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August 9, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 55544-1-II
Respondent,
v. PUBLISHED OPINION
MICHAEL SHAWN CHARLTON,
Appellant.
MAXA, J. – Michael Charlton appeals his convictions of third degree child rape and third
degree child molestation and the imposition of two community custody conditions. The primary
issue on appeal arises from the fact that the trial court did not appoint defense counsel for
Charlton at his first two preliminary court appearances following his arrest. Charlton argues that
the preliminary hearings were critical stages of the criminal proceedings, and therefore this
failure to appoint counsel violated the Sixth Amendment to the United States Constitution and
constituted structural error requiring reversal of his convictions.
We hold that (1) the constitutional right to counsel attached at Charlton’s first two
appearances; (2) Charlton’s first court appearance was not a critical stage of the criminal
proceedings, but Charlton’s second appearance was a critical stage because the trial court
addressed the setting of bail; (3) even though the second appearance was a critical stage, we
apply a harmless error analysis rather than finding structural error because the violation did not
pervade or contaminate the entire criminal proceeding; (4) the trial court’s violation of
Charlton’s right to counsel at the second court appearance was harmless; and (5) as the State For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 55544-1-II
concedes, community custody condition 14 prohibiting Charlton from possessing a computer or
any computer components and community custody supervision fees must be stricken from the
judgment and sentence.
Accordingly, we affirm Charlton’s convictions, but we remand for the trial court to strike
community custody condition 14 and the community custody supervision fee provision from the
FACTS
On December 28, 2019, Charlton’s stepdaughter disclosed to police that Charlton had
engaged in sexual contact with her a few days earlier. Two days later police arrested Charlton
for third degree child rape, third degree child molestation, and indecent liberties.
First Court Appearance
On December 31, Charlton first appeared in Grays Harbor County Superior Court. The
State had not yet charged Charlton. No attorney for Charlton was present during this
appearance, nor did the court advise him of his right to counsel at that time.
The court confirmed Charlton’s identity and informed him of the crimes for which he had
been arrested. When asked if he understood the potential charges, Charlton responded, “I guess
so.” Report of Proceedings (RP) at 5. The court informed Charlton that the prosecuting attorney
was still in the process of gathering information from the police and needed more time before
making the final decision regarding the filing of charges against him. The prosecutor requested
that the court impose bail to prevent Charlton from returning to his house because that might
interfere with the investigation and pose other problems. The prosecutor also requested a sexual
assault protection order.
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The court noted that the State had until January 3, 2020 to file charges and told Charlton
that he would be informed of the charges that would be filed against him at that time. The court
also set bail in the amount of $25,000. Charlton began to reply, but the prosecutor interjected
and modified his request for a sexual assault protection order by asking for a no-contact order
between Charlton, the victim, and the victim’s mother. The court agreed to impose a no-contact
order.
The court entered an order finding that probable cause existed to believe that Charlton
had committed the crimes of third degree child rape, third degree child molestation, and indecent
liberties, and ordered Charlton to appear on January 3. The court also entered an order setting
bail at $25,000 and prohibiting Charlton from having contact with the victim or the victim’s
mother.
Second Court Appearance
On January 3, the State filed an information formally charging Charlton with third degree
child rape, third degree child molestation, and indecent liberties. Charlton appeared in court that
afternoon, again without counsel present. The prosecutor informed the court that the information
had been filed. The prosecutor then handed the court Charlton’s handwritten application for
pretrial release and an indigency screening form.
The court confirmed Charlton’s identity, read the charges in the information to him, and
asked if Charlton understood the charges. Charlton replied, “Yes, I think I do.” RP at 11. The
court then advised Charlton of his rights to an attorney and to remain silent. Charlton stated that
he was hoping for a court-appointed attorney. The court determined that Charlton qualified for
appointment of counsel and appointed defense counsel to represent him. The court set an
arraignment hearing for January 6.
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After confirming with the prosecutor that probable cause had been found at the previous
hearing, the court asked for the State’s position regarding conditions of release. The court
reaffirmed the no-contact order with the victim and victim’s mother due to concerns about
witness tampering. The court declined to order that Charlton have no contact with his biological
children. There later was a discussion between Charlton and the court about how he could see
his biological children when he could not contact their mother.
