                                                                                         FILED
                                                                                            APPEALS
                                                                             COURT
                                                                                     i        I.


                                                                            g ib FEB - 3
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                                                                                                   NGTON
                                                                                              WASHINGTON
                                                                             STATE       OF

                                                                              BY
                                                                                          D P




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

 STATE OF WASHINGTON,                                                         No. 44569 -7 -II


                                     Respondent,


            v.



 RICHARD ANTHONY CARPENTER,                                           UNPUBLISHED OPINION




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

degree robbery, theft       of a motor vehicle, and second       degree   possession of stolen     property.   He


argues that the trial court violated his ( 1) public trial rights when it permitted the parties to exercise

their peremptory challenges in       writing, (2)   right to counsel when it denied his motion to substitute


counsel without an adequate inquiry, and ( 3) constitutional rights when it improperly influenced

him   not   to   testify. 1 Carpenter also filed a statement of additional grounds ( SAG) in which, for the

first time, he generally appeals for an early release.




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


         We hold that the trial       court    did   not (   1)   violate Carpenter' s public trial right regarding

                                                                        do         implicate the                       right, ( 2)
peremptory juror     challenges      because those     challenges            not                      public   trial



violate Carpenter' s Sixth Amendment right to 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,       and (   3)   improperly     influence his decision        not    to   testify.    We also decline to


address Carpenter' s SAG because it fails to identify any erroneous decisions or proceedings below.

Accordingly, we affirm Carpenter' s convictions.

                                                         FACTS


         In December 2011, Carpenter jumped into Jane Preszler' s car and drove away with her

purse inside, striking Preszler with the driver' s side door as he left. Later that day, the police found

Preszler' s car and arrested Carpenter.


         The State   charged      Carpenter    with   first degree robbery, 2        theft of a motor vehicle,3 second

degree   possession of stolen      property, 4   and first degree driving while license suspended or revoked

 DWLS). 5

         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



2 RCW 9A.56.200.

3 RCW 9A. 56. 065.

4 RCW 9A.56. 160.

5 RCW 46. 20. 342( 1)( a).


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No. 44569 -7 -II



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


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 jail 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



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No. 44569 -7 -II



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

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 seven and a half

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.6 Based
on that written form, the trial court announced which jurors had been selected and excused the

others.




            Before the State called its final witness, Carpenter told the trial court that he planned to


testify.      The court gave Carpenter' s counsel time to discuss with Carpenter the possible


consequences of his decision to testify, and despite his counsel' s recommendation against it,

Carpenter reiterated his intention to testify.

            After the State rested its case, the trial court again advised Carpenter of the possible


consequences        of   his decision to testify.       In addition, the court took a short recess to permit




6
    This   process appears    in the   record as "(   Pause.)"    RP ( Jury Voir Dire) ( Jan. 8 - 9, 2013) at 126.

                                                             4
No. 44569 -7 -II



Carpenter to discuss his decision about whether to testify with counsel and his stepfather, and after

the recess, the trial court asked Carpenter,


                   THE COURT: You are waiving your right to testify?
                   THE DEFENDANT: I can' t.
                   THE COURT: Sir,      yes or no?    Are you waiving --
                   THE DEFENDANT: I can' t.
                   THE COURT:        Counsel, he' s not specifically waiving it in answer to the
         Court' s question.


RP ( Jan. 16, 2013) at 338. The colloquy continues this way for some time before ending thus:

                   THE COURT: Okay. At this point --
                   MR. JOHNSON: But why don' t you just say yes or no?
                   THE DEFENDANT: No.
                   THE COURT: No, you don' t want to testify?
                   THE DEFENDANT: That' s my answer.
                   THE COURT: All right. I think that constitutes a waiver.


RP ( Jan. 16, 2013) at 341.


         The State dismissed the DWLS charge and the jury convicted Carpenter on the three other

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.
No. 44569 -7 -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), cert. 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


                                                                  6
No. 44569 -7 -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


                                                                7
No. 44569 -7 -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


                                                                8
No. 44569 -7 -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 seven and a half 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 "[   f]ormal inquiry is not always essential


                                                                   9
No. 44569 -7 -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.

Carpenter' s first trial did not begin until January 9, 2013, more than seven and a half months later.




                                                            10
No. 44569 -7 -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.


                              III. VOLUNTARY WAIVER OF THE RIGHT TO TESTIFY


          Carpenter argues that the trial court violated his constitutional rights when it improperly

influenced his decision not to testify. We conclude that the trial court merely informed Carpenter




                                                       11
No. 44569 -7 -II



of the possible consequences of testifying to determine whether his decision was knowing,

intelligent, and voluntary and, therefore, did not improperly influence his decision not to testify.

                                   A. STANDARD OF REVIEW AND RULES OF LAW

        We   review        the validity     of a   defendant' s    waiver of a constitutional right     de    novo.    State v.


Stone, 165 Wn.       App.     796, 815, 268 P. 3d 226 ( 2012) (                citing State v. Robinson, 171 Wn.2d 292,

301, 253 P. 3d 84 ( 2011)).             A defendant' s constitutional right to testify is a " fundamental" right

that, like any other fundamental right, may be waived if the waiver is knowing, intelligent, and

voluntary. State      v.   Thomas, 128 Wn.2d 553, 558, 910 P. 2d 475 ( 1996). The trial court' s decision


to discuss   a    defendant' s      right   to   testify " might have the undesirable effect of influencing the

defendant' s decision        not   to   testify." Thomas, 128 Wn.2d at 560 ( citing In re Pers. Restraint of

Lord, 123 Wn.2d 296, 317, 868 P. 2d 835,                 cert.    denied, 513 U.S. 849 ( 1994)).       This is, essentially,

Carpenter'   s claim       here —that     by informing Carpenter of the possible consequences of a decision

to testify, the trial court improperly influenced him to decide not to testify.

