IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. CHARLES ALAN CHAPPELLE, JR., Appellant. No. 70337-4-1

UNPUBLISHED OPINION FILED: September 22, 2014 \o
Verellen, A.C.J.

— Charles Chappelle appeals his conviction for second degree 

### assault, claiming that the trial court erred when itdischarged defense counsel and 

### permittedhim to represent himself on the second day oftrial and that he lacked the necessary materials to conduct an adequate pro se defense. He additionally argues that he was denied his right to effective, conflict-freecounsel at his motion for a new 

### trial. Viewing the recordas a whole, Chappelle knowingly, intelligently and voluntarily waived his right to counsel. Hewas also provided with reasonable accommodations 

### given the late date atwhich he requested to represent himself. Furthermore, Chappelle fails to show that defense counsel appointed to represent him in his motion for a new 

### trialpossessed an actual conflict ofinterest affecting her performance. Finally, the argument inChappelle's statementof additional grounds lacks merit. Accordingly, we affirm.No. 70337-4-1/2

FACTS On June 9, 2012, Amr Elshahawany and several friends were celebrating a 

### birthday at a nightclub in downtown Seattle. The group leftthe nightclub when itclosed, and Elshahawany entered a nearby alley to urinate. Elshahawany noticed Chappelle standing nearby and staring at him. The two men exchanged words. Elshahawany 

### then saw something come out ofChappelle's hand and feltChappelle hit him in the face. Elshahawany suffered a deep laceration thatwent allthe way through his cheek. He lostthree liters ofblood before medical personnel were able to stop the bleeding and 

### repair the wound. The State charged Chappelle withsecond degree assaultwith a deadly weapon. Carlos Gonzales of Northwest Defenders Association was assigned to represent 

### Chappelle. At the omnibus hearing on October26, 2012, Chappelle filed a pro se motion to dismiss and motion for change ofcounsel. The court informed Chappelle that it would not hear his motion to dismiss because Chappelle was represented by counsel 

### but would hear his motion for change ofcounsel. Chappelle argued: 

### I'd like to change counsel because mywitnesses haven't been seen, urn, I haven't, urn, had any real representation, I've been working on another 

### case the whole time, a higherprofilecase, and I'mjust now at trial. And also the State wants to amend the charges, and Iwas being forced to go to trial first on the assaulttwo with a deadly weapon. Now the Statewants 

### to amend the charges, and likeIsaid, Ihave
--witnesses haven't even 

### been called upon, Ihaven't been given fair representation.111 Gonzales responded that he had attempted to contact Chappelle's proposed witnesses multiple times butwas unsuccessful. The court denied Chappelle's motion. 1Report ofProceedings (RP) (Oct. 26, 2012) at 4.No. 70337-4-1/3 

### On November 8, 2012, the first day oftrial, the State and Gonzales argued pretrial motions. Chappelle did not express any dissatisfaction with Gonzales. However, on November 13, 2012, the second day of trial, Chappelle attempted to file another pro se motion prior to jury selection. Though itwas not clearwhat relief he was 

### seeking, Chappelle's motion contained the phrases "council [sic] refused to call 

### witness," "affidavitof prejudice" and "tochange council [sic]."2 Gonzales stated, So Idon'tfeel comfortable handing this up, your Honor. But itjust seems unclearwhat... he wants to do is discharge counsel or to go pro se. That's what I'm unclear about, because even after being told by the court 

### [not] to file motions he's still trying to filemotions.[3] The following exchange occurred: GONZALES: Well, do you want to make a motion to discharge me or make a motion to go pro se? DEFENDANT: Yes. Imake a motion to discharge counsel. This is affidavit ofprejudice. Ihave been trying to ~ THE COURT: Excuse me. Just a second. An affidavit of prejudice? Against who? Me? DEFENDANT: Affidavit ofthe prejudice against Court. Period. Out of the interests for ~[4] 

### The trialcourt attempted to ascertain Chappelle's intentions, explaining that Chappelle could not file an affidavit ofprejudice because ithad already made discretionary rulings. Chappelle clarified his intention:

2Clerk's Papers at 61-69. 