Regarding bail, the prosecutor confirmed that Charlton did not have any criminal history,
but expressed concern about where Charlton would go because the no-contact order prevented
him from returning to his home. The prosecutor proposed that bail remain at $25,000, which
“seem[ed] to be doing the trick.” RP at 15. Charlton informed the court that he could live in a
trailer on his parents’ property.
The court maintained bail at $25,000 rather than increasing it in light of Charlton’s lack
of criminal history, the place he could live, and his ties to the community. But the court stated
that the bail was “cash, no bond.” RP at 16. In addition, the prosecutor served Charlton with a
sexual assault protection order prohibiting contact between Charlton and the victim and a no
contact order between Charlton and the victim’s mother.
Arraignment
On January 6, Charlton appeared for the scheduled arraignment. Defense counsel
apparently was not present. The prosecutor stated that defense counsel might be requesting that
the arraignment be rescheduled for a week later, and the prosecutor did not object. Charlton
stated that he had not been able to meet with his counsel. The court rescheduled the arraignment
for January 13.
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On January 13, Charlton appeared in court along with defense counsel. Defense counsel
entered a plea of not guilty for all three counts on Charlton’s behalf and requested Charlton’s
release from custody on personal recognizance. The court granted this request and released
Charlton from custody until trial.
Trial and Sentencing
Charlton waived his right to a jury trial. The trial court found Charlton guilty of third
degree rape and third degree child molestation. The court dismissed the indecent liberties
charge.
At sentencing, the trial court imposed condition 14 as a community custody condition,
which prohibited Charlton from possessing a computer or any computer components. The court
found Charlton to be indigent and expressly waived community custody supervision fees.
Charlton appeals his convictions and the imposition of community custody condition 14
and community custody supervision fees.
ANALYSIS
A. PRELIMINARY HEARING PROCEDURE
CrR 3.2.1(d)(1) provides that a person who is detained in jail after a warrantless arrest
“shall be brought before the superior court as soon as practicable after the detention is
commenced . . . but in any event before the close of business on the next court day.” See State v.
Reisert, 16 Wn. App. 2d 321, 326, 480 P.3d 1151, review denied, 197 Wn.2d 1023 (2021)
(holding that CrR 3.2.1 applies only to warrantless arrests).
CrR 3.2.1(e)(1) provides that “[at] the preliminary appearance, the court shall provide for
a lawyer pursuant to rule 3.1.” CrR 3.1(b)(1) states, “The right to a lawyer shall accrue as soon
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as feasible after the defendant is taken into custody, appears before a committing magistrate, or
is formally charged, whichever occurs earliest.”
At the preliminary appearance, the court must orally inform the accused:
(i) of the nature of the charge against the accused; (ii) of the right to be assisted by a lawyer at every stage of the proceedings; and (iii) of the right to remain silent, and that anything the accused says may be used against him or her.
CrR 3.2.1(e)(1).
There is a presumption that the accused will be released on personal recognizance
pending trial unless the court finds one of three factors, including that there is a likely danger that
the accused “will seek to intimidate witnesses, or otherwise unlawfully interfere with the
administration of justice.” CrR 3.2(a)(2)(b). If the court finds that release should be denied, “the
court shall proceed to determine whether probable cause exists to believe that the accused
committed the offense charges.” CrR 3.2.1(e)(2).
Unless an information has been filed, an accused may not be detained in jail for more
than 72 hours after the detention, excluding Saturdays, Sundays, and holidays. CrR 3.2.1(f)(1).
If no information has been filed at the time of the preliminary appearance, the court must release
the accused or set a time within that 72-hour period when the accused must appear in court. CrR
3.2.1(f)(2).
B. ATTACHMENT OF CONSTITUTIONAL RIGHT TO COUNSEL AT PRELIMINARY HEARING
As noted above, CrR 3.2.1(e)(1) requires that counsel be provided to a defendant at the
preliminary court appearance. But regardless of the rule, Charlton is asserting that the trial
court’s failure to provide him with counsel at the preliminary hearings violated his constitutional
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right to counsel. He further asserts that, as discussed below, the trial court’s failure to do so
amounts to structural error.1
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a criminal defendant the right to counsel. “ ‘An accused’s
right to be represented by counsel is a fundamental component of our criminal justice system.’ ”
In re Pers. Restraint of Sanchez, 197 Wn. App. 686, 698, 391 P.3d 517 (2017) (quoting United
States v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)).
