Metropolitan News-Enterprise


Tuesday, February 13, 2007


Page 1


Discharge of Advisory Counsel No Constitutional Violation—C.A.




A San Diego Superior Court judge committed procedural, but not constitutional, error when he discharged a lawyer who had been named advisory counsel for a self-represented defendant by another judge of that court, the Fourth District Court of Appeal has ruled.

Div. One Friday rejected Markus Goodwillie’s contention that he was deprived of his Sixth Amendment rights when Judge Allen J. Preckel discharged his advisory counsel prior to trial. The panel, however, threw out his conviction on burglary and other charges on the ground that he was misinformed regarding the consequences of a plea offer that he turned down.

Goodwillie was arrested following a pursuit by San Diego County sheriff’s deputies, who identified the car he was driving as one that had been stolen from a rental car company. Witnesses testified that after deputies blocked the intersection that he was approaching, he crashed into another car that had been innocently caught up in the blockade—injuring the driver and causing $6,000 in damages—then drove through, crashed into a trailer, and ran away.

Self-Representation Requested

Deputies, who had recognized Goodwillie as a suspect in other crimes, arrested him at his apartment. He told them that a friend loaned him the car but never came back to get it, and that it was only when he saw the police chasing him that he realized the car was probably stolen.

He was charged with unlawfully taking an automobile, assault with a deadly weapon, recklessly evading an officer, and resisting an officer. He was also charged with burglary of an apartment in the complex where he was living—he was seen entering the unit on a surveillance tape—and with theft of a handicapped parking placard that had been taken from the truck of another resident of the complex and found in the stolen rental car.

At his arraignment, he asked to represent himself. Judge Charles Ervin granted his request and ordered appointment of advisory counsel.

When the case was called for readiness conference before Judge William McGrath, the judge noted that advisory counsel had not yet been appointed. The appointment subsequently was given to attorney Alan Williams.

When Goodwillie and Williams appeared before Preckel for trial, a possible plea deal that would have resulted in a sentence of five years, four months in prison was discussed, but ultimately rejected by the defendant. The judge then relieved Williams, saying that he had a “philosophical difference” with colleagues on the court who favored the appointment of advisory counsel for pro per defendants, which Preckel said was an unnecessary burden on taxpayers.

Found Guilty

Goodwillie then reiterated his desire to represent himself, went to trial, and was found guilty on all counts. The judge sentenced him to 10 years in prison, including a six-year upper term for burglary, consecutive terms totaling two years for theft and assault with a deadly weapon, and two one-year enhancements based on prior convictions for which he had served prison terms.

Sentence was stayed on the remaining counts, and a third prior-prison-term allegation was stricken.

Justice Cynthia Aaron, writing for the Court of Appeal, said the trial judge was correct in concluding that there is no Sixth Amendment right to advisory counsel. If a defendant exercises the constitutional right to self-representation, the jurist said, the appointment of advisory counsel is a matter of judicial discretion only.

While the U.S. Supreme Court has not expressly addressed the issue, she explained, it has held that a defendant who was given “hybrid” representation, in which the defendant acted as his own lawyer but allowed appointed counsel to provide some assistance, did not have his rights violated because appointed counsel was allowed to handle some aspects of the trial without the defendant’s express consent.

The high court said, in McKaskle v. Wiggins (1984) 465 U.S. 168, that there was no constitutional right to hybrid representation, but that once the defendant agreed to accept such assistance, “his complaints concerning counsel’s subsequent unsolicited participation lose much of their force” because the accused “does not have a constitutional right to choreograph special appearances by counsel.”

Lower courts have interpreted McCaskle as meaning that a self-represented defendant has no Sixth Amendment right to appointment of counsel for any purpose, whether characterized as co-counsel, advisory counsel, or standby counsel. And the California Supreme Court held as early as 1959 that there was no constitutional right to advisory counsel, Aaron noted.

In Goodwillie’s case, however, Preckel should not have relieved Williams, the justice said, because that amounted to reconsideration of the earlier order appointing him. A superior court judge cannot reconsider an order by another judge of the same court unless there has been an intervening reversal on appeal, the first judge is unavailable to reconsider the original ruling, or where the original order was a result of inadvertence, mistake or fraud, Aaron explained.

But because relieving appointed counsel was a mere procedural error, Aaron went on to say, the burden was on the defendant to show a likelihood of a better result had advisory counsel remained on the case. Goodwillie could not sustain that burden, the justice concluded, because he could not show either that advisory counsel would have dissuaded him from making mistakes in his handling of the defense or that avoiding the alleged mistakes would have led to a different verdict.

Reversal is required, however, the justice said, because the judge and prosecutor erroneously told Goodwillie that if he accepted the plea, he would have to serve at least 85 percent of the sentence.

Actually, Aaron explained, the sentence could have been reduced by 50 percent with conduct and work credits because it was not a “Three Strikes” case, which the judge realized prior to sentencing but not before Goodwillie had turned down the plea offer. Because the transcript of the plea colloquy indicates that the defendant would have pled guilty in exchange for the possibility of release after 32 months, the defendant is entitled to relief.

Under the court’s ruling, the prosecutor may elect either to submit the plea offer to the court for approval, or to retry the case.

The case is People v. Goodwillie, 07 S.O.S. 758.


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