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State v. Newcomer

May 5, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
NORMAN WILLIS NEWCOMER, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 93-1-00653-8. Date filed: 05/23/96. Judge signing: Hon. Michael F. Moynihan.

PER CURIAM -- Norman Newcomer appeals a decision denying his motion to withdraw his guilty plea. He contends he was entitled to and denied the assistance of appointed counsel at the hearing on the motion. The State essentially concedes that a new hearing is warranted. We reverse and remand for a new hearing and appointment of counsel.

FACTS

The State charged Newcomer with rape of a child in the third degree. His court-appointed counsel negotiated a plea bargain under which the charge was amended to second degree assault. The high end of the standard range for the assault charge was twenty-four months greater than the high end of the range for the original charge.

Newcomer pleaded guilty to the assault charge. At sentencing, defense counsel indicated that the defense had agreed to the assault charge, despite its higher standard range, in order "to gain some benefits for Mr. Newcomer." The court imposed a sentence of seventy-two months.

Over a year later, Newcomer filed a pro se petition to vacate the judgment and sentence. He argued that a timely notice of appeal he mailed had apparently been lost through no fault of his own and that his plea should be set aside because he was unaware of important consequences of that plea due to ineffective assistance of counsel. He also requested an order of indigency and appointment of counsel to represent him on appeal.

Newcomer noted the petition for hearing on June 22, 1995, without oral argument, and the court ordered the same. Ten months later, he wrote the Superior Court, inquiring about the status of his petition. In that letter, he mentioned that as of yet, I have had no response from the Attorney assigned to WSR

and TRCC inmates. . . . Please tell me the status of my petition.

By then, perhaps, I will have heard from the attorney and they can finish handling the case. The clerk replied that no action had been taken on the petition.

In April 1995, Newcomer renoted the case for hearing on May 16. He informed the court clerk that he would not be present in court on the May 16 and asked what would happen to his petition if no one appeared on his behalf. He also stated that he had "revised the Note For Motion Docket, using the advise [sic] of Mitchell Riese, the Attorney who helps inmates at this institution." The court clerk did not respond to Newcomer's letter.

The prosecutor, Newcomer's plea counsel, and the court were present at the May 16 hearing. The court ruled that Newcomer's allegations of ineffective assistance of counsel had waived the attorney/client privilege. The next day, the court held an evidentiary hearing at which the prosecutor called Newcomer's counsel as a witness. Because nobody represented Newcomer at the hearing and because Newcomer did not attend it, no one cross-examined his trial counsel.

The Superior Court ultimately denied the motion to withdraw the plea. This appeal followed.

DECISION

Newcomer contends, and the State essentially concedes, that he was denied his right to counsel at the hearing on his petition and is entitled to a new hearing with appointed counsel. We agree.

A defendant has a constitutional right to appointed counsel at all critical stages of a criminal prosecution. State v. Harell, 80 Wash. App. 802, 911 P.2d 1034 (1996). An evidentiary hearing on a motion to withdraw a plea is one such critical stage. Harell, 80 Wash. App. at 804. An outright denial of the right to counsel is presumptively ...


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