### 3RP(Nov. 13, 2012) at 5. 4 Id. at 5-6.No. 70337-4-1/4 

### This affidavit is, yes, to take you offthe case. To take my counsel offthe case. Ihaven't been getting a fair representation, Idon't feel, the whole time. The motions that Iwant to have filed from the beginning when Iwas injured . . . haven't been filed. There are no witnesses that's the
- Inever went to sign continuance in any speedy rights, and none ofthat, all this whole time they try force me to go to trial without seeing police reports, and no witness there first. And anotherjudge overturned that. So the whole time Ihad --1 haven't been represented all the issues that's really 

### been going on withme.[5] Chappelle then proceeded to complain about his health problems and his treatment by 

### jail staff. The trial court continued to attemptto ascertain what Chappelle wanted: GONZALES: Ithink the only timely motion in front of this Court is questionable. Timely is the motion to discharge counsel, but otherthan that an affidavit ofprejudice, Ithink, is, 

### since you made rulings already, it's too late for an affidavit. 

### [PROSECUTOR]: Correct. Ithink the only motionhe's close to making at this point is a motion to discharge counsel, and Idon't know ifthat's really what he wants to do or not.
THE COURT:

DEFENDANT:

THE COURT: GONZALES: THE COURT: You wantto be without counsel? You wantto represent yourself? 

### No. Ihave actually had several lawyers thattry to take 

### mycase. Itry to change counsel, and motion to deny -- was denied. All my motion to dismiss was denied. All my motions are never heard. Not given a chance to speak. 

### No. No, you can't speak. They never address any of my issues. Oh, no. No. No. Because we don't want this on the record. The whole time. No, you can't speak. Oh, 

### you can't speakon any issues. When these are actually issues that's going on. Ongoing with me. Ifthat's a motion to go pro se, it is very equivocal. 

### Well, pro se means do you want to representyourself? Are you asking to representyourself? DEFENDANT: Yes. 5RP(Nov. 13, 2012) at 7.No. 70337-4-1/5
THE COURT: DEFENDANT: 

### You -- yes. You want to go without counsel? IfIhave to go with an intern, whatever Ihave to do. I'm trying here. THE COURT: A what? DEFENDANT:
COURT: IfIhave to get help, yes, Irepresent myselftoo. Ihave been representing myselfthe whole time basically. Iwouldn't say, that's still a pretty equivocal statement, counsel. Are you attempting to discharge
-- DEFENDANT: Yes. COURT: -- Mr. Gonzales, and to represent yourselfpro se inthis case? DEFENDANT: Yes. COURT: You understand that if I allow Mr. Gonzales to be discharged, you will be by yourselfthrough the entire case representing yourself? DEFENDANT: Yes. COURT: You will be required to follow appropriate
- DEFENDANT: Yes. COURT: And when Imake motions and in limine rulings you will be required to abide by them. DEFENDANT: Yes.!6' 

### After brieflyinvolving Chappelle's uncle inthe inquiry, the colloquy continued. DEFENDANT: Okay. Yes, sir. Iwantto go forward. Iwantto go pro se. I do want co-counsel. THE COURT: There is no co-counsel. DEFENDANT: No co-counsel? 6RP(Nov. 13, 2012) at 10-12.No. 70337-4-1/6
THE COURT: DEFENDANT: THE COURT:

DEFENDANT: THE COURT:

DEFENDANT: THE COURT:

DEFENDANT: THE COURT: DEFENDANT: THE COURT: DEFENDANT: THE COURTDEFENDANT: THE COURTDEFENDANT: THE COURT:

DEFENDANT: THE COURT: You go pro se, you represent yourself. Okay. Well, that's fine. You represent yourself, you are up here, you make all your own decisions. You have no lawyer. Okay. You understand that? You are facing a -- I'm told that if convicted you will have an offender score of a seven. You willhave a standard range of43 to 57 months, plus enhancementfor the deadly weapon. That's fine. Inever had a deadly weapon. Let me finish. So you are looking at a range of 55 to 69 months and a $10,000 fine. Okay. With maximum sentence of 120 months. Okay. You ever study anything aboutthe law? Just incarcerated. You have been incarcerated, but neverformally studied the law? No. 

