Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

MARVIN BENSON,

Appellant.

)

)

)

)

)

)

)

)

)

)

No. 80159-7-I

DIVISION ONE

UNPUBLISHED OPINION

ANDRUS, A.C.J. — After pleading guilty to two counts of first degree assault, 

Marvin Benson and his trial attorneys moved for the appointment of substitute 

counsel to address his request to withdraw the plea. Benson contends the trial 

court’s refusal to appoint new counsel violated his right to the assistance of counsel

at a critical stage of his proceedings. Because Benson and his attorneys failed to 

demonstrate an actual conflict of interest necessitating the appointment of new 

counsel, we affirm his conviction.

Benson further contends the trial court lacked substantial evidence to 

support its restitution order and erred in imposing Department of Corrections 

(DOC) community custody supervision fees. The State concedes error in the 

imposition of DOC community custody supervision fees. We accept this 
No. 80159-7-I/2

- 2 -

concession and remand to strike these fees from the judgment and sentence. We 

otherwise reject his challenge to the restitution order.

FACTS

On December 13, 2017, Marvin Benson accompanied his friend, Kevin 

Alvarado, to a planned fight at the King County Aquatic Center.1 During the fight, 

two 17-year-old brothers, A.K. and I.K., intervened and attempted to restrain 

Alvarado. Benson pulled a firearm with an extended magazine and shot A.K. and 

I.K. as they ran away. Both sustained life-threatening injuries and were taken to 

the hospital for medical treatment. One of the two was paralyzed by the gunshot 

wounds. 

Benson pleaded guilty to two counts of assault in the first degree in March 

2019. Under the plea agreement, the State agreed to recommend a mid-range 

sentence and to dismiss the firearm enhancements on both counts, thereby 

reducing Benson’s potential prison term by 10 years. The State also agreed not 

to charge Benson with any further crimes stemming from the incident. 

On April 26, 2019, at the scheduled sentencing hearing, Benson’s 

attorneys, Kurt Bennett and Maxwell Boltinghouse, advised the trial court that 

Benson wished to withdraw his guilty plea. Benson claimed that, at the time of his 

plea, he was being threatened by other jail inmates, had been assaulted in the jail 

on at least two occasions, and was afraid of being injured. After he pleaded guilty, 

Benson was transferred to a different unit at the jail and was no longer frightened. 

Benson asked the trial court to continue the sentencing hearing and to appoint new 

 1 The substantive facts have been taken from the certification for determination of probable cause, 

to which Benson stipulated in the plea agreement. 
No. 80159-7-I/3

- 3 -

counsel to evaluate the voluntariness of his plea and to represent him in any motion 

to withdraw his plea. 

When the court questioned Bennett why Benson needed a new attorney, 

Bennett stated “the basis before the Court may not be all the bases to withdraw 

the plea that new counsel may find” and that it would be “safest” to have new 

counsel. The trial court agreed to continue the sentencing hearing to give Benson 

and his attorneys time to discuss his options and the likely consequences of 

withdrawing the plea. While the court initially indicated a willingness to order the 

appointment of new counsel, it decided to hold off on doing so until Benson had 

the opportunity to consult with Bennett and Boltinghouse about the possible 

adverse consequences of withdrawing the guilty plea. The court indicated if 

Benson decided to move to withdraw the plea, it would entertain a motion for new 

counsel. 

At a May 3, 2019, hearing, Benson confirmed he wanted the appointment 

of new counsel for the purpose of moving to withdraw his plea. The trial court 

asked why it should appoint new counsel when Benson had not alleged ineffective 

assistance of counsel. The court voiced concerns that Benson was deliberately 

delaying the case:

I don’t see why we need to spend months having another lawyer get 

up to speed on this case. It’s not making any sense to me, and it’s 

. . . also not making much sense to me that Mr. Benson’s stated 

reason for wanting to withdraw his plea falls into one of the 

categories that the law allows for someone to withdraw his plea. 

