                                                                  201^1 OCT 27   AH 9^0



   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                       DIVISION ONE

STATE OF WASHINGTON,                              No. 69453-7-1
                                                  consolidated with
                     Respondent,                  No. 69854-1-1


              v.



VINAY KESHAVAN BHARADWAJ,                         UNPUBLISHED OPINION

                     Appellant.                   FILED: October 27, 2014



       Verellen, A.C.J. — To establish ineffective assistance of counsel during plea

negotiations, a defendant must demonstrate that the State has made an offer of the

material terms required for a plea agreement. "If no plea offer is made ... the

[ineffective assistance] issue .. . simply does not arise."1

       Vinay Bharadwaj appeals from his convictions for three counts of child

molestation in the second degree and one count of communication with a minor for

immoral purposes. He argues that his attorney was ineffective during plea

negotiations. Because the State did not make a sufficiently well-defined plea offer,

Bharadwaj does not demonstrate that he suffered prejudice from his attorney's

alleged deficient performance.

       Bharadwaj also argues that the trial court erred in denying his request for

substitute counsel to represent him on his motion for a new trial when his attorney


       1 Laflerv. Cooper, _ U.S. _, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398
(2012).
No. 69453-7-1/2


had a conflict of interest. Because the risk of a conflict of interest arising from

Bharadwaj's intention to assert an ineffective assistance of counsel claim was too

ambiguous to warrant substitute counsel for purposes of the new trial motion, the trial

court did not err in declining to allow substitute counsel.

       Accordingly, we affirm.

                                         FACTS


       Bharadwaj, a native of India, has been a lawful permanent resident of the

United States since 2008. In 2012, he was charged with three counts of child

molestation in the second degree and one count of communication with a minor for

immoral purposes (CMIP). Bharadwaj sought a plea agreement to avoid

deportation.2 Defense counsel and the deputy prosecutor assigned to the case

attempted to negotiate a plea bargain.

       The parties initially discussed a preliminary proposal for Bharadwaj to plead

guilty to one count of CMIP, but the defense rejected that initial overture. The

prosecutor later suggested that if Bharadwaj pleaded guilty to assault in the third

degree with sexual motivation, he might avoid deportation.3 Then, in July 2012, the


       2 The Immigration and Nationality Act allows the government to deport various
classes of noncitizens, such as those who are convicted of certain crimes while in the
United States. See 8 U.S.C. § 1227(a)(2). When a noncitizen has been convicted of
one of a narrower set of crimes classified as "aggravated felonies," 8 U.S.C.
§ 1101(a)(43), then he is not only deportable, 8 U.S.C. § 1227(a)(2)(A)(iii), but also
ineligible for certain forms of discretionary relief from removal, such as asylum or
cancellation of removal. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), § 1229b(a)(3),
(b)(1)(C).
        3 In one e-mail, the prosecutor told defense counsel that "if you can think of
something that would require registration but would not result in deportation, we
would be willing to consider it." Clerk's Papers at 1232. In a follow-up e-mail sent
later the same day, the prosecutor stated, "Word on the street is Asst 3 SM is not
deportable." Id.
No. 69453-7-1/3


prosecutor e-mailed defense counsel stating, "Last chance for CMIP or Asst 3 with

SMI."4 He followed up two days later stating, "[l]f we are going to do a plea, we will

need to do it Friday. None of us needs to be spending any time this weekend on

unnecessary last minute trial prep."5 Bharadwaj sought advice from an immigration

attorney regarding the deportation consequences of pleading guilty, but defense

counsel failed to provide Bharadwaj information necessary for the immigration

attorney to provide an opinion. Ultimately, the parties did not reach an agreement,

and the case proceeded to a bench trial. The trial court found Bharadwaj guilty on all

charges and subsequently sentenced him to a total term of 57 months of

imprisonment and 36 months of community custody.

       Prior to sentencing, Bharadwaj's attorney filed a motion for a new trial under

Criminal Rule (CrR) 7.5. Then, at the hearing on the motion, defense counsel stated

his intent to withdraw due to a perceived conflict of interest. Counsel informed the

court that he believed that an actual conflict existed because Bharadwaj intended to

argue that counsel was ineffective during plea negotiations. Bharadwaj addressed

the court directly, indicated his belief that counsel was ineffective, and requested

additional time to allow substitute counsel to supplement the motion for a new trial.

The trial court denied the request to withdraw and allow substitute counsel. The trial

court also denied the motion for a new trial after it was presented without oral

argument. After sentencing, defense counsel was allowed to withdraw. Bharadwaj's

new attorney filed a motion for reconsideration, which the trial court denied.