### Have you ever represented yourselfinthe past? No, I have not. Have you ever attempted to represent anyone in a court of law? Ihave not. Ihave attempted but
- You know you are charged with assault inthe second degree, which is a more serious offense, which is also a strike offense?No. 70337-4-1/7
DEFENDANT: Yes. THE COURT:
DEFENDANT: THE COURT: Ialready told you what the potential sentences are; do you understand that? Yes, Ido. You understand you represent yourself[,] Iwill not tell you how to try the case or involve in any way, give you legal advice? DEFENDANT: YesJ71 The trial court briefly quizzed Chappelle on his knowledge ofthe rules ofevidence and criminal procedure, with which Chappelle demonstrated some familiarity. THE COURT: Anyone put any pressure on you to waive right to counsel? DEFENDANT: No. THE COURT: So this is all your decision? DEFENDANT: Yes. 

### THE COURT: Finally, is ityourdesire to be without an attorney in this case? DEFENDANT: Yes. THE COURT: You understand we are going to immediately start picking a jury? DEFENDANT: Yes. THE COURT: There are no continuances.181 

### Chappelle requested the trial court filethe motion he had previously handed up, to which the trial court agreed.

7 Id at 13-14. 8 Id. at 16.No. 70337-4-1/8 

### THE COURT: Are you ready to startpicking a jury? DEFENDANT: Yeah. Start picking a jury today? THE COURT: Yeah. DEFENDANT: THE COURT:
GONZALES:

THE COURT: GONZALES: THE COURT:

DEFENDANT: Okay. 

### As soon as we have gotjurors. Idon't know ifwe have jurors down there or not. Do we have enoughjurors? And, Your Honor, am Iexcused? This is the question I have for, your Honor. I'mon standby on another case, I don't know if you wanted me to -- I'm not having standby. So inform 1201 I'm ready for my next trial? 

### You're ready for your next trial if his ultimate decision is unequivocal that he intends to represent himself, and he intends to stick bythatdecision throughoutthe whole trial and abide by my rulings. We are not going to hear 

### anything about your claims against the police department and some other incidents. No. It's not about claiming. I'm going to courtfor assault 

### two, right? That's what I'mcharged with? THE COURT: That's right. Assaulttwo with [PROSECUTOR]: Deadly weapon.

THE COURT: DEFENDANT: THE COURT: Deadly weapon. Okay. Yup. 

### Iwill tell you it is a - you may be very bright. You may think you are doing the right thing. Iwould strongly advise againstwhatyou are doing. Ithink any judge who heard you would strongly advise againstwhat you are 

### doing, but you have a constitutional right to do it. And so long as you make the unequivocal decision to proceed pro se Iam required to allow it. Now, is thatyour decision?

8No. 70337-4-1/9 DEFENDANT: That's my decision. 

### THECOURT: Mr. Gonzales, you are hereby discharged.[9] The deputy prosecutor clarified: 

### [PROSECUTOR]: Right. And Iwanted to also make itclearthat he is not seeking a continuance even though Your Honor said you 

### wouldn't give one, but Iwantto make itclearthat he is not seeking a continuance and he is prepared to go today. That's the only thing Iwanted to clear up. DEFENDANT: Iwouldjust like to file my motions to the court. I'm not 

### seeking a continuance. Ijust like my paperworkto be filed to the court.TM After a recess to secure a venire, Chappelle again raised the issue of his representation:
DEFENDANT:

THE COURTDEFENDANT:

THE COURT: DEFENDANT:

9 Id at 17-19. 10 Id. at 20. 

### Iwould just like to ask at this time of the record, motion filed for me to have co-counsel, and also Iwould like for 

### my jury instructions, askfor motion to find my jury instructions later, since Idon't have them today with me. IfIcan file them tomorrow maybe. 