When I couple that with the history of this case, which is continuance 

after continuance after continuance, and then a last-minute, what 

was deemed by the mental health evaluator to be feigned mental 

illness to avoid resolution of the case, whether it be by trial or by plea, 

I have concerns, and I am not terribly inclined, unless the law 
No. 80159-7-I/4

- 4 -

requires it for some reason, to appoint new counsel and push this 

back by what sounds like it’s going to be four to six months.

Bennett raised, for the first time, the possibility that a conflict of interest 

existed. Although Benson told the court the “main reason” he wanted to withdraw 

his guilty plea was because it was not voluntary, Bennett stated that “it’s my 

position that I cannot make an assessment of whether I’ve been effective or 

ineffective,” and that evaluation needed to be performed by other counsel, and that 

was one of two reasons for the request for the appointment of new counsel. The 

second reason, he stated, was that if new counsel believed there was a basis for 

claiming the plea was involuntary, then new counsel “may want to have I or Mr. 

Boltinghouse as a witness to that [e]ffect.” 

The court indicated that without some articulated basis for claiming 

ineffective assistance of counsel, the request for new counsel appeared to be 

“game playing” on Benson’s part. Bennett reiterated his contention that under the 

Sixth Amendment, it was improper for a defendant’s attorney to gauge his own 

effectiveness and that it needed to be outside counsel, but he conceded he had 

no authority to support this argument. 

The trial court set a deadline by which Benson had to file any motion to 

withdraw the guilty plea. The court indicated a desire to give Benson the 

opportunity to present whatever evidence he wanted to present and to give counsel 

time to brief any legal issue they wanted to brief. The court set a hearing on the 

motion for May 20, 2019. 
No. 80159-7-I/5

- 5 -

On May 8, 2019, Benson filed an emergency motion for reconsideration of 

his request for the appointment of new counsel, arguing that his attorneys had an 

actual conflict of interest. He argued

[I]n order for undersigned counsel to be effective in 

representing Mr. Benson undersigned counsel would need to explore 

all reasonable avenues for achieving his stated goals – to wit: 

withdraw of his pleas of guilty. Such claims would include

examination of undersigned counsel’s own work to determine if 

counsel was ineffective. This is in addition to any voluntariness 

claims that Mr. Benson may have. This would include, by definition, 

evaluation and analysis of counsels’ own conduct, decisions, and 

arguments. Evaluation of those aspects of representation cannot be 

done by undersigned counsel’s office as it is an established ethical 

conflict. Such representation would result in competing interests for 

the attorney and serves as an actual conflict.

The trial court denied this motion because neither Benson nor his counsel had 

“cited any fact or any evidence suggesting that Mr. Benson’s counsel had been 

ineffective in any way. Nor was any evidence cited that there were or are any 

conflicts of interest between Mr. Benson and his current counsel.” 

On May 14, 2019, Benson filed the motion to withdraw his guilty plea. 

Benson advanced two arguments. First, he claimed his plea was involuntary 

because it was the result of coercion. He argued that “specific threats of violence 

and specific acts of violence against Mr. Benson during the pendency of the plea 

proceeding resulted in duress and coercion. Such duress and coercion on the part 

of third parties, unaffiliated with the state, negated the voluntariness of Mr. 

Benson’s decision to plead guilty.” But, counsel argued, “in order to be an effective 

advocate, counsel will need to present evidence, in the form of testimony from 

counsel themselves related to communications and information that was conveyed 

related to these incidents of violence.” The attorneys argued they were prohibited 
No. 80159-7-I/6

- 6 -

by RPC 3.7 and 1.7 from acting as both an advocate for Benson and testifying as 

a witness in any evidentiary hearing relating to his motion to withdraw the guilty 

plea. 

Second, Benson argued “there may be claims of ineffective assistance of 

counsel,” but his lawyers could not ethically advance those claims. His attorneys 

asked to withdraw as Benson’s attorneys and for the appointment of new counsel 

to address this possible claim. 

