The State of Washington, Respondent, v. Tony Douglas Robinson, Petitioner, 153 Wash. 2d 689

¶ 1 We are asked to determine whether CrR 3.1(b)(2) requires that counsel be provided at state expense for all defendants who move to withdraw their guilty pleas after sentencing pursuant to CrR 7.8. We hold that it does not and affirm the Court of Appeals. Fairhurst, J. I. FACTS ¶2 Tony Douglas Robinson entered two separate Alford } pleas to one count of kidnapping and one count of delivery of cocaine. He received a separate sentence for each count. Robinson directly appealed his kidnapping conviction, alleging in part breach of the plea agreement.

At all times during plea bargaining, sentencing, and appeal, Robinson was represented by counsel. ¶3 Almost one year after sentencing, but prior to the Court of Appeals decision on Robinson’s appeal, Robinson moved pro se pursuant to CrR 7.8 to withdraw both of his guilty pleas, alleging ineffective assistance of counsel, prosecutorial misconduct by reason of breach of the plea agreement, and newly discovered evidence. He also moved for the appointment of counsel to present his motions to withdraw but cited no authority that would entitle him to counsel.

The trial court summarily denied all motions. ¶4 The Court of Appeals filed an unpublished opinion affirming the kidnapping conviction. State v. Robinson, noted at 114 Wn. App. 1012 (2002). ¶5 Robinson appealed the trial court’s denial of his motions to withdraw guilty pleas and for appointment of counsel. The trial court appointed counsel to pursue this appeal. Before the Court of Appeals, counsel argued that CrR 3.1(b)(2) entitled Robinson to representation below when moving to withdraw his guilty pleas. State v. Robinson, noted at 117 Wn. App. 1073, slip op. at 3 (2003).

The Court of Appeals reversed the denial of the motion to withdraw one of the guilty pleas based on newly discovered evidence, but let stand the denial of the motion to withdraw the other plea and the denial of appointment of counsel. Id. at 4, 9-10. We granted review solely on the question of entitlement to counsel under CrR 3.1(b)(2). State v. Robinson, 151 Wn.2d 1018 (2004). II.

ANALYSIS ¶6 Robinson asserts that he was entitled to counsel at state expense under CrR 3.1(b)(2) when he moved to withdraw his guilty pleas after sentencing pursuant to CrR 7.8. ¶7 CrR 3.1(b)(2) provides in full: A lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review. A lawyer initially appointed shall continue to represent the defendant through all stages of the proceedings unless a new appointment is made by the court following withdrawal of the original lawyer pursuant to

section (

e) because geographical considerations or other factors make it necessary. ¶ 8 The court will apply canons of statutory

interpretation when construing a court rule. City of Seattle v. Guay, 150 Wn.2d 288, 300, 76 P.3d 231 (2003). We review construction of a court rule de novo because it is a question of law. See Judd v. Am. Tel. & Tel. Co., 152 Wn.2d 195, 202, 95 P.3d 337 (2004). While the plain language of a court rule controls where it is unambiguous, under our court rule

interpretation guidelines we must examine CrR 3.1(b)(2) in context with the entire rule in which it is contained as well as all related rules. See Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003); cf. Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 10, 43 P.3d 4 (2002) (requiring consideration of surrounding text when discerning the plain meaning of a statutory provision). ¶9 CrR 3.1, captioned “RIGHT TO AND ASSIGNMENT OF A LAWYER,” has six parts. Part (a), captioned “Types of Proceedings,” establishes the scope to which the rest of the rule applies.

It provides that the right to a lawyer extends “to all criminal proceedings for offenses punishable by loss of liberty.” CrR 3.1(a).

Part (b), is captioned “Stage of Proceedings.” Subpart (b)(1) tells us when the right first accrues: “as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest.” Subpart (b)(2) describes how long that right is retained: “at every stage of the proceedings, including sentencing, appeal, and post-conviction review.” Subpart (b)(2) further provides that the same lawyer should represent the defendant through all of these stages of a criminal proceeding unless withdrawal is necessary under part (e). Part (

c) establishes the procedure for explaining the right to a lawyer and putting the defendant in contact with one; part (

d) describes eligibility for a lawyer at state expense under this rule; part (

e) explains when a lawyer is allowed to withdraw; and part (

f) describes the availability of expert, investigative, or other types of services other than a lawyer at state expense. ¶10 The specific provision at issue here, CrR 3.1(b)(2), broadly describes the various stages of a criminal proceeding to which the right to counsel attaches, “including sentencing, appeal, and post-conviction review.” But the right is not limitless. We must also discern the plain meaning of CrR 3.1(b)(2), while taking into account related court rules and controlling case law. ¶11 The various stages of a criminal proceeding listed in CrR 3.1(b)(2) are more specifically covered elsewhere. For example:

(1) CrR 3.1(b)(1) and CrR 3.1(

c) delineate the right to counsel prior to arraignment,

(2) CrR 4.1(

b) outlines the right to counsel at arraignment and throughout trial,

(3) CrR 7.2(

b) requires notification of the right to counsel on appeal at sentencing, and

(4) CrR 7.6(

b) provides for counsel at probation revocation hearings. ¶12 Moreover, the right to counsel is constitutionally guaranteed at all critical stages of a criminal proceeding, including sentencing, and additionally on first appeal when states provide a right of appeal. State v. Rupe, 108 Wn.2d 734, 741, 743 P.2d 210 (1987) (“Sentencing is a critical stage of the proceedings, at which a defendant is constitutionally entitled to be represented by counsel.”); Douglas v. California, 372 U.S. 353, 355-56, 83 S. Ct. 814, 9 L.

Ed. 2d 811 (1963) (holding on equal protection grounds that meaningful first appeal requires appointment of counsel for indigent defendants). ¶13 In only one area have we applied the right to counsel under CrR 3.1 or CrRLJ 3.1 beyond what is constitutionally required. That stage is at the beginning, and our motivation was the preservation of evidence. See State v. Templeton, 148 Wn.2d 193, 211, 59 P.3d 632 (2002) (holding CrRLJ 3.1(b)(1) extended right to counsel beyond the constitution pursuant to rule-making authority regarding preservation of evidence).

Robinson argues the plain language of CrR 3.1(b)(2), “post-conviction review,” requires appointment of counsel for his motions to withdraw. But it is not that simple. We know of no reported case where counsel has been appointed at the late stage of plea withdrawal following sentencing even though CrR 3.1 has been on the books since 1973. ¶ 14 We do allow appointment of counsel for a personal restraint petition (PRP) after an initial determination that the petition is not frivolous. RAP 16.11, .15. This makes sense given the history of rules governing postconviction relief.

Originally, postconviction relief was detailed in former CrR 7.7. That rule provided that petitions for postconviction relief were to be made to the chief judge of the Court of Appeals in the district where the petitioner was convicted. Former CrR 7.7(a) (1973) (rescinded 1976). Counsel would be provided at state expense after an initial determination that the petition was not frivolous. Former CrR 7.7(b), (e). In 1976, the Rules of Appellate Procedure were adopted, and RAP 16.3-.15, the rules governing PRPs, superseded the relief previously available under former CrR 7.7.

The procedure for presenting a PRP and obtaining counsel is similar to that formerly provided in CrR 7.7. ¶15 We adopted CrR 7.8 in 1986. CrR 7.8 is narrower than former CrR 7.7 and allows for relief from judgment due to mistakes, inadvertence, surprise, excusable neglect, newly discovered evidence, or other irregularities, but not for errors of law. Similar to former CrR 7.7, and the current RAPs governing PRPs, CrR 7.8 provides that a court may summarily deny a motion under this rule if the motion and supporting affidavits do not “establish grounds for relief.” CrR 7.8(c)(2). CrR 7.8(

b) provides that motions made under this rule are subject to RCW 10.73.090, .100, .130, and .140. These code provisions generally apply to collateral attacks and most notably to PRPs. This evinces a strong intention on the rule drafters’ part that motions made under CrR 7.8 in superior court are subject to the same limitations, when appropriate, that apply to PRPs.

In further evidence of the similarity of treatment between certain kinds of relief sought under CrR 7.8 and relief sought in PRPs, CrR 7.8 allows a trial court to transfer a CrR 7.8 motion to the Court of Appeals to be treated as a PRP “to serve the ends of justice.” CrR 7.8-(c)(2).

Thus, the trial court may serve as an initial screener, much like the chief judge of the Court of Appeals would in a PRP, prior to either transferring the motion to the Court of Appeals or evaluating the merits of a motion and possibly appointing counsel. ¶16 It is apparent, then, that CrR 3.1(b)(2) refers to the right to counsel that is either already constitutionally guaranteed or provided elsewhere in the rules. The broad, sweeping language of the provision is not without limit and must be read in context with related court rules.