### Let me suggest, sir, ifyou are pro se that a co-counsel 

### representation does not exist. Youeither are represented bycounsel or you are not. And you have unequivocally told me you wanted to discharge counsel. Itwas not a 

### good decision. Itold you itwasn't a good decision. But having co-counsel withyourselfis not an arrangement that's recognized under our court system. 

### Okay. Well, Ijust like, on the record, that Iwanted tofile a motion. What's that? 

### Like to put on the record that Iwould like to file motion for counsel.No. 70337-4-1/10
THE COURT: For counsel? DEFENDANT: Uh-huh. THE COURT: You have already discharged counsel. DEFENDANT: Yeah, Iwanted to discharge that counsel for ineffective assistance. THE COURT: That was not your motion. Your motion was to go pro se. Iallowed that motion. Despite the fact that Itold you that itwas not a wise thing to do. You told me unequivocally you wanted to discharge counsel. Itold you if you discharge counsel you were pro se, and you would remain pro se. As Iunderstand it, your attorney has now 

### gone off to tryanother casefor a differentdefendant.1111 A supporterof Chappelle's inthe courtroom informed the trial courtthat what he believed Chappelle wanted was different court-appointed counsel, not to represent 

### himself. Chappelle said, "Yes;that's correct."12 The trial court explained: Well, that was not the motion he made. The motion he made .. . was to 

### go pro se. . . . Iexplained to himthe hazards of going pro se. . . . Iwent through a long colloquy with himconcerning his requestto go pro se. I asked him if he was asking me unequivocally that he wanted to be pro se. Itold him there would be no standby counsel. He would be by himself. He acknowledged he understood allthat. He allowed his counsel to be 

### discharged, and his counsel is now offtrying anothercase.[13] The trial court began discussing the procedure for jury selection. As the venire entered the courtroom, Chappelle stated, "So the motion to appoint new counsel, that's the 

### motion Iwould like to put forth, but Ican't put that motion--."14 The trial court did not respond andjury selection began.
11 Jd at 23-24. 12 Id at 26. 13 ]d at 26-27. 14 Id. at 28.
10No. 70337-4-1/11


### That afternoon, during the directexamination ofthe State's firstwitness, Chappelle claimed he had not seen one ofthe State's exhibits. The trial court 

### immediately recessed the trial untilthe following day. The deputy prosecutorcontacted Gonzales, who reported he had previously provided Chappelle with a redacted copy of discovery. The deputy prosecutordetermined thatthe only documents Chappelle had not been previously provided were transcripts ofwitness interviews. She provided the King Countyjail an electronic copy ofthe witness interviews that evening to give to 

### Chappelle, and provided Chappelle a hard copy the following morning. Trial continued on November 14, 2012 with no further requests from Chappelle. On November 15, 2012, Chappelle again claimed that he was missing discovery 

### materials, including police reports, medical records and his booking photo. The deputy 

### prosecutor provided Chappelle with additional copies of the materials he requested. After four days oftestimony, the jury found Chappelle guilty ofsecond degree assault but rejected the deadly weapon allegation. 

### Following his conviction, Chappelle requested court-appointed counsel to file a motion for a new trial. Ramona Brandes of Northwest Defenders Association was 

### assigned to represent Chappelle. Brandes argued that Chappelle was entitled to a new trialbecause he did not knowingly, intelligentlyand voluntarily waive his right to counsel and because the State did not timely provide him with discovery so that he could adequately defend himself. 