To support the coercion claim, Bennett submitted a declaration in which he 

informed the court that on January 24, 2019, the prosecutor filed robbery charges 

against a man named Justin Henderson identifying Benson as the victim of this 

crime. He testified that Benson may also be a witness against Henderson and 

other inmates who were awaiting trial on additional criminal charges. Bennett 

stated that in February 2019, he learned Benson had been involved in two 

“incidents” in the jail involving other inmates. He met with Benson who “relayed to 

me information about the incidents . . . . Without being presently court ordered or 

released by Mr. Benson to provide information which is attorney-client privileged, 

at this time neither . . . Mr. Boltinghouse [nor I] can say [] more.” Bennett reported 

he had brought concerns for Benson’s safety to the attention of the Chief Criminal 

Presiding Judge who advised him to report his concerns to the jail, which Bennett 

did and he anticipated using his written communications as exhibits at the hearing 

on Benson’s motion. 

Bennett indicated that he intended to call himself and his co-counsel, 

Boltinghouse, as witnesses in the hearing on Benson’s motion to withdraw the 
No. 80159-7-I/7

- 7 -

plea. Bennett outlined the anticipated testimony as including “[c]ommunications 

with the King County Jail regarding the defendant and incidents of violence 

involving Marvin Benson and other inmates of the King County Jail.” Bennett did 

not indicate, however, why these communications were material, why testimony 

from Benson’s attorneys was necessary, and why the information they possessed 

was unavailable from other witnesses.

The State acknowledged Benson had been involved in two jail fights on 

January 17 and February 22, 2019. The State reported that the first fight appeared 

to have been “mutual,” while Benson was the victim on the second incident. But 

the State contended the jail staff interviewed Benson and he had indicated, on 

seven different occasions, that he had no concerns about anything further 

happening in the jail. And the inmates involved in the fights did not include Justice 

Henderson. The State argued the coercion referenced in Benson’s motion to 

withdraw was insufficient to overcome Benson’s unequivocal statement on the 

record during the plea hearing that no one had threatened him to get him to enter 

the plea. The State further contended that Benson’s claim of coercion was not 

credible, particularly in light of Benson’s history of delaying the case, and a 

Western State Hospital psychiatric evaluation finding Benson to be malingering to 

avoid prosecution. The State finally argued Benson had presented no evidence 

that his attorneys had provided deficient representation. 

On May 20, 2019, at the hearing set to consider Benson’s motion to 

withdraw the guilty plea, Bennett renewed the request that new counsel be 

appointed. The court indicated it could not find a conflict of interest because 
No. 80159-7-I/8

- 8 -

neither Benson nor his counsel ever identified the nature of the alleged conflict or 

proffered any facts establishing the possibility that such a conflict existed. The 

court determined that any assertion of a conflict was “purely speculative.” 

Benson’s attorneys argued they could make no proffer because any facts 

they could identify were covered by the attorney-client privilege and independent 

counsel was needed to advise Benson on whether to waive that privilege. After 

some debate over how to proceed, the court requested, and Bennett agreed to 

submit for in camera review, written materials explaining the basis for the alleged 

conflict. 

The trial court ordered Bennet to submit these materials by May 23, 2019, 

along with a motion to seal under Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 

P.2d 716 (1982). The court scheduled a hearing for May 28, 2019 to render a 

ruling on the motion for substitute counsel after conducting this in camera review.

2 

On May 23, 2019, rather than file the expected offer of proof, Benson filed

a “motion requesting in camera review and request for ruling.” Benson’s attorneys 

stated they could not comply with the court’s order to present privileged 

communications for the in camera review. Counsel asked the trial court to decide 

whether a conflict existed without requiring them to submit any factual evidence. 

At the May 28, 2019 hearing, the trial court found it had given Benson and 

his attorneys multiple opportunities to demonstrate that a conflict existed but “that 

absolutely no facts have been advanced that would allow the Court to find that 

there’s a conflict of interest or that there’s been ineffective assistance of counsel.” 

 2 The court entered an order documenting its ruling for the in camera review, but we do not have a 

copy of that order in the record before us.
No. 80159-7-I/9

- 9 -

The court further concluded Benson had failed to present any evidence that would 

allow it to conclude that a manifest injustice existed that would justify allowing 

Benson to withdraw his guilty plea. The court denied Benson’s motion to withdraw 

his plea and scheduled a sentencing hearing. 

