the same

meaning.       Kjorsvik, 117 Wn.2d           at    108.   We have held that the            phrase "'    unlawfully and


feloniously ' is     equivalent   to the term "`    knowingly. "' State v. Snapp, 119 Wn. App. 614, 621, 82

P. 3d 252 ( 2004) ( quoting State     v.   Krajeski, 104 Wn. App. 377, 386, 16 P. 3d 69 ( 2001)).            The State


may thus     use   the phrase "` unlawfully   and    feloniously ' to allege knowledge as a necessary element

of   the   charged crime.    Krajeski, 104 Wn. App. at 386 ( quoting State v. Nieblas -Duarte, 55 Wn.

App. 376, 380, 777 P.2d 583 ( 1989)).




4 RCW 9A.76. 070( 1) provides:
           A person is guilty of rendering criminal assistance in the first degree if he or she
           renders criminal assistance to a person who has committed or is being sought for
           murder in the first degree or any class A felony or equivalent juvenile offense.

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No. 45509 -9 -II



           The State' s amended information charged Irish with first degree rendering criminal

assistance, alleging


            t] hat [ Irish] ...   did unlawfully and feloniously render criminal assistance to [ Irish' s
           co-            a person who committed or was being sought for First Degree
                 defendant],
           Assault, a Class A felony, by providing such person with ... means of avoiding
           discovery or apprehension, contrary to RCW 9A.76.050( 3) and 9A.76. 070( 2)( a).

CP   at   12 - 13.   The information describes the actions Irish took to render criminal assistance and


that his co- defendant was being sought for first degree assault, a class A felony. The information

alleges    that Irish   did   so "   unlawfully   and   feloniously."   CP   at   12.   The State' s allegation that Irish


acted "    unlawfully      and    feloniously" is equivalent to alleging that Irish acted with knowledge.

Krajeski, 104 Wn. App. at 386. Viewed in context and construed liberally, the State' s information

sufficiently alleged the knowledge element of rendering criminal assistance.

                                                    B. Actual Prejudice


           Even if all necessary elements of the charged crime appear in the information, it may still

be constitutionally insufficient under the second prong of the Kjorsvik test if the defendant was

actually    prejudiced      by the " unartful     language." Zillyette, 178 Wn.2d           at   162. Irish argues that we


must presume prejudice when the information does not contain all the necessary elements of the

charged crime. Irish cannot prove that he was prejudiced.


           Irish' s statements demonstrate that he understood the elements of first degree rendering

criminal assistance.          Irish answered in the affirmative when the trial court asked him whether he


understood the charges against him. In his guilty plea statement, Irish e. xplained why he was guilty:

           I then saw one person pull out a gun and fire one shot towards some of the people
           he had been        fighting The shooter got into my car and I drove him north on
                                         with.


           South Alder Street to get him away from the scene so he could avoid apprehension
           by law enforcement.



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No. 45509 -9 -II




CP    at   22 ( emphasis    added).   Irish understood that his co- defendant had fired shots toward people


and   then drove his        co- defendant     away from the           scene   to   avoid apprehension.   Irish cannot be


prejudiced by the language in the information when his own words show that he understood what

the   shooter   had done      and what      his   own role   had been. Further, Irish told the trial court that he


understood      the   elements of     the   crimes   to   which   he   pled    guilty.   Irish cannot demonstrate actual


prejudice.




           II. OLBERTZ COULD NOT REPRESENT IRISH WHEN HE HAD A CONFLICT OF INTEREST

            Irish argues that the trial court violated his right to counsel when it denied Olbertz' s motion

to withdraw due to a conflict of interest between himself and Olbertz because Irish alleged that

Olbertz pressured him to plead guilty. We agree.

            The Sixth Amendment guarantees the right to effective assistance of counsel. U.S. CONST.

amend.      VI; In   re   Pers. Restraint of Gomez; 180 Wn.2d 337, 348, 325 P. 3d 142 ( 2014). This right


includes the right to conflict -free counsel at all critical stages of prosecution. State v. Robinson,

153 Wn.2d 689, 694, 107 P. 3d 90 ( 2005). 5 We review de novo whether a conflict of interest

precludes continued representation. State v. Pierce, 169 Wn. App. 533, 559, 280 P. 3d 1158 ( 2012);

Gomez, 180 Wn.2d at 347.




5 A conflict of interest exists where a defendant' s interests are adverse to his or her attorney' s
interests. Statev. Fualaau, 155 Wn. App. 347, 362, 228 P. 3d 771 ( 2010), cert. denied, 131 S. Ct.

 1786 ( 2011).



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No. 45509 -9 -II



          The trial court has a duty to investigate potential conflicts of interest when it knows or

reasonably should know that a potential conflict of interest exists between counsel and his or her
client.   State    v.   Regan, 143 Wn.   App.     419, 425 -26, 177 P. 3d 783 ( 2008). When a defendant or an


attorney alerts the trial court to a conflict of interest, the trial court must appoint substitute counsel

or take " adequate steps" to determine whether the risk of a conflict of interest is too remote to

require substitute counsel. Holloway v. Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 55 L. Ed. 2d

426 ( 1978).       On appeal, a defendant must demonstrate that an actual conflict of interest adversely

affected trial counsel' s performance. State v. Dhaliwal, 150 Wn.2d 559, 570, 79 P. 3d 432 ( 2003).

          The trial court violated Irish' s right to counsel. Olbertz alerted the trial court that he had a

conflict of interest with Irish because he had been a witness to Irish' s allegation that counsel


pressured him to plead guilty. This was an actual conflict of interest and not theoretical; after Irish

told Olbertz that he wanted to withdraw his guilty plea because of that pressure, Olbertz could not

have filed a motion to withdraw the guilty plea because of the conflict of interest. Regan, 143 Wn.

App.   at   428.    This caused a lapse in representation and affected Olbertz' s ability to advocate on

Irish' s behalf. Regan, 143 Wn. App. at 428. Further, the trial court could not have gathered more

information to make a conflict finding because Olbertz' s conflict prevented him from giving the

trial court a more complete explanation. By denying Olbertz' s motion to withdraw, the trial court

required Olbertz to continue to represent Irish at the sentencing hearing despite a demonstrated

conflict of interest.


            We hold that the State' s information sufficiently alleged the essential elements of first

degree rendering criminal assistance, but that the trial court violated Irish' s right to counsel by

denying      his trial   counsel' s motion   to   withdraw.   Therefore,   we vacate   Irish'   s sentence, remand   to
No. 45509 -9 -II



allow Irish to move to withdraw his guilty plea, and order the trial court to appoint new counsel

for Irish. •


        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:




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