### FILED 

### COURT OF APPEALS DIVISION II 

### 1015 

### FEB - 

### 3 

### AM 8: 51 STATE OF WASHINGTON BY DEP. Y



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

### DIVISION II Respondent,

v. RICHARD ANTHONY CARPENTER, Appellant. No. 44562 - 0 -II

UNPUBLISHED OPINION JOHANSON, C.J. — 

### Richard Anthony Carpenter appeals his jury convictions for first degree assault, first degree robbery, and second degree unlawful possession of a firearm. - He argues that the trial court violated his public trial rights when it permitted the parties to exercise 

### their peremptory challenges in writing and his .right to counsel when it denied his motion to substitute counsel without an adequate 

### inquiry. 1 

### We hold that the trial court did not violate Carpenter' s public trial right regarding 

### peremptoryjuror challenges because those challenges do not implicate the public trial right and
1 This case is linked for appeal with No. 44569 - 7 -II and the two arguments in this appeal are identical to the first two arguments in that appeal. Therefore, the language ofthe two opinions is similar.No. 44562 - 0 -II 

### did notviolate his Sixth Amendment rightto counsel because Carpenter' s reasons for substituting counsel were clear from the record and a formal 

### inquiry was not necessary. 

### Accordingly, we affirm Carpenter' s convictions. FACTS

In December 2011, Robert Bisom opened his front door to an unknown Carpenter 

## knocking, and Carpenterpushed hisway into Bisom's house. Carpenter asked Bisom forhis keys and when Bisom did not comply, afight ensued. Finally Bisom surrendered and opened the safe where he kept his car keys and a pistol. Carpenter threatened Bisom with the pistol, leftthe house 

### takingthekeys and pistol with him,andwas arrested lateron unrelated charges. The State charged Carpenter with first degree assault,2 first degree robbery,

### 3 and second degree unlawful possession ofa firearm.4 

### On May 11, 2012, during apretrial status hearing, Carpenter's counsel expressed concerns about Carpenter's competency. Although two mental health evaluators had found Carpenterto be competent, his counsel sought a new evaluation because they were unable to communicate. Because Carpenterrefused to cooperate with his counsel and the mental health evaluators, it took threevisits beforethe second evaluation was accomplished. The court ordered thethird evaluation. 

### The trial court also asked Carpenter' s counsel about his difficulties communicating with Carpenter. 

### Carpenter' s counsel explained that, in his opinion, Carpenter' s position was that " he


### 2 RCW 9A.36.011. 3 RCW 9A.56.200. 4 Former RCW 9.41. 040(2)( a) ( 2011). 2No. 44562 - 0 -II 

### should go home now and that if [ Carpenter' s counsel] can't dothat, [he is] not doing anything for him." Report of Proceedings ( RP) ( 

### May 11, 2012) at 1. Carpenter responded that "[ w]e don' t have a, we don' t have a relationship, Judge. We cannot conversate [ sic] with each other." RP 

### May 11, 2012) at 5. 

### Carpenter asked for a new attorney and the trial court told him to put his motion for substitution ofcounsel in writing so thatthe court could consider it and the State could respond. 

## On May 18, 2012, at a second competency status hearing, the trial court learned that although Carpenterwaswillingtotalkwiththe newevaluator,hewaswillingto discuss onlytopics that were " acceptable" to him and refused to talk about his case. Due to Carpenter' s failure to 

## cooperate during the evaluation, the evaluator could not determine the cause ofhis inability to work with his counsel. Carpenter' s counsel also told the court that Carpenter had been involved 

## intwojail incidents inthe24 hoursprecedingthe hearing, including anincidentwhere he spaton

a corrections officer. Seven corrections officers were needed to escort Carpenter to court, and because of his behavior, Carpenter had been charged with six counts of custodial assault. Lieutenant James, a corrections officer, stated that he thought Carpenter might have " some mental 

### health issues" and that the mental health supervisor atthejail thought Carpenter probably had a mood disorder. RP ( 

### May 18, 2012) at 12. Lieutenant James also observed, however, that Carpenter was willing to cooperate at times and usually " understood what was going on." RP 

### May 18, 2012) at 13. 

### The trial court found Carpenter to be competent and asked him why he had not submitted a written motion for new counsel. When Carpenter informed the court that he was not allowed to 

### have a pencil or paperto prepare the motion,the court decided that "atthis point I'm not goingto 3No. 44562 - 0 -II
allow Mr. Carpenter to discharge Mr. DePan. 

### I think this is just partly his way of trying to manipulate getting what he wants." RP (

### May 18, 2012) at 14 -15. 

### Afterthe May 18 hearing,the issue of substitution of counsel was not raised again, although trial occurred over eight months later. 

### In January 2013, the trial court conducted voir dire in open court, and Carpenter and the State questioned the venire and exercised theirfor - cause challenges. The State and Carpenterthen 

## exercisedtheirperemptory challengesonawrittenformthatwas laterfiledwiththe clerk.5 Based on that written form, the trial court announced which jurors had been selected and excused the others. 

### Thejury convicted Carpenteron all three counts. He nowappeals those convictions. ANALYSIS I. PEREMPTORY CHALLENGES Do NOT IMPLICATE THE PUBLIC TRIAL RIGHT Carpenter argues that the trial court violated his public trial rights when the parties exercised their peremptory challenges in writing. 

### We held in State v. Dunn, 180 Wn.App. 570, 575, 321 P.3d 1283 ( 2014), review denied, No. 90238 -1 ( Wash. Jan. 7, 2015), and again in State

v. Marks, Wn. 

### App. , 339 P.3d 196, 200 ( 2014), that exercising peremptory challenges 

### does not implicate the public trial right. Accordingly, we hold thatthe trial court did not violate 

### Carpenter' s public trial rights by allowing counsel to make peremptory challenges at a sidebar conference.



### 5 As the parties made their challenges, the trial court made small talk with the prospectivejurors on the record. 

### When the parties finalized their peremptory challenges with the clerk, the record shows a "( Pause)" in the proceedings. RP (Voir Dire Examination) (Jan. 24, 2013) at 154. 4No. 44562 - 0 -II II. SUBSTITUTION OF COUNSEL Carpenter next argues that the trial court violated his Sixth Amendment rights when it 

### denied his motion to substitute counsel because itfailed to conduct an adequate inquiry. We hold that the trial court did not abuse its discretion when it denied Carpenter' s request for substitute 

### counsel because Carpenter' s reasons for substituting counsel were clear from the record, aformal 

### inquiry was not necessary, and it was reasonable for the trial court to find that there was not an irreconcilable conflict or complete breakdown in communication. A. STANDARD OF REVIEW AND RULES OF LAW We review a trial court' s decision not to appoint new counsel for an abuse of discretion. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 ( 2004). A trial court abuses its discretion when its decision is "' manifestly unreasonable or based upon untenable grounds or reasons. "' State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 ( 2014) ( internal quotation marks omitted) (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 ( 2012)). 

### Criminal defendants are generally guaranteed the right to counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, §

### 22. A defendant, however, does not have an absolute right "`to choose any particular advocate.'" Varga, 151 Wn.2d at 200 ( quoting State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 ( 1997), cent. denied, 523 U.S. 1008 ( 1998)). 

### In order to justify substitution of counsel, the defendant must show good cause for the substitution, such as "' a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication. "' Varga, 151 Wn.2d at 200 (quoting Stenson, 132 Wn.2d at 734). A substitution 

### ofcounsel may bejustified whenthe attorney - client relationship is plagued bythings that suggest that the attorney cannot provide diligent representation. In re Pers. Restraint ofStenson, 142No. 44562 - 0 -II Wn.2d 710, 724 - 31, 16 P. 3d 1 ( 2001). However, a defendant must show more than a general loss of trust or confidence. State v. Schaller, 143 Wn.

