State of Washington v. Johnathon Michal T. Flores

Korsmo, J. ¶ 1 Johnathon Flores appeals his convictions for first degree assault and first degree robbery, primarily arguing that he was constructively denied counsel because his appointed attorney did not have the requisite experience under the Standards for Indigent Defense (SID). We conclude in the published portion of this opinion that a violation of the SID is evidence of deficient performance to be considered in assessing an ineffective assistance of counsel challenge and does not constitute a denial of counsel. In the unpublished portion, we conclude that trial counsel’s performance, while deficient, was not ineffective. The convictions are affirmed. *4 FACTS ¶ 2 Mr. Flores, his half brother Jesse Flores, and his half sister Faith Flores confronted Jeffrey Weitman in the home of Sandra McCorkle in Omak on May 16, 2013. 1 Weitman, age 34, had been dating McCorkle, age 63, for a decade. The previous day, Faith Flores had gotten into an altercation with Weitman at the residence of her friend McCorkle over the belief that Weitman was contacting another woman via Facebook. Faith telephoned her brother Johnathon in Spokane, and had the two men speak. Johnathon told Weitman, a former high school classmate, that he would be coming to talk to him. ¶ 3 Despite being restricted to staying in Spokane County by the terms of an earlier judgment and sentence, Johnathon traveled to Omak to assist in dealing with Weitman. On the 16th, Weitman called McCorkle and received permission to borrow some lawn equipment. He drove to the house, entered it, and proceeded to the kitchen. There he was confronted by the three Flores siblings. ¶ 4 Jesse Flores was armed with a knife, which he displayed at some point early in the encounter. The three Flores family members demanded that Weitman empty his pockets in order to discover and return any items stolen from McCorkle. Weitman put his wallet, $80, keys, and an MP3 (audio file format) player in a basket near the door. Faith Flores then escorted Ms. McCorkle to another room. At some point thereafter, an altercation took place and Jesse Flores stabbed Weitman. The three Flores siblings fled, splitting up briefly before meeting together later. They took the $80; Weitman’s keys ended up in the freezer and his cell phone on the floor by the door. *5 ¶5 All three were eventually charged in Okanogan County Superior Court with varying robbery and assault charges. Jesse Flores pleaded guilty, while Faith Flores reached a plea deal that required her to testify against her brother. Johnathon, charged with first degree robbery and first degree assault, both alleged to have been committed with a deadly weapon, elected to take his case to trial. The trial court appointed the Okanogan County contract indigent defender to represent Johnathon Flores. The law office of MacDougall & Prince held the indigent defender contract for the county. Clerk’s Papers (CP) at 156. That office soon thereafter assigned Emma Paulsen to represent Johnathon Flores. She filed a notice of appearance dated June 6, 2013. CP at 155. ¶ 6 Ms. Paulsen represented Johnathon Flores until withdrawing five months later. When Ms. Paulsen withdrew, Mubarak Raheem substituted as counsel for Johnathon Flores. CP at 154. The contact address Mr. Raheem filed with the court was different than that of the Mac-Dougall & Prince firm. CP at 154, 156. During the litigation, Mr. Raheem filed documents with the court on pleading paper bearing his office’s name and address, as well as on pleading paper from the MacDougall & Prince firm. ¶ 7 Mr. Raheem provided the sole representation for Mr. Flores in front of the jury. Faith Flores testified for the prosecution, as did Mr. Weitman, Ms. McCorkle, and several law enforcement officers. Jesse Flores was the sole witness to testify for the defense. ¶ 8 Weitman testified that he was assaulted by the two Flores brothers and was stabbed by Jesse. Defense counsel questioned Weitman about his telephone conversation with Johnathon, confirming that Johnathon had been calm and had not threatened him. Cross-examination also developed that Weitman weighed around 350 pounds and was five inches taller and more than 200 pounds heavier than Jesse. Weitman was not asked about his statement to a defense *6 investigator or whether he had conversations with Johnathon Flores’ wife. ¶ 9 Faith Flores testified that she called both of the brothers and asked for their help with Weitman. Although she did not tell them what to do, she wanted them to beat Weitman up for disrespecting her and also regain checks belonging to McCorkle. She had McCorkle tell Weitman that the Flores siblings were not present, and then the three of them hid in the house in anticipation of Weitman’s arrival. Defense counsel impeached Faith with the terms of her plea agreement that called for her to spend 25 months in prison for robbery. She also admitted that she had planned to take Weitman’s car. ¶ 10 McCorkle testified that she witnessed the three Flores siblings corner Weitman in the kitchen. Faith walked her out of the kitchen after Jesse had stepped on McCorkle’s foot, causing her pain. She had not wanted anyone to get hurt but knew something had happened by the sound of breaking glass. ¶ 11 The defense called Jesse Flores to testify. He admitted responsibility for stabbing Weitman and denied that the others had known or expected that he would do so. He also claimed responsibility for taking Weitman’s property. He told the jury that Johnathon had only come to talk to Weitman and was not involved