The trial court subsequently sentenced Benson to 216 months of 

imprisonment followed by 36 months of community custody. The court ordered 

Benson to pay restitution in the amount of $390,273.17, comprised of the medical 

expenses the victims incurred as a result of their gunshot wounds and the lost or 

damaged clothing they were wearing on the night of the assaults. 

ANALYSIS

A. Denial of Benson’s Request for Appointment of Substitute Counsel

Benson first argues that he was denied the right to effective assistance of 

counsel under the Sixth Amendment and Wash. Const. art. I, § 22 of the 

Washington constitution when the trial court refused to appoint substitute counsel

to assist him with the motion to withdraw his guilty plea. We reject this argument 

because the mere possibility that Benson might have an ineffective assistance of 

counsel claim does not create an actual conflict of interest. And the record does 

not support the contention that an actual conflict of interest existed.

A defendant may withdraw a guilty plea if doing so is necessary to correct 

a “manifest injustice.” State v. Watson, 63 Wn. App. 854, 856, 822 P.2d 327 

(1992). A manifest injustice occurs when: (1) the defendant did not receive 

effective assistance of counsel before entering the plea, (2) the plea was not 

ratified by the defendant, (3) the plea was involuntary, or (4) the prosecution fails 
No. 80159-7-I/10

- 10 -

to honor the plea agreement. Id. at 857 (citing State v. Taylor, 83 Wn.2d 594, 597, 

521 P.2d 699 (1974)).

The Sixth Amendment guarantees the right to effective assistance of 

counsel. U.S. CONST. amend. VI; In re Pers. Restraint of Gomez, 180 Wn.2d 337, 

348, 325 P.3d 142 (2014). This right includes the right to conflict-free counsel at 

all critical stages of the prosecution. State v. Robinson, 153 Wn.2d 689, 694, 107 

P.3d 90 (2005). A plea withdrawal hearing is a critical stage “giving rise to the right 

to assistance of counsel.” State v. Harell, 80 Wn. App. 802, 804, 911 P.2d 1034 

(1996).

To establish a violation of the Sixth Amendment and art. I, § 22 based on a 

conflict of interest, a defendant must demonstrate that an actual conflict of interest 

adversely affected his lawyers’ performance. State v. Dhaliwal, 150 Wn.2d 559, 

570, 79 P.3d 432 (2003); Gomez, 180 Wn.2d at 348; State v. Regan, 143 Wn. App. 

419, 427, 177 P.3d 783 (2008). The possibility of a conflict is not enough to warrant 

reversal of a conviction. State v. Kitt, 9 Wn. App. 2d 235, 243, 442 P.3d 1280 

(2019). The defendant need not show prejudice, but must demonstrate the alleged 

conflict caused some lapse in representation contrary to the defendant’s interests, 

or that it likely affected particular aspects of counsel’s advocacy on behalf of the 

defendant. Regan, 143 Wn. App. at 428.

An actual conflict of interest exists when a defense attorney owes duties to 

a person whose interests are adverse to those of the defendant. Kitt, 9 Wn. App. 

2d at 244. Under RPC 1.7(a)(2), an actual conflict exists if there is a significant 

risk that the client’s representation will be materially limited by the lawyer’s 
No. 80159-7-I/11

- 11 -

responsibilities to a third person or the lawyer’s personal interests. The alleged 

conflict must be more than a “mere theoretical division of loyalties.” Mickens v. 

Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002).

We review a trial court’s decision on a motion to substitute counsel for an 

abuse of discretion. Kitt, 9 Wn. App. 2d at 243. But whether the circumstances 

demonstrate a conflict under ethical rules is a question of law we review de novo. 

Regan, 143 Wn. App. at 428.

