FILED COURT OF APPEALS DIVISION II 2015 MAR 31 AM 8: 36 STA' AS t
GTON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
STATE OF WASHINGTON, No. 45509 -9 -II
Respondent,
v.
UNPUBLISHED OPINION JAYLIN JEROME IRISH,
Appellant.
SUTTON, J. — Jaylin Jerome Irish appeals his convictions following guilty pleas for first
degree assault and first degree rendering criminal assistance. Irish argues that ( 1) the information
failed to include all the essential elements of first degree rendering criminal assistance and ( 2) the
trial court violated his right to counsel when it denied his trial counsel' s motion to withdraw.'
Holding that the information contained all the essential elements of first degree rendering criminal assistance but that the trial court violated Irish' s right to counsel, we vacate Irish' s sentence,
remand to allow him to move to withdraw his guilty plea, and order the trial court to appoint Irish
new counsel.
1 Irish also argues that he pled guilty involuntarily. Because we vacate Irish' s sentence and order the trial court to appoint Irish new counsel, giving him the opportunity to move to withdraw the plea, we do not consider this argument. No. 45509 -9 -II
FACTS
I. THE STATE' S CHARGING DOCUMENT AND IRISH' S GUILTY PLEAS
The State charged Irish with three counts of first degree assault and one count of drive -by
shooting, all while acting as an accomplice. The State later amended its information to add one
count of first degree rendering criminal assistance. In his statement of defendant on plea of guilty,
Irish explained why he was guilty of these charges:
On March 24, 2012, in the City of Tacoma, I drove my car, a white Honda Accord with license plate 368XKL to the area of South 45th Street bordered by South Lawrence Street and South Alder Street[.] I went there because I heard there was going to be a fight in that location. When I arrived I saw several people fighting. I then saw one person pull out a gun and fire one shot towards some of the people he had been fighting with. The shooter got into my car and I drove him north on South Alder Street to get him away from the scene so he could avoid apprehension by law enforcement. As we reached the intersection of South Alder Street and South 43rd Street, the shooter told me to stop and let him out of the car so that he could fire another round at the people he had previously shot at. I agreed and let him out. When I drove off I heard a gunshot.
Clerk' s Papers ( CP) at 22.
On the day that trial was to begin, the State and Irish reached a plea agreement that reduced
Irish' s charges to one count of first degree assault and one count of first degree rendering criminal
assistance. Both the amended information and the guilty plea statement included the same
language for first degree rendering criminal assistance: Irish " did unlawfully and feloniously
render criminal assistance to [ another], a person who committed or was being sought for First
Degree Assault, a Class A felony, by providing such person with ... means of avoiding discovery
or apprehension." CP at 12 -13.
At the hearing to enter Irish' s guilty plea, Irish' s trial counsel, Zenon Olbertz, told the trial
court that he and Irish discussed the guilty plea, which had been reached after " protracted
2 No. 45509 -9 -II
discussions and negotiations [ with the State]." Verbatim Report of Proceedings ( VRP) at 71.
During his colloquy with the trial court, Irish answered in the affirmative that he understood the elements of first degree assault and first degree rendering criminal assistance. The trial court
accepted Irish' s guilty plea and found that Irish made it knowingly, intelligently, and voluntarily.
II. SENTENCING: TRIAL COURT FINDS No CONFLICT OF INTEREST
Olbertz opened Irish' s sentencing hearing by asking the trial court to appoint Irish new
counsel. Olbertz explained that shortly after the entry of Irish' s guilty plea, Irish expressed desire
to withdraw it because "[ Irish] had been pressured into entering the plea." VRP at 84. Irish' s
request prompted Olbertz to ask the Department of Assigned Counsel ( DAC) to assign new
counsel for Irish because Olbertz felt he had become a witness to Irish' s allegation of pressure.
Olbertz understood that DAC had appointed a new attorney but he was unaware whether a notice
of substitution had been filed by the time of the sentencing hearing. Olbertz told the trial court
that he thought he had a conflict of interest because he would be a witness at any potential hearing
or proceeding on Irish' s motion to withdraw the plea. The trial court denied Olbertz' s request
because it did not have anything " firm" to make a conflict finding that would prevent proceeding
with sentencing. VRP at 85. The trial court then sentenced Irish. Irish appeals.
