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

v. JESSICA CARDE AKA JESSICA HARTMAN AKA JUANITA HOFSETH-LAMMER AKA JUANITA HOFSETH AKA JUNITA FRYE, Appellant. No. 73324-9-1 (Consolidated with No. 74228-1-1) DIVISION ONE

UNPUBLISHED OPINION

FILED: January 30, 2017 

### Schindler, J. — A jury convicted Jessica Carde ofthree counts of theft inthe first degree, one countofattempted theft inthe first degree, and three counts of 

### mortgage fraud. Carde seeks reversal of her convictions and the order ofrestitution.1 Carde challenges denial of two pretrial motions to substitute appointed counsel. Carde also challenges denial ofher requestto continue the restitution hearing to allow herto replace appointed counsel with private counsel. Because the trial court did not abuse 

### its discretion by denying the pretrial motions to substitute appointed counsel and the motion to continue the restitution hearing, we affirm.

1Carde filed an appeal of the judgmentand sentence and the orderof restitution. This court consolidated the appeals.No. 73324-9-1 (Consol. with No. 74228-1-l)/2 Charges Against Carde 

### InMarch 2013, the Statefiled 12 charges against Cardethat involved 10 victims: four counts of theft inthe first degree, one count ofattempted theft inthe firstdegree, two counts of theft inthe second degree, two counts ofsecurities fraud, and three 

### counts ofmortgage fraud. The State alleged that overa period of fiveyears, Carde engaged in a pattern and practice ofdeception bypresenting herselfas a legitimate prospective buyer of a series ofupscale homes, persuading sellers to allow her to move intothe homes, securing lease-to-purchase agreements underfalse pretenses, and living ineach ofthe homes for as long as possible while making minimal or no payments. December 2013 Request To Appoint New Counsel After Carde was extradited from Montana in October 2013, the court appointed 

### publicdefenderJonathan Newcomb to represent her. Two months later, inDecember 2013, Carde asked the courtto appoint new counsel. Carde asserted there was a "breakdown in communication" with Newcomb, he was difficult to reach by telephone, and matters she and counsel "discussed" aboutthe bail hearing were "not performed." Carde said she lacked confidence in Newcomb. The courttold Carde that as a general 

### rule, publicdefenders are difficultto reach bytelephone. The court advised Cardethat ifthe court granted her motion, "it's not going to happen again." Because itwas "sufficientlyearly inthe case," the court granted Carde's requestto appoint new counsel. 

### The court appointed The DefenderAssociation (TDA) to represent Carde. After 

### continuing the case scheduling hearing several times to allowcounsel to investigate andNo. 73324-9-1 (Consol. with No. 74228-1-l)/3 review thousands ofpages ofdiscovery, the court set a trial date of July 7, 2014. In June 2014, TDA attorney Timothy Johnson assumed responsibility for Carde's case. At the request of TDA, the court appointed Kristin Shotwell as co-counsel. Atthe request ofdefense counsel and overthe objection ofCarde, the court continued the July 2014 trial date three times. In September2014, the court granted the defense motion to dismiss both counts ofsecurities fraud. The State filed an amended information without 

### the two dismissed charges.2 December 2014 Motion To Discharge Counsel On December23, 2014, approximately six weeks before the scheduled trialdate, Carde asked the courtto substitute appointed counsel. Carde wanted to replace Johnson but retain Shotwell as her attorney. Johnson explained to the courtthat he and 

### Shotwell had divided trial preparation by charges and Carde disagreed withthe defense 

### strategy. Johnson said Carde wanted to explore and investigate a different theory, but he and Shotwell "decided
... to take a different course" based on a strategy that they believed was "sound" and would better serve Carde's "legal interests." 