With respect to the right to counsel for postconviction review, we have imposed a limitation that requires, in the case of PRPs, for the chief judge of the Court of Appeals, and in the case of CrR 7.8 motions, for the superior court judge, to initially determine whether the petition or motion establishes grounds for relief. If it does not establish grounds for relief, the judge may dismiss the petition or deny the motion without a hearing on the merits.

If it does establish grounds for relief, counsel may be provided if not already available. ¶17 In Robinson’s case, the trial court summarily denied his motions, including the motion for appointment of counsel. By not holding a hearing, the trial court effectively determined that Robinson did not establish grounds for relief. Under our above analysis, Robinson would not have been entitled to counsel. However, the Court of Appeals reversed the denial of one motion to withdraw based on newly discovered evidence.

It then alternatively determined either that the right to counsel issue was moot or that any denial of counsel was harmless error. Robinson claims that the error was not harmless or moot, and that had he been provided counsel he would have been able to make a record that would show that his two pleas were part of a joint plea agreement. If that were the case, Robinson would have been entitled to withdraw both pleas under State v.

Turley, 149 Wn.2d 395, 402, 69 P.3d 338 (2003) (requiring court to allow defendant to withdraw all pleas in a joint plea agreement when one is állowed). ¶18 Because the asserted error is a violation of a court rule (rather than a constitutional violation), it is governed by the harmless error test. Templeton, 148 Wn.2d at 220. Thus, only if the error was prejudicial in that “ ‘within reasonable probabilities, [it] the error [had] not occurred, the outcome of the [motion] would have been materially affected’ ” will reversal be appropriate. Id. (second alteration in original) (quoting State v.

Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)). Robinson claims that “[alp-plying this test in [his] case seems particularly cruel and counterproductive,” because the “failure to provide [him] counsel to assist in the preparation and presentation of his motion to withdraw the guilty pleas made it impossible for him to present the requisite showing the pleas constituted a joint deal.” Suppl. Br. of Pet’r at 13-14. But if Robinson were entitled to counsel at all, it would not have been until after the motion to withdraw was already prepared and initially presented.

This is because, as we discussed above, the trial court may summarily deny a motion under CrR 7.8 when it lacks merit, similar to dismissal of a PRP, prior to appointing counsel. ¶19 Most dispositive is that Robinson did not argue that counsel was necessary to establish that his guilty pleas were part of a joint plea agreement in front of the Court of Appeals. He also did not claim that his guilty pleas were even part of a joint plea agreement. See Br. of Appellant at 1 (“Mr. Robinson entered Alford pleas ... as part of separate plea agreements.”); Pro Se Suppl. Br. of Appellant at 1 (same).

Rather, he asserted one basis from which his kidnapping plea should be withdrawn and one basis from which his cocaine delivery plea should be withdrawn. See Br. of Appellant at 13, 25. The Court of Appeals reversed the cocaine delivery plea based only on Robinson’s newly discovered evidence argument. It did not determine whether there was a joint plea agreement because Robinson made no such argument. If counsel did not argue that the pleas were part of a joint plea agreement in front of the Court of Appeals, there is no indication that it would have done so at the trial level.

Because Robinson makes this argument for the first time before this court, we decline to address it. See RAP 2.5(a). Accordingly, we hold that any denial of the right to counsel was harmless because the Court of Appeals reversed the denial of the motion to withdraw the guilty plea under which Robinson may have been entitled to counsel. ¶20 In one final argument, Robinson asserts that we have already decided the pertinent issue in Templeton and are now bound by that decision in the current matter. Templeton does not control the present case.

In Templeton, we were called upon to determine whether CrRLJ 3.1(b)(1) exceeded the court’s authority in granting a right to counsel not specifically provided for constitutionally or legislatively. 148 Wn.2d at 212. CrRLJ 3.1(b)(1) closely resembles CrR 3.1(b)(1). We held that the right to counsel under CrRLJ 3.1(b)(1) was a proper exercise of our procedural rule-making authority because it “affects and regulates the process of ‘taking and obtaining evidence’ and preservation of such evidence. Preservation of evidence is a procedural matter.” Templeton, 148 Wn.2d at 217 (quoting State v.

Fields, 85 Wn.2d 126, 128, 530 P.2d 284 (1975)). |21 The right to counsel presently asserted is readily distinguishable from the right to counsel at issue in Templeton. First, as noted, the Templeton decision determined the validity of a rule for courts of limited jurisdiction, not a superior court rule. Second, the rule being reviewed (CrRLJ 3.1(b)(1)) was neither the rule at issue here (CrR 3.1(b)(2)), nor its limited jurisdiction counterpart (CrRLJ 3.1(b)(2)).

