State v. Robinson
| Decision Date | 24 February 2005 |
| Docket Number | No. 74611-7.,74611-7. |
| Citation | 107 P.3d 90,153 Wash.2d 689 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Tony Douglas ROBINSON, aka: "T," "Tone," Tony Martin Robinson, Anthony Jimmerson, Anthony Robinson, Tony Marley, Tony L. Robinson, Tony J. Robinson, Tony A. Robinson, Petitioner, Johnny Rhoades, aka: "Jr," Johnny S. Ades, Manuel Binson, John Fleming, Johnny Fleming, John Flemming, Johnny Flemming, Bobby Ingrahm, Bobby Ram, Johnny Rhoads, Johnny Rhodes, Johnnie Rhondes, Manuel J. Robinson, Manuel Robinson, Tony Robinson, Johnny Rohades, Johnny Rohdes, Defendant. |
Thomas Michael Kummerow, Seattle, for Petitioner.
Kimberly Anne Thulin, Hilary A. Thomas, Whatcom County Pros. Office, Bellingham, for Respondent.
Pamela Beth Loginsky, Wash. Ass'n of Pros. Atty., for Amicus Curiae Wash. Ass'n of Prosecuting Attys.
We are asked to determine whether CrR 3.1(b)(2) requires that counsel be provided at state expense for all defendants who move to withdraw their guilty pleas after sentencing pursuant to CrR 7.8. We hold that it does not and affirm the Court of Appeals.
Tony Douglas Robinson entered two separate Alford1 pleas to one count of kidnapping and one count of delivery of cocaine. He received a separate sentence for each count. Robinson directly appealed his kidnapping conviction, alleging in part breach of the plea agreement. At all times during plea bargaining, sentencing, and appeal, Robinson was represented by counsel.
Almost one year after sentencing, but prior to the Court of Appeals decision on Robinson's appeal, Robinson moved pro se pursuant to CrR 7.8 to withdraw both of his guilty pleas, alleging ineffective assistance of counsel, prosecutorial misconduct by reason of breach of the plea agreement, and newly discovered evidence. He also moved for the appointment of counsel to present his motions to withdraw but cited no authority that would entitle him to counsel. The trial court summarily denied all motions.
The Court of Appeals filed an unpublished opinion affirming the kidnapping conviction. State v. Robinson, noted at 114 Wash.App. 1012, 2002 WL 31412725 (2002).
Robinson appealed the trial court's denial of his motions to withdraw guilty pleas and for appointment of counsel. The trial court appointed counsel to pursue this appeal.2 Before the Court of Appeals, counsel argued that CrR 3.1(b)(2) entitled Robinson to representation below when moving to withdraw his guilty pleas. State v. Robinson, noted at 117 Wash.App. 1073, slip op. at 3, 2003 WL 21690525 (2003). The Court of Appeals reversed the denial of the motion to withdraw one of the guilty pleas based on newly discovered evidence, but let stand the denial of the motion to withdraw the other plea and the denial of appointment of counsel. Id. at 4, 9-10. We granted review solely on the question of entitlement to counsel under CrR 3.1(b)(2).
Robinson asserts that he was entitled to counsel at state expense under CrR 3.1(b)(2) when he moved to withdraw his guilty pleas after sentencing pursuant to CrR 7.8.
CrR 3.1(b)(2) provides in full:
A lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review. A lawyer initially appointed shall continue to represent the defendant through all stages of the proceedings unless a new appointment is made by the court following withdrawal of the original lawyer pursuant to section (e) because geographical considerations or other factors make it necessary.
The court will apply canons of statutory interpretation when construing a court rule. City of Seattle v. Guay, 150 Wash.2d 288, 300, 76 P.3d 231 (2003). We review construction of a court rule de novo because it is a question of law. See Judd v. Am. Tel. & Tel. Co., 152 Wash.2d 195, 202, 95 P.3d 337, 340 (2004)
. While the plain language of a court rule controls where it is unambiguous, under our court rule interpretation guidelines we must examine CrR 3.1(b)(2) in context with the entire rule in which it is contained as well as all related rules. See Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash.2d 674, 682, 80 P.3d 598 (2003); cf. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 10, 43 P.3d 4 (2002) ().
