State Of Washington, Respondent V Bryant D. Morgan And Andre T. Parker, Appellants

FILED
COURT OF APPEALS
DIMS /ON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
2015JAN 13 AM16: 15
STATE OF WASHINGTON,
v.
BRYANT D. MORGAN,
STATE OF WASHINGTON,
v.
ANDRE T. PARKER,
DIVISION II
STATE OF WASHINGTON
1* 45107 -7-
Respondent,
Appellant,
Respondent,
Appellant.
DE T
consolidated with
No. 45127 -1 - II
UNPUBLISHED OPINION
MELNICK, J. — Bryant Morgan and Andre Parker appeal from the sentences imposed
following their resentencing on convictions for attempted murder in the first degree. Morgan
argues that the trial court 'should not have conditioned the term of community custody on-earned
early release credit. Parker argues he was denied counsel of his choice. Because they raise
unrelated issues, we discuss each separately. We affirm, but remand Morgan' s sentence to correct
the community custody notation.
MORGAN
In its July 2, 2013 judgment and sentence after remand, the trial court imposed a standard
range sentence of 350 months confinement, including a 60 -month firearm enhancement. It also
imposed the following term of community custody:

45107 -7 -II / 45127 -1 - II
A) The defendant shall be on community custody for the longer of:
1) the period of early release. RCW 9. 94A.728( 1)( 2), or
2) the period imposed by the court, as follows:
Count( s) I 36 months for Serious Violent Offenses
Morgan Clerk' s Papers ( Morgan CP) at 112.
Morgan argues that the trial court erred in linking the duration of his community custody
to his period of early release. Until a 2009 amendment,' former RCW 9. 94A.715( 1) ( 2006)
permitted the trial court to impose a term of community custody of "the community custody range
established under RCW 9. 94A. 850 or up to the period of earned release awarded pursuant to RCW
9. 94A.728( 1) and ( 2), whichever is longer." State v. Franklin, 172 Wn.2d 831, 835, 263 P. 3d 585
2011). But as a result of that amendment, and because the trial court imposed a standard range
sentence in this case, it is required to impose a fixed term of community custody. Franklin, 172
Wn.2d at 836. The State concedes that the judgment and sentence should be remanded to delete
the phrase " the period of earned early release" and the citation to " RCW 9. 94A.728( 1)( 2)" from
Morgan' s term of community custody. Resp' t' s Br. at 8. We accept the State' s concession and
remand for correction of Morgan' s judgment and sentence to delete the phrase " the period of
earned early release."
PARKER
When Parker appeared for resentencing on July 2, 2013, he was represented by appointed
counsel Edward Jursek. Jursek noted that Barbara Corey, who had represented Parker on appeal,
was present and that Parker wanted to retain Corey to represent him at resentencing. Corey stated
that she had not known of Parker' s interest in retaining her until the prior day. She wanted to brief
an issue and to have the opportunity to talk with Parker before resentencing, so she requested a
1 Repealed by LAWS OF 2009, ch. 28, § 42 ( effective Aug. 1. 2009).

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brief continuance. The State opposed a continuance. When the trial court stated that it was not
inclined to continue the resentencing, Corey replied:
I' m not prepared to represent him. If you' re granting —I would not be
effective at this point. I would not be able to give him constitutionally effective
representation. I don' t believe that Mr. Jursek would as well, and that' s what he
told me. So we are put in a position of me not being able to provide constitutionally
effective representation, and I don' t believe I would confidently as well. So I am,
I guess, declining to —I would love to represent my client. I' ve represented him
before, but I cannot provide constitutionally effective representation, if I can' t brief
this issue and argue before the Court. I would, I guess, ask —I would decline to
represent him at this point, if I can' t pursue that issue.
Parker Report of Proceedings ( Parker RP) ( Jul. 2, 2013) at 6.
The court then continued the resentencing for three days, saying:
Well, Mr. Jursek was appointed on June 10 to represent Mr. Parker, so he' s
counsel. I will set it over for Friday afternoon [ July 5] at 1: 30 for resentencing. If
Ms. Corey wants to substitute in, then she needs to be able to represent him
competently.
Parker RP ( Jul. 2, 2013) at 6.
Corey did not file a notice of appearance, and did not appear for resentencing on July 5.
At the resentencing, attorney Matthew McGowan appeared on Jursek' s behalf, stating:
For the record, Matthew McGowan for attorney of record Jursek with Mr.
Parker. For the record, it' s Mr. Parker' s position that he would prefer not to
continue this hearing today. But, in all candor, it does appear that there are a number
things up in the air here. It appears that Mr. Parker is in the process of retaining
Barbara Corey, who he believed would be here today. He also has a motion that he
would like to make to the Court that is outside of today' s already set up hearing.
I am prepared to move forward with the sentencing, the resentencing based
on the information in the memorandums that was filed with the Court by Mr. Jursek,
but beyond that, I have no additional information.
Parker RP ( Jul. 5, 2013) at 3. The trial court proceeded with Parker' s resentencing.
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The trial court rejected Parker' s argument that the firearm enhancement should be
dismissed because his conviction for unlawful possession of a firearm in the first degree had been
vacated by this court. The trial court imposed a sentence of 351 months, including a 60 -month
firearm enhancement.
Parker now argues that he was denied his Sixth Amendment right to be represented by
retained counsel of his preference. Wheat v. United States, 486 U.S. 153, 158 -59, 108 S. Ct. 1692,
100 L. Ed. 2d 140 ( 1988). And he argues that this denial constitutes structural error requiring
reversal. United States v. Gonzalez- Lopez, 548 U. S. 140, 150, 126 S. Ct. 2557, 165 L. Ed. 2d 409
2006). However, Parker does not demonstrate that the trial court denied him the right to be
represented by Corey. The court set over the resentencing for three days to allow Parker' s attorney
of choice to enter the case. However, Corey did not file a notice of appearance during those three
days. She was not present at the resentencing. And Parker' s appointed counsel at the resentencing
stated that Parker wished to proceed with resentencing. Parker had the opportunity to be
represented by Corey. She apparently elected not to represent Parker.
We remand Morgan' s judgment and sentence after remand for correction as addressed
above. We otherwise affirm Parker' s judgment and sentence after remand.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
Worswick, P.J.
Lee, J.
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