Benson argues he may have had a basis for challenging the adequacy of 

his attorneys’ legal representation and needed independent representation to 

conduct this analysis. He relies on United States v. Del Muro, 87 F.3d 1078, 1080 

(9th Cir. 1996) for the proposition that there is an actual conflict any time trial 

counsel is required to evaluate their own ineffectiveness. Washington courts, 

however, have declined to adopt a rule that requires new counsel to be appointed 

whenever a defendant expresses a desire to claim ineffective assistance of 

counsel. See State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987) (“[I]f a 

defendant could force the appointment of substitute counsel simply by expressing 

a desire to raise a claim of ineffective assistance of counsel, then the defendant 

could do so whenever he wished, for whatever reason.”); State v. Rosborough, 62 

Wn. App. 341, 346, 814 P.2d 679 (1991) (concluding that a defendant’s allegation 

of ineffective assistance of counsel does not create an inherent conflict of interest 

automatically requiring the court to appoint substitute counsel). The possibility that 

a defendant may claim ineffective assistance of counsel is an insufficient basis to 

find an actual conflict of interest.
No. 80159-7-I/12

- 12 -

Moreover, while Bensons’ attorneys insisted they had an actual conflict of 

interest, the record does not support this conclusion. When Benson first raised the 

issue of withdrawing his plea, he alleged he had been coerced by threats from 

other inmates. Benson never claimed his attorneys failed to adequately advise 

him about any particular aspect of the plea. He never contended counsel failed to 

investigate the charges or possible defenses before he entered the plea. He never 

alleged his attorneys pressured him into pleading guilty or disregarded his wishes 

in recommending he accept the State’s plea offer. 3

As Benson notes, a trial court has a duty to investigate a potential conflict 

of interest when it knows or reasonably should know of a conflict of interest 

between counsel and their client. Regan, 143 Wn. App. at 425-46. When alerted 

to a potential conflict, the trial court must appoint substitute counsel or take 

“adequate steps” to determine whether the risk of a conflict of interest is too remote 

to require substitute counsel. Holloway v. Arkansas, 435 U.S. 475, 484, 98 S. Ct.

1173, 55 L. Ed. 2d 426 (1978). And reversal is required if a defendant or his 

attorney makes a timely objection because of a claimed conflict and the trial court 

fails to conduct an adequate injury. Id. at 488.

But the trial court here tried to determine the basis for the alleged conflict. 

Regan is instructive here. In that case, an out-of-custody defendant failed to 

appear for trial and the trial court issued a bench warrant for his arrest. Id. at 424. 

The State was permitted to amend the information to add a bail jumping charge. 

 3 Benson relies on State v. Irish, noted at 186 Wn. App. 1040 (2015), an unpublished decision, 

but we conclude that a discussion of that case is not necessary here, and thus do not address it. 

See GR 14.1(c).
No. 80159-7-I/13

- 13 -

Id. The State then sought to call one of the defendant’s two attorneys to prove that 

the defendant knew of his trial date and had been instructed by the attorney to 

arrive early for trial. Id. The attorney objected to having to act as a witness against 

his client but the trial court concluded the attorney’s communication with the 

defendant was not privileged and ordered him to testify. Id. at 425. The State 

requested a trial continuance because the attorney, the supervisor of Regan’s trial 

counsel, had a pre-scheduled vacation. Regan’s trial counsel informed the court 

that this motion put her in a dilemma because if she agreed to the continuance to 

accommodate her supervisor’s vacation, it would result in the extension of her 

client’s pretrial detention and her client wanted to proceed to trial immediately. Id.

at 429. 

This court held that, once on notice that Regan’s trial attorney had to make 

a decision regarding whether to object to a trial continuance based on a conflict 

between her supervisor’s vacation schedule and her client’s desire to proceed to 

trial, the trial court erred in failing to conduct an inquiry into whether there were 

other witnesses available to provide the evidence the State sought to elicit from 

Regan’s attorney. Id. at 430.

Unlike in Regan, the record here fails to show that the trial court was on 

notice of any similar conflict confronting Benson’s attorneys. While counsel 

indicated they would need to testify regarding Benson’s claim of coercion, the trial 

court stated:

I don’t understand what you all would be testifying to. And, frankly, I 

don’t know why you need to call witnesses. Most of the facts that 

you assert in your brief are not contested. The only thing that was 

contested, and you don’t have any direct knowledge of that, is exactly 
No. 80159-7-I/14

- 14 -

what the jail records are with respect to what occurred at the jail 

between Mr. Benson and other inmates and what steps were taken 

by the jail as a response to those incidents and neither of the lawyers 

knows – has any direct knowledge about that.

