State Of Washington v. Terry L. Jacob ( 2015 )

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DIVISION II
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45730 -0 -1I
Respondent,
v.
UNPUBLISHED OPINION
TERRY L. JACOB,
Appellant.
MAxA, P. J. — Terry Jacob appeals the sentencing court' s denial of his request for
substitute counsel on resentencing, as well as his sentence for driving under the influence (DUI)
and driving with a suspended license. He argues that the sentencing court ( 1) violated his
constitutional right to counsel by failing to inquire into the breakdown of his relationship with
his attorney, and ( 2) improperly considered a 1997 DUI conviction when calculating his offender
score. Jacob also submitted a statement of additional grounds ( SAG) in which he asserts that he
received ineffective assistance of counsel because his attorney ignored him. We hold that the
sentencing court did not err, and we do not consider Jacob' s ineffective assistance of counsel
claim. Accordingly, we affirm Jacob' s sentence.
FACTS
In 2011, Jacob was convicted of DUI and driving with a suspended license and sentenced
to 60 months confinement. He appealed his convictions and sentence to this court. We held that
the original sentencing court had improperly added points to Jacob' s offender score for prior
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convictions from 1988 and 1993, and remanded for resentencing and recalculation of Jacob' s
offender score.
At his resentencing, Jacob told the sentencing court that he needed to speak with his
attorney because they had not yet discussed the resentencing. Jacob' s attorney then informed the
sentencing court that Jacob previously had asked him about the possibility of requesting a new
attorney. However, Jacob never stated at the resentencing hearing that he had a conflict with his
counsel or requested that the sentencing court appoint new counsel. The sentencing court ruled
that Jacob' s assigned attorney was to continue representing him at resentencing.
The sentencing court noted that under our mandate, it was not allowed to consider two
convictions from 1988 and 1993 when calculating Jacob' s offender score. Jacob also asked the
sentencing court not to consider a 1997 DUI conviction. The sentencing court did not address
the 1997 conviction, but did remove the 1988 and 1993 convictions from consideration. It then
determined that Jacob' s offender score was seven, including a point for the 1997 DUI conviction.
The court sentenced Jacob to a low -end sentence of 51 months in confinement with nine months
of community custody supervision.
Jacob appeals his sentence.
ANALYSIS
A FAILURE TO APPOINT NEW COUNSEL
Jacob argues that the sentencing court violated his constitutional right to counsel by
denying appointment of new counsel without inquiring into the breakdown of his relationship
with his assigned attorney. We disagree because Jacob never requested that the trial court
appoint new counsel.
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We review a trial court' s refusal to appoint new counsel for an abuse of discretion. State
v. Lindsey, 177 Wn. App. 233, 248, 311 P.3d 61 ( 2013), review denied, 180 Wash. 2d 1022 ( 2014).
A trial court abuses its discretion where its decision is manifestly unreasonable or based upon
untenable grounds. Id. at 248 -49. A decision is based on untenable grounds if it rests on facts
unsupported in the record or was reached by applying the wrong legal standard. Id. at 249.
Jacob correctly notes that the sentencing court made no attempt to inquire into the
breakdown of his relationship with his attorney. But the threshold question is whether. Jacob
ever requested that new counsel be appointed to represent him.
Our cases have not yet established a standard for determining the sufficiency of a request
for new counsel. But to invoke the right of self representation,
- a defendant must unequivocally
state a request to proceed without counsel. State v. Coley, 180 Wash. 2d 543, 560, 326 P.3d 702
2014). Such unequivocal requests are necessary to limit baseless constitutional challenges on
appeal. State v. Imus, 37 Wn. App. 170, 179 -80, 679 P.2d 376 ( 1984). This rule also is
necessary "[ t] o protect defendants from making capricious waivers of counsel, and to protect
trial courts from manipulative vacillations by defendants regarding representation." State v.
DeWeese, 117 Wash. 2d 369, 376, 816 P.2d 1 ( 1991).
Similar concerns exist regarding requests for appointment of new counsel. Our Supreme
Court in State v. Cross assumed without deciding that requests for appointment of new counsel
should be analyzed the same as requests for self representation.
- 156 Wash. 2d 580, 607, 132 P.3d
80 ( 2006). As the court in Cross apparently recognized, there is a risk of capriciousness and
manipulation with requests for substitute counsel just as with requests to proceed without
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counsel. We adopt the assumption in Cross and hold that in order to invoke any right to change
counsel, a defendant must expressly and unequivocally request that new counsel be appointed.
Here, Jacob never expressly requested new counsel or described any particular
disagreement with his attorney. Jacob told the court only that he needed to talk to his attorney
before proceeding with resentencing. His attorney told the sentencing court that Jacob
previously expressed a desire to have the court appoint an attorney other than a public defender
to represent him. But at the resentencing hearing neither Jacob nor his attorney requested new
counsel or described a breakdown in the attorney -client relationship. Jacob at most implied that
communication with his attorney had been inadequate by indicating that they needed to talk
before proceeding.
Because Jacob failed to unequivocally request new counsel, we hold that the sentencing
court did not abuse its discretion in not inquiring into the attorney -client conflict in this case and
therefore did not violate Jacob' s constitutional right to counsel.
B. OFFENDER SCORE CALCULATION
Jacob argues that the sentencing court erred by including the 1997 DUI conviction in his
offender score. The State argues that the law of the case doctrine precludes our consideration of
this issue. We hold that Jacob is not barred by the law of the case doctrine from raising this issue
on this appeal, but that the sentencing court correctly calculated his offender score.
1. Law of the Case Doctrine
The State argues that the law of the case doctrine bars Jacob from challenging the
inclusion of the 1997 DUI conviction in his offender score because he did not raise the issue in
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his first appeal even though the conviction was included in his offender score at the original
sentencing. We disagree.
Under the law of the case doctrine, " ` questions determined on appeal, or which might
have been determined had they been presented, will not again be considered on a subsequent
appeal if there is no substantial change in the evidence at a second determination of the cause.' "
Folsom v. County of Spokane, 111 Wash. 2d 256, 263, 759 P.2d 1196 ( 1988) ( quoting Adamson v.
Traylor, 66 Wash. 2d 338, 339, 402 P.2d 499 ( 1965)).
However, the law of the case doctrine does not bar a defendant from raising issues at
resentencing that he could have raised on appeal of the original sentence, as long as the appellate
court vacates the original sentence and remands for unconstrained resentencing. See State v.
Rowland, 160 Wn. App. 316, 331, 249 P.3d 635 ( 2011), aff'd, 174 Wash. 2d 150 ( 2012); State v.
Toney, 149 Wn. App. 787, 792, 205 P.3d 944 ( 2009). The doctrine does not apply because such
a resentencing is a new proceeding resulting in an entirely new sentence. See Toney, 149 Wn.
App. at 792.
Jacob' s original sentence was based on an offender score calculated using the 1997
conviction. In his appeal of that sentence, Jacob challenged the use of the 1988 and 1993
convictions under former RCW 9. 94A.525( 2)( e)( i) ( 2011). He could have challenged the use of
the 1997 conviction as well, but he did not. Although we based our ruling on the use of the 1988
and 1993 convictions, we unequivocally " vacate[ d] Jacob' s sentence, and remand[ ed] for
recalculation of Jacob' s offender score and resentencing." State v. Jacob, 176 Wash. App. 351,
364, 308 P.3d 800 ( 2013). As a result, we hold that Jacob could challenge the use of the 1997
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conviction at resentencing and on this second appeal, even though he did not raise the same issue
in his first appeal.
2. Use of the 1997 Conviction
Jacob argues that a point for his 1997 DUI conviction should not have been included in
his offender score because ( 1) the applicable statute did not support the addition of the point, and
2) the State failed to prove necessary underlying facts. We disagree.
We review the calculation of a defendant' s offender score de novo. State v. Arndt, 179
Wash. App. 373, 320 P.3d 104 ( 2014).
a. Statutory Interpretation
Former RCW 9. 94A.525( 2)( e) provided:
If the present conviction is felony driving while under the influence of intoxicating
liquor or any drug ... prior convictions of felony driving while under the influence
of intoxicating liquor or any drug, felony physical control of a vehicle while under
the influence of intoxicating liquor or any drug, and serious traffic offenses shall
be included in the offender score if: ( i) The prior convictions were committed
within five years since the last date of release from confinement ( including full -
time residential treatment) or entry of judgment and sentence; or ( ii) the prior
convictions would be considered " prior offenses within ten years" as defined in
RCW 46. 61. 5055.
Jacob argues that the legislature' s use of the plural " convictions" with the conjunction " and"
instead of "or" before " serious traffic offenses" shows its intent to require points for a prior DUI
conviction only where the defendant also was convicted of other related offenses in combination.
We reject this interpretation.
If a statute' s meaning is plain on its face, we give effect to that plain meaning as an
expression of legislative intent. First Citizens Bank & Trust Co. v. Harrison, 181 Wash. App. 595,
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602, 326 P.3d 808, review denied, 337 P.3d 326 ( 2014). When determining a statute' s plain
meaning, we look to the language of the statute and its context, including related statutes. Id.
Former RCW 9. 94A.525( 2)( e) plainly uses the plural " convictions" and the conjunction
and" to establish the list of three offenses to which this provision applies, not to establish a
requirement that a defendant be convicted of all three crimes in combination. Jacob' s
interpretation is inconsistent with the rest of former RCW 9. 94A.525, which uses " convictions"
in the same manner for related provisions. Compare former RCW 9. 94A.525( 2)( c) with, e. g.,
former RCW 9. 94A. 525( 2)( e). 1 While we presume that the legislature uses the word " and" as a
conjunction in line with its ordinary meaning, the word " must sometimes be given disjunctive
force to preserve legislative intent." State v. Kozey, 183 Wash. App. 692, 698, 334 P.3d 1170
2014), review denied, 342 P.3d 327 ( 2015). Jacob has not plausibly argued that the legislature
intended to include convictions for the listed offenses only where they occur in combination, and
we interpret the provision as creating disjunctive requirements.
b. State' s Failure to Prove Necessary Facts
Jacob also argues that the State failed to prove the facts necessary to include the 1997
conviction in his offender score. We disagree.
At sentencing, the State must prove all prior convictions by a preponderance of the
evidence. State v. Hunley, 175 Wash. 2d 901, 909 -10, 287 P.3d 584 ( 2012). To include Jacob' s
1997 DUI conviction under former RCW 9. 94A.525( 2)( e)( i), the State had to prove that the
1 The legislature has since changed the statutory language such that this argument no longer can
be made. See RCW 9. 94A. 525( 2)( e).
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crime had been committed " within five years since the last date of release from confinement .. .
or entry of judgment and sentence."
In our opinion resolving Jacob' s first appeal, we included a list of his prior convictions.
Jacob, 176 Wash. App. at 356. That list included the date on which the judgment and sentence
was entered for the 1993 drug conviction. Jacob now argues that the State failed to prove at
resentencing the dates of his release from confinement and entry of the judgment and sentence
for that crime and therefore failed to prove that he had been convicted of the 1997 DUI within
five years of either of those dates. But our opinion established the date on which the 1993
judgment and sentence was entered, as proved at Jacob' s original sentencing. Jacob could have
offered evidence at resentencing to challenge that established date, RCW 9. 94A. 530( 2); State v.
Jones, 182 Wash. 2d 1, 338 P.3d 278 ( 2014), but he did not do so. Even now, Jacob does not argue
that the date of entry listed in our earlier opinion was inaccurate.
The State had no burden to reprove the established date of entry on resentencing.
Because the judgment and sentence for the drug crime was entered in 1993, five years had not
elapsed before Jacob was convicted of the 1997 DUI. We hold that the sentencing court did not
err by including a point for the 1997 DUI in Jacob' s offender score.
C. SAG ARGUMENT
Jacob' s SAG appears to suggest that he received ineffective assistance of counsel because
his attorney ignored him when he wanted to talk about resentencing arguments. This argument
depends upon facts outside the record and is not reviewable in a direct appeal. State v.
McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 ( 1995). Therefore, we do not consider Jacob' s
argument.
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We affirm Jacob' s sentence.
A majority of the panel having determined that this opinion will not be printed in the.
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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