### The court explained thatgranting the requestwould result inthe discharge of both defense attorneys. The court offered Carde more time to weigh heroptions. Carde declined. Carde said she was in "total disagreement" with the defense strategy and claimed Johnson failed to obtain evidence thatwould help her case in a 

### "tremendous numberof ways." Carde also said Johnson met with her only 10 times, he
was difficultto reach bytelephone, and he had an "abrasive" style. Carde complained the defense made "[decisions" without consulting her, she lacked "confidence" in 2The amended information also changed one countof theft in the second degree to theft in the firstdegree. Just before trial, the State dismissed one count of theft in the second degree on its own motion based on the death of the victim.No. 73324-9-1 (Consol. with No. 74228-1-l)/4 Johnson's representation, and Johnson was "undermining" and "counterproductive" to the case. However, Carde reiterated she did not wantthe courtto replace Shotwell. Johnson and Shotwell confirmed they had performed extensive work on the
case. The attorneys had interviewed the majority ofthe State's approximately 25 potential witnesses, reviewed and indexed approximately 12,000 pages ofdiscovery, and nearly completed trial preparation. Johnson said Carde's case had been his "top priority" for several months. Shotwell confirmed there had been many meetings about strategy and she and Johnson were in agreement as to trial strategy. The court denied the motion. The court noted the ongoing concern expressed by Carde that she had already been incustody for 17 months and appointing new counsel would result in "extensive delay." The courtfound both attorneys were experienced and competent and the attorneys had been diligently preparing for trial. The court also noted counsel were in agreement as to the strategy with which Carde disagreed. February 2015 Motion To Discharge Counsel On the first day of trial, February 3, 2015, Carde renewed her request to 

### discharge counsel. This time, Carde soughtto replace both attorneys. Carde asserted the defense trial briefcontained "innumerable
. . . misstatements [and] misrepresentations." Carde claimed she had no opportunity to review the briefing or motions before filing. Carde also blamed her attorneys for an inadequate response to statements included in the State's trial briefthat she believed were improper, including reference to a prior custodial interference charge in Minnesota and herflight from Washington after charges were filed. Carde renewed her complaintthat her attorneysNo. 73324-9-1 (Consol. with No. 74228-1-l)/5 failed to obtain relevant evidence. She claimed the attorneys' conduct left herwithout a defense and without "appropriate and fair representation." The court explained the purpose of a trial briefwas to provide contextforthe motions, the trial briefwas not evidence, and itwould not be considered by thejury. The court explained that decision-making authority is between a client and an attorney in a criminal case. To the extent Carde was concerned her attorneys did not adequately understand her view ofthe facts, the court offered to give her additional time to meet with the attorneys. Johnson informed the courtthat he and Shotwell had spent considerable time discussing the evidence with Carde and had done their bestto incorporate herviews into the defense strategy. Johnson stated that he and Shotwell had conducted a thorough independent investigation and were prepared for trial. The court observed itwould be inappropriate to invade attorney client privilege or work productto evaluate independently the manner and thoroughness ofthe investigation. The court denied Carde's motion. The court stated that after reading the 47-page defense trial briefand listening to defense counsel, "what I've read and seen does not equal a lack of investigation." [Bjased on this record, Icould not conclude that somehow the Defense investigation is so lacking as to deprive Ms. Carde of a constitutional right, nor that it is the case that Defense Counsel is not zealously, ethically representing their client. Twenty witnesses testified during the 10-daytrial. Thejury acquitted Carde of two counts oftheft inthe first degree. Thejury found Carde guilty ofthree counts of theft inthe first degree, one count of attempted theft inthe first degree, and three counts ofmortgage fraud. The court imposed concurrent standard range sentences for a totalNo. 73324-9-1 (Consol. with No. 74228-1-l)/6
sentence of 28 months confinement. Following a restitution hearing, the court ordered restitution for three victims. Denial ofMotions To Substitute Appointed Counsel Carde challenges the decision to deny hermotions to substitute appointed 

### counsel claiming there was a "complete breakdown" in hercommunication and relationship with counsel. The Sixth Amendmentto the United States Constitution guarantees that in "all 

### criminal prosecutions, the accused shall.
. . have the assistance ofcounsel for [her] defense." A defendant" 'does not have an absolute, Sixth Amendment right to choose 