In response, Bennett stated “As to what I would testify to, that’s where things get 

ethically dicey.” It was at that point the trial court ordered counsel to submit a 

declaration identifying facts that might establish a possible conflict for the court’s 

in-camera review. The attorneys initially agreed to comply, but then claimed they 

could not ethically do so. 

Benson argues that his defense attorneys’ representation was materially 

limited because they could not explain the nature of the conflict without revealing 

information protected by the attorney-client privilege. Because of this situation, 

Benson maintains, the trial court was “not able to inquire further as to the nature 

of the conflict” as required by Holloway and Regan, and “its only available option 

was to appoint new, conflict-free counsel.” We disagree.

Motions for substitute counsel based on a conflict of interest are not 

uncommon in criminal cases. CrR 3.1(e) requires a defendant to provide a “good 

and sufficient reason” for discharging existing counsel and appointing new 

counsel. See State v. Staten, 60 Wn. App. 163, 802 P.2d 1384 (1991). A conflict 

of interest is a recognized basis under CrR 3.1(e) for a finding of good cause to 

allow counsel to withdraw. See State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 

1239 (1997); State v. McDonald, 96 Wn. App. 311, 320, 979 P.2d 857 (1999). 

But a trial court is not required to accept defense counsel’s representation 

that a conflict of interest exists and asking counsel to provide a general description 

of the conflict does not put counsel at risk of violating the Rules of Professional 
No. 80159-7-I/15

- 15 -

Conduct. RPC 1.6(a) provides that lawyers may not reveal information relating to 

their representation of a client unless that disclosure is permitted by RPC 1.6(b). 

Under RPC 1.6(b)(6), attorneys may reveal information relating to that 

representation to comply with a court order. A court order requiring Bennett to 

disclose information to establish a conflict of interest, as required by CrR 3.1(e), 

would have been permissible under the RPCs and would not have required 

Benson to waive the privilege. Revealing attorney-client communications to the 

court for an in camera review to evaluate the existence of a conflict of interest 

would not have constituted a waiver of Benson’s attorney-client privilege. See

United States v. Zolin, 491 U.S. 554, 568, 109 S. Ct. 2619, 105 L. Ed. 2d 469

(1989) (disclosure of discovery for the purpose of determining the merits of a claim 

of privilege does not effect a waiver); Transamerica Computer Co. v. International 

Business Machines Corp., 573 F.2d 646, 650-51 (9th Cir. 1978) (attorney-client 

privilege is not waived for documents that a party is judicially compelled to 

produce); Cobell v. Norton, 213 F.R.D. 69, 75 (D.D.C. 2003) (no waiver of the 

privilege where a monitor obtained confidential memoranda for in camera review 

under the authority of a court order); Picard Chemical Inc. Profit Sharing Plan v. 

Perrigo Co., 951 F. Supp. 679, 688 (W.D. Mich. 1996) (submitting privileged report 

for in camera review did not waive attorney-client privilege).

Because Benson’s attorneys could have disclosed attorney-client privileged 

information without any adverse impact on Benson but failed to do so, the trial 

court had no factual basis for concluding a conflict existed. The court did not abuse 

its discretion in concluding that the attorneys’ steadfast refusal to support their 
No. 80159-7-I/16

- 16 -

assertion of a conflict was mere gamesmanship, to perhaps set up a future 

ineffective assistance of counsel claim, and not a well-founded ethical dilemma.

Benson analogizes his case to State v. Chavez, 162 Wn. App. 431, 257 

P.3d 1114 (2011) and State v. Harell, 80 Wn. App. 802, 911 P.2d 1034 (1996) to 

argue he was denied representation at his post-plea hearings. Neither case, 

however, is analogous.