Attachment of the constitutional right to counsel occurs when a prosecution is
commenced, which occurs at “ ‘the initiation of adversary judicial criminal proceedings –
whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment.’ ” Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S. Ct. 2578, 171 L. Ed. 2d
366 (2008) (emphasis added) (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct.
2292, 81 L. Ed. 2d 146 (1984)). The Court in Rothgery “reaffirm[ed] what we have held before
and what an overwhelming majority of American jurisdictions understand in practice: a criminal
defendant’s initial appearance before a judicial officer, where he learns the charge against him
and his liberty is subject to restriction, marks the start of adversary judicial proceedings that
trigger attachment of the Sixth Amendment right to counsel.” 554 U.S. at 213.
In 1965, our Supreme Court stated in State v. Jackson that “the right to counsel extends
only to those stages in the judicial process that may be characterized as critical.” 66 Wn.2d 24,
28, 400 P.2d 774 (1965). Charlton argues that Jackson no longer is good law. To the extent that
1 In contrast, violation of CrR 3.2.1(e)(1) would be subject to the nonconstitutional harmless error analysis. “A violation of a court rule is harmless if there is no reasonable probability that the error materially affected the outcome of the trial.” State v. Scherf, 192 Wn.2d 350, 375, 429 P.3d 776 (2018).
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the court in Jackson implied that the constitutional right does not even attach until a critical stage
in the proceedings, we agree that Jackson would be inconsistent with Rothgery and other United
States Supreme Court cases. However, we interpret Jackson as stating that, as discussed below,
there is no constitutional violation unless a defendant was deprived of counsel at a critical stage.
Here, under Rothgery the constitutional right to counsel arguably attached at Charlton’s
first court appearance even though no formal charges had yet been filed because his liberty was
subject to restriction. But because the parties have not briefed this issue, we do not decide it.
We assume for purposes of this opinion that the constitutional right to counsel attached at the
time of Charlton’s first court appearance.
There is no question that under Rothgery the constitutional right to counsel attached at
least at the time of Charlton’s second court appearance. At that point, Charlton had been
formally charged, his liberty was restricted, and the court conducted a preliminary hearing that
was a part of adversary judicial criminal proceedings.2
C. CRITICAL STAGE IN CRIMINAL PROCEEDINGS
The attachment of the right to counsel does not end the inquiry. A constitutional
violation occurs only if a defendant is deprived of counsel at a “critical stage” in the criminal
proceedings. Sanchez, 197 Wn. App. at 698.
In Rothgery, the Court did not hold that a defendant automatically was entitled to counsel
once the right to counsel attached, only that once attachment occurs the defendant is entitled to
counsel during any critical stage of the proceedings. 554 U.S. at 212. The Court stated that
“counsel must be appointed within a reasonable time after attachment to allow for adequate
2 The State does not appear to contest that the constitutional right to counsel attached at Charlton’s first and second court appearances.
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representation at any critical stage before trial.” Id. (emphasis added). The court emphasized
that “ ‘[t]he question whether arraignment signals the initiation of adversary judicial proceedings
. . . is distinct from the question whether the arraignment itself is a critical stage requiring the
presence of counsel.’ ” Id. (quoting Michigan v. Jackson, 475 U.S. 625, 629 n.3, 106 S. Ct.
1404, 89 L. Ed. 2d 631 (1986)).
Charlton argues that his first and second court appearances were critical stages of the
criminal proceedings, and therefore the failure of the trial court to appoint counsel at those
appearances violated his constitutional right to counsel. We disagree regarding the first
appearance but agree regarding the second appearance.
1. Meaning of “Critical Stage”
Our Supreme Court in State v. Heddrick stated, “A critical stage is one ‘in which a
defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the
outcome of the case is otherwise substantially affected.’ ” 166 Wn.2d 898, 910, 215 P.3d 201
(2009) (quoting State v. Agtuca, 12 Wn. App. 402, 404, 529 P.2d 1159 (1974)). The United
States Supreme Court stated, “The Court has identified as ‘critical stages’ those pretrial
procedures that would impair defense on the merits if the accused is required to proceed without
counsel.” Gerstein v. Pugh, 420 U.S. 103, 122, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).
