IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84049-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MARK ALLEN FAGIN,
Appellant.
DÍAZ, J. — Appellant Mark Fagin challenged several of the conditions of
community custody imposed at his original sentencing through a Personal
Restraint Petition (PRP), which this court granted in part. At his resentencing, the
parties agreed on, and the court adopted, revisions to each deficient condition
except for one, which the court resolved in a manner neither party proposed. Fagin
now challenges a variety of conditions of his new sentence on many different
grounds, as well as asserting the trial court erred in denying his motion to substitute
counsel and violated his right to privately confer with counsel. We remand for the
trial court only to correct the unconstitutional, newly imposed condition.
I. BACKGROUND
A. Factual Background
In December 2017, Fagin responded to an online advertisement posted by
Citations and pincites are based on the Westlaw online version of the cited material. No. 84049-5-I
law enforcement, in which a fictitious mother offered her two fictitious daughters
for sexual activity (6 and 11 years old). Fagin discussed with the fictitious mother
his plans for the fictional daughters, bought gifts for them, and drove to the meeting
place, where he was arrested. His arrest led to the discovery of an incident from
2010, where Fagin lived with a woman and her 12-year-old daughter, who reported
that Fagin raped her during that time. Fagin pled guilty to attempted rape of a child
in the second degree for the sting operation (Count I) and rape of a child in the
third degree for the incident in 2010 (Count II).
B. Procedural Background
In 2018, the court imposed an indeterminate sentence of 90 months to life
in prison for Count I, and 34 months of confinement on Count II. The court further
imposed a lifetime term of community custody for Count I. The court imposed
numerous conditions of community custody as a part of his sentence. Fagin did
not appeal that sentence.
Fagin filed a PRP in 2019 challenging, among other things, many of the
community custody conditions. In 2021, this court agreed that several of those
conditions were unconstitutional (some of which the State had conceded were so),
granted the petition, and remanded to the trial court to modify various conditions,
which will be discussed in more detail below.
After some starts and stops, the trial court conducted a resentencing
hearing on April 12, 2022, in which Fagin participated remotely while his counsel
was in court in person. During the hearing, Fagin made a motion to substitute
counsel, which the court denied for reasons to be described below. The court then
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went forward with resentencing and entered the final second amended sentence
on April 15, 2022. Fagin timely appeals.
II. ANALYSIS
A. Community Custody Conditions
1. Additional procedural background
Fagin raised constitutional challenges in his PRP to the following pertinent1
conditions: (1) the sexual history and other assessments condition (condition 3);
(2) the internet access monitoring condition (condition 9); and (3) the social media
condition (condition 11). This court remanded this matter to the trial court to correct
these conditions.
Specifically, in an unpublished opinion, this court remanded condition 3 to
ensure it complied with case law that prohibits plethysmograph testing at the
direction of the DOC. This court remanded condition 9 to ensure the delegation of
authority for approving the internet monitoring software is clear. This court did not
consider other challenges to condition 9, noting “the parties may further litigate any
issues they identify as to free speech or warrantless searches arising from this
condition.” Finally, this court agreed with Fagin’s First Amendment challenge to
condition 11 and remanded for the trial court to conduct the requisite overbreadth
analysis on the record. The mandate was issued on December 16, 2021, directing
the trial court to conduct “further proceedings in accordance with” this court’s
1 This court also ordered the parties to modify additional conditions 2 and 6 (related
to the right to parent), crime related condition 3 (related to avoiding certain places), additional condition 5 (related to forming relationships), and additional condition 10 (regarding possessing sexually explicit material). However, these conditions are not here on appeal and will not be discussed further. 3 No. 84049-5-I
opinion.
At the start of the pertinent portion of the April 2022 resentencing, the court
made clear it was “going to move forward . . . based on the mandate from Division
I.” Counsel for both parties then agreed that only one clause of one condition
(condition 11) required discussion as the parties had agreed to the modifications
to the other conditions off the record. The court adopted the agreed language as
to conditions 3 and 9, heard argument about condition 11 (including inviting
comment from Fagin himself), and made an oral ruling on that condition, deviating
from either party’s recommendation.