Finally, whereas the right at issue in Templeton was pretrial and related to collection and preservation of evidence, the right at issue here is postjudgment, and the same rationale cannot apply. III. CONCLUSION ¶22 Court rules must be read in their proper context. Reading CrR 3.1(b)(2) in conjunction with the rest of the court rules and controlling case law makes it evident that the right to counsel recognized in CrR 3.1(b)(2) is not limitless and is specifically applied in various other provisions.

Aright to counsel may attach when making a CrR 7.8 motion after the court determines that the motion establishes grounds for relief. Here, the superior court found no grounds for relief and did not appoint counsel for the CrR 7.8 motions. On appeal, with counsel, the Court of Appeals determined the superior court was incorrect in denying one of his motions to withdraw guilty plea. Because the Court of Appeals determined a ground for relief, the superior court was incorrect in denying counsel. But the latter error was harmless in light of the Court of Appeals’ subsequent reversal.

We affirm the decision of the Court of Appeals. Alexander, C.J.; C. Johnson, Bridge, Chambers, and Owens, JJ.; and Ireland, J. Pro Tern., concur. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). It is unclear from the record when Robinson’s prior counsel stopped representing him. Although Robinson was represented on his first appeal by counsel, he moved for the appointment of counsel for withdrawal of his pleas before a decision in his first appeal was reached.

The trial court and the State made no mention of that fact (Robinson might still have been represented) at the proceeding where the trial court summarily dismissed Robinson’s CrR 7.8 and request for counsel motions. The State did, however, make mention of this fact when Robinson was appointed counsel for his appeal of those motions: MS. KAHOLOKULA: Essentially, I guess he is asking that this court appoint counsel to represent him on appeal.... [IJt’s kind of odd that he has a lawyer already. I know he does not want Mr. Tario to represent him, however....

I think what the court typically would do is appoint counsel in such a case. Verbatim Report of Proceedings (Mar. 21, 2002) at 4. CrRLJ 3.1 was adopted in 1987 and is similar to both CrR 3.1 and former JCrR 2.11 (1987) (retitled CrRLJ). The Washington State Bar Association task force on Rules for Courts of Limited Jurisdiction “extensively revised” subsection (b)(2), however, “to state simply that a lawyer shall be provided at ‘every critical stage of the proceedings.’ ” 4B Karl B. Tegland, Washington Practice: Rules Practice, CrRLJ 3.1, task force cmt. at 450 (6th ed. 2002).

The task force agreed that the inclusion of appeal and postconviction review was “misplaced” in both CrR 3.1 and JCrR 2.11, presumably because the task force did not consider them to be “critical stages” of a criminal proceeding. Id. In contrast, CrR 3.1(b)(2) has not been amended since its adoption in 1973. Relief for errors of law must be sought under CrR 7.5 (motion for a new trial) by an appeal or a PRR RCW 10.73.150, regarding the right to counsel on collateral attack, was not enacted until 1995, after CrR 7.8 was last amended.

In Robinson’s case, it is unclear whether he still had counsel at the time he filed his pro se motions to withdraw and for appointment of counsel. See note 2, supra. It is true that CrR 7.8 does not explicitly state when, if ever, counsel will be provided when motions are made pursuant to this rule. However, CrR 7.8(

b) requires that motions be “subject” to the limitations found in the statutes that also govern PRPs. We thus interpret CrR 7.8 to provide counsel after an initial determination has been made that the motion is not frivolous, much like the procedure used to appoint counsel in PRPs. It is important to note that Robinson sought counsel not for withdrawal of his pleas prior to sentencing, but rather postjudgment. Were he to seek withdrawal prior to judgment, pursuant to CrR 4.2(f), he would arguably still be entitled to counsel constitutionally because there is a right to counsel through sentencing.

Rupe, 108 Wn.2d at 741. Instead, because Robinson tried to withdraw his pleas after judgment, CrR 4.2(0 directs that his motion be treated as a motion for relief from judgment or order under CrR 7.8. The right to counsel in the latter instance is not constitutional and attaches only under the procedures we have outlined above. CrRLJ 3.1(b)(1) has the phrase “has been arrested” where CrR 3.1(b)(1) uses “taken into custody.” This distinction is not important in the present manner.