                                                                                                 FILED
                                                                                          COURT OF APPEALS
                                                                                               DIMS /ON
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                         2015JAN 13 AM16: 15
                                                     DIVISION II
                                                                                      STATE OF WASHINGTON
STATE OF WASHINGTON,                                                                 1*      45107 -7-
                                                                                                 DE      T
                                          Respondent,
                                                                                    consolidated with

          v.



BRYANT D. MORGAN,


                                          Appellant,
                                                                                     No. 45127 -1 - II
 STATE OF WASHINGTON,


                                          Respondent,


          v.



ANDRE T. PARKER,                                                              UNPUBLISHED OPINION


                                          Appellant.


         MELNICK, J. —         Bryant Morgan and Andre Parker appeal from the sentences imposed


following      their resentencing     on convictions       for   attempted murder         in the first degree.   Morgan


argues that the trial court 'should not have conditioned the term of community custody on-earned

early   release   credit.    Parker   argues    he   was   denied   counsel    of   his   choice.     Because they raise

unrelated issues, we discuss each separately. We affirm, but remand Morgan' s sentence to correct

the community custody notation.

                                                        MORGAN


         In its July 2, 2013 judgment and sentence after remand, the trial court imposed a standard

range sentence of      350    months confinement,          including   a   60 -month firearm     enhancement.     It also


imposed the       following   term   of   community custody:
45107 -7 -II / 45127 -1 - II



              A)     The defendant shall be on community custody for the longer of:
                            1) the   period of    early     release.    RCW 9. 94A.728( 1)( 2),             or


                            2) the period imposed by the court, as follows:
                                      Count( s) I 36 months for Serious Violent Offenses


Morgan Clerk' s Papers ( Morgan CP) at 112.


             Morgan argues that the trial court erred in linking the duration of his community custody

to his       period      of   early    release.    Until      a   2009      amendment,'             former RCW 9. 94A.715( 1) (        2006)


permitted the trial court to impose a term of community custody of "the community custody range

established under RCW 9. 94A. 850 or up to the period of earned release awarded pursuant to RCW

9. 94A. 728( 1)          and ( 2), whichever       is longer." State v. Franklin, 172 Wn.2d 831, 835, 263 P. 3d 585


    2011).    But as a result of that amendment, and because the trial court imposed a standard range

sentence          in this   case,    it is   required   to impose       a   fixed term         of   community custody. Franklin, 172


Wn.2d        at   836. The State concedes that the judgment and sentence should be remanded to delete


the    phrase "      the    period of earned       early     release"       and   the     citation    to " RCW      9. 94A. 728( 1)( 2)" from


Morgan'       s    term     of   community custody.               Resp' t' s   Br.   at   8.   We accept the State' s concession and


remand        for    correction of           Morgan'    s   judgment        and sentence            to delete the    phrase "   the period of



earned early release."


                                                                       PARKER


             When Parker appeared for resentencing on July 2, 2013, he was represented by appointed

counsel Edward Jursek. Jursek noted that Barbara Corey, who had represented Parker on appeal,

was present and that Parker wanted to retain Corey to represent him at resentencing. Corey stated

that she had not known of Parker' s interest in retaining her until the prior day. She wanted to brief

an issue and to have the opportunity to talk with Parker before resentencing, so she requested a



1
    Repealed        by   LAWS       OF   2009,   ch.   28, § 42 ( effective          Aug.      1. 2009).
45107 -7 -II / 45127 -1 - II




brief   continuance.       The State         opposed a continuance.        When the trial court stated that it was not


inclined to continue the resentencing, Corey replied:

                    I'   m not prepared         to   represent   him.     If you' re granting —I would not be
          effective at     this   point.      I would not be able to give him constitutionally effective
         representation.          I don' t believe that Mr. Jursek would as well, and that' s what he
         told me. So we are put in a position of me not being able to provide constitutionally
          effective representation, and              I don' t believe I   would   confidently    as well.   So I am,
          I        declining
              guess,                to —I
                                    would love to represent my client. I' ve represented him
          before, but I cannot provide constitutionally effective representation, if I can' t brief
          this   issue    and argue      before the Court. I       would,    I   guess, ask —I   would decline to
          represent him at this point, if I can' t pursue that issue.

Parker Report      of    Proceedings ( Parker RP) ( Jul. 2, 2013) at 6.


          The court then continued the resentencing for three days, saying:

                       Well, Mr. Jursek was appointed on June 10 to represent Mr. Parker, so he' s
          counsel. I will set it over for Friday afternoon [ July 5] at 1: 30 for resentencing. If
          Ms. Corey wants to substitute in, then she needs to be able to represent him
          competently.


Parker RP ( Jul. 2, 2013) at 6.


          Corey did not file a notice of appearance, and did not appear for resentencing on July 5.

At the resentencing, attorney Matthew McGowan appeared on Jursek' s behalf, stating:

                       For the record, Matthew McGowan for attorney of record Jursek with Mr.
          Parker.        For the record, it' s Mr. Parker' s position that he would prefer not to
          continue this hearing today. But, in all candor, it does appear that there are a number
          things up in the        air   here.    It appears that Mr. Parker is in the process of retaining
          Barbara Corey, who he believed would be here today. He also has a motion that he
          would like to make to the Court that is outside of today' s already set up hearing.
                  I am prepared to move forward with the sentencing, the resentencing based
          on the information in the memorandums that was filed with the Court by Mr. Jursek,
          but beyond that, I have no additional information.

Parker RP ( Jul. 5, 2013)          at   3.   The trial court proceeded with Parker' s resentencing.




                                                                  3
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          The trial court rejected Parker' s argument that the firearm enhancement should be

dismissed because his conviction for unlawful possession of a firearm in the first degree had been

vacated    by   this   court.   The trial court imposed a sentence of 351 months, including a 60 -month

firearm enhancement.


          Parker now argues that he was denied his Sixth Amendment right to be represented by

retained counsel of his preference. Wheat v. United States, 486 U.S. 153, 158 -59, 108 S. Ct. 1692,

100 L. Ed. 2d 140 ( 1988).           And he argues that this denial constitutes structural error requiring

reversal.   United States v. Gonzalez- Lopez, 548 U. S. 140, 150, 126 S. Ct. 2557, 165 L. Ed. 2d 409

 2006).     However, Parker does not demonstrate that the trial court denied him the right to be


represented by Corey. The court set over the resentencing for three days to allow Parker' s attorney

of choice to enter the case. However, Corey did not file a notice of appearance during those three

days. She was not present at the resentencing. And Parker' s appointed counsel at the resentencing

stated    that Parker      wished   to   proceed   with   resentencing.   Parker had the opportunity to be

represented by Corey. She apparently elected not to represent Parker.

          We remand Morgan' s judgment and sentence after remand for correction as addressed

above. We otherwise affirm Parker' s judgment and sentence after remand.




                                                            4
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        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:




         Worswick, P.J.




         Lee, J.




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