Specifically, the conditions were modified as follows (where strike-through
text represents deletions and underlined text are additions):
3. Submit to a sexual history and periodic polygraphs and/or plethysmograph assessments at own expense as directed by the Department of Corrections or therapist sexual deviancy treatment provider. … 9. You shall not access the Internet on any device without approved monitoring software that has been approved by your Community Corrections Officer. … 11. You shall not visit, have accounts for or utilize social media or websites which advertise or promote dating, prostitution, casual sexual relationships, or similar content. Your existing and future social media accounts are subject to review by your Community Corrections Officer. You shall, now and in the future, notify your Community Corrections Officer of any existing social media accounts and any of those created by you during your term of Community Custody. Your Community Corrections Officer, upon request, must be provided the ability to review any such account, and his discretion and in the manner of his choosing.
Fagin now raises multiple types of challenges to each of these three
4 No. 84049-5-I
conditions. Specifically, Fagin challenges (a) conditions 9 and 11 as violative of
article I, section 7 of our state constitution and of the Fourth Amendment of our
federal constitution; (b) condition 9 as violative of RCW 9.94A.030(10)’s
requirement that a condition be “crime-related” and as unduly vague under article
I, section 3 of our state constitution and the Fourteenth Amendment of our federal
constitution; and (c) condition 3 as violative of the Fifth Amendment of our federal
constitution, as well as inconsistent with the court’s own ruling regarding Fagin’s
financial status. Alternatively, Fagin argues his counsel was ineffective for failing
to raise these challenges in violation of the Sixth Amendment of our federal
constitution.
The State argues that each of these challenges is barred from review either
by the law of the case doctrine codified at RAP 2.5(c) or, alternatively, because
Fagin has not shown a manifest error of a constitutional magnitude (as they are
raised for the first time on appeal) under RAP 2.5(a)(3).
In reply, Fagin responds that each of the conditions are properly before this
court because the trial court “modified” condition 3, because this court did not
reach the full merits as to condition 9, and because condition 11 was “overhauled.”
Alternatively, Fagin argues that this court can exercise its discretion under RAP
1.2(c), in the interest of justice and judicial economy.
Both parties are right in part and wrong in part.
2. The scope of the trial court’s and this court’s review
“No procedural principle is more familiar than that a constitutional right, or a
right of any other sort, may be forfeited in criminal cases by the failure to make
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timely assertion of the right before a tribunal having jurisdiction to determine it.”
State v. Stoddard, 192 Wn. App. 222, 226, 366 P.3d 474 (2016). This principle
was formalized in RAP 2.5(a), which states that this “court may refuse to review
any claim of error which was not raised in the trial court.” However, the rule goes
on to provide exceptions and further guidance for these types of situations.
Specifically, pursuant to RAP 2.5(a)(3), “a party may raise . . . for the first
time in the appellate court . . . [a] manifest error affecting a constitutional right.”
(Emphasis added.) And, pursuant to RAP 2.5(c)(1), “if the same case is again
before the appellate court following a remand,” and if “a trial court decision is
otherwise properly before the appellate court,” this court “may at the instance of a
party review and determine the propriety of a decision of the trial court even though
a similar decision was not disputed in an earlier review of the same case.”
(Emphasis added.)
As to the latter, three decades ago, our Supreme Court observed that
“[c]learly the rule is permissive for both the trial court and the appellate court. It is
discretionary for the trial court to decide whether to revisit an issue which was not
the subject of appeal. If it does so, RAP 2.5(c)(1) states that the appellate court
may review such issue.” State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519
(1993).
Moreover, the Court held that, “This rule does not revive automatically every
issue or decision which was not raised in an earlier appeal. Only if the trial court,
on remand, exercised its independent judgment, reviewed and ruled again on such
issue does it become an appealable question.” Id. at 50. Putting an even finer
6 No. 84049-5-I
point on it, the Court concluded, “The deciding fact then is whether the trial court
in this case did in fact independently review, on remand” the issue seeking
appellate review. Id. at 51 (distinguishing, on the one hand, between “exercis[ing]
its independent judgment to review and reconsider its earlier sentence” and, on
the other hand, “only [making] corrective changes”). 2
Finally, and for all these reasons, despite RAP 2.5(c)(1)’s permissive
language, a “trial court’s discretion to resentence on remand is limited by the scope
of the appellate court's mandate.” State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d
393 (2009).
Here, as in Kilgore, the mandate “did not explicitly authorize the trial court
to resentence” Fagin, but instead remanded the matter to the trial court “for
correction of the various deficiencies” we identified. Moreover, here, the trial court
explicitly, carefully, and without objection indicated its intent to adhere to the
specific mandate of this court. Both courts were well within their discretion to do
so.
Further, as to conditions 3 and 9, the court accepted the off-the-record
agreement of the parties and surgically corrected those conditions. In no sense
2 Our Supreme Court explained that this distinction is so because “when, on remand, a trial court has the choice to review and resentence a defendant under a new judgment and sentence or to simply correct and amend the original judgment and sentence, that choice itself is not an exercise of independent judgment by the trial court. The reason that choice is not an independent judgment is because if the trial court simply corrects the original judgment and sentence, it is the original judgment and sentence entered by the original trial court that controls the defendant’s conviction and term of incarceration.” Kilgore, 167 Wn.2d at 40- 41. Here the court entered a (second) amended judgment and sentence not a new judgment and sentence. 7 No. 84049-5-I
then did the court exercise its “independent judgment” or “reconsider” either of
those conditions. Barberio, 121 Wn.2d at 50. On their face, the trial court was
making only “corrective changes” to those conditions. Id. at 51. 3
Condition 11 is different. The trial court accepted the invitation by, and
agreed with, Fagin’s counsel to consider the First Amendment implications in the
proposal by the State. The court heard argument, re-reviewed the record,
considered new case law, and made its own determination as to the overbreadth
concerns of that condition, ultimately drafting language “different” than that
proposed by either party. The court did not only correct a condition, but explicitly
proposed its own new condition. In all these ways, the trial court exercised its
independent judgment. Barberio, 121 Wn.2d at 51. Thus, condition 11 is properly
before this court.
3. Standard of review of condition 11
"When sentencing an individual to a term of community custody, trial courts
are tasked with crafting supervision conditions that are sufficient to promote public
safety but also respectful of a convicted person’s statutory and constitutional
rights.” State v. Johnson, 4 Wn. App. 2d 352, 355, 421 P.3d 969 (2018).
We generally review community custody conditions for abuse of discretion.
State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018). But we more carefully
review conditions that interfere with a fundamental constitutional right. In re Pers.
Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010). Such conditions
3 This conclusion does not address whether counsel for Fagin should have raised
additional challenges contemplated by this court as to condition 9. This consideration will be addressed below. 8 No. 84049-5-I
must be “‘sensitively imposed’” so that they are “‘reasonably necessary to
accomplish the essential needs of the State and public order.’” Id. (quoting State
v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)). The extent to which a
sentencing condition affects a constitutional right is a legal question subject to strict
scrutiny. Id.
In short, a “trial court necessarily abuses its discretion if it imposes an
unconstitutional community custody condition, and we review constitutional
questions de novo.” State v. Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619
(2019). When a condition of community custody is primarily legal and does not
require further factual development, it is ripe for review. State v. Cates, 183 Wn.2d
531, 534, 354 P.3d 832 (2015).
4. Condition 11 as written violates article I, section 7
a. Applicable substantive law
Our state constitution provides that “[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority of law.” CONST. art. I, § 7. It
is well established that in some areas, this provision provides greater protection
than the Fourth Amendment, its federal counterpart. State v. Olsen, 189 Wn.2d
118, 121, 399 P.3d 1141 (2017). The constitutional standard also is incorporated
into the Sentencing Reform Act which states, “If there is reasonable cause to
believe that an offender has violated a condition or requirement of the sentence, a
community corrections officer may require an offender to submit to a search and
seizure of the offender’s person, residence, automobile, or other personal
property.” RCW 9.94A.631(1). In other words, the reasonable cause standard
9 No. 84049-5-I
requires a community corrections (CCO) officer to have a “well-founded suspicion
that a violation has occurred” before conducting a warrantless search. State v.
Parris, 163 Wn. App. 110, 119, 259 P.3d 331 (2011), abrogated on other grounds
by State v. Cornwell, 190 Wn.2d 296, 412 P.3d 1265 (2018). In short, a
warrantless search generally requires reasonable cause.
It is also well established, however, that probationers have a reduced
expectation of privacy than ordinary citizens because they are “persons whom a
court has sentenced to confinement but who are serving their time outside the
prison walls.” Olsen, 189 Wn.2d at 124-25. Under certain circumstances, the
State does not need a warrant, an applicable warrant exception, or even probable
cause to search a probationer. Id. at 126. However, the State’s action on privacy
intrusion must be undertaken with “authority of law.” Id. While RCW 9.94A.631
generally provides the authority of law to search those in community custody, the
judgment and sentence itself may provide the requisite authority of law. Id. A
balancing test – whether a compelling interest, achieved through narrowly tailored
means, supports the intrusion into a probationer’s reduced privacy interests – is
appropriate to evaluate if there is “authority of law” in the circumstances. Id. at
127-28.
b. Discussion
Fagin challenges the following portion of condition 11: “Your Community
Corrections Officer, upon request, must be provided the ability to review any such
account, [at] his discretion and in the manner of his choosing.” He argues that it
violates article I, section 7 of our state constitution and the Fourth Amendment of
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our federal constitution because it authorizes warrantless searches without
reasonable cause to believe Fagin has violated a condition of his sentence.
Indeed, on its face, that clause of that condition grants the CCO unrestricted
discretion to search Fagin’s present and future social media accounts without
reasonable cause.
The State argues that this condition is similar to Olsen where the Court
concluded that the requirement for random urinalysis (UA) testing for controlled
substances, without reasonable suspicion, of probationers convicted for driving
under the influence did not violate the state constitution. Olsen, 189 Wn.2d at 120-
21.
In Olsen, our Supreme Court distinguished between UA testing and other
more intrusive searches that run the risk of exposing a large amount of private
information completely unrelated to the underlying offense. 189 Wn.2d at 124
(“including whether he or she is epileptic, pregnant, or diabetic”) (quoting Skinner
v. Railway Lab. Executives’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 103 L. Ed.
2d 639 (1989)).
Here, the social media condition 11 runs headlong into that risk. There
literally is no limit as to the type of social media account and the information posted
on it which the CCO may have warrantless access to, all of which may have
nothing to do with the underlying safety concerns of the State. “These privacy
interests are precisely what article I, section 7 is meant to protect.” Id. (citing State
v. Jorden, 160 Wn.2d 121, 126, 156 P.3d 893 (2007) (“[A] central consideration
[under article I, section 7] is . . . whether the information obtained via the
11 No. 84049-5-I
governmental trespass reveals intimate or discrete details of a person’s life.”)).
Therefore, we conclude condition 11, unless limited by reasonable
suspicion of a violation of the conditions relevant to the underlying sentence,
violates article I, section 7 of our state’s constitution, and we need not reach the
Fourth Amendment claim. And thus, we remand this matter to the trial court to
correct this and only this condition by imposing a reasonable cause standard
before a CCO may conduct a warrantless search of Fagin’s social media, which
search should be conducted at a reasonable time and in a reasonable manner.
5. Fagin’s counsel was not ineffective for failing to challenge the modified condition 9
Again, at resentencing, the trial court, with the parties’ consent, corrected
the condition 9 as follows: “You shall not access the Internet on any device without
monitoring software that has been approved by your Community Corrections
Officer.” While we remanded this condition “to ensure that the delegation of
authority for approving the monitoring software is clear,” this court also explicitly
permitted the parties to “further litigate any issues they identify as to free speech
or warrantless searches arising from this condition.” Below, Fagin’s counsel raised
neither.
Now Fagin raises article I, section 7 and Fourth Amendment challenges,
i.e., warrantless search challenges, to this condition. 4 The trial court did not
4 Fagin also avers that condition 9 violates RCW 9.94A.030(10)’s requirement that
a condition be “crime-related” and is unduly vague under article 1, section 3 of our state constitution and the Fourteenth Amendment of our federal constitution. For the reasons discussed above, neither was contemplated by the mandate, the trial court did not exercise independent judgment over these issues, and will not be considered here. 12 No. 84049-5-I
exercise independent judgment over these issues and, for the reasons discussed
above, will not be considered here in the first instance on its merits. However,
Fagin brings an alternative claim of ineffective assistance of counsel for failing to
object specifically to this condition.
Indeed, every person accused of a crime is guaranteed the constitutional
right to the effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); U.S. CONST. amend. VI;
WASH. CONST. art. I, § 22. That right is violated where (1) counsel’s performance
was deficient, and (2) the deficiency prejudiced the defendant. Id. at 687.
Fagin’s counsel’s performance was not deficient because there was no
“unconstitutional search problem” created by the simple correction to condition 9,
which merely specified to whom was delegated the authority to approve the
monitoring software.
As this court anticipated in its prior opinion, our courts have accepted
filter/monitoring software as an effective tool narrowly tailored to monitor sex
offenders’ compliance. State v. Johnson, 197 Wn.2d 740, 744, 487 P.3d 893
(2021) (considering first and Fourteenth Amendment challenges); State v.
Frederick, 20 Wn. App. 2d 890, 903-04, 506 P.3d 690 (2022) (considering the
same with respect to markedly similar facts as here).
Moreover, the scope of such monitoring here is “implicitly” limited to Fagin’s
compliance with his other conditions of community placement and not “as a fishing
expedition to discover evidence of other crimes, past or present.” State v. Combs,
13 No. 84049-5-I
102 Wn. App. 949, 952-53, 10 P.3d 1101 (2000).
Furthermore, the CCO’s role in this condition is limited to approving which
monitoring software to use. Any further intrusion, e.g., to Fagin’s social media
accounts, will be governed by reasonable suspicion as specified above.
Therefore, the internet access condition passes the balancing test that a
compelling interest, achieved through narrowly tailored means, supports the
intrusion into a probationer’s reduced privacy interests without the need to secure
repeated or individual instances of reasonable suspicion when using the software.
Olsen, 189 Wn.2d at 127-28.
Fagin’s counsel below was not deficient in not challenging this revised
condition on the limited remand.
B. Motion to substitute counsel
Fagin argues the trial court abused its discretion in denying Fagin’s request
for new counsel because it failed to conduct an adequate inquiry into the nature
and extent of the conflict and breakdown in the attorney-client relationship. We
disagree.
1. Additional factual background
At the resentencing hearing on April 12, 2022, Fagin requested to substitute
his counsel, stating that he had “lost . . . trust” in his counsel and that his counsel’s
caseload was too heavy, such that he could not give this matter the attention
deserved. Fagin further stated that he wanted “all issues” brought into conformity
with the law, specifically requesting a First Amendment expert, which his counsel
14 No. 84049-5-I
was not.
After the court asked for his input, Fagin’s defense counsel stated that, a
few weeks after the initial hearing in February, he had sent Fagin a three-page
letter, along with a hundred pages of caselaw, addressing Fagin’s concerns and
explaining why he would not be addressing Fagin’s concerns in court. Counsel
said he devoted the time to Fagin’s case he believed was required and necessary.
After checking with the State, the trial court denied the request to remove and
substitute counsel, advising Fagan that “although there is a right to appointed
counsel in a case like this, it’s not to counsel of one’s choosing” and there were no
facts supporting removal.
2. Law
Defendants in criminal cases have the right to the assistance of counsel.
U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22. The right to counsel attaches
whenever a court considers any matter in connection with a defendant’s sentence.
State v. Rupe, 108 Wn.2d 734, 741, 743 P.2d 210 (1987).
Although indigent defendants do not have an absolute right to counsel of
choice, the substitution of counsel is required where there is good cause shown.
In re Pers. Restraint of Stenson, 142 Wn.2d 710, 723, 16 P.3d 1 (2001). Good
cause includes (1) a conflict of interest (which is not alleged here), (2) an
irreconcilable conflict, or (3) a complete breakdown in communication between the
attorney and the defendant. Id.
A trial court’s decision denying a motion for substitute counsel is “a matter
within the discretion of the trial court.” State v. Stenson, 132 Wn.2d 668, 733, 940
15 No. 84049-5-I
P.2d 1239 (1997). “There is an abuse of discretion when the trial court’s decision
is manifestly unreasonable or based upon untenable grounds or reasons.” State
v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). “A decision is based ‘on
untenable grounds’ or made ‘for untenable reasons’ if it rests on facts unsupported
in the record or was reached by applying the wrong legal standard.” State v.
Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79
Wn. App. 786, 793, 905 P.2d 922 (1995)).
Constitutional considerations, however, provide a check on the exercise of
this discretion. United States v. Nguyen, 262 F.3d 998, 1003 (9th Cir. 2001).
Specifically, the denial of a motion to substitute counsel may implicate the
defendant’s Sixth Amendment right to counsel. Bland v. Cal. Dep’t of Corr., 20
F.3d 1469, 1475 (9th Cir. 1994), overruled on other grounds by Schell v. Witek,
218 F.3d 1017 (9th Cir. 2000).
Three factors are considered in reviewing a trial court’s decision to deny a
motion to substitute counsel: (a) the extent of the conflict; (b) the adequacy of the
court’s inquiry; and (c) the timeliness of the motion. In re Pers. Restraint of
Stenson, 142 Wn.2d at 724.
As to the first factor, “[c]ounsel and defendant must be at such odds as to
prevent presentation of an adequate defense.” State v. Schaller, 143 Wn. App.
258, 268, 177 P.3d 1139 (2007). As to the second, when a court learns of an
alleged conflict between a defendant and counsel, it must inquire into the factual
basis for the defendant’s dissatisfaction, so that the judge has a “sufficient basis
for reaching an informed decision.” State v. Thompson, 169 Wn. App. 436, 461,
16 No. 84049-5-I
290 P.3d 996 (2012) (quoting United States v. Adelzo–Gonzalez, 268 F.3d 772,
777 (9th Cir.2001)).
3. Discussion
Beginning with the second factor, regarding the nature of the inquiry the
court conducted, the heart of the dispute was clear: Fagin wanted more timely
responses from his counsel and wanted him to raise every error he saw before the
court. Fagin explained clearly these straightforward complaints about his counsel
and there was “sufficient” basis for the court to make its decision. Thompson, 169
Wn. App. at 462. Stated otherwise, “allowing the defendant and counsel to
express their concerns fully” obviates the need for any further “formal inquiry”
where the defendant “states his reasons for dissatisfaction on the record.”
Schaller, 143 Wn. App. at 271. That standard was met here. We will not impose,
as Fagin seems to suggest, a requirement for the court to ask a certain type of
question (e.g., specific or targeted) or conduct a specific kind of inquiry (e.g., in
camera) in every case.
As to the first factor (the extent of the conflict between defendant and
counsel), In re Pers. Restraint of Stenson, 142 Wn.2d at 723-24, the trial court did
not abuse its discretion in finding no facts supporting substitution, because the
conflict related to a “mere ‘disagreement about trial strategy [that] does not require
substitution of counsel.’” United States v. Lott, 310 F.3d 1231, 1249-50 (10th Cir.
2002) (alteration in original) (quoting United States v. Taylor, 128 F.3d 1105, 1110
(7th Cir. 1997)).
It was clear that Fagin, while harboring doubts based on his counsel’s
17 No. 84049-5-I
caseload or his perceived expertise, simply wanted his counsel to approach the
case differently, i.e., to raise “all issues” he thought appropriate. A conflict over
strategy does not constitute a conflict of interest. State v. Cross, 156 Wn.2d 580,
607, 132 P.3d 80 (2006), abrogated on other grounds by State v. Gregory, 192
Wn.2d 1, 427 P.2d 621 (2018).
We need not reach whether Fagan’s motion was timely. Thus, we find the
trial court did not abuse its discretion in denying Fagin’s motion for new counsel.
C. Right to privately confer with counsel
Finally, Fagin argues he did not know how private attorney-client
communication could take place during the remote hearing, in violation of the Sixth
Amendment constitutional right to the assistance of counsel. By way of example,
he argues, if he could have privately conferred with his counsel about several of
the conditions of community custody, his counsel may have raised these
arguments. On this claim, Fagin is wrong on the facts and the law.
For the first scheduled resentencing hearing on February 8, 2022, Fagin
was present via Zoom and his counsel was in the courtroom. During the hearing,
Fagin’s counsel asked for a 60 to 90-day continuance, which the trial court granted
for 60 days. Fagin asked if he could enter into a video breakout session with his
counsel. The trial court said it would leave the bench, adjourning and going off the
record, but it could leave the Zoom link active, so that Fagin and his counsel could
use it to talk privately with each other. That was what the trial court did.
In the final resentencing hearing on April 12, 2022, Fagin was present via
18 No. 84049-5-I
phone as the prison had some difficulties with their computer, while his counsel
was in the courtroom. The trial court told Fagin that, if he had trouble hearing them,
he could interrupt and let the judge know.
After the trial court ruled on Fagin’s motion to substitute counsel, Fagin
asked, “Your Honor, can I speak?”, to which the trial court said no and told Fagin
that he was going to move forward on the resentencing as mandated by this court.
Fagin interrupted again and said, “Your Honor, I object to this.” The trial court said,
“Mr. Fagin, one moment.” and then went on with the proposed order.
After counsel from both sides made their arguments on the social media
condition (condition 11) of the proposed order, the trial court told Fagin that he
would like to give Fagin the opportunity to address the issue of “resentencing . . .
and the amendment of certain conditions of your community corrections.” Fagin
said, “I have to say that I object to the entire hearing . . . I need to be able to
participate and to have things explained to me by my lawyer when I have
questions.” Fagin did not, however, state he had questions or at any time ask to
speak to his counsel, but went on to criticize his counsel’s qualifications. Finally,
Fagin said, “I respectfully object to all of this.” The trial court acknowledged his
objection and made the ruling on the sentencing amendment.
Criminal defendants have a state and federal constitutional right to the
assistance of counsel at all critical stages of criminal proceedings. Montejo v.
Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009); State v.
Heddrick, 166 Wn.2d 898, 909, 215 P.3d 201 (2009); U.S. CONST. amend. VI;
19 No. 84049-5-I
WASH. CONST. art. 1, § 22. Sentencing is a critical stage of the proceedings. Rupe,
108 Wn.2d at 741.
The constitutional right to counsel requires the “opportunity for private and
continual discussions between defendant and his attorney.” State v. Hartzog, 96
Wn.2d 383, 402, 635 P.2d 694 (1981). “The ability for attorneys and clients to
consult privately need not be seamless, but it must be meaningful.” State v.
Anderson, 19 Wn. App. 2d 556, 562, 497 P.3d 880 (2021).
In Anderson, this court was critical of a trial court’s handling of a zoom
hearing because it did not set “ground rules” for the defendant’s remote
participation and because it could not be expected that the defendant would know
to speak up. Id. at 563. However, this court held that the errors were harmless
because Anderson received “all the forms of relief that were requested at his
resentencing hearing,” and that any communication between his counsel and
himself would not have made a difference. Id. at 564. Specifically, this court was
not convinced that, if the defendant and the counsel had confidentially conferred
during the meeting to expand the scope of the hearing beyond the issues identified
on remand, it would be different because the defendant and his attorney were able
to confer before the hearing. Id. 5
Unlike the defendant in Anderson, this court did set ground rules for private
conversations in words and practice at least once, by offering to step out of the
5 Anderson further held the denial of this right to be a manifest constitutional error,
reviewable for the first time on appeal under RAP 2.5(a)(3), which the State does not challenge here. Anderson, 19 Wn. App. 2d at 562. 20 No. 84049-5-I
courtroom, to adjourn the hearing, and to permit them to speak privately. Further,
unlike the defendant in Anderson, the trial court specifically told Fagin that, if he
had any questions, he could speak up. Rather than ask for time with his counsel,
Fagin chose not to participate and simply claimed that he objected to “everything.”
Thus, both the process to privately confer with his counsel, and the court’s
expectations that he would avail himself of that process, were reasonable and
realistic, respectively.
Moreover, even if the process the court established was in error, as in
Anderson, it appears that private attorney-client consultation in the remand
meeting would not have made a difference. At the first hearing, the court granted
Fagin’s counsel’s request for additional time for the express purpose to confer with
his client, and (though not as timely as or in the manner Fagin would have wanted)
Fagin’s counsel in fact did confer with Fagin through written communication about
why he would not address Fagin’s concerns in court. It is unclear what, if any,
further communications would have occurred beyond what occurred during the 60-
day continuance. 6
Additionally, the trial court was very clear that it would not entertain any
further discussions about his motion to substitute counsel and was going to hold
closely to the issues identified in the appellate court mandate, to the extent they
6 In reply, Fagin argues, “That there was written communication before the sentencing hearing is of no moment.” Fagin cites no authority for the proposition we should ignore this further context. Where a party fails to provide citation to support a legal argument, we assume counsel, like the court, has found none. State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d 1229 (2020) (citing State v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017)). 21 No. 84049-5-I
were not already agreed to by the parties. Thus, as in Anderson, “[e]ven if Mr.
[Fagin] had asked his attorney to try to expand the scope of the hearing, there is
no reasonable basis for believing the result could have been different.” Anderson,
19 Wn. App. 2d at 564.
Therefore, applying the harmless error analysis to Fagin’s challenge, we
conclude the court did not violate Fagin’s right to privately confer with his counsel.
III. CONCLUSION
We affirm condition 3 and condition 9, and we find no error in the trial court’s
decisions on the motion to substitute counsel and its method of ensuring private
communications between Fagan and his counsel. We remand this matter only for
the court to correct condition 11 by adding a reasonable cause standard consistent
with this opinion.
WE CONCUR: