Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 28928-1
Title of Case: State of Washington v. Javier Chavez, Jr.
File Date: 06/30/2011


SOURCE OF APPEAL
----------------
Appeal from Benton Superior Court
Docket No: 09-1-00916-7
Judgment or order under review
Date filed: 03/26/2010
Judge signing: Honorable Robert G Swisher


JUDGES
------
Authored by Dennis J. Sweeney
Concurring: Laurel H. Siddoway
Dissenting: Kevin M. Korsmo


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Anita Isabelle Petra
Benton County Prosecutors Office
7122 W Okanogan Ave Ste G
Kennewick, WA, 99336-2341


Christine Bennett
Attorney at Law
7122 W Okanogan Pl
Kennewick, WA, 99336-2359








IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 28928-1-III
)
Respondent, )
)
v. ) Division Three
)
JAVIER CHAVEZ JR., )
)
Appellant. ) PUBLISHED OPINION
)

Sweeney, J. -- This appeal follows the trial court's refusal to allow the defendant

to withdraw a plea of guilty. His lawyer asked and was permitted to withdraw based on a

potential conflict of interest. Substitute counsel then filed what he explicitly
characterized as an "Anders brief"1 and strongly suggested that his client's position was

frivolous. Substitute counsel did not develop any potential claim of conflict following the

withdrawal of the original lawyer. We conclude that this was ineffective assistance of

counsel and remand for further proceedings on the defendant's motion to withdraw his

plea of guilty.

1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

No. 28928-1-III
State v. Chavez

FACTS

The State charged Javier Chavez Jr. with first degree assault by domestic violence

and unlawful possession of a firearm, on September 18, 2009. Mr. Chavez was held in

the Benton County jail on these charges. The court ordered Mr. Chavez not to contact his

wife. She was a witness to the events that generated the charges. Mr. Chavez,

nonetheless, called his wife four times from the jail. The State then amended the

charging documents to include violations of the no-contact order and witness tampering.

Mr. Chavez was represented by attorney Larry Zeigler. Mr. Zeigler talked to Ms.

Chavez and apparently told her that she was not required to appear in court unless she

was properly served with a subpoena, and he apparently told her that hanging around the

courthouse was not helping her husband. Mr. Chavez told his wife during one of his calls

from jail to, "Lay low. Don't go out. You know, avoid being served." Report of

Proceedings (RP) at 13. The jail recorded the conversation.

In pretrial proceedings, the lawyers expressed concern over a potential conflict of

interest should Mr. Ziegler represent Mr. Chavez on the witness tampering count, based

on some of the conversations between Mr. Chavez and his wife in which Ms. Chavez

stated that it was Mr. Ziegler who had told her to "lay low." RP at 104. Mr. Ziegler

acknowledged that the tapes contained another statement by Ms. Chavez that Mr. Ziegler

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No. 28928-1-III
State v. Chavez

told her, "You need to get out of here before somebody sees you." RP at 107. Mr.

Ziegler assured the trial court that Ms. Chavez misunderstood him. The prosecutor

agreed that it was probably a misunderstanding. Mr. Ziegler, nonetheless, shared the

prosecutor's belief that there was a conflict. The prosecutor expressed concern that with

Mr. Ziegler as a purported accomplice to the witness tampering claim, any plea bargain

negotiated with Mr. Chavez would be vulnerable to later challenge on the basis of

conflict of interest. The court initially took the withdrawal issue under advisement until it

had more information on what testimony would be provided by Ms. Chavez who, while

subject to an outstanding material witness warrant, had not been located.

On the day set for commencement of the trial, the prosecutor reported that Ms.

Chavez had neither appeared nor been located. At that point, the trial court agreed that

Mr. Ziegler could withdraw from representing Mr. Chavez on the witness tampering

count. It severed that charge from the other charges. And it continued that matter for

later trial. Next, he granted Mr. Ziegler's motion to dismiss the assault and weapons

charges on speedy trial grounds. At that point, Mr. Ziegler requested a short recess to

confer with Mr. Chavez. Following the conference with his client, Mr. Ziegler handed up

a statement of defendant on plea of guilty. The court went through the standard protocol

for a guilty plea. A few days later, the court appointed Salvador Mendoza Jr. to represent

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No. 28928-1-III
State v. Chavez

Mr. Chavez on the witness tampering charge.