### any particular advocate.'" State v. Varqa. 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (quoting State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997)). The essential aim ofthe Sixth Amendment is to guarantee an effective advocate for a criminal defendant "ratherthan to ensure that a defendantwill inexorably be represented bythe 

### lawyer whom [s]he prefers." Wheatv. United States. 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). Adefendantwho seeks to substitute appointed counsel must show good cause

" 'such as a conflict ofinterest, an irreconcilable conflict, or a complete breakdown in 

### communication between the attorney and the defendant.'" Varga, 151 Wn.2d at 200 

### (quoting Stenson, 132Wn.2d at 734). A general loss of confidence in defense counsel by itself is not sufficientcause for substitution. Stenson, 132Wn.2d at 733-34. The attorney and the defendant must be "so at odds as to prevent presentation of an adequate defense." Stenson. 132Wn.2d at 734. 

### Adisagreement over defense theories and trialstrategy does not 

### by itself constitute an irreconcilableconflictentitling the defendanttoNo. 73324-9-1 (Consol. with No. 74228-1 -l)/7 substitute counsel because decisions on those matters are properly entrusted to defense counsel, not the defendant. State v. Thompson. 169 Wn. App. 436, 459, 290 P.3d 996 (2012). Whether dissatisfaction with court-appointed counseljustifies the appointment of

new counsel is a matterwithin the trial court's discretion. Varga, 151 Wn.2d at 200; Stenson, 132 Wn.2d at 733. A court abuses its discretion when its decision adopts a view no reasonable person would take or is based on untenable grounds or untenable

reasons. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012). On appeal, we consider (1) the extent ofany conflict between the defendant and counsel, (2) the adequacy ofthe trial court's inquiry into the grounds for the motion, and (3) the timeliness ofthe motion and potential effects on the trial schedule. State v. Cross. 156Wn.2d 580, 607, 132 P.3d 80 (2006). Inexamining the extent of conflict between a defendant and her attorney, we considerthe extent and nature ofthe breakdown inthe relationship and its effect on the representation. State v. Schaller, 143 Wn. App. 258, 270, 177 P.3d 1139(2007). Because the purpose of providing assistance ofcounsel is to ensure that defendants receive a fair trial, the appropriate inquiry necessarily must focus on the adversarial process, not only on the defendant's relationship with [her] lawyer. Schaller. 143 Wn. App. at 270. The court did not abuse its discretion indenying Carde's December2014 motion to appoint new counsel. First, the record does not indicate a breakdown in communication or irreconcilable conflict affecting the adequacy ofCarde's 

### representation. Carde disagreed withcounsel over strategy and evidence she believed
was helpful. Defense counsel has wide latitude to control trial strategy and tactics, inNo. 73324-9-1 (Consol. with No. 74228-1-l)/8

re Pers. Restraint of Stenson, 142 Wn.2d 710, 733, 16 P.3d 1 (2001). Disagreement 

### about defense strategy does not establish a complete collapse ofcommunication between counsel and client. See Cross, 156 Wn.2d at 606-09. Here, the record does 

### not suggest Carde and hercounsel were unable to communicate. To the contrary, Carde obviously engaged indiscussions with her attorneys about strategy and the evidence. There was no basis for the courtto conclude that Carde and her attorneys


### were "so at odds as to prevent presentation of an adequate defense." Stenson, 132
Wn.2d at 734. Second, Carde does not challenge the adequacy ofthe inquiry. Nevertheless, the record reflects the court allowed Carde to explain fullythe reasons for her dissatisfaction with counsel, and the trial court had before itthe information necessary to assess the merits ofher request. See Schaller, 143 Wn. App. at 271; Varga, 151 

### Wn.2d at 200-01. "[A] trial court conducts adequate inquiry by allowingthe defendant and counsel to express theirconcerns fully." Schaller, 143 Wn. App. at 271. 

### Third, the timing ofCarde's request and the effect on the trial schedule also 

### supports the court's decision. Granting the requestto appoint new counsel would have resulted in additional significant delay of an already long-delayed and complicated case. 