        Our Supreme Court has               cited   United States       v.   Goodwin, 770 F. 2d 631 ( 7th Cir. 1985),     cert.




denied, 474 U. S. 1084 ( 1986), as support for the proposition that a trial court' s discussion with a


defendant regarding his decision about whether to testify could result in improper influence.

Thomas, 128 Wn.2d             at   560; Lord, 123 Wn.2d            at   317.    In Goodwin, the Seventh Circuit United


States Court of Appeals held that the trial judge " went too far" when he " expressed surprise at [ the

defendant'   s]   decision [ not to testify],        explained some of the pros and cons of her taking the stand,

and   strongly implied that her only               chance   for   acquittal was     to   testify." 770 F.2d   at   637. In that


case, the trial court stated that the defendant' s


          chances of ...  creating a reasonable doubt in the minds of the jury, considering
         the evidence that they have heard in this case, seems to me to rest almost entirely

                                                                   12
No. 44569 -7 -II



          upon your ability to persuade them that yours is in fact the truthful version of these
          occurrences. It is difficult to do that while standing mute."

Goodwin, 770 F. 2d           at   636.     Although the trial court outlined the possible advantages of not


testifying, the Seventh Circuit held that a trial judge' s limited role is to make sure " the defendant

understands his or her rights and [ to ensure] that the defendant' s final decision is made voluntarily,

with no coercion or undue           influence."       Goodwin, 770 F. 2d at 637.


                                                        B. ANALYSIS


          Here, unlike in Goodwin, the trial court' s lengthy engagement with Carpenter informed

him of the consequences of testifying so that Carpenter' s decision to not testify was knowing,

intelligent,    and    voluntary. The       court explained        the   possible consequences of   testifying —namely

that he   could      be   questioned about     past   convictions and other        pending   charges against   him —and


gave Carpenter additional time to discuss this decision with his counsel and his stepfather. Even


after Carpenter had further opportunity to discuss his decision, he refused to give the court a clear

answer. The court asked Carpenter repeatedly whether he planned to testify or if he was waiving

that   right;   he   responded again and again          that " I   can'   t." RP ( Jan. 16, 2013) at 337.   Aware of the


importance of this right, the trial court refused to accept " I can' t" as a waiver of Carpenter' s right


to testify until he gave an unequivocal answer.

          In contrast with Goodwin, the trial court here did not express any opinion of surprise about

Carpenter' s initial decision to testify and did not suggest or imply that either course of action would

improve his          chances of acquittal.       If anything, the court was careful during its final, lengthy

exchange with Carpenter about his decision not to testify to make sure that his waiver was clear

and     voluntary.         The    court,   therefore,    appropriately advised Carpenter about the potential



                                                                   13
No. 44569 -7 -II



consequences if he decided to testify but left the final decision to him and the advice about trial

strategy to his attorney. Goodwin, 770 F.2d at 637.

         Carpenter points to Thomas and Lord to support his position that the trial court' s discussion

of his decision was improper. However, Carpenter' s reliance on these cases is misguided because


they   present   the   opposite problem          from this     appeal.       In Thomas and Lord, the issue was whether


the trial court, when it failed to make any inquiry at all, had improperly failed to determine whether

the defendant' s waiver of his constitutional right to testify was valid. Thomas, 128 Wn.2d at 556-

60; Lord, 123 Wn.2d          at   316 -17. In contrast, Carpenter' s argument here is that the trial court was


too vigorous in determining whether his decision to testify was knowing, intelligent, and voluntary.

         We hold that the trial court merely informed Carpenter of the possible consequences of

testifying to determine whether his decision was knowing, intelligent, and voluntary and, therefore,

did not improperly influence his decision not to testify.

                                    IV. STATEMENT OF ADDITIONAL GROUNDS


         Finally,      Carpenter    requests " an          early   release   date."    SAG   at   1.    Although the Rules of


Appellate Procedure do not require citations to the record or to legal authorities, we will not review


a defendant' s SAG " if it does not inform the court of the nature and occurrence of alleged errors."


RAP 10. 10( c).        We also generally decline to review issues that are raised for the first time on

appeal unless     it is   a " manifest error        affecting      a constitutional right."       RAP 2. 5(   a)(   3).   An error is


 manifest"       where     there     is    actual     prejudice       demonstrated       by "'    practical    and        identifiable


consequences       in the trial     of    the   case. "'    State v. Kirkman, 159 Wn.2d 918, 935, 155 P. 3d 125.


 2007) ( internal      quotation marks omitted) ( quoting                State   v.   WWJCorp.,        138 Wn.2d 595, 603, 980


P. 2d 1257 ( 1999)).



                                                                    14
No. 44569 -7 -II



         Here Carpenter'    s   SAG   states, "   I would like to make an appeal for an early release date.

An   earlier release   date than   whats [ sic] on record."    SAG   at   1.   This brief statement does not give


us   any basis to      determine    what,   if any, decisions or proceedings below were erroneous.


Accordingly, we decline to address Carpenter' s SAG.

         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:




 MAXA




SUTTON, J.




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