### Atthe hearing on the motion, the State raised the concern that a conflict of interest existed because Gonzales and Brandes were employed by the same public

11No. 70337-4-1/12
defense agency and Chappelle had requested to proceed pro se because he did not believe Gonzales was advocating for him effectively. Brandes asserted there was no conflict of interest because Chappelle's motion for a new trial was not based on ineffective assistance of counsel. The trial court asked Chappelle ifhe was "comfortable going forward this morning with Ms. Brandes . . . even though I'm now told 

### that Ms. Brandes and Mr. Gonzales are inthe samefirm?"15 Chappelle replied that he
was. The trial court asked again, "Ifyou think there's a conflict, let me know. If not, I'm 

### asking ifyou waive any conflictthatthere might be with yourcurrentcounsel."16 Chappelle responded, "I don't have any conflicts."17 Gonzales appeared at the hearing in response to a subpoena issued by the State. Gonzales told the trial courtthat he had provided Chappelle a redacted copy of 

### discovery in September 2012. The deputy prosecutor reiterated that on November 14, 2012, she provided Chappelle with transcripts of all interviews with both State and defense witnesses, and on November 15, 2012, following a complaintfrom Chappelle that he still did not have discovery, she provided him with anotherfull copy ofredacted discovery. Chappelle agreed that he had a redacted copy ofdiscovery atthe work 

### release facility at which he resided prior to trial, but he had not been permitted to take it with him when he was transferred to the countyjail the night before his trial began.



### 15RP(Apr. 30, 2013) at 5. 16id at 6. 17 Id.
12No. 70337-4-1/13 

### The trial court denied Chappelle's motion. In doing so, the trialcourt made the following findings: 1. This court presided overthe pretrial motions and trial in this matter. 

### 2. This courtengaged in a lengthy colloquy withthe defendant. When the defendant, inthe beginning ofthe colloquy, made an equivocal 

### requestto proceed pro se, the court clarified withthe defendantthe exact nature of his request and he subsequently made repeated and unequivocal requests to proceed pro se. 3. This court advised the defendant, and the defendant was aware, of the nature of his charges, the standard range and maximum 

### punishmentallowed by law. The defendantwas also aware that standby counsel would not be afforded and a continuance would not be afforded should the defendant electto proceed pro se. After such advisement, the defendant unequivocally repeated his desire to 

### proceed to trial pro se and waive his right to counsel. 4. Despite the defendant's later requests forcounsel and for continuances, the defendant's requestto proceed pro se was 

### unequivocal and his waiver of the right to counsel was knowingly, intelligently and voluntarily made. 5. This Court ordered the State to provide discovery to the defendant and the Court is satisfied the State did so. This Courttakesjudicial notice and finds the defendant did, infact, have discovery materials 

### in his possession while cross-examining witnesses.1181 Chappelle appeals. DISCUSSION WaiverofRight to Counsel 

### The constitutional right to proceed withoutcounsel is guaranteed to a criminal 

### defendant by both articleI, section 22 of the Washington State Constitution and the Sixth Amendment to the United States Constitution.19 "This right is so fundamental that 18 Clerk's Papers at 291-92. 

### 19 State v. Barker, 35 Wn. App. 388, 391-92, 667 P.2d 108 (1983).

13No. 70337-4-1/14
it is afforded despite its potentially detrimental impact on both the defendant and the 

### administration ofjustice."20 To execute this right, a defendant must affirmatively request to proceed pro se, and the request must be unequivocal when viewed inthe context of the record as a whole.21 Moreover, because a requestto proceed pro se involves the 

### waiverofthe constitutional right to the assistance ofcounsel, the request must be made 

### knowingly, voluntarily, and intelligently.22 We review the trial court's grant of a motion to proceed pro se for abuse of discretion.23 A trial court abuses its discretion when its decision is "manifestly 

### unreasonable" or "'rests on facts unsupported inthe record or was reached by applying 

### the wrong legal standard.'"24 Chappelle claims that he did notknowingly, intelligently and voluntarily waive his 

### rightto counsel. Heargues that his request to proceed prosewas equivocal because the record showed he did notwantto represent himself but instead wanted different court-appointed counsel. 