After the plea but before sentencing, Mr. Chavez wanted to withdraw his plea of

guilty. On the date set for sentencing, Mr. Zeigler reported to the judge that he had now

filed a motion to withdraw from representing Mr. Chavez on the four counts of violation

of the no-contact order. When asked about the basis for this withdrawal, he stated:

I received a call from the alleged victim in this case after we had tendered
these pleas. Without going into the contents of the conversation, I'm
simply at a point -- I think you may remember just exactly where I was in
this case when we first started it. I really -- I'm going to be -- I'm probably
going to end up as a witness in this case, is what's going to happen, . . .

and

[h]e wants to withdraw the plea. I just don't feel comfortable ethically
arguing a Motion to Withdraw based on all my discussions with the
defendant and with the defendant's wife and with the defendant's mother.
There's just too much on the plate here for me to handle all at once.

RP at 126. The court agreed, allowed Mr. Zeigler to withdraw, continued sentencing and

hearing on the motion to withdraw the plea, and appointed Mr. Mendoza, the attorney

who represented Mr. Chavez on the witness tampering charges, to represent him on his

motion to withdraw the plea on the four counts of violation of the no-contact order.

Mr. Mendoza thereafter filed what was styled in the caption as a "Motion to

Withdraw Guilty Plea" and at the bottom of each page as "Defendant's Anders Brief."

He characterized the motion as Mr. Chavez's alone and without merit, and submitted "for

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No. 28928-1-III
State v. Chavez

consideration of possible errors made by his attorney pursuant to Anders v. California."

Clerk's Papers (CP) at 36-37. Mr. Mendoza represented that he had reviewed the "police

reports, statutes, and case law" and could not "find any assignment of error that would

support a meritorious challenge to the entry of the guilty plea." CP at 36. At the hearing

on the motion to withdraw the guilty plea, counsel again referred to the motion as "really

in the sense of an Anders brief." RP at 132. The court denied the motion to withdraw the

guilty plea and sentenced Mr. Chavez to 60 months of confinement.

Ten days later, attorney William McCool filed a "Motion and Declaration for

Reconsideration" on Mr. Chavez's behalf. CP at 65-67. This record does not show why

Mr. McCool became involved since Mr. Mendoza had not withdrawn. Mr. Chavez's

declaration supported the motion and stated that at the time the no-contact order was

entered Mr. Chavez was under the influence of drugs and did not understand the order's

contents. Mr. Chavez also states he did not receive a copy of the order until January

2010, after his calls from the jail were made.

A day later, Mr. Mendoza filed a "Motion and Memorandum to Dismiss"; he

alleged that the jail's confiscation of Mr. Chavez's legal papers constituted a due process

violation requiring dismissal of the charges against him. There is nothing in the record

indicating whether the trial court ruled on either the motion for reconsideration or the

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No. 28928-1-III
State v. Chavez

motion to dismiss.

DISCUSSION

Mr. Chavez contends that he was denied the right to counsel or, at least, effective

assistance of counsel because his first lawyer had an apparent conflict of interest that

made it impossible to give objective advice on whether or not to plead guilty. Indeed, his

original lawyer asked to withdraw because of concerns over a conflict. And Mr. Chavez

contends that Attorney Mendoza essentially abandoned him during proceedings

subsequent to the plea by filing an Anders brief, despite the fact that there simply is no

such procedure in a trial court because Anders briefs are strictly an appellate procedure.

The State responds that this record is devoid of any showing that Attorney Zeigler

had a conflict or even if he did have a conflict that it influenced any advice he gave Mr.

Chavez prior to his plea of guilty. And the State responds that Attorney Mendoza

continued to represent Mr. Chavez throughout the post-plea proceedings; that is, he did

not withdraw in keeping with the usual Anders procedure.

We review a claim of ineffective assistance of counsel de novo. State v. White, 80

Wn. App. 406, 410, 907 P.2d 310 (1995). We begin with a strong presumption of

effective representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251

(1995). So the burden is on the defendant to show he was not effectively represented. Id.

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No. 28928-1-III
State v. Chavez

The conflict of interest was not raised by Mr. Chavez below as the basis for the motion to

withdraw the plea. But the parties agreed at oral argument that a conflict of interest on

the part of defense counsel that constitutes ineffective assistance is an issue that can be

raised for the first time on appeal.

Mr. Chavez must show that his lawyer's representation fell "below an objective

standard of reasonableness" and the "deficient representation prejudiced the defendant,"

meaning the result in the superior court would have been different but for counsel's

ineffective representation. Id. at 334-35. A conflict of interest may amount to ineffective

assistance of counsel where it adversely affects a client's interests. State v. Regan, 143

Wn. App. 419, 426, 177 P.3d 783 (2008).