in the altercation or theft. The stabbing occurred when Weitman tried to escape by fighting his way past Jesse. ¶ 12 Defense counsel then sought to call the defense investigator concerning his interview with Weitman. The trial court sustained the prosecutor’s objection to calling the witness on the basis that no foundation had been established to impeach Weitman since he had never been asked about the interview. A similar objection was sustained concerning any testimony from Michaela Flores, the defendant’s wife, about conversations between her and Weitman. Defense counsel then sought to recall Weitman to the stand to set a foundation for impeaching him. The trial court *7 again sustained the prosecutor’s objection, noting that Weitman had been excused and had not been on the defense witness list. ¶ 13 In closing argument, the defense argued that Johnathon was an innocent bystander who had only traveled to Okanogan to talk to Weitman about the way he treated Faith Flores. Ms. Flores, the chief instigator of the confrontation, had been pursuing her own agenda and had not recruited Jonathon for criminal activity. The jury did not accept the argument and, instead, found Johnathon Flores guilty of both crimes and the accompanying deadly weapon allegations. ¶ 14 Mr. Raheem filed a motion for a new trial, focusing on alleged juror misconduct, late disclosure of evidence, and the court’s refusal to recall Weitman to the stand. Ms. MacDougall appeared with Mr. Raheem for the posttrial hearings and argued the new trial motion. The court stood by its original ruling concerning Weitman’s testimony and the court denied the motion. ¶ 15 Mr. Raheem represented Mr. Flores at sentencing. The court imposed concurrent standard range sentences. Mr. Flores then timely appealed to this court. Subsequently, Mr. Raheem’s qualifications to try this case were put at issue. In an affidavit, he alleged that he was not qualified because, while he had tried three felony cases to a jury, he did not have sufficient practice experience. 2 The appellate record was also supplemented with his certifications of SID compliance during the 2013 calendar year. ¶ 16 We granted the motion of The Defender Initiative to file an amicus curiae brief. A panel subsequently heard oral argument. *8 ANALYSIS ¶ 17 As indicated previously, the sole issue we consider in the published portion of this opinion is a contention, raised both by Mr. Flores and the amicus, that appellant was constructively denied his constitutional right to counsel because Mr. Raheem did not satisfy the requirements of the SID at the time of trial. We consider the ineffective assistance argument and challenges to the sentence in the unpublished portion of this opinion. ¶ 18 The SID were adopted effective October 1, 2012. With one notable exception, the standards at issue here were part of that original adoption. Standard 14 deals with the qualifications of attorneys. Standard 14.1 provides: In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services shall meet the following minimum professional qualifications: A. Satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; and B. Be familiar with the statutes, court rules, constitutional provisions, and case law relevant to their practice area; and C. Be familiar with the Washington Rules of Professional Conduct; and D. Be familiar with the Performance Guidelines for Criminal Defense Representation approved by the Washington State Bar Association; and E. Be familiar with the consequences of a conviction or adjudication, including possible immigration consequences and the possibility of civil commitment proceedings based on a criminal conviction; and F. Be familiar with mental health issues and be able to identify the need to obtain expert services; and G. Complete seven hours of continuing legal education within each calendar year in courses relating to their public defense practice. *9 ¶19 Also at issue is Standard 14.2(B). Adult Felony Cases—Class A. Each attorney representing a defendant accused of a Class A felony as defined in RCW 9A.20.020 shall meet the following requirements: i. The minimum requirements set forth in Section 1; and ii. Either: a. has served two years as a prosecutor; or b. has served two years as a public defender; or two years in a private criminal practice; and iii. Has been trial counsel alone or with other counsel and handled a significant portion of the trial in three felony cases that have been submitted to a jury. ¶ 20 CrR 3.1(d)(4) states: Before appointing a lawyer for an indigent person, or at the first appearance of the lawyer in the case, the court shall require the lawyer to certify to the court that he or she complies with the applicable Standards for Indigent Defense Services to be approved by the Supreme Court. In turn, the SID provides a sample certification form. The version adopted in 2013 reads: CERTIFICATION OF COMPLIANCE For criminal and juvenile offender cases, a signed Certification of Compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel. The certification must be in substantially the following form: *10 ¶ 21 The certifications filed by Mr. Raheem during this time period did not include subparagraph (2)(e) adopted in 2013, but instead used the certification form adopted in 2012 that included only the subparagraphs listed in (2)(a) through (2)(d). CP at 184-86. ¶ 22 Mr. Flores and amicus argue that Mr. Raheem was not acting as counsel under the Sixth Amendment to the United States Constitution because he did not satisfy the two year practice requirement before undertaking representation