       4 Clerk's Papers at 1238.
       5 Clerk's Papers at 1237.
No. 69453-7-1/4


       Bharadwaj then filed a motion for relief from judgment pursuant to

CrR 7.8(b)(5) alleging ineffective assistance of counsel during plea negotiations.

Bharadwaj argued that in order to avoid deportation he would have pleaded guilty to

assault in the third degree with sexual motivation with competent advice from

counsel. Following a hearing, the trial court denied the motion for relief from

judgment.

       Bharadwaj appeals.6

                                      DECISION

       Bharadwaj contends that the trial court erred in denying his motion for relief

from judgment based on the ineffective assistance of counsel during plea

negotiations. We disagree.

       Although we review a trial court's denial of a CrR 7.8 motion for an abuse of

discretion,7 we review de novo a claim of ineffective assistance of counsel raised

under CrR 7.8(b)(5) because the claim presents mixed questions of law and fact.8 A

defendant possesses the right to the effective assistance of counsel in criminal

proceedings, including during plea negotiations.9 To prevail on an ineffective

assistance of counsel claim, the defendant must show both that defense counsel's

representation was deficient and that the deficient performance prejudiced the


      6 Bharadwaj appeals both from the judgment and sentence, filed as No.
69453-7-1, and from the order denying his motion for relief from judgment, filed as No.
69854-1-1. These appeals were consolidated under No. 69453-7-1.
       7 State v. Hardestv, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996).
       8 State v. A.N.J.. 168Wn.2d91, 109, 225 P.3d 956 (2010).
       9 Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); see Hillv. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985).
No. 69453-7-1/5


defendant.10 To establish prejudice in the plea bargaining context, "a defendant must

show the outcome of the plea process would have been different with competent

advice."11 More specifically, "[t]o show prejudice from ineffective assistance of

counsel where a plea offer has lapsed or been rejected because of counsel's

deficient performance, defendants must demonstrate a reasonable probability they

would have accepted the earlier plea offer had they been afforded effective

assistance of counsel."12 The defendant must also demonstrate a reasonable

probability that the State would not have withdrawn the offer and that the trial court

would have accepted the agreement.13

       Bharadwaj cannot establish such prejudice because the State did not make an

offer that he could accept.14 We understand that "the plea-bargaining process is

often in flux, with no clear standards or timelines"15 and that "[bargaining is, by its

nature, defined to a substantial degree by personal style."16 But plea agreements are

interpreted as contracts,17 so we apply basic rules of contract law to determine




       10 Strickland, 466 U.S. at 687.
       11 Lafler, 132 S. Ct. at 1384; see Strickland. 466 U.S. at 694.
       12 Missouri v. Frve, _ U.S.       132 S. Ct. 1399, 1409, 182 L Ed. 2d 379
(2012).
       13 Id. at 1410; see Lafler, 132 S. Ct. at 1384-85.
       14 We need not decide whether counsel performed deficiently. If a defendant
fails to establish either prong, we need not inquire further. State v. Hendrickson, 129
Wn.2d 61, 78, 917 P.2d 563 (1996).
       15 Frve. 132 S. Ct. at 1407.
       16 jd, at 1408.
       17 State v. Sledge. 133 Wn.2d 828, 838-39, 947 P.2d 1199 (1997); State v.
Wakefield, 130 Wn.2d 464, 480, 925 P.2d 183 (1996).
No. 69453-7-1/6


whether a plea offer was made during the parties' negotiations.18 Under general

contract principles, "[a]n offer is the manifestation of willingness to enter into a

bargain, so made as to justify another person in understanding that his assent to that

bargain is invited and will conclude it."19 Additionally, an agreement must have

sufficiently definite terms to be enforceable.20

       Bharadwaj conceded both before the trial court and before us on appeal that

the State did not make a formal offer to allow Bharadwaj to plead guilty to assault in

the third degree with sexual motivation.21 Bharadwaj argues that he need

demonstrate only that there is a reasonable probability that a formal offer would have

been made. But the United States Supreme Court in Lafler v. Cooper made clear

that the probability of an offer is not sufficient: "If no plea offer is made ... the