### We agreewith the trial court that Chappelle's initial statements were equivocal. On October26, Chappelle asked for different court-appointed counsel. The court 

### denied Chappelle's requestbecause Chappelle had not articulated any grounds for

20 State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010). 21 State v. Luvene. 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995). 22 Citv of Bellevue v. Acrev, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984). 23 State v. Breedlove. 79 Wn. App. 101, 106, 900 P.2d 586 (1995). 

### 24 Madsen, 168 Wn.2d at 504 (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).

14No. 70337-4-1/15
such a change. On November 13, Chappelle asked to "discharge" counsel and "take 

### mycounsel offthe case."25 When the trial court inquired ifChappelle wanted to proceed pro se, Chappelle stated that he did not, and expressed his displeasure that the court
on October 26 would not appoint him new counsel. However, Chappelle persisted in complaining about Gonzales's performance. When the trial court asked again ifChappelle wanted to discharge Gonzales and 

### represent himself, Chappelle said he did. The trialcourt stated that "ifIallow Mr. Gonzales to be discharged, you will be by yourselfthrough the entire case representing 

### yourself."26 Chappelle stated that he understood. The trial court explained that Chappelle would have to abide by all court rulings, and Chappelle agreed. When Chappelle asked if he could have co-counsel, the court made it very clearthat he could 

### not. "You represent yourself, you are up here, you make all your own decisions. You 

### have no lawyer."27 The trial court properly informedChappelle of the charge, the standard range, the maximum sentence, and the existence ofprocedural rules. The trial 

### courtconcluded, "Finally, isityourdesire to bewithoutan attorneyin thiscase?"28 Chappelle said yes. The trial court then turned to Gonzales and stated that he would be discharged "if[Chappelle's] ultimate decision is unequivocal that he intends to represent himself."29 The trial court once again addressed Chappelle, stating that he did not 25RP(Nov. 13, 2012) at 7, 9. 26 \± at 11. 27 Id at 13. 28 Id at 16. 29 Id. at 18.
15No. 70337-4-1/16
recommend that Chappelle proceed pro se but that he was required to allow itas long as Chappelle made the unequivocal decision to do so. The trial court asked Chappelle if 

### thatwas his decision. Chappelle responded, "That's mydecision."30 We find that this constituted an unequivocal request to proceed pro se and a knowing, intelligent and voluntary waiver ofthe right to counsel. That Chappelle later renewed his requests for substitution ofcounsel or co-counsel does not retroactively render his request equivocal. 

### Relying upon State v. Brittain.31 Chappelle argues that the trialcourt's failure to rule on his requestfor substitution of counsel demonstrates that his waiver was not knowing, intelligent, or voluntary because he was not made aware that "his only choices 

### were continuing the trial with his current attorney orcontinuing the trial prose."32 Butin Brittain, the defendant specifically conditioned his waiver ofthe right to counsel on the 

### outcome of his requestfor substitution of counsel.33 Chappelle did not. Furthermore, Chappelle had previously moved for substitution ofcounsel on October26, claiming Gonzales had not contacted witnesses critical to his defense. A differentjudge denied 

### Chappelle's request. Chappelle's subsequent requestfor substitution ofcounsel was vague and did not provide the trial courtwithany legitimate or sufficientgrounds. Chappelle further contends that his waiverwas not knowing, intelligent and voluntary because the trial court did not conduct a sufficient colloquy regarding the 

### dangers ofself-representation. He argues the trial court did not inquire into his level of 30]dat19. 31 38 Wn. App. 740, 689 P.2d 1095 (1984), 32 Reply Br. at 3. 33 Brittain, 38 Wn. App. at 742.

