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

STATE OF WASHINGTON,                              No. 70651-9-1

              Respondent,

       v.



DAVID JONES, JR.,                                 UNPUBLISHED OPINION

              Appellant.                          FILED: September 22, 2014


       Verellen, J. — Appointed counsel asked to withdraw from representing David

Jones, Jr., who sought to withdraw his guilty plea. Because Jones alleged that his

counsel misstated the terms of the plea agreement, his attorney argued she had a

conflict of interest. But Jones's reasons for his dissatisfaction with counsel did not

demonstrate a genuine claim of ineffective assistance of counsel or any other

compelling conflict of interest. We conclude the trial court did not abuse its discretion in

declining to allow substitute counsel. Accordingly, we affirm.

                                          FACTS


       In July 2012, Jones pleaded guilty to criminal solicitation to commit a violation of

the Uniform Controlled Substances Act, namely, delivery of a controlled substance, in

violation of RCW 9A.28.030 and RCW 69.50.401(1), (2)(a). After Jones failed to appear

for the August 2012 sentencing, Jones's appointed attorney, Miguel Duran, and his

public defense agency, Northwest Defenders Association (NDA), withdrew from

representing Jones.
No. 70651-9-1/2



      When Jones was arrested on the outstanding warrant for his failure to appear,

Duran no longer worked for NDA. Attorney Kari Boyum, also with NDA, filed a notice of

appearance on Jones's behalf. At a June 7, 2013 hearing, Boyum asked to withdraw,

explaining that Jones wished to pursue a motion to withdraw his guilty plea based on

Duran's alleged ineffective assistance. Boyum argued that a conflict of interest

precluded her from representing Jones in the claim against Duran or even from advising

Jones whether he had a valid ineffective assistance claim. The trial court inquired

directly from Jones about the basis for withdrawing his guilty plea. Jones indicated that,

after discussions with Duran, he had misunderstood that he could not request a drug

offender sentencing alternative (DOSA):

      [H]e told me that the prosecutor wasn't, you know, in agreement with me
      having [a DOSA].. . . [H]e was like . . . you can't ask for, you know,
      treatment, you know, which is like the inpatient one year or whatever. ... I
      didn't know he was talking about other stuff. And ... he said that we can,
      you know, talk around it, you know, and things like that. . . . And so going
       in I'm thinking that I can ask for it, but like—but I guess that's not true.[1]

       The trial court provisionally denied Boyum's motion to withdraw, stating that

Jones's comments suggested that defense counsel correctly informed Jones that there

was a limitation on his ability to request a DOSA. The trial court indicated that it would

reconsider its decision if the motion to withdraw was supported by a declaration from

Jones articulating the basis for the anticipated ineffective assistance of counsel claim.

       Boyum filed a memorandum regarding her motion to withdraw, but Jones did not

provide a declaration or other evidence supporting his ineffective assistance of counsel

claim. The trial court once again denied Boyum's request to withdraw, concluding that




       1 Report of Proceedings (June 7, 2013) at 6-8.
No. 70651-9-1/3


Jones failed to make a prima facie showing of ineffective assistance of counsel that

would create a conflict of interest. Jones was sentenced to a term of 54 months of

imprisonment.2

       Jones appeals.

                                       DISCUSSION

       Jones contends that the trial court's denial of his counsel's motion to withdraw

due to a claimed conflict of interest violated Jones's constitutional rights to conflict-free

counsel.3 We disagree.4

       When a defense attorney notifies the trial court that he has a potential conflict of

interest, the court must appoint substitute counsel or take adequate steps to ascertain

whether the risk of a conflict of interest is too remote to warrant new counsel.5 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.6 "[I]f a defendant could force the appointment of substitute



       2 The trial court expressly considered whether to impose a DOSA, but it declined
to do so because Jones reoffended while serving an earlier DOSA and he failed to
appear at sentencing.
       3 U.S. Const, amend. VI; Wash. Const, art. I, § 22
       4 Jones does not argue that Boyum personally had a conflict of interest, only that
Duran's alleged conflict of interest should be imputed to Boyum. The parties, citing
Rules of Professional Conduct 1.10(b), assume that Duran's alleged conflict of interest
would be imputed to Boyum despite the fact that Duran was no longer associated with
NDA. In this appeal, it is unnecessary for us to decide whether a conflict of interest
between Jones and Duran would truly be imputed to Boyum.
       5 See Hollowav v. Arkansas. 435 U.S. 475, 484, 98 S. Ct. 1173, 55 L. Ed. 2d 426
(1978): see also Cuvler v. Sullivan. 446 U.S. 335, 346-49, 100 S. Ct. 1708, 64 L. Ed. 2d
333(1980).
       6 State v. Rosborouqh. 62 Wn. App. 341, 346, 814 P.2d 679 (1991) (quoting
State v. Stark, 48 Wn. App. 245, 252, 738 P.2d 684 (1987)).
No. 70651-9-1/4



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."7

       Instead, the trial court must conduct a thorough examination of the

circumstances to determine whether new counsel must be appointed.8 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.9 "Whether an accused's dissatisfaction with counsel requires a change

lies within the sound discretion of the trial court."10

       Boyum moved to withdraw because Jones wanted to assert that Duran rendered

ineffective assistance by misinforming him about the prospects of obtaining a DOSA

under the plea agreement. But the plea documents expressly state that the defendant

will not request a DOSA and, at the plea hearing, Jones said that he understood that he

could not ask for a DOSA. Furthermore, Jones's statements to the trial court when

Boyum moved to withdraw indicate that Duran accurately informed Jones about the plea

agreement's restriction on requesting a DOSA.

       Jones submitted no evidence suggesting that Duran provided incorrect advice

regarding any consequences of Jones's guilty plea. Thus, Jones failed to establish a

prima facie case of deficient performance of counsel that would provide a basis for the



       7 Stark, 48 Wn. App. at 253.
      8 See State v. Varqa. 151 Wn.2d 179, 200-01, 86 P.3d 139 (2004); Rosborough.
62 Wn. App. at 347-48.
      9 State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997); Stark, 48 Wn.
App. at 253.
       10 State v. Fleck. 49 Wn. App. 584, 587, 744 P.2d 628 (1987); see State v.
Shelton, 71 Wn.2d 838, 840, 431 P.2d 201 (1967).
No. 70651-9-1/5


withdrawal of his guilty plea. Neither Jones nor Boyum identified any other conflict of

interest that compromised Boyum's representation of Jones. In light of the reasons

given by Jones for his dissatisfaction with counsel and the trial court's own evaluation of

counsel, we conclude the trial court did not abuse its discretion in declining to appoint

substitute counsel.


      Affirmed.




WE CONCUR:




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