[ineffective assistance] issue raised here simply does not arise."22 Instead,


       18 State v. Wheeler, 95 Wn.2d 799, 803, 631 P.2d 376 (1981).
       19 Restatement (Second) of Contracts § 24 (1981); see Havens v. C & D
Plastics. Inc., 124 Wn.2d 158, 172, 876 P.2d 435 (1994) ("A promise is 'a
manifestation of intention to act or refrain from acting in a specified way, so made as
to justify a promisee in understanding that a commitment has been made.'" (quoting
Restatement (Second) of Contracts § 2(1) (1981))); Pac. Cascade Corp. v.
Nimmer. 25 Wn. App. 552, 556, 608 P.2d 266 (1980) ("An offer consists of a promise
to render a stated performance in exchange for a return promise being given.").
       20 Keystone Land & Dev. Co. v. Xerox Corp.. 152Wn.2d 171, 178, 94 P.3d
945 (2004); see also Restatement (Second) of Contracts § 33 (1981) ("The fact
that one or more terms of a proposed bargain are left open or uncertain may show
that a manifestation of intention is not intended to be understood as an offer or as an
acceptance.").
      21 "[T]he fact of a formal offer means that its terms and its processing can be
documented so that what took place in the negotiation process becomes more clear if
some later inquiry turns on the conduct of earlier pretrial negotiations." Frve. 132 S.
Ct. at 1409.

       22 Lafler. 132 S. Ct. at 1387. If a plea bargain has been offered, a defendant
has the right to effective assistance of counsel in considering whether to accept it."
Jd, (emphasis added).
No. 69453-7-1/7


Bharadwaj must demonstrate a reasonable probability "that [he] would have

accepted the plea and the prosecution would not have withdrawn it in light of

intervening circumstances."23 This is a generous standard,24 but without an actual

offer that Bharadwaj could have accepted, his ineffective assistance claim cannot

succeed.25

      Here, based on the evidence in the record, the State did not offer a plea

agreement to assault in the third degree with sexual motivation. Bharadwaj

submitted e-mail messages that represent the negotiations between his defense

attorneys and the prosecutor.26 Over the course of several messages, the

prosecutor suggested that if Bharadwaj pleaded guilty to assault in the third degree

with sexual motivation, he might avoid deportation, specified the State's requirement

that Bharadwaj register as sex offender,27 and identified a deadline by which

Bharadwaj must indicate his desire to plead guilty. These e-mail messages do not

address all material terms necessary for a plea agreement, including the prosecutor's

sentence recommendation.28 Thus, the State's e-mail did not contain sufficiently



       2314311385.
       24 The standard of proof to demonstrate a reasonable probability "is
'somewhat lower' than the common 'preponderance of the evidence' standard."
State v. Sandoval, 171 Wn.2d 163, 175, 249 P.3d 1015 (2011) (quoting Strickland,
466 U.S. at 694).
       25 See Lafler, 132 S. Ct. at 1387.
       26 Bharadwaj does not allege that additional negotiations were conducted
outside of the parties' e-mail exchanges.
      27 In one e-mail, the prosecutor stated, "What matters to us is that he be held
accountable for the general nature of his actions and that he register." Clerk's
Papers at 1232.
       28 Cf. Merzbacher v. Shearin, 706 F.3d 356, 369 (4th Cir.), cert, denied, 134 S.
Ct. 71 (2013) (holding that the offer was not sufficiently well-defined because "several
No. 69453-7-1/8


well-defined terms that Bharadwaj had only to accept.29 The e-mail messages clearly
contemplated future negotiations, as the prosecutor expressly indicated that any

proposed plea was conditional on acceptance by "the powers that be," namely, the

prosecutor's supervisor.30 Thus, the State's tentative proposal was merely part of the
parties' preliminary plea discussion.

       For these reasons, Bharadwaj has not demonstrated that the State made an

offer that he could or would have accepted absent counsel's deficient performance.

Thus, Bharadwaj's ineffective assistance of counsel claim fails. The trial court

properly denied his motion for relief from judgment.

       Bharadwaj next contends that the trial court erroneously denied his motion for

a new trial without allowing substitute counsel because defense counsel was

burdened by a conflict of interest after Bharadwaj alleged that he was ineffective.31

We disagree.




of the offer's terms lacked definition" and "the undefined terms were of the sort that
require substantial negotiation and compromise."). "The more important the
uncertainty, the stronger the indication is that the parties do not intend to be bound;
minor items are more likely to be left to the option of one of the parties or to what is
customary or reasonable." Restatement (Second) of Contracts § 33, cmt. (f).
       29 An offer is made when another person's "assent to that bargain is invited
and will conclude it." Restatement (Second) of Contracts § 24 (emphasis added).
       30 Specifically, in response to defense counsel's inquiry about the proposed
assault plea, the prosecutor wrote, "I would have to run it by the powers that be."
Clerk's Papers at 1240.
       31 Specifically, Bharadwaj asserts that the trial court erred by denying his
"request for appointment of conflict-free counsel to represent him on the motion for
new trial." Appellant's Br. at 19. Although it appears from our limited appellate
record that Bharadwaj likely was represented by retained, rather than appointed,
counsel, he did not argue below and he does not argue on appeal that his
constitutional right to counsel of choice was violated. See United States v. Gonzalez-
Lopez, 548 U.S. 140, 144-48, 152, 126 S. Ct. 2557, 165 L. Ed. 2d. 409 (2006); State