As noted above, our Supreme Court in Jackson addressed whether a preliminary hearing
was a critical stage in a criminal proceeding. 66 Wn.2d at 28-30. In that case, the defendant
appeared without counsel at a hearing in which he plead not guilty and in which witnesses
testified about a written complaint charging the defendant with a crime. Id. at 24-25. The
purpose of the hearing was to determine the existence of probable cause to formally charge the
defendant. Id. at 29. The court stated that a hearing does not constitute a critical stage in the
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proceeding “[i]f there is no possibility that a defendant is or would be prejudiced in the defense
of his case.” Id. at 28. The court emphasized that the defendant did not make any statements at
the hearing that were admissible as evidence and that nothing occurred at the hearing that was
material to the eventual trial. Id. Accordingly, the court held that the preliminary hearing was
not a critical stage in the proceeding. Id. at 29-30.
In Sanchez, Division Three of this court analyzed whether a defendant’s appearance
without counsel at a preliminary hearing akin to an arraignment constituted a critical stage in the
criminal proceedings. 197 Wn. App. at 697-98. In that case, at a group arraignment hearing the
trial court entered summary not guilty pleas on behalf of the defendant and entered an order
setting omnibus hearing and trial dates. Id. at 690-91. The defendant argued on appeal that the
arraignment was a critical stage in the proceedings. Id. at 697-98.
The court in Sanchez emphasized that the critical stage analysis required an examination
of the nature of the hearing, and that “[o]nly if the nature of his arraignment was such that he
stood to lose important rights that might affect the outcome of his case should it be considered a
critical stage.” Id. at 702. The court concluded that the hearing was not a critical stage because
the defendant did not risk waiving any rights or foregoing any defenses, did not make any
admissions of guilt, did not forfeit any right to plead guilty or plead not guilty by reason of
insanity, and did not allow any right or defense to go unpreserved. Id. at 702-03. Instead, the
court merely ascertained the defendant’s name, advised him of certain rights, and informed him
of the filed charges. Id. at 702.
Our Supreme Court denied review in Sanchez. 189 Wn.2d 1023, 408 P.3d 1089 (2017).
The commissioner’s ruling stated that under the circumstances of the case, “the Court of Appeals
correctly held that the pretrial hearing was not a critical stage of the prosecution. No irrevocable
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plea was entered, no evidence was submitted, and no admissions were made. The Court of
Appeals applied the correct and long-established legal test for determining whether a pretrial
hearing was a critical stage of the proceedings.” Ruling Denying Review, In re Pers. Restraint
of Sanchez, No. 94198-0 (Wash. Aug. 21, 2017) at 3.
2. Prejudice in Defense of Case
The rule stated in Jackson and Sanchez is that a preliminary hearing is not a critical stage
in the proceedings as long as the defendant is not prejudiced in the defense of the charges against
them. Jackson, 66 Wn.2d at 28-30; Sanchez, 197 Wn. App. at 702-03.
The facts here are similar to those in Sanchez. At the first hearing, Charlton said nothing
other than confirming his name and responding to whether he understood the crimes for which
he was arrested. At the second hearing, Charlton again said very little. He confirmed his name,
listened to the charges against him, and stated that he understood them. He mentioned that he
could live in a trailer on his parents’ property. And he discussed how he could contact his
biological children.
The court here did nothing that could affect Charlton’s defense of the charges against
him. As in Sanchez, the court did little more than confirm Charlton’s name, advise him of
certain rights, and read the charges. See Sanchez, 197 Wn. App. at 702. Similarly, as in
Sanchez, Charlton did not risk waiving any rights or foregoing any defenses, did not make any
admissions of guilt, did not forfeit any right to plead guilty or plead not guilty by reason of
insanity, and did not allow any right or defense to go unpreserved. See id.
Charlton asserts that Jackson is no longer good law and that Sanchez was wrongly
decided. He primarily relies on Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d
387 (1970).
