State v. Bharadwaj
| Decision Date | 27 October 2014 |
| Docket Number | 69453-7-I,69854-1-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. VINAY KESHAVAN BHARADWAJ, Appellant. |
UNPUBLISHED OPINION
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 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.
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 prosecutor e-mailed defense counsel stating, "Last chance for CMIP or Asst 3 with SMI."[4] He followed up two days later stating [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.
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]
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 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 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 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 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.
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...
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