In Chavez, the defendant contended he was denied counsel because his 

first attorney had a conflict of interest that made it impossible to give objective 

advice on whether to plead guilty and his second attorney, appointed to present 

him in withdrawing the plea, failed to provide any representation by filing an 

Anders4 brief in which he suggested Chavez’s position was frivolous. 162 Wn. 

App. at 434, 436. Chavez’s first attorney moved to withdraw asserting the 

existence of a conflict of interest but the court made no findings of fact as to why 

the attorney had reached this conclusion. Id. at 438. Chavez’s substitute counsel 

undertook no investigation into whether an actual conflict existed or whether it 

affected Chavez’s decision to plead guilty. Id. at 439. This court concluded that, 

in light of the first attorney’s admission that a conflict existed, the substitute 

counsel’s failure to investigate the existence of the conflict, and his submission of 

an Anders brief—an appellate procedure not appropriate for a trial court—

amounted to a complete denial of counsel at a critical stage of the proceeding. Id.

at 439.

 4 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
No. 80159-7-I/17

- 17 -

Chavez is distinguishable because Benson’s attorneys did not contend they 

had a conflict of interest at the time Benson pleaded guilty. And they never 

represented to the trial court that Benson’s motion to withdraw the guilty plea was 

frivolous or factually unfounded. His attorneys, in fact, argued the opposite. And 

Chavez did not involve a situation where the trial court requested an offer of proof 

to demonstrate the existence of a conflict of interest and counsel refused to provide 

one.

In Harell, the defendant moved to withdraw his guilty plea based on an 

allegation that his counsel had rendered ineffective assistance during the plea 

bargaining process. 80 Wn. App. at 803. His attorney declined to assist him with 

his motion and, during the evidentiary hearing on the motion, testified as a witness 

for the State. Id. at 805. This court held the defendant’s right to counsel was 

violated because he had to act pro se at the post-plea hearing and his appointed 

attorney had a direct conflict of interest, evidence by his direct testimony against 

Harell’s interest at the hearing. Id.

Harell is also readily distinguishable. Benson’s attorneys did not refuse to 

assist Benson in advocating for the withdrawal of the guilty plea. They did not 

force Benson to proceed pro se. They did not testify for the State in opposition to 

Benson’s motion and never indicated that their testimony was material, necessary, 

or adverse to Benson.

The trial court did not err in concluding Benson failed to show the existence 

of an actual conflict of interest and did not abuse its discretion in denying Benson’s 

motion to appoint substitute counsel.
No. 80159-7-I/18

- 18 -

B. Restitution

Benson next challenges the restitution order, arguing it was not based on 

substantial evidence. We reject this argument as well.

The authority to impose restitution is statutory. State v. Griffith, 164 Wn.2d 

960, 965, 195 P.3d 506 (2008). RCW 9.94A.753(3) provides that “restitution 

ordered by a court pursuant to a criminal conviction shall be based on easily 

ascertainable damages for injury to or loss of property, actual expenses incurred 

for treatment for injury to persons, and lost wages resulting from injury.” “Easily 

ascertainable damages” are tangible damages supported by sufficient evidence. 

State v. Tobin, 132 Wn. App. 161, 173, 130 P.3d 426 (2006). The claimed loss 

“need not be established with specific accuracy,” but it must be supported by 

“substantial credible evidence.” Griffith, 164 Wn. 2d at 965 “Evidence supporting 

restitution ‘is sufficient if it affords a reasonable basis for estimating loss and does 

not subject the trier of fact to mere speculation or conjecture.’” Id. (quoting State 

v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005)). The State bears the 

burden of proving restitution by a preponderance of the evidence. Id. We review 

for abuse of discretion the amount of a restitution award. Id. We review a trial 

court’s factual findings for substantial evidence. Id.

Benson first argues the court’s imposition of restitution for the victim’s 

medical bills was based on conjecture, rather than on substantial credible 

evidence, because the State did not provide the court with “any evidence of the 

extent of the injuries or the necessary treatment provided, nor did it provide 

testimony to decipher and explain the [insurer’s expense] ledgers” or treatment 
No. 80159-7-I/19

- 19 -

codes. But the extent of Benson’s victims’ injuries was well-documented in the 

record before the trial court and the insurer’s letter and accompanying ledger are 

sufficient evidence that the treatment was causally connected to the assault. 

The record indicates Benson shot both victims multiple times and they both 

required extensive medical treatment as a result. In his plea agreement, Benson 

admitted shooting the victims and causing them serious bodily injury. He further 

stipulated that the facts included in the probable cause certification could be used 

by the trial court in sentencing. The probable cause certification indicated police 

recovered 29 shell casings from the scene of the crime. One of the victims 

reported he could not feel his legs as medics worked on him at the scene and he 

is now paralyzed, with a bullet lodged in his spine. The mother of the victims

indicated in her victim impact statement that the victims were in the ICU for several 

weeks. 

The State demonstrated a sufficient causal nexus between those severe 

injuries and the subsequent medical treatment the victims received. The State 

submitted an itemized ledger from the Community Health Plan of Washington

detailing the cost, diagnostic code, name of the provider, and date of service for 

each medical procedure. The dates from the charges in the ledger correspond to 

the date of the assault and the period of the victims’ hospitalization – December 

13, 2017 to January 4, 2018 for A.K. and December 13, 2017 to June 25, 2018 for 

I.K. Furthermore, the insurer submitted a letter accompanying the ledger, 

indicating that it determined which medical expenses resulted from the assault and 

any necessary follow-up care. We conclude this evidence substantiates the trial 
No. 80159-7-I/20

- 20 -

court’s finding that the expenses incurred were the “actual expenses incurred for 

treatment for injury to persons” as required by RCW 9.94A.753(3). The trial court 

thus did not abuse its discretion in ordering Benson to pay these expenses as 

restitution.

Next, Benson contends the amount the trial court imposed as restitution for 

the victims’ lost or damaged clothing was not supported by substantial evidence. 

We reject this argument as well because there is substantial evidence in the record 

supporting the trial court’s decision.

The trial court found that each of the clothing items included in the restitution 

request was damaged or destroyed “as a result of providing emergency aid” to the 

victims. This finding is supported by substantial evidence. In a sworn victim impact 

statement, the victims’ mother informed the court that the boys’ jeans, shirts, and 

jackets all had to be cut off by emergency medical technicians while administering 

medical care after Benson shot the boys. 

The trial court also found that the lost clothing included a jacket valued at 

$100, a shirt valued at $30, and blue jeans valued at $50, for a total of $180. This 

finding is also supported by substantial evidence. The victim impact statement 

certified that each boy lost a pair of True Religion Jeans, valued at $179, and 

Tommy Hilfiger T-shirts, valued at $29.50. The losses were supported by internet 

advertisements indicating replacement costs for these items. The victim impact 

statement also indicated the victims were wearing Tommy Hilfiger puffer jackets, 

valued at $100, which was supported by an online advertisement for a 

preowned/used version of the same jacket. The court accepted this evidence, with 
No. 80159-7-I/21

- 21 -

the exception of the value of the jeans, to which the court made a downward 

adjustment to an amount it deemed more reasonable. Not only did Benson benefit 

from this adjustment, it appears the trial court ordered restitution for clothing worn 

by only one of the two victims. We conclude the trial court did not abuse its 

discretion in setting restitution.

C. DOC Community Custody Supervision Fees

Benson argues, and the State concedes, the trial court erred in imposing 

DOC community custody supervision fees. Because Benson was indigent at the 

time of sentencing, the court indicated it would “waive any non-mandatory financial 

penalties.” The judgment and sentence, however, includes a provision requiring 

Benson to “[p]ay supervision fees as determined by the Department of 

Corrections.” Because the trial court intended to impose only mandatory legal 

financial obligations, we remand to allow the court to strike the DOC community 

custody supervision fees. See State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 

1199 (2020) (remand appropriate to strike community custody fees when trial court 

intended to impose only mandatory LFOs).

We affirm but remand for the sole purpose of striking the DOC community 

custody supervision fees from the judgment and sentence.

WE CONCUR: