State v. Winston

105 Wash. App. 318
CourtCourt of Appeals of Washington
DecidedMarch 19, 2001
DocketNo. 44858-7-I
StatusPublished
Cited by15 cases

This text of 105 Wash. App. 318 (State v. Winston) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Winston, 105 Wash. App. 318 (Wash. Ct. App. 2001).

Opinion

Becker, J.

There is no constitutional right to counsel in postconviction proceedings, other than the first direct appeal of right. A convicted defendant who moves in the trial court to withdraw a guilty plea months after entry of his judgment and sentence is not constitutionally entitled to appointment of counsel even if the trial court grants a hearing on the motion.

Corey Winston pleaded guilty to three counts of burglary. The court entered judgment on January 20, 1998, and sentenced him to 10% years of incarceration. By pleading guilty, Winston gave up his right to appeal the finding of guilt.1

In January of 1999, Winston filed a motion in the trial court entitled “Motion for New Trial RCW 10.73.090, Withdraw of Guilty Plea.” He signed the motion on January 17th and mailed it from Airway Heights Correctional Center on the 19th. The trial court received it on January 22,1999. In a letter attached to the motion, Winston explained that he was acting pro se, and asked that the motion either be presented without his presence or that he be allowed to participate by telephone. The motion itself merely stated that it was based on “lack of defense representation,” and also quoted from a statute that sets forth grounds for collateral attack that are not subject to the statutory one-year time bar. See RCW 10.73.100(2), (5), (6).

In a letter dated February 24th, the court informed Winston and the State that the motion was set for March 10, 1999. The court stated the “defendant has requested he be allowed to make argument by telephone, which I will permit.” Approximately one week later, Winston submitted an order to show cause as to “Why Defendant Corey M. Winston’s Motion To Withdraw His Guilty Plea Should Be [320]*320Granted.” In this document, Winston alleged, among other things, that he had received ineffective assistance of counsel, that he was not aware of the nature of the charges, that he did not knowingly enter his guilty plea, and that his constitutional rights had been violated.

On the date of the motion, Winston participated by telephone. The judge asked Winston, “you are representing yourself here today; is that correct?” Winston replied that he was. The judge then invited Winston to “proceed with argument” on his motion. Winston made a presentation in which he said, among other things, that his guilty plea was entered unknowingly and involuntarily, that his offender score was miscalculated, that the court did not have jurisdiction, that he had not waived his right to a jury trial, and that the Revised Code of Washington was not law. His only factual allegation was that the attorney who represented him at trial had traveled out of the country and upon his return told Winston that “there was nothing that he could do.” Winston argued that his attorney did not intend to prepare for his case and that his constitutional rights were violated by his attorney.

The State responded, first, that the motion should be denied because it was filed two days after the statutory one-year limit for collateral attack motions.2 Second, the State argued that Winston’s allegations were not supported by the record, were incorrect as a matter of law, or were simply incomprehensible.

The court denied the motion, finding it untimely and that in any case, Winston had failed to show why he was entitled to withdraw his plea. Winston appeals.

A trial judge may deny a motion for relief from judgment without a hearing if the facts alleged do not establish grounds for relief. CrR 7.8(c)(2). Winston, however, argues that once the court decided to hold a hearing on March 10 to [321]*321consider his motion to withdraw his guilty plea, the hearing became a critical stage of the criminal prosecution at which he had the constitutional right to have counsel appointed. He asks this court to reverse the order denying his motion to withdraw his plea, and remand for a new hearing with appointed counsel. He contends this result is compelled by our decision in State v. Harell, 80 Wn. App. 802, 911 P.2d 1034 (1996).

In Harell, before the trial court entered judgment and sentence, the defendant moved to withdraw his plea of guilty, alleging ineffective assistance of counsel during the plea stage. The trial court granted a hearing on the motion. Defense counsel testified as a witness for the State. The defendant was otherwise unrepresented. The trial court found that defense counsel had not been ineffective, and denied the motion. On appeal, the issue was whether the defendant was entitled to counsel at the hearing. We first acknowledged the rule that a defendant has a constitutional right to appointed counsel at all critical stages of a criminal prosecution. Harell, 80 Wn. App. at 804 (citing State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 828, 675 P.2d 599 (1984)). Relying in part on authority from other jurisdictions, we held that “a plea withdrawal hearing is a critical stage giving rise to the right to assistance of counsel.” Harell, 80 Wn. App. at 804.

According to Winston, our holding in Harell requires the appointment of counsel whenever a trial court grants a hearing on a motion to withdraw a guilty plea. But Harell cannot be read as guaranteeing a constitutional right to counsel to prosecute a collateral attack upon a judgment. It is well established that there is no constitutional right to counsel in postconviction proceedings, other than the first direct appeal of right. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); In re Personal Restraint of Gentry, 137 Wn.2d 378, 390, 972 P.2d 1250 [322]*322(1999) (“There is no constitutional right to counsel in postconviction proceedings”).3

Among the cases cited in Harell was Randall v. State, 861 P.2d 314, 316 (Okla. Crim. App. 1993). Winston points out that in Randall, the court concluded that a plea withdrawal hearing was a critical stage even though the motion to withdraw the guilty plea was brought after entry of the judgment and sentence. But the decision to appoint counsel in Randall can be harmonized with Pennsylvania v. Finley because the defendant had filed his motion to withdraw during Oklahoma’s 10-day period for filing a notice of intent to appeal. Oklahoma treats a guilty plea appeal as an appeal of right. See Randall, 861 P.2d at 315. The Randall court relied on federal cases holding that the constitutional right to counsel at a criminal trial further extends to a defendant’s first appeal of right, and therefore includes the relatively brief period of time allowed postconviction for filing a direct appeal. See, e.g., Baker v. Kaiser, 929 F.2d 1495, 1498-99 (10th Cir. 1991), cited in Randall, 861 P.2d at 315. Randall

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Cite This Page — Counsel Stack

Bluebook (online)
105 Wash. App. 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-winston-washctapp-2001.