                                            8
No. 69453-7-1/9


       A defendant's allegation of ineffective assistance does not create an inherent

conflict of interest automatically requiring the court to allow defense counsel's

withdrawal and to appoint substitute counsel.32 "[I]f a defendant could force the

appointment of substitute counsel simply by expressing a desire to raise a claim of

ineffective assistance of counsel, then the defendant could do so whenever he

wished, for whatever reason."33 Instead, when a defense attorney notifies the trial

court that he has a potential conflict of interest, the court must allow substitute

counsel or take adequate steps to ascertain whether the risk of a conflict of interest is

too remote to warrant substitute counsel.34 The court should consider (1) the

reasons given for the dissatisfaction; (2) the court's own evaluation of counsel; and

(3) the effect of any substitution upon the scheduled proceedings.35

       Here, defense counsel notified the trial court that he had a potential conflict of

interest. But the only specific reason given for the alleged conflict was the possibility

that Bharadwaj would file a motion alleging counsel's ineffectiveness during plea

negotiations.36 Notably, no written motion had been filed setting forth such an




v. Hampton,      Wn. App.     , 332 P.3d 1020, 1027 (2014). Accordingly, we review
the claim that has been presented to us. See RAP 10.3(a)(4).
       32 State v. Rosborough, 62 Wn. App. 341, 346, 814 P.2d 679 (1991).
       33 State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987).
       34 See Hollowav v. Arkansas, 435 U.S. 475, 485-87, 98 S. Ct. 1173, 55 L. Ed.
2d 426 (1978); see also Rosborough, 62 Wn. App. at 347-48.
      35 State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997); Stark, 48 Wn.
App. at 253.
       36 The alleged ineffective assistance claim stated by defense counsel when
arguing below that substitute counsel should be appointed was different than the
claim later raised by substitute counsel in the motion for relief from judgment and on
appeal. But Bharadwaj, who directly addressed the trial court regarding his belief
No. 69453-7-1/10


ineffective assistance claim. And, even when given an opportunity to directly address

the court, Bharadwaj failed to provide any detail regarding counsel's alleged

ineffectiveness. Bharadwaj's proposed substitute counsel was available but could

not effectively argue the post-trial motion without additional time to prepare, which

would have caused further delay in the proceedings. Moreover, defense counsel's

statements to the court suggested that the alleged conflict of interest did not arise

until after the written motion for a new trial had been filed. And the trial court

determined that disposition of the motion without argument was appropriate.

       We have previously held that a trial court abused its discretion by not

appointing substitute counsel when defense counsel refused to assist the defendant

at a plea withdrawal hearing and even testified as a witness for the State regarding

the alleged ineffective assistance of counsel.37 Concluding that the conflict of interest

clearly affected the disposition of the defendant's motion, we held that the defendant

was denied his right to counsel and remanded for a new hearing with substitute

counsel.38 However, we noted that the conflict of interest was "evidenced by

[counsel's] direct testimony against [the defendant's interest at the hearing."39

       In Bharadwaj's case, the trial court was not presented with any such evidence

of a conflict of interest. Defense counsel did not testify against Bharadwaj or

otherwise take a position antagonistic to his client's interests. While Bharadwaj's

attorney did not orally argue the motion for a new trial, this did not result in an outright

that counsel was ineffective, did not attempt to clarify the claimed conflict or the basis
for the ineffective assistance claim.

       37 State v. Harell, 80 Wn. App. 802, 803, 911 P.2d 1034 (1996).
       38 \± at 804.
       39 Id. at 805.



                                            10
No. 69453-7-1/11


denial of counsel because the trial court determined that oral argument was

unnecessary. When a post-trial motion is filed, the decision to hold "oral argument is

a matter of discretion, so long as the movant is given the opportunity to argue in

writing his or her version of the facts and law."40 The trial court did not abuse its

discretion by denying the request for the substitution of counsel, nor did it abuse its

discretion by denying Bharadwaj's motion for a new trial without hearing oral

argument.

       We affirm.




WE CONCUR:




     C—4 f                                                6ft, T.




       40 State v. Bandura, 85 Wn. App. 87, 93, 931 P.2d 174 (1997).


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