There are a couple of situations in which a lawyer's conflict of interest may

require reversal without a showing of actual prejudice -- either an actual conflict

adversely affecting his lawyer's performance or a situation in which the court should

know of a particular conflict but then fails to inquire. White, 80 Wn. App. at 411.

Here, the court was faced with representations by the lawyer who actually

represented Mr. Chavez that the lawyer was concerned about a conflict of interest, an

ethical conflict, and that lawyer wanted to withdraw from further representation, based on

that concern. The court permitted Mr. Ziegler to withdraw but then did not inquire

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No. 28928-1-III
State v. Chavez

further; nor did Mr. Mendoza develop a factual basis for the court to pass on any

potential conflict. While there had been an earlier discussion by the prosecutor and Mr.

Ziegler of the reasons he wished to withdraw from representing Mr. Chavez on the

witness tampering count, there is little information and no fact finding on why Mr.

Ziegler concluded he had a conflict representing Mr. Chavez on the withdrawal of the

plea. The State argues there is no evidence in the record to support any conflict of

interest. The State is correct and that is, at least, part of the problem here. All we do

know is that in representing that he had a conflict, Mr. Ziegler, as defense counsel, was

"in the best position to determine when a [disabling] conflict exists." Mickens v. Taylor,

535 U.S. 162, 167, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (describing the rationale of

the automatic reversal rule of Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L.

Ed. 2d 426 (1978), applied where trial court refuses, without inquiry, to accept defense

counsel's representation of a conflict).

Mr. Chavez's motion to withdraw his plea was a critical stage of these proceedings

and no one contends otherwise. State v. Davis, 125 Wn. App. 59, 63-64, 104 P.3d 11

(2004) (CrR 4.2(f) presentence motion to withdraw a guilty plea is a critical stage of a

criminal proceeding for which a defendant has a constitutional right to be represented by

counsel). He was therefore entitled to representation. Yet substitute counsel said he

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No. 28928-1-III
State v. Chavez

could not find any assignment of error that would support a meritorious challenge and

then went on to lay out Mr. Chavez's objections in a way that clearly distanced counsel

from his client and suggested, at least as we read it, that his client's position was

frivolous. Counsel concluded by submitting "this motion to the court for consideration of

possible errors made by his attorney pursuant to Anders v. California." CP at 37.

Ultimately, we conclude that Mr. Chavez was not represented. Denial of counsel during

a critical stage of the proceedings is presumptively prejudicial. United States v. Cronic,

466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

A so-called Anders brief is an appellate procedure that is not appropriate for a trial

court. Mr. Chavez represented in his opening brief that a search of published cases from

all 50 states and the federal circuit courts reveals no case in which an Anders brief was

filed at trial, Br. of Appellant at 15; the State has identified no such case in response, nor

have we located one. The Anders procedure covers the appellate situation where an

attorney feels an entire appeal is without merit and therefore wants to withdraw. See

Anders, 386 U.S. at 744; State v. Theobald, 78 Wn.2d 184, 185, 470 P.2d 188 (1970).

Applying this procedure to a discrete issue in a trial court is a misapplication, no matter

how an attorney characterizes the motion. A criminal defense lawyer may decline to

assert an issue that he or she considers frivolous. RPC 3.1 However, in light of the

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No. 28928-1-III
State v. Chavez

constitutional right of a criminal defendant to assistance of counsel, he or she may assert

issues that would otherwise be prohibited under professional rules of conduct. RPC 3.1

cmt. 3. But here we have more than that. We conclude this was ineffective assistance.

And, just as significantly, the concern raised here on appeal was over a suggested conflict

of interest, which, of course, was not developed at all in the trial court.

We review the court's refusal to allow a defendant to withdraw a guilty plea for

abuse of discretion. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966). We are

unable to say one way or the other whether the judge here abused his discretion because

there is no record on the essential complaint, the essential grounds, that counsel had a

conflict of interest.

Unlike a court of review, the trial judge here was not required to develop Mr.

Chavez's arguments. The attorney originally representing Mr. Chavez was concerned

that he had a conflict and asked to withdraw but was required, nonetheless, to represent

Mr. Chavez on his guilty plea. The lawyer who substituted filed what he styled as an

"Anders brief," a procedure permitted on appeal but with no precedent or other authority

for use in the trial court. The combination raises enough concern here in this court of

review to warrant a second look at the motion to withdraw this guilty plea.

We therefore reverse and remand for further proceedings on Mr. Chavez's motion

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No. 28928-1-III
State v. Chavez

to withdraw his plea.

_______________________________
Sweeney, J.
I CONCUR:

________________________________
Siddoway, J.

11