ANALYSIS
I. INFORMATION CONTAINED ALL ESSENTIAL ELEMENTS. OF FIRST DEGREE RENDERING CRIMINAL ASSISTANCE
For the first time on appeal, Irish argues that the State' s information failed to give him
notice of all the essential elements of first degree rendering criminal assistance. We disagree.
3 No. 45509 -9 -II
Under the Sixth Amendment to the United States Constitution and article 1, section 22 of
the Washington State Constitution, the State' s information must contain all the essential elements
of each charged crime and allege facts supporting those elements so that the accused may prepare
a defense. State v. Zillyette, 178 Wn.2d 153, 158 -59, 307 P. 3d 712 ( 2013); State v. Lindsey, 177
Wn. App. 233, 245, 311 P. 3d 61 ( 2013), review denied, 180 Wn.2d 1022 ( 2014). An " essential
element" is an element that is necessary to establish the illegality of the behavior charged by the
State. Zillyette, 178 Wn.2d at 158.
2 We review challenges to the sufficiency of a charging document de novo. Lindsey, 177
Wn. App. at 244. But, when reviewing such a challenge for the first time on appeal, we will
liberally construe the information in favor of its validity. Zillyette, 178 Wn.2d at 161. We will
Kjorsvik3 uphold a charging document if it satisfies the two -prong test: "( 1) [ D] o the necessary
elements appear in any form, or by fair construction, on the face of the document and, if so, ( 2)
can the defendant show he or she was actually prejudiced by the unartful language." Zillyette, 178
Wn.2d at 162. The State' s information contains all the necessary elements and Irish cannot
demonstrate actual prejudice.
A. Necessary Elements of First Degree Rendering Criminal Assistance
Irish argues that the State' s information was insufficient because it alleged that he acted
unlawfully and feloniously," which is insufficient to allege knowledge as required to prove first
degree rendering criminal assistance. CP at 12. We disagree.
2 A guilty plea does not waive the defendant' s right to appeal the sufficiency of the State' s charging document. State v. Peltier, 181 Wn.2d 290, 294 -95, 332 P. 3d 457 ( 2014).
3 State v. Kjorsvik, 117 Wn.2d 93, 105 -106, 812 P. 2d 86 ( 1991).
4 No. 45509 -9 -II
A person renders criminal assistance if,
with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he or she knows has committed a crime ...
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FILED COURT OF APPEALS DIVISION II 2015 MAR 31 AM 8: 36 STA' AS t
GTON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
STATE OF WASHINGTON, No. 45509 -9 -II
Respondent,
v.
UNPUBLISHED OPINION JAYLIN JEROME IRISH,
Appellant.
SUTTON, J. — Jaylin Jerome Irish appeals his convictions following guilty pleas for first
degree assault and first degree rendering criminal assistance. Irish argues that ( 1) the information
failed to include all the essential elements of first degree rendering criminal assistance and ( 2) the
trial court violated his right to counsel when it denied his trial counsel' s motion to withdraw.'
Holding that the information contained all the essential elements of first degree rendering criminal assistance but that the trial court violated Irish' s right to counsel, we vacate Irish' s sentence,
remand to allow him to move to withdraw his guilty plea, and order the trial court to appoint Irish
new counsel.
1 Irish also argues that he pled guilty involuntarily. Because we vacate Irish' s sentence and order the trial court to appoint Irish new counsel, giving him the opportunity to move to withdraw the plea, we do not consider this argument. No. 45509 -9 -II
FACTS
I. THE STATE' S CHARGING DOCUMENT AND IRISH' S GUILTY PLEAS
The State charged Irish with three counts of first degree assault and one count of drive -by
shooting, all while acting as an accomplice. The State later amended its information to add one
count of first degree rendering criminal assistance. In his statement of defendant on plea of guilty,
Irish explained why he was guilty of these charges:
On March 24, 2012, in the City of Tacoma, I drove my car, a white Honda Accord with license plate 368XKL to the area of South 45th Street bordered by South Lawrence Street and South Alder Street[.] I went there because I heard there was going to be a fight in that location. When I arrived I saw several people fighting. I then saw one person pull out a gun and fire one shot towards some of the people he had been fighting with. The shooter got into my car and I drove him north on South Alder Street to get him away from the scene so he could avoid apprehension by law enforcement. As we reached the intersection of South Alder Street and South 43rd Street, the shooter told me to stop and let him out of the car so that he could fire another round at the people he had previously shot at. I agreed and let him out. When I drove off I heard a gunshot.