in this case. The authorities do not support their argument. ¶ 23 The Washington Supreme Court has the authority to promulgate rules that create procedural, but not *11 substantive, rights. State v. Templeton, 148 Wn.2d 193, 212, 59 P.3d 632 (2002). Courts interpret court rules the same way they do statutes, using the tools of statutory construction. State v. Hawkins, 181 Wn.2d 170, 183, 332 P.3d 408 (2014). Questions of statutory interpretation are reviewed de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). A court begins by looking at the plain meaning of the rule as expressed through the words themselves. Tesoro Ref. & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 317, 190 P.3d 28 (2008). If the meaning is plain on its face, the court applies the plain meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Only if the language is ambiguous does the court look to aids of construction. Id. at 110-11. A provision is ambiguous if it is reasonably subject to multiple interpretations. State v. Engel, 166 Wn.2d 572, 579, 210 P.3d 1007 (2009). None of the provisions at issue here are ambiguous. ¶ 24 Whether it was error for Mr. Raheem to undertake the representation in this case is a question we cannot answer on this record. CrR 3.1(d)(4) requires the court to require certification by counsel either prior to appointment or when counsel appears in a case. Here, the court appointed MacDougall & Prince. No questions have been raised concerning their certifications. However, there was no certification by Mr. Raheem accompanying his appearance. Whether that is a violation of the rule or not is dependent on facts not in this record. The relationship between Okanogan County’s indigent contract defender and appointees such as Mr. Raheem has not been explained. Some of the documents filed by Mr. Raheem were on his own pleading paper and others were on MacDougall & Prince pleading paper, making it appear that he was an employee of the firm or working under their direction. Similarly, whether MacDougall & Prince were expected to *12 have a role in trial is another undeveloped fact. 3 The presence of Ms. MacDougall in the posttrial motions suggests that her firm may have retained the original appointment to represent Mr. Flores. Since its role in this case is an unknown factor, we simply cannot say that the court erred by not requiring Mr. Raheem to certify his compliance with the SID upon appearing in the case. Nonetheless, we recommend that any counsel appearing on behalf of an indigent criminal defendant certify in the appearance or substitution form that he or she is qualified under Standard 14.2 to undertake the representation. 4 ¶ 25 The immediate problem here is that Mr. Raheem represented Mr. Flores when he did not have the two years of criminal practice experience required by Standard 14.2(B). 5 As noted, the contention is that Mr. Raheem was not “counsel” within the meaning of the Sixth Amendment guaranty, leaving no need for Mr. Flores to establish that he somehow was prejudiced by Mr. Raheem’s representation. Cf . Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This situation, however, is a far cry from the circumstances where a legal representative was deemed not to be counsel. ¶ 26 The primary Washington case is City of Seattle v. Ratliff 100 Wn.2d 212, 667 P.2d 630 (1983). There a law *13 student, working as a rule 9 6 intern, was ordered by the trial court to represent a defendant without the presence of his supervising attorney and without having any opportunity to prepare the case. Id. at 214. The Washington Supreme Court noted that “counsel” under the state and federal constitutions was a person “authorized by the courts to practice law.” Id. at 217. To that end, it recognized both that attorneys and properly supervised rule 9 interns satisfied constitutional standards. Id. at 217-18. The convictions were reversed because the intern representing Mr. Ratliff was prevented from complying with the requirements of APR 9. Id. at 218-21. The intern did not attain the status of “counsel” in that circumstance and reversal was mandated without need to show prejudice. Id. at 221. ¶ 27 Mr. Flores argues that Mr. Raheem should be equated with the intern in Ratliff and not considered counsel under the Sixth Amendment, with the SID treated similarly to APR 9. Extending Ratliff in that manner would actually put this court in conflict with Ratliff There the court expressly defined constitutional “counsel” as a person authorized to practice law. Id. at 217. There simply is no rule history or subsequent case law suggesting that the court intended the adoption of Standard 14.2 to redefine the constitutional meaning of “counsel.” ¶ 28 Our court has at least twice considered criminal defense standards in recent years. The first instance was State v. A.N.J., 168 Wn.2d 91, 225 P.3d 956 (2010). There the Washington Defender Association (WDA) standards, although not adopted by the court, were argued by the defendant on appeal. Id. at 109-10. Although acknowledging that “professional standards do not establish minimum Sixth Amendment standards,” the court still found them “useful to courts in evaluating things like effective assistance of counsel.” Id. at 110. The court then detailed the proper use of the standards: *14 While we do not adopt the WDA Standards for Public Defense Services, we hold they, and certainly the bar association’s standards, may be considered with other evidence concerning the effective assistance of counsel. Id. 7 ¶ 29 The issue of professional standards was revisited in In re Personal Restraint of Gomez, 180 Wn.2d 337, 325 P.3d 142 (2014). 