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State v. Sims

January 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
WARDELL J. SIMS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-07809-3. Date filed: 06/12/95. Judge signing: Hon. Sally Pasette.

PER CURIAM. Wardell Sims pled guilty before King County Superior Court Judge Sally Pasette to possession of cocaine with intent to deliver. He later sought to withdraw his plea, alleging ineffective assistance of counsel during the plea stage. Judge Pasette appointed Sims substitute counsel to advise him on whether he had a basis to withdraw his plea. Before new counsel was appointed, Judge Brian Gain sua sponte called a hearing to review Judge Pasette's ruling. At that hearing, Sims alleged defense counsel was ineffective and asked to withdraw his plea. The attorney-client privilege was waived by order of the court, and defense counsel testified as a witness against Sims. Judge Gain summarily denied Sims' motion to withdraw his plea.

Because the hearing on Sims' motion to withdraw his guilty plea was a critical stage of the prosecution, and was held without the assistance of counsel or a valid waiver of the right to counsel, Sim's right to counsel was violated. We therefore vacate the judgment and sentence and remand for a rehearing on Sims' motion to withdraw his plea. Because counsel appointed at the trial court level has a direct conflict of interest, we also order the appointment of new counsel.

DECISION

Sims argues that he was deprived of his right to the effective assistance of counsel at the hearing on his motion to withdraw his guilty plea before Judge Gain because his appointed counsel was made to testify as a witness against him. We agree.

In State v. Harell, *fn1 a case not cited by the parties, this court recently held that a hearing on a motion to withdraw guilty plea is a critical stage of the prosecution giving rise to assistance of counsel. There, defendant sought to withdraw his pleas, alleging ineffective assistance of counsel during the plea stage. The court set a hearing on the motion to withdraw. At the hearing, defense counsel declined to assist defendant, the attorney-client privilege was waived by order of the court, and defense counsel testified as a witness against him. We noted that defendant "was clearly without counsel while appointed counsel testified as a witness against him" and held that defendant under the circumstances presented was denied his right to counsel entitling him to a rehearing and the appointment of new counsel.

Here, the record reflects that Sims moved to withdraw his plea before Judge Gain. Under Harell, Sims had a right to appointed counsel to assist him in arguing that motion. Sims was denied that assistance and is thus entitled to a new hearing. Sims is also entitled to the appointment of new counsel to represent him at that hearing. The judgment and sentence are vacated, and the case ...


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