### ByDecember23, 2014, sixweeks before trial,Johnson and Shotwell had nearly completed preparation for trial, including review of more than 10,000 pages of discovery and interviews ofapproximately 20 State witnesses. Further, Carde was equivocal aboutfurther delay. While she expressed dissatisfaction withJohnson, she also 

### complained aboutthe considerable time she had spent incustody and raised concernsNo. 73324-9-1 (Consol. with No. 74228-1-l)/9 

### about previous continuances and her right to a speedy trial. The trialcourtdid not abuse its discretion indenying the December2014 motion to appoint new counsel. Nor did the trial court abuse its discretion by denying the requestto appoint new 

### counsel on the firstday of trial. The courtagain conducted an adequate inquiry by allowing Carde and her attorneys to fully air theirconcerns. Carde's attorneys told the 

### court they had discussed strategy and evidence with Carde numerous times, had attempted to incorporate her views, and were prepared to proceed to trial. As to the nature and extent ofthe conflict, the only new issue Carde raised was her dissatisfaction with the defense trial brief and the response to aspects ofthe State's brief. The defense submitted an extensive briefthat included numerous motions to exclude areas oftestimony, documents, and e-mail messages. Carde did not 

### specificallystate how the briefwas deficient. As to Carde's particular objections to the State's brief, her attorneys expressly addressed those concerns by moving to exclude all evidence related to the Minnesota criminal charge, Carde's alleged flight from Washington, and extradition. 

### Whilethe record reflects a disagreementabout strategic decisions, the record does not demonstrate a complete breakdown incommunication or inthe relationship or
an irreconcilable conflictthat affected the adequacy ofrepresentation. The courtdid not 

### abuse its discretion in denying Carde's renewed motion for new appointed counsel on the first day of trial. Restitution Order Carde contends she is entitled to reversal ofthe restitution order. Carde argues 

### the trial court violated her right to retain counsel of her choice by denying her motion toNo. 73324-9-1 (Consol. with No. 74228-1-l)/10 continue the restitution hearing. The restitution hearing was scheduled for September 15, 2015. At Carde's request, the court continued the hearing until September 25. On September 25, Carde requested another continuance to obtain additional information. The record shows Carde wanted additional time to obtain evidence that she was not guilty ofthe crimes, not to challenge the amount of restitution. The record also shows the arguments Carde intended to raise were largely the same ones thejury rejected attrial. For instance, as to one ofthe victims, who was deceased by the time of trial, Carde wanted to present evidence showing the loans were personal and the victim did not intend that Carde repay his family members. With regard to anothervictim, Carde intended to argue, as she had attrial, that the lease-to-purchase agreement did not obligate her to pay any rent untilthe sale closed. Since the sale never occurred, Carde wanted to argue she did not committheft by failing to pay rent. Carde also maintained the victim had no right to collect rent because bankruptcy trustees controlled the property. As to a third victim, Carde wanted to obtain additional evidence to support her argument that she lived inthe home as a guest and was not obligated to pay rent. Again, thejury rejected the same argument attrial. Carde said she needed 30 days to gather information to support her claims. The State opposed the continuance. The State argued the information Carde intended to presentwas not relevant to the amount of restitution. The court stated, "I think the strong presumption is there wouldn't be any additional continuance since there's been two, and atthis point we'll have allthe relevant information that's been alluded to." But

10No. 73324-9-1 (Consol. with No. 74228-1-l)/11 the court granted the motion and continued the hearing to October22. At Carde's request and due to unspecified medical issues, the court continued the hearing to November 10. 

### Carde appeared at the restitution hearing on November 10 with her appointed counsel and private attorney Barry Flegenheimer. Carde asked the courtto substitute private counsel for herappointed counsel. The requestwas contingent on granting a 

### continuance. Flegenheimertoldthe court that Carde's family had "recently" secured funds to hire him and Carde had described a "number ofissues" that she wanted him to 

### investigate forthe restitution hearing. Flegenheimerdid not indicate how long of a continuance would be required but acknowledged he would need "some time" to 

### prepare. Appointed counsel Johnson stated he learned aboutthe motion onlythatday and did not oppose it. Carde informed the courtthat "some" material she wished to present atthe 

### restitution hearing could be obtained only by means of a subpoena and her attorneys had failed to assist her in this regard. She claimed there was evidence that could "exonerate" or at least "attenuate" restitution. But Carde did not identify ordescribe the evidence. The court denied the motion. 

### As accurately stated earlier, this restitution matterhas been continued a numberof times, always at the Defense request. And Igranted that so as to allowfull opportunity for investigation and airing ofany concerns. Moreover, and this is a very general statement, but itwas my 

### understanding that many ofthe arguments againstthe requested restitution amounts involved the very defenses thatwere forwarded thoroughly at trial. This court knows these Defense Counsel still of record to be 

### competent and served inthat capacity at trial. Inotherwords, there's no

11No. 73324-9-1 (Consol. with No. 74228-1-l)/12 adequate showing or good cause before this Courtto grantthe requestto substitute private counsel. Motion is denied. Carde interrupted to argue she needed more time to show the State was relying
on "fraudulent" information. The court reminded Carde ithad granted a continuance six weeks earlier precisely to allow herthe fullopportunityto obtain the evidence necessary to challenge the amount ofrestitution. Yet inthe six weeks since the last continuance, Carde had not obtained any new information to presentto the court. The State initiallysought restitution for four victims. Atthe November 10 hearing, the prosecutortold the courtthe State was no longer requesting restitution for one ofthe victims. Relying on the same arguments asserted attrial, Carde's counsel objected to restitution for each ofthe three victims. Defense counsel asked the court to disregard 

### thejury verdict and find "as a matterof law"thatthe facts did not supportthe requested restitution. The court imposed restitution inthe amount requested by the State of approximately $220,000. Carde claims the court's decision to deny her motion to substitute private 

### counsel is contrary to the Washington State Supreme Courtdecision inState v. Hampton. 184 Wn.2d 656, 361 P.3d 734 (2015), cert, denied, 136 S. Ct 1718, 194 L Ed. 2d 816 (2016). Adefendantwho does not require appointed counsel generally has a Sixth 

### Amendment right to counsel ofchoice. Hampton, 184 Wn.2d at 662. However, this right is not absolute. Hampton, 184 Wn.2d at 663. When a court considers a continuance for the purpose of allowing a defendantto retain counsel ofher choice, it 

### may balance that rightagainstthe demands of itscalendarand the public's interestin the prompt and efficient administration ofjustice. Hampton, 184 Wn.2d at 663. "The

12No. 73324-9-1 (Consol. with No. 74228-1-l)/13 resolution ofthis balancing exercise falls squarely within the discretion ofthe trial court.'" Hampton, 184 Wn.2d at 663 (quoting State v. Aguirre, 168 Wn.2d 350, 365, 229 P.3d 669 (2010)). We review a trial court's decision to deny a continuance to determine whetherthe denial was " 'so arbitrary as to violate due process.'" Hampton, 184 Wn.2d at 663 (quoting Ungarv. Sarafite. 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964)). In Hampton, the court identified 11 factors the trial court should consider in determining whetherto grant a continuance to allow substitution ofprivate counsel: "(1) whetherthe request came at a point sufficiently in advance of trial to permitthe trial courtto readily adjust its calendar; (2) the length ofthe continuance requested; (3) whetherthe continuance would carry the trial date beyond the period specified inthe state speedy trial act; (4) whetherthe court had granted previous continuances atthe defendant's request; (5) whetherthe continuance would seriously inconvenience the witnesses; (6) whetherthe continuance requestwas made promptly afterthe defendantfirst became aware ofthe grounds advanced for discharging his or her counsel; (7) whetherthe defendant's own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel; (8) whetherthe defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation; 

### (9) whetherthere was a 'rational basis' for believing thatthe defendant was seeking to change counsel 'primarily forthe purpose ofdelay'; (10) whetherthe current counsel was prepared to go to trial;

13No. 73324-9-1 (Consol. with No. 74228-1-l)/14
(11) whether denial ofthe motion was likely to result in identifiable prejudice to the defendant's case of a material or substantial nature." Hampton. 184 Wn.2d at 669-70 (quoting 3 Wayne R. Lafave etal., Criminal Procedure § 11.4(c), at 718-20 (3d ed. 2007)). The court acknowledged that "these situations are highly fact dependent" and the court is not required to apply any mechanical test. Hampton, 361 P.3d at 669. Further, "[n]ot all factors willbe present in all cases, and thus a trial court need not evaluate every factor in every case." Hampton, 184 Wn.2d at 670. Although the Supreme Court issued its decision in Hampton nine days afterthe trial court ruled on Carde's requestfor a continuance, the record shows the trial court considered many ofthe 11 factors setforth in Hampton, and virtually all ofthe factors supportthe trial court's decision to deny Carde's last-minute requestfor another continuance. AtCarde's request, the court had granted three previous continuances. Carde's 

### requestfor a fourth continuance on the date ofthe restitution hearing was untimely. On the day ofthe restitution hearing, Carde's appointed counsel Johnson was prepared to 

### proceed. Although neither Carde nor retained counsel Flegenheimerstated the exact 

### length of the continuance needed, the restitution hearing had already been continued beyond the 180-day statutory deadline and granting Carde's requestwould have resulted in substantial further delay. 

### Carde expressed no legitimate causefordissatisfaction with appointed counsel. Carde cited counsel's unwillingness to obtain subpoenas as the reason to retain new counsel. But as the trial court observed, Carde was seeking to presentevidence

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### No. 73324-9-1 (Consol. with No. 74228-1-l)/15 

### relevant to arguments the jury rejected attrial and not relevant to the amount of 

### restitution. Accordingly, denial ofCarde's motion resultedin noidentifiable prejudice of

a material or substantial nature. 

### Carde also offers no explanation as to why she did not obtain documentation or 

### information despite the previous six-weekcontinuance. And according to Carde, only

some documents she wanted to obtain required a subpoena. Consistent with the factors identified in Hampton, the trial court did not abuse its 

### discretion in denying Carde's motion for a continuance of the restitution hearing to allow newlyretained counsel to represent her. The denial ofCarde's requestwas not arbitrary and did not violate her right to due process. Carde also contends that under the Sixth Amendment to the United States Constitution and article I, section 21 ofthe Washington State Constitution, she is 

### entitled to a jury determination of the amount ofrestitution. Wedisagree. In State v. Kinneman, 155 Wn.2d 272, 282, 119 P.3d 350 (2005), the Washington Supreme Court 

### held, "There is no right to a jurytrial to determinefacts on which restitution is based under RCW 9.94A.753." 

### Carde also characterizes restitution as "damages" and claims she is entitled to a 

### jurydetermination under Sofiev. Fibreboard Corp., 112Wn.2d. 636,771 P.2d711,780 P.2d 260 (1989). But Sofie isinapposite.3 Statement ofAdditional Grounds 

### Carde filed a statement of additional grounds challenging the trial court decisions 

### denying herrequests for new appointed counsel. Because appellate counsel's briefing

3No authority supports Carde's argument that the analysisin Sofieappliesin a criminal setting to the determination of restitution.

15No. 73324-9-1 (Consol. with No. 74228-1-l)/16 

### adequately addresses this argument, we need notaddress it. See State v. Gomez. 152 Wn. App. 751, 754, 217 P.3d 391 (2009). To the extent she also alleges fraud and unethical conduct on the part ofthe prosecutor or ineffective assistance ofcounsel, her claims appearto involve matters outside the trial record. Accordingly, we cannot considerthem on direct appeal. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). 

### We affirm thejudgmentand sentence and the order ofrestitution.4

WE CONCUR: 

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4Carde asks this court to deny appellate costs. Afterconsidering the nonexclusive factors in State v. Sinclair, 192Wn. App. 380, 393, 367 P.3d 612 (2016), we exercise our discretion to not award costs.
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