Clerk' s Papers ( CP) at 22.
On the day that trial was to begin, the State and Irish reached a plea agreement that reduced
Irish' s charges to one count of first degree assault and one count of first degree rendering criminal
assistance. Both the amended information and the guilty plea statement included the same
language for first degree rendering criminal assistance: Irish " did unlawfully and feloniously
render criminal assistance to [ another], a person who committed or was being sought for First
Degree Assault, a Class A felony, by providing such person with ... means of avoiding discovery
or apprehension." CP at 12 -13.
At the hearing to enter Irish' s guilty plea, Irish' s trial counsel, Zenon Olbertz, told the trial
court that he and Irish discussed the guilty plea, which had been reached after " protracted
2 No. 45509 -9 -II
discussions and negotiations [ with the State]." Verbatim Report of Proceedings ( VRP) at 71.
During his colloquy with the trial court, Irish answered in the affirmative that he understood the elements of first degree assault and first degree rendering criminal assistance. The trial court
accepted Irish' s guilty plea and found that Irish made it knowingly, intelligently, and voluntarily.
II. SENTENCING: TRIAL COURT FINDS No CONFLICT OF INTEREST
Olbertz opened Irish' s sentencing hearing by asking the trial court to appoint Irish new
counsel. Olbertz explained that shortly after the entry of Irish' s guilty plea, Irish expressed desire
to withdraw it because "[ Irish] had been pressured into entering the plea." VRP at 84. Irish' s
request prompted Olbertz to ask the Department of Assigned Counsel ( DAC) to assign new
counsel for Irish because Olbertz felt he had become a witness to Irish' s allegation of pressure.
Olbertz understood that DAC had appointed a new attorney but he was unaware whether a notice
of substitution had been filed by the time of the sentencing hearing. Olbertz told the trial court
that he thought he had a conflict of interest because he would be a witness at any potential hearing
or proceeding on Irish' s motion to withdraw the plea. The trial court denied Olbertz' s request
because it did not have anything " firm" to make a conflict finding that would prevent proceeding
with sentencing. VRP at 85. The trial court then sentenced Irish. Irish appeals.
ANALYSIS
I. INFORMATION CONTAINED ALL ESSENTIAL ELEMENTS. OF FIRST DEGREE RENDERING CRIMINAL ASSISTANCE
For the first time on appeal, Irish argues that the State' s information failed to give him
notice of all the essential elements of first degree rendering criminal assistance. We disagree.
3 No. 45509 -9 -II
Under the Sixth Amendment to the United States Constitution and article 1, section 22 of
the Washington State Constitution, the State' s information must contain all the essential elements
of each charged crime and allege facts supporting those elements so that the accused may prepare
a defense. State v. Zillyette, 178 Wn.2d 153, 158 -59, 307 P. 3d 712 ( 2013); State v. Lindsey, 177
Wn. App. 233, 245, 311 P. 3d 61 ( 2013), review denied, 180 Wn.2d 1022 ( 2014). An " essential
element" is an element that is necessary to establish the illegality of the behavior charged by the
State. Zillyette, 178 Wn.2d at 158.
2 We review challenges to the sufficiency of a charging document de novo. Lindsey, 177
Wn. App. at 244. But, when reviewing such a challenge for the first time on appeal, we will
liberally construe the information in favor of its validity. Zillyette, 178 Wn.2d at 161. We will
Kjorsvik3 uphold a charging document if it satisfies the two -prong test: "( 1) [ D] o the necessary
elements appear in any form, or by fair construction, on the face of the document and, if so, ( 2)
can the defendant show he or she was actually prejudiced by the unartful language." Zillyette, 178
Wn.2d at 162. The State' s information contains all the necessary elements and Irish cannot
demonstrate actual prejudice.