16No. 70337-4-1/17 education, explain the process for jury selection or making objections, or discuss the elements ofthe charged crime. But "there are no steadfast rules for determining 

### whether a defendant's waiver of the rightto assistance of counsel isvalidly made."34 Rather, 

### the preferred procedure fordetermining the validity of a waiver involves the trialcourt's colloquy withthe defendant, conducted on the record. This colloquy should include a discussion aboutthe seriousness ofthe charge, 

### the possible maximum penalty involved, and the existence of technical 

### procedural rules governing thepresentation ofthe accused's defense.[35] The record shows that Chappelle was familiar withthe charge, includingthe deadly 

### weapon allegation, the standard range, and the statutory maximum sentence. Furthermore, the trial court discussed the rules ofevidence and criminal procedure with 

### Chappelle, goingas far to quiz Chappelle on the definition of "hearsay" and the purpose 

### of a suppressionhearing. Finally, thetrial courtinformed Chappelle ofthedifficulty of proceeding pro se and advisedhim not to do so. Based on the colloquy, thetrial court did not abuse its discretion infinding that Chappelle knowingly, intelligently, and voluntarily waived his right to counsel. Materials to Conduct a Defense 

### ArticleI, section 22 ofthe Washington Constitution "affords a pretrial detainee who has exercised his constitutional right to represent himself a right ofreasonable 

### access to state-provided resources that will enable him to prepare a meaningful pro se defense."36 What measures are necessary or appropriate to constitute reasonable 34 State v. Modica, 136 Wn. App. 434, 441, 149 P.3d 446 (2006). 35Id 36 State v. Silva. 107 Wn. App. 605, 622, 27 P.3d 663 (2001).

17No. 70337-4-1/18

access lies within the sound discretion ofthe trial court after consideration of all the circumstances.37 Chappelle contends that he was denied his constitutional right to present a defense because he lacked the necessary resources to do so as a pro se litigant. Specifically, Chappelle contends that he was not provided discovery in a timely fashion,
was not given access to an investigator or a telephone, did not have legal materials 

### such as copies ofthe relevant court rules or statutes, and was not appointed standby counsel. 

### Chappelle had been provided a redacted copy ofdiscovery inthe months prior to trial. Because he did not have it in his possession atthe time he requested to proceed 

### pro se, the State provided him additional copies ofthe documents he requested, 

### includingwitness interviews, police reports, medical records and his booking photo. The record shows Chappelle cross-examined all ofthe State's witnesses and attempted 

### to impeach many of them with their reports or priorstatements. In light of the fact that Chappelle requested to proceed pro se on the second day of trial and stated he was not seeking a continuance, Chappelle was provided with reasonable discovery materials with which to conduct his defense. 

### Chappelle's remaining claims also lack merit. Though Chappelle argues he was denied the services ofan investigator, "[t]here is no authority holding thatthe right of 

### self-representation embodies a right to have an investigatorassigned to the

37 Id. at 622-23.
18No. 70337-4-1/19 

### defendant."38 Furthermore, Chappelle does not explain how his defense was impacted by the lack of a telephone. Despite his incarceration, Chappelle was able to schedule a witness to testify on his behalf. And though Chappelle asserts he had no opportunity to locate any otherwitnesses, the record is devoid ofevidence that other such witnesses existed. Chappelle's claim that he was not provided with any legal materials is similarly unsupported by the record. Finally, Chappelle contends the trial court erred by not appointing standby counsel to assist him. But there is no absolute right for a pro se defendantto have 

### standby counsel.39 We review a trialcourt's refusal to appoint standby counsel for abuse of discretion.40 Chappellefails to explain howthe trialcourtabused its discretion in this regard. Conflict ofInterest The Sixth Amendment guarantees a criminal defendant the right to effective 

### assistance ofcounsel which is free from any conflict ofinterest.41 But to establish that a conflict ofinterest deprived him or her ofeffective assistance ofcounsel, a defendant must show that an actual conflict adversely affected the attorney's performance insome 

### way.42 "'[A] mere theoretical division of loyalties'" is insufficient.43 This court reviews de
novo whether circumstances demonstrate a conflict of interest.44 38 ]d at 624. 

