Columbia County DH&HS v. S.A.J., 2023AP1884, 2/15/24, District IV (one-judge decision; ineligible for publication); case activity
In a lengthy opinion notable for its treatise-like treatment of the issues, COA rejects S.A.J.’s challenges to her TPR order.
This case stems from a TPR petition filed in 2020. (¶4). Counsel was appointed to represent S.A.J. and a jury trial scheduled. (¶5). A little over a month before trial, however, S.A.J. wrote a letter to the court and requested new counsel. (¶6). After the court investigated S.A.J.’s complaints at a hearing, S.A.J. ultimately told the court, with respect to counsel’s representation, “I guess I’m good, whatever.” (¶8). The court treated the issue as resolved and the case moved forward toward trial. (Id.). After S.A.J. failed to adjourn the trial, she then pleaded no contest to the continuing CHIPS ground alleged in the petition. (¶10). Following a dispositional hearing, her parental rights were terminated. (¶11).
S.A.J. then filed a postdisposition motion alleging that she was entitled to withdraw her plea for two reasons: (1) the court’s inquiry into the representation issue was insufficient and (2) counsel failed to prepare for the trial, thereby inducing her plea of no-contest. (¶12). The court denied the motion following a hearing and S.A.J. renews her challenges on appeal.
Request for New Counsel
After first conducting a lengthy canvass of the case law, COA agrees with the parties that criminal plea withdrawal principles apply to S.A.J.’s appeal, meaning she must prove the existence of a “manifest injustice.” (¶26). Although things get a little muddled due to what COA identifies as a lack of clarity in S.A.J.’s briefing, it’s clear that the court’s decision whether to allow a change of counsel in these circumstances is evaluated under an erroneous exercise of discretion standard as explained in State v. Lomax. Lomax describes several factors that should be used to analyze the sufficiency of the court’s inquiry; if the appellant succeeds, the remedy is essentially a new hearing at which time the request for new counsel can be “explored more thoroughly[…].” (¶31). If the circuit court is persuaded at that point that it should have granted the request for new counsel, then–and only then–can it order a new trial. (Id.).
COA first dings S.A.J. for not meaningfully connecting her Lomax argument to the request for plea withdrawal, leading to the citation all appellate litigators dread, State v. Pettit. (¶29). COA also finds that her argument is inconsistent with her apparent withdrawal of the request for new counsel when questioned by the court at the pretrial hearing. (¶30). COA also finds that, even if the circuit court’s earlier inquiry was insufficient, then S.A.J. already obtained her remedy when the circuit court held a postconviction hearing on her motion. (¶31). Applying the Lomax factors, COA is also confident that the circuit court appropriately exercised its discretion in denying her request for new counsel, as the record does not establish “a conflict so great that it prevented an adequate defense.” (¶34).
Ineffective Assistance of Counsel
Here, COA assumes without deciding that S.A.J.’s attorney was deficient when they simply chose not to obtain and review a potentially relevant portion of the available eWiSACWIS notes. (¶31). However, S.A.J. fails to establish prejudice as she did not prove that counsel’s deficient performance was connected to her decision to plead no contest. (¶44). And, even if COA were to apply an objective standard–focusing on whether a “reasonable person in her position would have gone to trial rather than plead no contest” (¶49)–COA accepts the GAL’s argument that the notes in question would not have made a difference at a hypothetical trial (and faults S.A.J. for not replying to this particular argument). (¶50).