A. Necessary Elements of First Degree Rendering Criminal Assistance
Irish argues that the State' s information was insufficient because it alleged that he acted
unlawfully and feloniously," which is insufficient to allege knowledge as required to prove first
degree rendering criminal assistance. CP at 12. We disagree.
2 A guilty plea does not waive the defendant' s right to appeal the sufficiency of the State' s charging document. State v. Peltier, 181 Wn.2d 290, 294 -95, 332 P. 3d 457 ( 2014).
3 State v. Kjorsvik, 117 Wn.2d 93, 105 -106, 812 P. 2d 86 ( 1991).
4 No. 45509 -9 -II
A person renders criminal assistance if,
with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he or she knows has committed a crime ... or is being sought by law enforcement officials for the commission of a crime ... he or she [ p] rovides such person with ... means of avoiding discovery or apprehension.
RCW 9A. 76. 050( 3) ( emphasis added). To commit first degree rendering criminal assistance, the
defendant must provide assistance to a person who has committed a class A felony. RCW
9A.76. 070( 1). 4 A person can be convicted of rendering criminal assistance only if he or she had
knowledge of the principal' s crime, but need not know the facts pertaining to the degree of crime.
State v. Anderson, 63 Wn. App. 257, 260, 818 P. 2d 40 ( 1991).
We determine whether the defendant satisfies the first prong of the Kjorsvik test by reading
the information in a commonsense manner. Zillyette, 178 Wn.2d at 162. The information need
not use the exact words of the applicable statute as long as it uses words that convey the same
meaning. Kjorsvik, 117 Wn.2d at 108. We have held that the phrase "' unlawfully and
feloniously ' is equivalent to the term "` knowingly. "' State v. Snapp, 119 Wn. App. 614, 621, 82
P. 3d 252 ( 2004) ( quoting State v. Krajeski, 104 Wn. App. 377, 386, 16 P. 3d 69 ( 2001)). The State
may thus use the phrase "` unlawfully and feloniously ' to allege knowledge as a necessary element
of the charged crime. Krajeski, 104 Wn. App. at 386 ( quoting State v. Nieblas -Duarte, 55 Wn.
App. 376, 380, 777 P.2d 583 ( 1989)).
4 RCW 9A.76. 070( 1) provides: A person is guilty of rendering criminal assistance in the first degree if he or she renders criminal assistance to a person who has committed or is being sought for murder in the first degree or any class A felony or equivalent juvenile offense.
5 No. 45509 -9 -II
The State' s amended information charged Irish with first degree rendering criminal
assistance, alleging
t] hat [ Irish] ... did unlawfully and feloniously render criminal assistance to [ Irish' s co- a person who committed or was being sought for First Degree defendant], Assault, a Class A felony, by providing such person with ... means of avoiding discovery or apprehension, contrary to RCW 9A.76.050( 3) and 9A.76. 070( 2)( a).
CP at 12 - 13. The information describes the actions Irish took to render criminal assistance and
that his co- defendant was being sought for first degree assault, a class A felony. The information
alleges that Irish did so " unlawfully and feloniously." CP at 12. The State' s allegation that Irish
acted " unlawfully and feloniously" is equivalent to alleging that Irish acted with knowledge.
Krajeski, 104 Wn. App. at 386. Viewed in context and construed liberally, the State' s information
sufficiently alleged the knowledge element of rendering criminal assistance.
B. Actual Prejudice
Even if all necessary elements of the charged crime appear in the information, it may still
be constitutionally insufficient under the second prong of the Kjorsvik test if the defendant was
actually prejudiced by the " unartful language." Zillyette, 178 Wn.2d at 162. Irish argues that we
must presume prejudice when the information does not contain all the necessary elements of the
charged crime. Irish cannot prove that he was prejudiced.