### 39 State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991). 40 Locks v. Sumner, 703 F.2d 403, 407-08 (9th Cir.1983). 41 Wood v. Georgia, 450 U.S. 261. 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Davis, 141 Wn.2d 798, 860, 10 P.3d 977 (2000). 42 State v. Dhaliwal, 150 Wn.2d 559, 571, 79 P.3d 432 (2003).
19No. 70337-4-1/20 Chappelle argues that Gonzales was constitutionally ineffective for failing to provide him with discovery materials when he was discharged. He argues that, because Brandes worked inthe same public defense agency as Gonzales, she had a conflict ofinterest because the relationship prevented herfrom revealing Mr. Gonzales' ethical violation or using itas the basis for a new trial. Chappelle does not show thatthe alleged conflict affected Brandes' performance. Chappelle's claim that Gonzales was constitutionally ineffective is premised on Rule of Professional Conduct 1.16(d), which requires an attorney, upon termination of representation, to turn over "papers and property to which the client is entitled." But to satisfy the testfor ineffective assistance ofcounsel, a defendant mustdemonstrate both (1) that his attorney's representation was deficient, i.e., that it fell below an objective standard ofreasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result ofthe proceeding would have 

### been different.45 Even ifGonzales was ethically bound to provide Chappelle with his clientfilewhen the trial court discharged him as counsel, without a showing ofprejudice, 

### this failure does not constitute ineffective assistance of counsel.46 Because Chappelle does not demonstrate that the outcome ofthe proceeding would have been different
43 Id. at 570 (quoting Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)). 44 State v. Vicuna. 119 Wn. App. 26, 30-31, 79 P.3d 1 (2003). 45 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 46 See In re Pers. Restraint ofGomez, 180 Wn.2d 337, 349, 325 P.3d 142(2014) ("the RPCs do not 'embody the constitutional standard for effective assistance of counsel'") (quoting State v. White, 80 Wn. App. 406, 412-13, 907 P.2d 310 (1995)).

20No. 70337-4-1/21
had he been provided with his clientfile atthe time Gonzales left the courtroom, Gonzales was not constitutionally ineffective. Because Gonzales was not ineffective,
we cannot infer, as Chappelle urges us to do, that Brandes failed to claim ineffective assistance as a basis for a new trial because of herworking relationship with Gonzales. Statement ofAdditional Grounds Ina pro se statement ofadditional grounds, Chappelle contends thatthe trial court violated his constitutional right to counsel of his choice when itdenied his request to substitute Gonzales with retained counsel. Where a defendant retains counsel, the 

### SixthAmendmentencompasses the right to counsel of his or her choice.47 But the right to retain counsel ofchoice is not unlimited. Inconsidering a motion to substitute retained counsel, "the trial court mustweigh the defendant's right to choose his counsel 

### againstthe public's interest in the prompt and efficientadministration ofjustice."48 One factor the trial court must consider is whether available counsel is prepared to go to 

### trial.49 We review a trialcourt's decision regarding a defendant's motion to substitute retained counsel for abuse ofdiscretion.50 Chappelle requested to substitute Gonzales with retained counsel on the second day of trial. Though Chappelle asserted there were attorneys willing to take him as a client, he did not identify any by name nor informthe trial court oftheir availability. In 47 United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). 48 State v. Aquirre, 168 Wn.2d 350, 365, 229 P.3d 669 (2010). 49 State v. Hampton, No. 69601-7-1, slip. op. at 12-13 (Aug. 11, 2014); State v. Price, 126Wn. App. 617, 632, 109 P.3d 27 (2005). 50 Price. 126Wn. App. at 632.

21No. 70337-4-1/22 

### light ofthese facts, the trial courtdid not abuse its discretion indenying Chappelle's requestto substitute retained counsel.51 Affirmed.

WE CONCUR: 

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51 Chappelle's remaining claims are adequately addressed in his appellate counsel's brief.
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