State of Washington v. Nathaniel James Edenso ( 2018 )

FILED
OCTOBER 23, 2018
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. 35440-7-III
Respondent, )
)
v. )
)
NATHANIEL JAMES EDENSO, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — Nathaniel Edenso appeals his convictions for first degree
trafficking in stolen property and third degree possession of stolen property, arguing that
the trial court abused its discretion when it denied Mr. Edenso’s request for new counsel
and refused to consider Mr. Edenso’s request that he be sentenced to a drug offender
sentencing alternative (DOSA). Judges of the Okanogan County Superior Court
considered both requests before denying them, and no abuse of discretion is shown.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
In September 2016, the State charged Nathaniel Edenso with first degree
trafficking in stolen property and third degree possession of stolen property. The charges
were based on theft from a tire shop in Tonasket of tires valued at $400 to $600 that Mr.
No. 35440-7-III
State v. Edenso
Edenso sold to another tire shop for $10. Mr. Edenso was released on bail, but was
arrested in November on additional charges. Jason Wargin, a public defender, was
appointed to represent Mr. Edenso in both cases. In late November 2016, the State made
Mr. Edenso a global offer of 33 months’ confinement for both cases.
About 10 days later, Mr. Edenso sent a letter to Judge Christopher Culp, asking for
a new lawyer. He expressed confusion about the offer that had been made, which he
thought would be concurrent, but sounded consecutive. He complained that Mr. Wargin
didn’t ask for “my side of the story,” told him to take the State’s offer, and failed to give
Mr. Edenso copies of paperwork when asked. Clerk’s Papers (CP) at 109. Mr. Edenso
also complained that when he asked about a residential DOSA, Mr. Wargin said he did
not qualify and would not explain why. Mr. Edenso claimed Mr. Wargin lied to him on
more than one occasion and had not treated him fairly.
At a status conference a few days later, Judge Culp acknowledged receiving Mr.
Edenso’s letter and discussed it with him. Due to Mr. Wargin’s scheduling conflict, one
of his partners represented Mr. Edenso at the December hearing. She explained that she
had spoken with Mr. Wargin about some of Mr. Edenso’s concerns. She told the court
that many defendants were discussing residential DOSAs in the jails and that “a lot of
clients [were] suddenly asking for them” but that the prosecutor’s office in Okanogan
County rarely agreed to residential DOSAs. Report of Proceedings (RP) (Dec. 13, 2016)
at 7.
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Judge Culp spoke to Mr. Edenso about a number of the concerns expressed in his
letter during the hearing. The judge explained how consecutive and concurrent
sentencing works. He said that as a judge, he did not know whether Mr. Edenso was
eligible or not for a residential DOSA and had not been a part of plea negotiations. He
did advise Mr. Edenso that while prison-based DOSA sentences were not unusual,
residential DOSA’s were rarely imposed in Okanogan County.
Although this was to have been the last status conference in the case, Judge Culp
reset the conference for the following week so that Mr. Wargin could be present. He said
he would instruct Mr. Wargin to meet with Mr. Edenso in the meantime “in an attempt
[to] resolve their differences.” RP (Dec. 13, 2016) at 10. He then stated,
At this point, Mr. Edenso, I’m not seeing sufficient cause for me to remove
him as your attorney. On the other hand, if he tells me that communication
has broken down between the two of you such that it’s not going to work,
then I’m going to have to reconsider. But at this point, based on what
you’ve told me, your request is denied.
Id. at 10-11.
Mr. Edenso does not provide any record indicating what happened at the following
week’s continuation of the status conference. He presents no record indicating that he or
Mr. Wargin ever reported any continuing problems.
Judge Henry Rawson presided at the jury trial in this case, at the conclusion of
which jurors found Mr. Edenso guilty as charged. At the sentencing hearing, the State
asked for a mid-range sentence of 38 months. Mr. Wargin asked the court to impose a
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prison-based DOSA. After hearing from the lawyers, Judge Rawson invited Mr. Edenso
to speak, stating: “Mr. Edenso? You have the right to address the Court. Anything you
would like to say to the Court—it’s called the right of [allocution]—before I impose
sentence in this matter?” RP (July 5, 2017) at 128. Mr. Edenso made the following
statement:
Your Honor, I’ve been in the system since I was 17 and messed up a slew
of times. I apologize to the Courts for wasting your guys’ times. I know
you have bigger and better things to worry about. I still made a mistake. I
still believe in punishment. I do believe that treatment also would be a—
more beneficial than throwing me back in the joint for X amount of time.
I’ve been in prison twice. It’s—it doesn’t produce the most upstanding
citizens in there, even though they do provide schooling and all that. It’s
all—it’s a hard road to walk. I’m 36 years old now. Like my lawyer says, I
do have three children. This will be my last time in the system. As I said I
apologize for wasting your guys’ time.
Id. at 128-29. After hearing from Mr. Edenso, the following occurred:
JUDGE: . . . I am looking at your history and I find looking at your
history, I don’t see any drug-related offenses. I don’t see possession of
drugs. I don’t see a marijuana charge. I see no possession of con—alleged
drugs—nothing in your history indicates to the Court that there’s a
substance abuse issue. That’s what I’m looking at all—I see thefts. I see
driving while suspendeds. I see a residential burglary. Again, theft,
unlawful imprisonment, as indicated. I see nothing in your history that
would lead this Court to state or find that you have a substance abuse issue.
One might try to surmise that, well, theft relates to getting money or
selling goods in order to get money to do—to buy drugs or otherwise. I—
again, I have nothing here looking at your history that indicates that.
[MR. EDENSO]: Can I say something, Your Honor—
JUDGE: No.
[MR. EDENSO]: Yes, Sir.
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JUDGE: I don’t have—no. I’m—you had your opportunity.
[MR. EDENSO]: Yes, Sir.
JUDGE: So, I’m not going to impose a DOSA.
Id. at 129-30.
Judge Rawson sentenced Mr. Edenso to 33 months on count I (the low end of the
standard range), and to 364 days on count II, to run concurrently. Mr. Edenso appeals.
ANALYSIS
Failure to appoint new counsel
Mr. Edenso argues the trial court erred when it refused his request to appoint a
new lawyer.
A criminal defendant who is dissatisfied with appointed counsel must show good
cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable
conflict, or a complete breakdown in communication between the attorney and the
defendant. State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997) (citing Smith v.
Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)). “Attorney-client conflicts justify the
grant of a substitution motion only when counsel and defendant are so at odds as to
prevent presentation of an adequate defense[; t]he general loss of confidence or trust
alone is not sufficient to substitute new counsel.” Id. (citations omitted).
Mr. Edenso argues that his letter to Judge Culp identified concerns going beyond a
loss of trust and “unequivocally reached the level of irreconcilable conflict coupled with
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a complete breakdown in communication.” Opening Br. of Appellant at 4.
“Irreconcilable” might be a fair characterization if either Mr. Wargin or Mr. Edenso had
reported to the court that they had not been able to resolve their differences, or if Mr.
Edenso had ever renewed his request for a new lawyer. But evidently that never
happened. Mr. Edenso’s brief does not mention Judge Culp’s discussion of the letter
with Mr. Edenso at the status conference. It does not mention his directive to Mr. Wargin
to meet with his client to see if they could resolve their differences.
Ordinarily, we consider three factors in reviewing a trial court’s decision to deny a
motion to substitute counsel based on an irreconcilable conflict: (1) the extent of the
conflict, (2) the adequacy of the court’s inquiry, and (3) the timeliness of the motion. In
re Pers. Restraint of Stenson, 142 Wn.2d 710, 723-24, 16 P.3d 1 (2001) (Stenson II). But
we hold that a trial court does not abuse its discretion if its first response to friction
between a defendant and defense counsel is to direct the lawyer to meet with the client
and try to resolve any problems. If the problem is resolved, review of Stenson II factors
is not required. In this case, the record on appeal suggests the problem was resolved.
Alleged refusal to consider DOSA sentencing
Mr. Edenso’s remaining argument is that the trial court abused its discretion when
it did not meaningfully consider imposing a DOSA.
Whether to impose a DOSA rests within the trial court’s discretion. State v.
Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998). A decision not to impose a DOSA
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sentence is ordinarily not reviewable on appeal. State v. Bramme, 115 Wn. App. 844,
850, 64 P.3d 60 (2003). A court’s “categorical refusal to consider [a DOSA] sentence, or
the refusal to consider it for a class of offenders, is effectively a failure to exercise
discretion and is subject to reversal,” however. State v. Grayson, 154 Wn.2d 333, 342,
111 P.3d 1183 (2005).
The fact that Judge Rawson stated a reason why he would not impose a DOSA
that was specific to Mr. Edenso demonstrates that he did not categorically refuse to
consider the request.
Mr. Edenso nonetheless argues that Judge Rawson refused to “meaningfully”
consider the request “because [he] denied Defendant the right to address his request,
additionally violating his right of allocution.” Opening Br. of Appellant at 6. Allocution
is the right of a criminal defendant to make a personal argument or statement to the court
before the pronouncement of sentence. State v. Canfield, 154 Wn.2d 698, 701, 116 P.3d
391 (2005). It is the defendant’s opportunity to plead for mercy and present any
information in mitigation of sentence. Id.Judge Rawson invited Mr. Edenso to speak before he announced his sentence.
The judge was not required to tell Mr. Edenso what points he should address. Mr.
Edenso evidently understood it was an opportunity to address his desired DOSA
sentencing because he told the judge, “[T]reatment also would be a—more beneficial
than throwing me back in the joint for X amount of time. I’ve been in prison twice.
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No. 35440-7-111
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It's-it doesn't produce the most upstanding citizens in there, even though they do
provide schooling and all that." RP (July 5, 2017) at 128-29.
A court is not required to allow a defendant to interrupt and provide additional
information or argument when it becomes evident, as the court announces a sentence, that
it is not the sentence the defendant hoped for. Judge Rawson did not refuse to consider a
DOSA sentence.
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.
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Siddoway, J. '
6=·
WE CONCUR:
Fearing, J.
Pennell, A.CJ.
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