### App. 258, 268, 177 P. 3d 1139 ( 2007), review denied, 164 Wn.2d 1015 ( 2008). The cause ofthe breakdown in communication matters as well, and Carpenter must show that the breakdown is not because of his own refusal to cooperate. 

### Schaller, 143 Wn.App. at 271.

Where the representation was inadequate, this court will presume prejudice. Schaller, 143 Wn. 

### App. at 270. If his counsel' s representation was adequate, however, Carpenter must demonstrate prejudice. Schaller, 143 Wn.

### App. at 270. To determine whether the breakdown in communication entitled Carpenter to new counsel, we examine three factors: ( 1) the extent ofthe 

### conflict, (2) the adequacy ofthe trial court's inquiry into the conflict,and (3) the timeliness ofthe motion for substitution ofcounsel. State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80, cert.denied, 549 U.S. 1022 (2006). B. ANALYSIS

1. EXTENT OF THE CONFLICT We must first consider the extent and nature ofthe breakdown in communication and what 

### effect, ifany,the breakdown had onthe representation thatCarpenter received. State v. Thompson, 169 Wn.

### App. 436, 457, 290 P.3d 996 (2012), review denied, 176 Wn.2d 1023 ( 2013); Schaller, 

### 143 Wn.App.at 270. Carpenter does not arguethat his counsel had a conflict ofinterestand fails to demonstrate an irreconcilable conflict or a complete breakdown in communication for three

reasons.

First, the record suggests that the reason for the breakdown in communication was 

### Carpenter's own refusal to cooperate and not his counsel' s ill will or failure to engage orto try to 6No. 44562 - 0 -II
communicate. The record shows that Carpenter refused to communicate with his counsel about 

### his case, was only willing to engage with the mental health evaluator about topics that were acceptable" to Carpenter and not about the charges pending against him, and that Carpenter did not cooperate with the guards at the jail. In fact, because Carpenter refused to cooperate with corrections officers, seven officers were needed to escort him to court. Carpenter, therefore, did 

### not only struggle to communicate with his own counsel but was generally uncooperative and struggled to communicate with everyone. Carpenter, however, is not entitled to new counsel simply because he refused to cooperate. Thompson, 169 Wn.

### App. at 457 - 58 ( "` It is well settled that a defendant is not entitled to demand a reassignment of counsel on the basis of a breakdown in communications where he simply refuses to cooperate with his attorneys. ' ( 

### quoting Schaller, 143 Wn.App. at 271)). 

### Second, during the May 11 and May 18, 2012 hearings, Carpenter's counsel thoughtthat Carpenter's failure to communicate might have been due, in part,to a competency problem. This 

### fact suggests that the nature of his failure to communicate was not a deep-seated, irreconcilable conflict 

### with counsel but latent mental health problems. Carpenter' s counsel sought a new 

### evaluation and different medication to identify and to remedy these problems so that he could provide more effective representation. The nature of the conflict between Carpenter and his counsel is, therefore, at best,the result ofCarpenter' s mental health problems and, at worst, due to Carpenter' s general intransigence. 

### Neither fact suggests that Carpenter and his counsel had a complete breakdown in communication that prevented diligent, adequate representation. 

### Finally, there was no evidence at the time of Carpenter' s motion that this problem prevented his counsel from providing adequate representation, and Carpenter 

### does not argue thatNo. 44562 - 0 -II his counsel' s continued representation prejudiced him. Carpenter' s counsel agreed that he had
not been able to converse with Mr. Carpenter regarding the facts of this case, ... 

### his ability to 

### workwith his attorney is zero, and I have no abilityto unless Mr.Carpenter's behavior changes." RP (

### May 18, 2012) at 5 -6. 

### But he continued to represent Carpenter diligently. The record from 

### just the May 11 and May 18 hearings shows that Carpenter's counsel made multiple attempts to visit him to 

### try to work on their case. Carpenter' s counsel sought an additional mental health 

### evaluation and different medications to try to address their communication problem. Carpenter does not argue that his representation was inadequate, only that there was a 

### breakdown in communication and the trial court's inquirywas inadequate to determine the extent ofthe breakdown. He fails to address the facts inthe record, does notclaim thattheydemonstrate 

### that any alleged breakdown in communication caused deficient representation, and did not.renew his motion for new counsel in the more than eight months between his first motion and the start of trial. 

### The nature and extent ofthe alleged conflict does not weigh in favor of substitution of counsel because Carpenter failed to demonstrate that there was a breakdown in communication that affected his representation.

2. ADEQUACY OF THE TRIAL COURT' S INQUIRY 

### Carpenter argues that the trial court conducted no inquiry at all into the nature and extent 

### ofhis conflictwith his attorney. We conclude thatthe record here provided sufficient information for the trial court to determine the nature and extent ofthe conflict. 

### An adequate inquiry includes a "full airing ofthe concerns" and a " meaningful inquiry by the trial court." Cross, 156 Wn.2d at 610. However, a "[ 

### fJormal inquiry is not always essential 8No. 44562 - 0 -II
where the defendant otherwise states his reasons for dissatisfaction on the record." Schaller, 143 

### Wn.App. at272. 

### Here, the trial court did not extensively inquire into Carpenter' s reasons forwanting new counsel, but the reasons Carpenter sought new counsel were clear from the record. As Carpenter 

### stated, he and his counsel did not "have a relationship" and were struggling to communicate about his case. RP (

### May 11, 2012) at 5. Carpenter' s counsel agreed with Carpenter' s characterization 

### oftheirrelationship butcontinuedtotrytoworkwith Carpenterandwiththe courtsothathe could provide effective representation. 

### From the record ofthe May 11 and May 18 hearings, the trial 

### courtwas alsoaware ofCarpenter's many strugglesto cooperatewith his mental health evaluators and corrections officers as well as his own counsel. The nature and extent of Carpenter' s conflict with his counsel was evident, and the trial 

### court did not abuse its discretion when it did not conduct additional, formal inquiry into the conflict.

3. TIMELINESS OF THE MOTION Carpenter argues that the trial court did not consider timeliness as a factor when it denied 

### his motion to substitute counsel and that, regardless, timeliness was not an issue because at the time ofhis motion, no trial date had been set. 

### An untimelymotionto substitute counsel weighs against adefendant's attemptto establish that an irreconcilable conflict existed. Stenson, 142 Wn.2d at 732. In this case, Carpenter asked the court for a new attorney on 

### May 11, 2012, and the court denied his request on 

### May 18. 

### Jury 

### selection for Carpenter' s trial did not begin until January 24, 2013, more than eight months later.

9No. 44562 - 0 -II 

### Timeliness, therefore, weighs in favor ofCarpenter' s argument that the trial court erred when it denied his motion.

4. SUMMARY The extent of Carpenter' s conflict with his counsel was substantial but not irreconcilable. The nature of their conflict was, at best, because of Carpenter' s mental health problems and, at 

## worst, because Carpenter simply refused to cooperate with everyone, and this conflict did not prevent Carpenter' s counsel from providing adequate representation. The nature and extent of their conflict was clear from the record and from Carpenter' s own statements. 

### The trial court denied Carpenter' s motion on May 18 because itfound thatthe motionwas intended to " manipulate getting what he wants," presumably to manipulate the trial process. RP 

### May 18, 2012) at 15. Thetrial court did not find a complete breakdown in communication oran irreconcilable conflict and, based on the May 11 and May 18 hearings,these determinations were not an abuse ofdiscretion. 

### The trial court did not abuse its discretion when it denied Carpenter' s request for new counsel because ( 1) Carpenter' s reasons for substituting counsel were clear from the record, (2) a 

## formal inquirywas notnecessary, and (3) itwas reasonable forthe trial courttofindthattherewas notan irreconcilable conflictorcomplete breakdown in communication. Accordingly,Carpenter' s argument fails.

10No. 44562 - 0 -II We affirm. 

## A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW2.06.040, it is so ordered.

We concur:
MAX
SUTTON, J.

11