CrR 3.1, captioned "RIGHT TO AND ASSIGNMENT OF A LAWYER," has six parts. Part (a), captioned "Types of Proceedings," establishes the scope to which the rest of the rule applies. It provides that the right to a lawyer extends "to all criminal proceedings for offenses punishable by loss of liberty." CrR 3.1(a). Part (b), is captioned "Stage of Proceedings." Subpart (b)(1) tells us when the right first accrues: "as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest." Subpart (b)(2) describes how long that right is retained: "at every stage of the proceedings, including sentencing, appeal, and post-conviction review." Subpart (b)(2) further provides that the same lawyer should represent the defendant through all of these stages of a criminal proceeding unless withdrawal is necessary under part (e). Part (c) establishes the procedure for explaining the right to a lawyer and putting the defendant in contact with one, part (d) describes eligibility for a lawyer at state expense under this rule, part (e) explains when a lawyer is allowed to withdraw, and part (f) describes the availability of expert, investigative, or other types of services other than a lawyer at state expense.
The specific provision at issue here, CrR 3.1(b)(2), broadly describes the various stages of a criminal proceeding to which the right to counsel attaches, "including sentencing, appeal, and post-conviction review." But the right is not limitless. We must also discern the plain meaning of CrR 3.1(b)(2), while taking into account related court rules and controlling case law.
The various stages of a criminal proceeding listed in CrR 3.1(b)(2) are more specifically covered elsewhere. For example: (1) CrR 3.1(b)(1) and CrR 3.1(c) delineate the right to counsel prior to arraignment, (2) CrR 4.1(b) outlines the right to counsel at arraignment and throughout trial, (3) CrR 7.2(b) requires notification of the right to counsel on appeal at sentencing, and (4) CrR 7.6(b) provides for counsel at probation revocation hearings.
Moreover, the right to counsel is constitutionally guaranteed at all critical stages of a criminal proceeding, including sentencing,3 and additionally on first appeal when states provide a right of appeal. State v. Rupe, 108 Wash.2d 734, 741, 743 P.2d 210 (1987) (); Douglas v. California, 372 U.S. 353, 355-56, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ().
In only one area have we applied the right to counsel under CrR 3.1 or CrRLJ 3.1 beyond what is constitutionally required. That stage is at the beginning, and our motivation was the preservation of evidence. See State v. Templeton, 148 Wash.2d 193, 211, 59 P.3d 632 (2002)
(). Robinson argues the plain language of CrR 3.1(b)(2), "post-conviction review," requires appointment of counsel for his motions to withdraw. But it is not that simple. We know of no reported case where counsel has been appointed at the late stage of plea withdrawal following sentencing even though CrR 3.1 has been on the books since 1973.
We do allow appointment of counsel for a personal restraint petition (PRP) after an initial determination that the petition is not frivolous. RAP 16.11, .15. This makes sense given the history of rules governing postconviction relief. Originally, postconviction relief was detailed in former CrR 7.7. That rule provided that petitions for postconviction relief were to be made to the chief judge of the Court of Appeals in the district where the petitioner was convicted. Former CrR 7.7(a) (1973) (rescinded 1976). Counsel would be provided at state expense after an initial determination that the petition was not frivolous. Former CrR 7.7(b), (e). In 1976, the Rules of Appellate Procedure were adopted, and RAP 16.3-.15, the rules governing PRPs, superseded the relief previously available under former CrR 7.7. The procedure for presenting a PRP and obtaining counsel is similar to that formally provided in CrR 7.7.
We adopted CrR 7.8 in 1986. CrR 7.8 is narrower than former CrR 7.7, and allows for relief from judgment due to mistakes, inadvertence, surprise, excusable neglect, newly discovered evidence, or other irregularities, but not for errors in law.4 Similar to former CrR 7.7, and the current RAPs governing PRPs, CrR 7.8 provides that a court may summarily deny a motion under this rule if the motion and supporting affidavits do not "establish grounds for relief." CrR 7.8(c)(2). CrR 7.8(b) provides that motions made under this rule are subject to RCW 10.73.090, .100, .130, and .140. These code provisions generally apply to collateral attacks and most notably to PRPs. This evinces a strong intention on the rule drafters' part that motions made under CrR 7.8 in superior court are subject to the same limitations, when appropriate, that apply to PRPs.5 In further evidence of the similarity of treatment between certain kinds of relief sought under CrR 7.8 and relief sought in PRPs, CrR 7.8 allows a trial court to transfer a CrR 7.8 motion to the Court of Appeals to be treated as a PRP "to serve the ends of justice." CrR 7.8(c)(2). Thus, the trial court may serve as an...
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