8 The court’s analysis was blunt: Prevailing professional standards may serve as guides for determining what is reasonable but may not serve as a checklist for evaluating attorney performance. Id. at 351 (citing Strickland, 466 U.S. at 688-89). In a footnote to that statement, the court quoted A.N.J.: “This court has previously concluded that ‘professional standards are evidence of what should be done, no more.’ ” Id. at 351 n.3 (quoting 168 Wn.2d at 113). ¶ 30 In light of this history, we conclude that the adoption of the SID did not redefine what constitutes counsel under the Sixth Amendment. As in Gomez and A.N.J., we hold that violation of the SID is evidence of ineffective assistance of counsel. It is not a categorical denial of counsel. To do anything else is to impose a higher standard of representation for indigent defendants than the Sixth Amendment requires for retained counsel. 9 Here, even if Mr. Raheem had committed no errors at all, or had achieved an acquittal on all counts save some uncontested misdemeanor charge, Mr. Flores would still receive a new trial due to noncompli- *15 anee with Standard 14.2. Such an outcome places the rule above that it is supposed to effectuate. ¶ 31 On the same day that it decided Strickland, the United States Supreme Court issued United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). There the Court overturned a Court of Appeals standard that had focused on the attorney’s experience and case complexity rather than attorney performance. It noted: That conclusion is not undermined by the fact that respondent’s lawyer was young, that his principal practice was in real estate, or that this was his first jury trial. Every experienced criminal defense attorney once tried his first criminal case... . The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation. Id. at 665. We concur. ¶ 32 Although we reject the per se argument that Mr. Flores presents in this appeal, we are troubled by what took place here. It appears that Mr. Raheem never called the problem to the attention of the trial judge, the person charged with ensuring compliance with the standards, even though he talked to two experienced attorneys at Mac-Dougall & Prince about his noncompliance during the trial. 10 If alerted, the court could have taken efforts to assure compliance with the standards, whether that amounted to requiring an attorney to appear and assist with trial or declaring a mistrial. Keeping the trial judge in the dark and holding the argument for appeal is not acceptable. ¶ 33 No remedy is provided in the SID for violation of the standards set forth therein. This omission suggests that the remedy for violations of the standards rests with the disciplinary process. Whether there was a violation of the *16 Rules of Professional Conduct is a question that only an appropriate investigation can answer. We do not opine on it. ¶ 34 Affirmed. ¶ 35 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. Fearing, C.J., and Lawrence-Berrey, J., concur. Review denied at 188 Wn.2d 1003 (2017). Footnotes [7] A.N.J. also held that a public defense contract that required the attorney to fund experts out of the fees paid counsel “may be considered as evidence of ineffective assistance of counsel.’’ 168 Wn.2d at 112. [1] Jesse Flores and Faith Flores are not related to each other, but both are half siblings to Johnathon Flores. Johnathon and Faith share the same mother, while Jesse and Johnathon share the same father. Because all three share the same surname, we will occasionally refer to them by first name for purposes of clarity. [2] At the time of appointment, Mr. Raheem had been admitted to the bar for more than two years. While the affidavit does not explain why he did not satisfy the time of practice requirement, appellate counsel clarified at argument that Mr. Raheem did not practice law during that entire period. [3] Whether MacDougall & Prince assisted during the trial is yet another undeveloped fact. We therefore do not have to address the thorny question of whether assistance would require presence of an experienced attorney in the courtroom or whether remote assistance is sufficient. [4] Another potential problem would be an amendment of existing charges to more serious ones that appointed counsel might not be qualified to handle. The trial court might want to consider the qualifications issue at the time of arraigning the defendant on the amended information. [5] While the parties also argue about Mr. Raheem’s compliance certificate, that document is of little consequence. The missing paragraph simply certifies that counsel was aware of the requirements of Standard 14.2, a fact not in question here, and certifies he will not accept future cases for which he is not qualified. It does not speak to whether or not counsel has done so in the past or in a current case. [6] APR 9. [8] Because the SID had not been adopted at the time of the Gomez trial, the court declined to apply them to the evaluation of counsel’s experience. 180 Wn.2d at 351 n.2. [9] If Mr. Raheem had been retained rather than appointed, the sole issue would be whether he had satisfied his Sixth Amendment obligations under Strickland, just as it would be with any other criminal defense attorney. The SID address one group of attorneys, not all who perform criminal defense. [10] Equally troubling is the indication that Mr. Raheem also spoke during trial with attorneys other than MacDougall & Prince seeking advice concerning his situation, but never presented the issue to the judge.