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The preliminary hearing at issue in Coleman, at which the defendant was not provided
counsel, was for the purpose of determining whether there is sufficient evidence to present the
case to a grand jury and to set bail if so. 399 U.S. at 8. The hearing apparently involved the
presentation of evidence and the testimony of witnesses. Id. at 9. But under Alabama law, the
defendant was not required to advance any defenses to preserve them and the State could not use
at trial anything that occurred at the hearing. Id. at 8-9. Nevertheless, the Court concluded that
the preliminary hearing was a critical stage in the proceedings. Id. at 9-10.
The Court stated that whether a hearing is a critical stage requires an analysis of
“ ‘whether potential substantial prejudice to defendant’s rights inheres in the particular
confrontation and the ability of counsel to help avoid that prejudice.’ ” Id. at 7 (quoting United
States v. Wade, 388 U.S. 218, 227, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)). The Court
identified four advantages that counsel could provide: (1) skilled examination and cross-
examination of witnesses may expose weaknesses in the State’s case that could result in a
dismissal, (2) skilled interrogation of witnesses could provide a vital impeachment tool for cross-
examination of those witnesses at trial, (3) counsel can more effectively discover the State’s case
and allow for preparation of a proper defense at trial, and (4) counsel can make effective
arguments on such matters as an early psychiatric examination or bail. Coleman, 399 U.S. at 9.
The court concluded that the defendant’s inability to realize these advantages compels the
conclusion that the preliminary hearing at issue was a critical stage in the criminal process. Id. at
9-10.
The preliminary hearing in Coleman was nothing like the ones here (and in Sanchez).
Most significantly, no evidence or testimony was presented at Charlton’s hearings. Therefore,
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the first three advantages of counsel identified in Coleman were inapplicable. And other than
bail (discussed below), there were no additional matters for counsel to address.
If bail had not been imposed, we would conclude that neither of Charlton’s preliminary
court appearances were critical stages in the criminal proceedings.
3. Imposition of Bail
There is one significant difference between Sanchez and this case: the trial court here
addressed and imposed bail at both hearings. Although the imposition of bail may not
necessarily impact the ultimate result at trial, bail certainly has a significant effect on a
defendant’s liberty interest. Charlton argues that the setting of bail at his two preliminary court
appearances meant that those appearances constituted critical stages of the criminal proceedings.
We disagree regarding the first appearance but agree regarding the second appearance.
Courts in other jurisdictions have held that the setting of bail is a critical stage in criminal
proceedings. Booth v. Galveston County, 352 F. Supp. 3d 718, 738-39 (S.D. Tex. 2019); State v.
Fann, 239 N.J. Super. 507, 519-20, 571 A.2d 1023 (1990).3 The court in Fann stated,
The setting of bail certainly is a “critical stage” in the criminal proceedings. It is an action that occurs after adversary criminal proceedings have been commenced. Its importance to defendant in terms of life and livelihood cannot be overstated. The effect on family relationships and reputation is extremely damaging. Failure of pretrial release causes serious financial hardship in most cases. Jobs and therefore income are lost. The immediate consequence of the absence of bail or the inability to make bail–deprivation of freedom–standing alone, is critically consequential.
239 N.J. Super. at 519.
3 But see Fenner v. State, 381 Md. 1, 19-23, 846 A.2d 1020 (2004); Padgett v. State, 590 P.2d 432, 436 (Alaska 1979) (both holding that a bail hearing is not a critical stage).
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As noted above, the Court in Coleman referenced arguments regarding bail as one of the
benefits of having counsel at a preliminary hearing. 399 U.S. at 9.
Charlton’s first court appearance involved the prosecutor’s request to detain him in jail
while the State decided whether to formally charge him. And the court did set bail. This setting
of bail was not insignificant in that it affected Charlton’s liberty interest. However, under CrR
3.2.1(f), any detention was limited to 72 hours and Charlton was entitled to another hearing
within that same 72 hours. Therefore, the court’s bail decision was for a temporary and brief
period and did not infringe upon his liberty interest any further than already allowed by court
rule.
We conclude that Charlton’s first court appearance was not a critical stage in the criminal
proceedings even though bail was addressed.4
Charlton’s second court appearance was different. The State had formally charged him
and the court’s bail decision no longer was temporary. Unless modified later, the bail the trial
court set would remain until trial. And unless Charlton could post bail, he would remain in jail
until the time of trial. As a result, the trial court’s discussion of bail at the second preliminary
hearing had very significant consequences for Charlton’s liberty.
We conclude that Charlton’s second court appearance was a critical stage in the criminal
proceedings because bail was addressed and imposed.5
4 This conclusion is consistent with Fann, which held that even though a defendant generally has the right to counsel in bail proceedings, counsel is not required to be appointed at the initial appearance. 239 N.J. Super. at 520. 5 Charlton also points out that at his second court appearance, the trial court violated article I, section 20 of the Washington Constitution by ordering a “cash only” bail. Br. of Appellant at 30. Because the only argument on appeal involves the right to counsel, we do not address this issue.
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D. REMEDY FOR CONSTITUTIONAL VIOLATION
Charlton argues that because his second appearance constituted a critical stage in his
criminal proceedings, his appearance without counsel constituted structural error that requires
automatic reversal of his convictions. The State argues that the constitutional harmless error
standard should apply. We agree with the State.
1. Application of Structural Error
Our Supreme Court has stated, “A complete denial of counsel at a critical stage of the
proceedings is presumptively prejudicial and calls for automatic reversal.” Heddrick, 166 Wn.2d
at 910 (citing Cronic, 466 U.S. at 658-59, 659 n.25). The Court in Cronic emphasized that the
Supreme Court had “uniformly found constitutional error without any showing of prejudice
when counsel was . . . totally absent . . . during a critical stage of the proceeding.” 466 U.S. at
659 n.25.
Although the Cronic footnote upon which the court in Heddrick relied was stated in
absolute terms, a subsequent United States Supreme Court case narrowed the application of the
presumption of prejudice. In Satterwhite v. Texas, the Court stated that the general rule was
constitutional violations were subject to a harmless error analysis. 486 U.S. 249, 256, 108 S. Ct.
1792, 100 L. Ed. 2d 284 (1988). But there was an exception to this rule: “Some constitutional
violations, however, by their very nature cast so much doubt on the fairness of the trial process
that, as a matter of law, they can never be considered harmless. Sixth Amendment violations
that pervade the entire proceeding fall within this category.” Id. (emphasis added).
The Court emphasized that the prior cases adopting a rule of automatic reversal were “all
cases in which the deprivation of the right to counsel affected – and contaminated – the entire
criminal proceeding.” Id. at 257. The violation in that case – requiring the defendant to submit
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to psychiatric examinations without consulting counsel psychiatric testimony – merely involved
the admission of psychiatric testimony. Id. at 257-58. Therefore, the Court held that the
harmless error standard applied. Id. at 258.
Satterwhite suggests that even if a defendant is deprived of counsel at a critical stage in
the criminal proceeding, that constitutional violation does not constitute structural error if the
violation did not “pervade” or “contaminate” the entire proceeding. Id. at 256, 257. Courts in
other jurisdictions have so held. E.g., Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007) (“A
denial of counsel at any critical stage at which the right to counsel attaches does not require a
presumption of prejudice. Rather, a presumption of prejudice applies only in cases where the
denial of counsel would necessarily undermine the reliability of the entire criminal
proceeding.”); United States v. Owen, 407 F.3d 222, 226 (4th Cir. 2005) (stating that the
“harmless-error analysis applies to the denial of the Sixth Amendment right to counsel at all
stages of the criminal process, except for those where such denial “affects and contaminates” the
entire subsequent proceeding.”); Ellis v. United States, 313 F.3d 636, 643 (1st Cir. 2002)
(absence of counsel at critical stage would require presumption of prejudice only if “pervasive in
nature, permeating the entire proceeding”).6
Division Three of this court adopted this position in Sanchez:
But United States Supreme Court jurisprudence establishes that constitutional harmless error analysis applies to the denial of the Sixth Amendment right to counsel at all stages of criminal proceedings, except for those where “the deprivation of the right to counsel affected – and contaminated – the entire criminal proceeding.”