Irish' s statements demonstrate that he understood the elements of first degree rendering
criminal assistance. Irish answered in the affirmative when the trial court asked him whether he
understood the charges against him. In his guilty plea statement, Irish e. xplained why he was guilty:
I then saw one person pull out a gun and fire one shot towards some of the people he had been fighting The shooter got into my car and I drove him north on with.
South Alder Street to get him away from the scene so he could avoid apprehension by law enforcement.
6 No. 45509 -9 -II
CP at 22 ( emphasis added). Irish understood that his co- defendant had fired shots toward people
and then drove his co- defendant away from the scene to avoid apprehension. Irish cannot be
prejudiced by the language in the information when his own words show that he understood what
the shooter had done and what his own role had been. Further, Irish told the trial court that he
understood the elements of the crimes to which he pled guilty. Irish cannot demonstrate actual
prejudice.
II. OLBERTZ COULD NOT REPRESENT IRISH WHEN HE HAD A CONFLICT OF INTEREST
Irish argues that the trial court violated his right to counsel when it denied Olbertz' s motion
to withdraw due to a conflict of interest between himself and Olbertz because Irish alleged that
Olbertz pressured him to plead guilty. We agree.
The Sixth Amendment guarantees the right to effective assistance of counsel. U.S. CONST.
amend. VI; In re Pers. Restraint of Gomez; 180 Wn.2d 337, 348, 325 P. 3d 142 ( 2014). This right
includes the right to conflict -free counsel at all critical stages of prosecution. State v. Robinson,
153 Wn.2d 689, 694, 107 P. 3d 90 ( 2005). 5 We review de novo whether a conflict of interest
precludes continued representation. State v. Pierce, 169 Wn. App. 533, 559, 280 P. 3d 1158 ( 2012);
Gomez, 180 Wn.2d at 347.
5 A conflict of interest exists where a defendant' s interests are adverse to his or her attorney' s interests. Statev. Fualaau, 155 Wn. App. 347, 362, 228 P. 3d 771 ( 2010), cert. denied, 131 S. Ct.
1786 ( 2011).
7 No. 45509 -9 -II
The trial court has a duty to investigate potential conflicts of interest when it knows or
reasonably should know that a potential conflict of interest exists between counsel and his or her client. State v. Regan, 143 Wn. App. 419, 425 -26, 177 P. 3d 783 ( 2008). When a defendant or an
attorney alerts the trial court to a conflict of interest, the trial court must appoint substitute counsel
or take " adequate steps" to determine whether the risk of a conflict of interest is too remote to
require substitute counsel. Holloway v. Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 55 L. Ed. 2d
426 ( 1978). On appeal, a defendant must demonstrate that an actual conflict of interest adversely
affected trial counsel' s performance. State v. Dhaliwal, 150 Wn.2d 559, 570, 79 P. 3d 432 ( 2003).
The trial court violated Irish' s right to counsel. Olbertz alerted the trial court that he had a
conflict of interest with Irish because he had been a witness to Irish' s allegation that counsel
pressured him to plead guilty. This was an actual conflict of interest and not theoretical; after Irish
told Olbertz that he wanted to withdraw his guilty plea because of that pressure, Olbertz could not
have filed a motion to withdraw the guilty plea because of the conflict of interest. Regan, 143 Wn.
App. at 428. This caused a lapse in representation and affected Olbertz' s ability to advocate on
Irish' s behalf. Regan, 143 Wn. App. at 428. Further, the trial court could not have gathered more
information to make a conflict finding because Olbertz' s conflict prevented him from giving the
trial court a more complete explanation. By denying Olbertz' s motion to withdraw, the trial court
required Olbertz to continue to represent Irish at the sentencing hearing despite a demonstrated
conflict of interest.
We hold that the State' s information sufficiently alleged the essential elements of first
degree rendering criminal assistance, but that the trial court violated Irish' s right to counsel by
denying his trial counsel' s motion to withdraw. Therefore, we vacate Irish' s sentence, remand to No. 45509 -9 -II
allow Irish to move to withdraw his guilty plea, and order the trial court to appoint new counsel
for Irish. •
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: