                                                                         FILED
                                                                      AUGUST 1, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 34413-4-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
BRITTON MICHAEL HANSON,                       )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. - Britton Hanson asks us to reverse the trial court's denial of his

CrR 7 .8 motion to withdraw his guilty plea and to direct the trial court to appoint a new

lawyer, after his prior court-appointed lawyer found no basis for advocating for

withdrawal of the plea. He fails to show prejudice, and his reliance on State v. Chavez,

162 Wn. App. 431, 437, 257 P.3d 1114 (2011) is misplaced. We affirm.

                            PROCEDURAL BACKGROUND

       In November 2014, Britton Hanson entered a guilty plea to three counts, the nature

of which is unimportant for present purposes, and was sentenced to 7 5 months'

confinement.

       In June 2015, Mr. Hanson filed a prose motion to withdraw his guilty plea under

CrR 7.8(b)(l) and (3). He contended (1) his offender score was miscalculated, (2) he
 No. 34413-4-111
 State v. Hanson


 received ineffective assistance of counsel, (3) his plea was not knowing, intelligent, and

· voluntary, and (4) his judgment and sentence was invalid due to a scrivener's error as to

the standard sentencing range.

        In February 2016, the trial court set a hearing for the motion and appointed

attorney Dennis Morgan to represent him.

       At a hearing conducted on April 5, 2016, Mr. Morgan notified the court that he

had listened to the tape of the sentencing hearing, had been through the clerk's file, and

had been unable to find a good faith basis for pursuing Mr. Hanson's motion. He

informed the court that he notified Mr. Hanson he would move to withdraw and Mr.

Hanson could pursue the motion himself.

       The court and counsel discussed the fact that Mr. Hanson thereafter wrote the

court, asking for a continuance of the hearing and appointment of a different lawyer.

       Upon further discussion, Mr. Morgan offered to file an Anders 1 brief addressing

his request to withdraw and the prosecutor offered to arrange for Mr. Hanson to

participate in a hearing at which the motions could be addressed. The court scheduled a

hearing for April 26, 2016.




       1
           Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).



                                              2
No. 34413-4-111
State v. Hanson


       At the April 26 hearing, Mr. Morgan referred to the brief he had filed and to his

conclusion that "the only thing that I found that had any merit was the scrivener's error,

which is an easy thing to correct." Report of Proceedings (RP) at 33.

       The trial court then heard from Mr. Hanson, who undertook to argue his motion to

withdraw his plea, but also asked the court to deny the Anders motion "and/or appoint

counsel to properly brief' his claim. RP at 35. After hearing from everyone, the trial

court orally denied Mr. Hanson's motion, finding no basis on which Mr. Hanson was

entitled to withdraw his plea. The court informed him he had the right to appeal. The

State thereafter moved the trial court to correct the scrivener's error in the judgment and

sentence, which was done.

       Mr. Hanson appeals denial of his CrR 7.8 motion.

                                        ANALYSIS

       On appeal, Mr. Hanson argues that his motion to withdraw his plea was a critical

stage in the proceeding, the filing of an Anders brief denied him counsel at that critical

stage, prejudice is presumed, and we should reverse the trial court's order with directions

to the court to appoint the new lawyer requested by Mr. Hanson. The argument is flawed

for several reasons.

       Since the trial court did not transfer the motion to this court for consideration as a

personal restraint petition and it appointed Mr. Morgan, it evidently believed, initially,

that Mr. Hanson's motion established grounds for relief or that resolution required a

                                              3
No. 34413-4-III
State v. Hanson


factual hearing. See CrR 7.8(c)(2); State v. Robinson, 153 Wn.2d 689, 692, 107 P.3d 90

(2005). At that point, Mr. Hanson was not being denied counsel. Mr. Morgan accepted

the appointment and undertook to represent him. Assuming that one can complain of

ineffective assistance of counsel when one has no constitutional right to counsel,2 Mr.

Hanson has a basis for appeal ifhe can demonstrate that during Mr. Morgan's

representation "(1) defense counsel's representation was deficient, i.e., it fell below an

objective standard of reasonableness based on consideration of all the circumstances; and

(2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a

reasonable probability that, except for counsel's unprofessional errors, the result of the

proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35,

899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816

(1987)).

       Relying on the opinion of the majority of this court in Chavez, Mr. Hanson argues

that Mr. Morgan's representation was deficient because there is no Anders procedure in a

trial court; Anders briefs are strictly an appellate procedure. 162 Wn. App. at 43 7. But

cf Chavez, 162 Wn. App. at 445 (Korsmo, J., dissenting) (stating that the absence of


       2
        In State v. Schwab, 141 Wn. App. 85, 95 n.6, 167 P.3d 1225 (2007), the State
argued that since a defendant has no constitutional right to court-appointed counsel in
making a CrR 7 .8 motion and receives one only as a matter of discretion, see Robinson, .
153 Wn.2d at 696, the court should refuse to review a claim of ineffective assistance of
counsel. The court declined to decide the issue, since it could decide the case on
nonconstitutional grounds-.as can we, in this case.

                                              4
No. 34413-4-111
State v. Hanson


precedent criticizing the procedure in trial courts "strongly suggests there was no error at

all"). But Mr. Hanson fails to demonstrate any reasonable probability that the result of

his plea withdrawal motion would have been different had Mr. Morgan advocated

differently. He makes no attempt whatsoever to demonstrate that any of his grounds for

withdrawing his plea had merit.

       Relying again on Chavez, Mr. Hanson argues that this court held in that case that

Mr. Chavez's motion to withdraw his plea was a critical stage of the proceedings and

denial of counsel during a critical stage of proceedings is presumptively prejudicial. 162

Wn. App. at 439 (citing State v. Davis, 125 Wn. App. 59, 63-64, 104 P.3d 11 (2004)).

But both Chavez and Davis involved motions to withdraw a guilty plea before sentencing,

brought under a different criminal rule, CrR 4.2(f). A defendant who moves under CrR

7 .8 to withdraw a plea after entry of a judgment and sentence is not automatically entitled

to counsel. State v. Salazar, 170 Wn. App. 486,489 n.3, 291 P.3d 255 (2012) (citing In

re Pers. Restraint of Gentry, 137 Wn.2d 378, 390, 972 P.2d 1250 (1999) and Robinson,

153 Wn.2d at 696). In ineffective assistance of counsel claims arising from CrR 7 .8

hearings, we do not presume prejudice. State v. Schwab, 141 Wn. App. 85, 95 n.9, 167

P.3d 1225 (2007) (requiring party moving under CrR 7.8 to demonstrate both deficient

performance and prejudice). That is distinction enough, but in Chavez the majority also

believed that the record, although insufficiently developed, revealed an apparently viable




                                             5
No. 34413-4-111
State v. Hanson


conflict of interest basis for withdrawal of the plea. No apparently viable basis for

withdrawing the plea has been shown by Mr. Hanson.

       We finally observe that because the motion was brought under CrR 7.8, it was

within the discretion of the trial court whether to appoint counsel for Mr. Hanson at all.

Robinson, 153 Wn.2d at 695-96 (analogizing to RCW 10.73.150(4) and RAP 16.11).

While the court elected to appoint counsel upon initially reviewing Mr. Hanson's motion,

we find no limitation on the trial court's discretion to permit withdrawal of counsel if, on

closer consideration, it concludes there is no merit to the motion. No abuse of discretion

is shown.

       The order denying the CrR 7. 8 motion is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                   d?dhw.~1ft·
                                                    ddoway,J.

WE CONCUR:




                                                 Pennell, J.




                                             6
