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


STATE OF WASHINGTON,                              No. 74232-9-1
                                                                                      CO         >''v

                           Respondent,

                 v.                               UNPUBLISHED OPINION

                                                                                            CP
BENJAMIN LEE SMALLS,
                                                                                            CP

                           Appellant.             FILED: October 3, 2016

      Schindler, J. — In In re Personal Restraint of Smalls, 182 Wn. App. 381, 335

P.3d 949 (2014), we remanded for correction of the offender score. Benjamin Lee

Smalls appeals from the sentence imposed on remand. Smalls contends the trial court

violated his right to counsel by denying his request for a continuance. Because the trial

court did not abuse its discretion in denying the continuance, we affirm.

                                         FACTS

       In 2008, the State charged Benjamin Lee Smalls with murder in the second

degree of Stephen Kirk and assault in the second degree for pointing a gun at a witness

after shooting Kirk. Smalls pleaded guilty to murder in the second degree while armed

with a firearm and assault in the second degree. In exchange, the State agreed to

dismiss the firearm enhancement on the assault charge and dismiss charges against

Smalls in another case.

       Before sentencing, Smalls retained attorney Craig McDonald to withdraw his

guilty plea on the grounds that Smalls was not competent. An evaluation from Western
No. 74232-9-1/2


State Hospital and an independent doctor concluded Smalls was competent. Smalls did

not file a motion to withdraw the guilty plea. The court sentenced Smalls to 418 months

of total confinement and 48 months of community custody.

       Smalls appealed. We rejected Smalls' contention that postplea changes in the

law related to the length of community custody resulted in an involuntary guilty plea.

We affirmed the conviction but remanded to correct the period of community custody.

See State v. Smalls, noted at 158 Wn. App. 1031, 2010 WL 4400088, review denied,

171 Wn.2d 1007, 249 P.3d 183 (2011).

       On April 12, 2012, Smalls filed a CrR 7.8(b) motion seeking withdrawal of his

guilty plea to murder and assault and dismissal of the assault charge. The trial court

transferred the motion for consideration as a personal restraint petition. See CrR

7.8(c)(2).

       In In re Personal Restraint of Smalls, 182 Wn. App. 381, 391, 386, 335 P.3d 949

(2014), review denied, 182 Wn.2d 1015, 345 P.3d 783 (2015), we granted Smalls'

petition to vacate the assault conviction because the State charged Smalls with assault

in the second degree after expiration of the statute of limitations. We rejected the three

grounds for collateral attack to his murder conviction and the plea agreement as time

barred under RCW 10.73.090(1). Smalls, 182 Wn. App. 389. We noted that the facial

sentencing error arising from the unlawful assault conviction did not permit Smalls to

raise otherwise time-barred challenges to his murder conviction. Consequently, the

"sole relief available to Smalls was withdrawal of the assault plea, dismissal of the

assault charge, and remand for resentencing on the murder conviction based on an

offender score that did not include the assault conviction. Smalls, 182 Wn. App. at 389.
No. 74232-9-1/3


       McDonald represented Smalls on remand. The court scheduled resentencing for

September 18, 2015. On September 16, McDonald filed a sentencing memorandum

seeking a 30-day continuance. McDonald explained that because Smalls was not

transported to the King County jail until September 15, he was unable to meet with

Smalls at the jail until September 16. In addition, Smalls was attempting to obtain

documentation of completed classes and custody status promotions from the

Department of Corrections and his fiancee was unavailable for the scheduled hearing

date. McDonald also noted the intent to research whether the State's midpoint

sentence recommendation "was an integral part of the previous plea agreement." The

court granted a continuance until October 23, 2015.

       The day before the sentencing hearing scheduled for October 23, McDonald filed

a presentence memorandum informing the court that Smalls wanted to "discharge" him

and retain a new private attorney and needed a second continuance "to continue to

pursue relief" in a personal restraint petition.

       Because current counsel is a witness to some of the events prior to the
       expiration of the one year time bar, he cannot represent Mr. Smalls in that
       pursuit. Mr. Smalls wants one attorney to pursue both further relief from
       collateral attack and re-sentencing.

       In the presentence memorandum, McDonald asserts Smalls had "become a

model inmate" earning a GED1 and 28 credits toward an Associate of Arts degree and

completing mental health counseling and parenting classes. The presentence

memorandum also states Smalls needed additional time to obtain certificates for some

of the classes he completed and transcripts from community college.




        General equivalency diploma.
No! 74232-9-1/4


       In the alternative, the memorandum presents the defense sentencing

recommendation of a low-end standard range sentence and waiver of all discretionary

legal financial obligations (LFOs).

       At the October 23 sentencing hearing, McDonald repeated the request for a

continuance so that he could withdraw and Smalls could hire a new attorney.

       [Smalls] wants another lawyer to pursue both the [CrR] 7.8 motion for
       relief, if any, and to continue sentencing for that reason, and have the
       same lawyer doing the same thing at the same time, or the same with the
       additional tasks of pursuing the sentencing and any additional relief.

       The court noted the decision in Smalls, 182 Wn. App. at 389, that rejected

Smalls' collateral attacks to the murder conviction and requested an offer of proof of the

potential grounds for collateral relief. In response, McDonald suggested investigation of

"any tolling potentially while [Smalls] was with any competency proceedings pending."

McDonald then asserted he had a potential conflict of interest as to future collateral

challenges because he had overlooked the statute of limitations issue while

representing Smalls during plea negotiations.

       However, McDonald acknowledged the Court of Appeals indicated that no further

collateral relief was available to Smalls given the time bar.

       I frankly thought that given what the Court had said in the decision in his
       case that the matter may have been closed. He wants to pursue it, Mr.
       Smalls wants to continue to pursue it and frankly I'm in a position of I think
       at least some conflict of interest.

       The court refused to continue resentencing based on the possibility that

McDonald might become a witness in a future collateral challenge.

       [T]he Court understands that, but the Court must also consider the nature
       of the attack, the likelihood of whether or not those legal issues have been
       addressed already in the underlying appeal, and I think that the Court of
       Appeals was very clear that this was time barred. This does not mean
       that he cannot pursue it, but the Court's not going to continue the
No. 74232-9-1/5


      sentencing in order for him to do that, or stay the sentencing for that
      purpose. He still has a right to pursue it, he still has the right to put in a
      [personal restraint petition], but we're not continuing the sentencing.

      Smalls then addressed the court. Smalls said his family was currently "in the

motion of hiring counsel for me to represent me at sentencing" and "we're just waiting

on the paycheck to be delivered to counsel." Smalls expressed no specific

dissatisfaction with McDonald. Smalls asked for a continuance of at least two days to a

week and promised the court that "new counsel will make a record."

      Craig's a good dude, but my family doesn't really have the trust and faith
      in Mr. McDonald as well as they've hired — they're paying an attorney,
      and within a week if you could just continue this just for a week, for my
      new counsel to make the record, that will happen. And if not, then we
      could continue sentencing next week. But that's my, I guess, promise to
      the Court that new counsel will make a record, because they will be paid
      to represent me at sentencing.

      Smalls did not identify the private attorney he referred to and the court noted

there was no notice of appearance in the record. Smalls also pointed out that his family

members and fiancee were not present and he needed "a couple days" to get letters

from his mother and children. The court told Smalls that it had already granted him a

30-day continuance of the sentencing "for you to provide that." Smalls attributed the

delay to "a breakdown in communication between Mr. McDonald and my family" and the
fact that "my fiancee was over in India doing work, and she came back October 3rd."
       McDonald informed the court that he had been in touch with Smalls' family and

expected them to be present that day. McDonald noted he also received additional
documents from the Department of Corrections including some of Smalls' certificates.

       The State opposed another continuance. The prosecutor argued the court

already granted Smalls a 30-day continuance and the investigating detectives and
victim's family members including aunt, uncle, sister, and son were present and
No. 74232-9-1/6


prepared to participate at the hearing. The prosecutor noted the victim's family

members would participate by phone because "medical issues" and caregiving

responsibilities prevented the family members from being present in the courtroom.

      The court denied a continuance and proceeded with sentencing.

      So given the timing, given again that this court has continued it previously
      for this purpose, the Court at this time is going to deny the continuance.
      We will proceed to sentencing today.

      The State recommended a high-end standard range sentence of 376 months

total confinement including the firearm enhancement.

      McDonald argued in favor of a low-end standard range sentence of 276 months

total confinement based on Smalls' educational efforts and successful participation in

other prison programs and classes. McDonald advised the court he unsuccessfully

attempted to arrange the presence of Smalls' family members by phone.

      The trial court acknowledged Smalls' rehabilitation efforts in prison. The court

recognized Smalls was "not the same person" he was at the time of the crime and had

"taken steps to grow." The court imposed a sentence below the midpoint of the

standard range of 300 months total confinement.

                                       ANALYSIS


      Smalls contends the trial court violated his constitutional right to counsel by

denying his request for a continuance and effectively preventing him from retaining

private counsel. Smalls asserts he is entitled to a new resentencing hearing.

      The Sixth Amendment right to assistance of counsel generally grants a criminal

defendant the right to counsel of his choice. U.S. Const., amend. VI; State v. Hampton,

184 Wn.2d 656, 662, 361 P.3d 734 (2015); State v. Aquirre, 168 Wn.2d 350, 365, 229

P.3d 669 (2010). But this right is not absolute. Hampton, 184 Wn.2d at 663. The trial
No. 74232-9-1/7


court retains wide latitude in balancing " 'the right to counsel of choice . . . against the

demands of its calendar'" and " 'the public's interest in the prompt and efficient

administration of justice.'" Hampton, 184 Wn.2d at 6632 (quoting United States v.

Gonzalez-Lopez, 548 U.S. 140, 152, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006);

Aquirre, 168 Wn.2d at 365). " 'The resolution of this balancing exercise falls squarely

within the discretion of the trial court.'" Hampton, 184 Wn.2d at 663 (quoting Aquirre,

168Wn.2dat365).

       In determining whether to grant a continuance related to a defendant's choice of

private counsel, the court considers all relevant information including the following 11

factors:

       "(1)     [W]hether the request came at a point sufficiently in advance of trial
                to permit the trial court to readily adjust its calendar;

       (2)      the length of the continuance requested;

       (3)      whether the continuance would carry the trial date beyond the
                period specified in the state speedy trial act;

       (4)      whether the court had granted previous continuances at the
                defendant's request;

       (5)      whether the continuance would seriously inconvenience the
                witnesses;

       (6)      whether the continuance request was made promptly after the
                defendant first became aware of the grounds advanced for
                discharging his or her counsel;

       (7)      whether the defendant's own negligence placed him or her in a
                situation where he or she needed a continuance to obtain new
                counsel;




       2 Alteration in original.
No. 74232-9-1/8


       (8)    whether the defendant had some legitimate cause for
              dissatisfaction with counsel, even though it fell short of likely
              incompetent representation;

       (9)    whether there was a 'rational basis' for believing that the defendant
              was seeking to change counsel 'primarily for the purpose of delay';

       (10)   whether the current counsel was prepared to go to trial; [and]

       (11)   whether denial of the motion was likely to result in identifiable
              prejudice to the defendant's case of a material or substantial
              nature."

Hampton, 184 Wn.2d at 669-70 (quoting 3 Wayne R. LaFave et al, Criminal

Procedure § 11.4(c), at 718-20 (3d ed. 2007)).

       The court's decision will necessarily rest on the specific facts of each case and

not all factors will be present in all cases. Hampton, 184 Wn.2d at 670. We review the

trial court's decision for an abuse of discretion. Hampton, 184 Wn.2d at 670. The trial

court abuses its discretion if its decision "is manifestly unreasonable, or is exercised on

untenable grounds, or for untenable reasons." State v. Blackwell, 120 Wn.2d 822, 830,

845P.2d 1017(1993).

       Smalls contends the trial court could readily have adjusted its calendar to

accommodate a brief two-day continuance for the sentencing hearing. Smalls claims

the prior 30-day continuance was necessary primarily because of his late transport to

the jail and lack of communication with McDonald. Smalls also claims he promptly

requested the continuance as soon as family members confirmed they had hired an

attorney. Smalls maintains he had a legitimate cause for dissatisfaction with McDonald

who acknowledged overlooking the unlawful assault charge at the time Smalls was

seeking to withdraw his guilty plea. Smalls insists a continuance would not have

inconvenienced the victim's family members because they appeared by phone. Finally,



                                              8
No. 74232-9-1/9


Smalls argues the denial of a continuance prejudiced him by depriving him of his

counsel of choice and forcing him to proceed with an attorney who was only partially

prepared.

      The record provides scant support for Smalls' assertion that he needed only a

brief continuance. Smalls description to the court of the precise status of the new

attorney was vague. At one point, Smalls told the court his family was "in the motion of

hiring counsel for me." At another point, Smalls told the court that "we're just waiting on

the paycheck to be delivered to counsel." As the court noted, the new attorney had not

yet filed a notice of appearance and Smalls did not provide even the name of the new

attorney. Although Smalls indicated the new attorney could be ready in two days, he

also acknowledged he might need to ask for an additional continuance the following

week if the new attorney did not "make a record." Smalls' statement suggests the delay

in sentencing would likely have been longer than the two days to a week that he

requested.

      Smalls was also vague about the additional documentation he needed for the

sentencing hearing. Smalls specifically referred to letters from his mother and children

but failed to explain why he did not obtain those documents during the original 30-day

continuance.


      Smalls' assertion that a continuance would not inconvenience the victim's family

members is unpersuasive and speculative. The victim's family members participated by

phone because medical issues and family care obligations prevented them from being

present in the courtroom. But a further continuance would undoubtedly have involved

additional inconvenience for the four family members.
No. 74232-9-1/10


      The circumstances here including Smalls' failure to provide specific information

about hiring the new attorney, Smalls' own uncertainty about the necessary length of

another continuance and the other documentation he needed, and the need to schedule

multiple participants for a new hearing support the court's decision to deny Smalls'

request one day before the hearing for a second continuance.

      The State acknowledges Smalls had a legitimate basis for dissatisfaction with

McDonald who had overlooked the statute of limitations problem with the assault charge

during plea negotiations. But Smalls was aware of the basis for any dissatisfaction no

later than July 2014 when this court vacated the assault conviction. Smalls did not

request a continuance to replace McDonald until just before the October 2015

resentencing hearing.

       Smalls concedes McDonald was "partially prepared for sentencing" but criticizes

his representation because he failed to obtain the presence of Smalls' family at the

hearing. However, the record shows McDonald had "been in touch" with Smalls' family

members and they were aware of the sentencing hearing, and McDonald expected

Smalls' family members to be present at the hearing. McDonald also spoke to Smalls'

mother and fiancee and made a final effort during the sentencing hearing to obtain the

presence of family members by phone. As the trial court observed, "We can't force

them to be here."

       Further, denial of the continuance was unlikely to result in any identifiable

prejudice. McDonald filed a presentence memorandum and ably represented Smalls at
the hearing arguing for a low-end standard range sentence. Based on the defense

argument and documentation, the court fully recognized Smalls' rehabilitation efforts



                                             10
No. 74232-9-1/11


and imposed a sentence below the standard range midpoint, a favorable result under

the circumstances.


       In sum, we conclude the trial court did not abuse its discretion in denying a

continuance.


       Relying on our decision in State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612,

review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016), Smalls requests we not impose

costs on appeal. See RCW 10.73.160(1); RAP 14.2. Smalls relies on the length of his

sentence (300 months), the trial court's decision not to impose discretionary LFOs or

enter a finding that he has the present and future ability to pay LFOs, and his continued

indigency for purposes of appeal. See Sinclair, 192 Wn. App. at 393. After

consideration of the factors addressed in Sinclair, we exercise our discretion and

determine that no appellate costs shall be awarded. We affirm the judgment and

sentence.




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WE CONCUR:




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