197 Wn. App. at 699 (quoting Satterwhite, 486 U.S. at 257).
6 But see Musladin v. Lamarque, 555 F.3d 830, 836-38 (9th Cir. 2009) (concluding that the holding in Cronic requiring automatic reversal when a defendant is denied counsel at a critical stage remains binding regardless of Satterwhite).
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We agree with the court in Sanchez that Satterwhite modified the absolute rule regarding
structural error stated in Cronic. We conclude that when a defendant is deprived of the right to
counsel at a critical stage in the criminal proceedings, the presumption of prejudice applies only
when the violation pervades and contaminates the entire case. Satterwhite, 486 U.S. at 256-67;
Sanchez, 197 Wn. App. at 699-700. If not, the constitutional harmless error analysis applies.
Satterwhite, 486 U.S. at 257-58; Sanchez, 197 Wn. App. at 699.
Our conclusion that a violation of the right to counsel at a critical stage does not
automatically constitute structural error is consistent with Coleman. In that case, the Court held
that even though the preliminary hearing in that case was a critical stage, the harmless error
analysis applied rather than structural error. 399 U.S. at 10. Significantly, Cronic did not
overrule – or even mention – Coleman.
Our conclusion may appear to be inconsistent with the broad statement in Heddrick that
the denial of counsel at a critical stage requires automatic reversal. 166 Wn.2d at 910. But the
court in Heddrick was only stating the general rule and did not need to address Satterwhite
because the court concluded that the defendant was not denied the right to counsel at a critical
stage in the proceedings. Id. at 911-12.
2. Harmless Error Analysis
Under the constitutional harmless error analysis, an error is harmless if the State
establishes beyond a reasonable doubt that the verdict would have been the same result without
the error. State v. Orn, 197 Wn.2d 343, 359, 482 P.3d 913 (2021).
Here, the trial court’s imposition of bail had no effect on the remainder of the case.
Because of the court’s bail decision and the continuance of the arraignment, Charlton was in jail
for an additional 10 days. His brief continued detention certainly did not pervade or contaminate
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 55544-1-II
the entire proceeding. Therefore, there was no structural error and we must apply the harmless
error analysis.
Charlton argues that pretrial detention can have consequences at trial, citing an article
suggesting a correlation between pretrial detention and an increased likelihood of conviction.
But Charlton was detained for only 10 days after the second court appearance. There is no
indication that such a brief period could have affected the trial. And he identifies no specific
way that this period of detention or any other consequence of his lack of an attorney at the
second court appearance impacted the trial, the verdict, or even the amount of bail.
We hold that the right to counsel violation at Charlton’s second court appearance was
harmless.
E. COMMUNITY CUSTODY CONDITION 14
Charlton argues, and the State concedes, that the trial court erred in imposing community
custody condition 14. We agree.
A sentencing court may impose community custody conditions only as authorized by
statute. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008). A sentencing court is
authorized to impose prohibitions related to the crime. RCW 9.94A.703(3)(f). If the court
orders a condition outside of the court’s authority as authorized by statute, the condition must be
stricken. State v. O’Cain, 144 Wn. App. 772, 775, 184, P.3d 1262 (2008).
Condition 14 states that Charlton can “not possess a computer or any computer
components.” CP at 89. There is no evidence indicating Charlton used a computer or any
computer components in the commission of the crimes in this case. Because condition 14 is not
related to the crimes for which Charlton stands convicted, it is not authorized by statute.
Therefore, it must be stricken from the judgment and sentence.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 55544-1-II
F. COMMUNITY CUSTODY SUPERVISION FEES
Charlton argues, and the State concedes, the imposition of community custody
supervision fees should be stricken from the judgment and sentence. We agree.
Community custody supervision fees are discretionary LFOs because they are waivable
by the trial court. State v. Bowman, 198 Wn.2d 609, 629, 498 P.3d 478 (2021). And here, the
trial court expressly stated that it was waiving community custody supervision fees. In this
situation, the supervision fees must be stricken from the judgment and sentence.
CONCLUSION
We affirm Charlton’s convictions, but we remand for the trial court to strike community
custody condition 14 and the community custody supervision fee provision from the judgment
and sentence.
MAXA, J.
We concur:
GLASGOW, C.J.
CRUSER, J.