¶23 Criminal Rule for Superior Court (CrR) 3.1(b)(2) mandates a "lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review." If a motion to withdraw a guilty plea under CrR 7.89 isn't a "stage of the proceedings," what is it? Moreover, such a motion may also be characterized as postconviction review, albeit postconviction review that initiates in the trial court as distinguished from personal restraint petitions which are filed in the Court of Appeals or this court. RAP 16.3(c).
¶24 The majority argues the "plain meaning" of this rule "in context" of court rules it considers "related." Majority at 693. And the majority ultimately asserts motions under CrR 7.8 must be understood by analogy to personal restraint petitions. Majority at 695-96. Notwithstanding the majority's history lesson, I find no basis to conclude the proper "context" of CrR 3.1(b)(2) shows it does not apply to CrR 7.8 motions, nor do I agree the plain meaning of this text permits such "contextual" analysis in any event. *Page 701
¶25 First, CrR 3.1(b)(2) means what it says. Nothing can be clearer than to state a "lawyer shall be provided at every stage of the proceedings." While amicus Washington Association of Prosecuting Attorneys claims this is "aspirational" language, it isn't. It is not written as "intent" language, it is not written as a "goal," and it is not written in aspirational terms.10 It is a mandate.11
¶26 The majority also claims there are more specific attorney provision requirements in other court rules. True, the Rules of Appellate Procedure (RAPs) provide more specific guidance for the provision of attorneys in personal restraint petitions (PRPs). And it is hardly surprising similar provisions existed in the predecessor rule governing relief similar to PRPs, former CrR 7.7 (rescinded 1976).
¶27 However, we are not dealing with the RAPs governing PRPs or the predecessor rule CrR 7.7. We are dealing with CrR 7.8.
¶28 CrR 7.8 has no predecessor rule. It was not derived from CrR 7.7. CrR 7.8 was adopted ten years after CrR 7.7 was rescinded and the RAPs governing PRPs adopted. In 1986, CrR 7.8 was adopted by this court sui generis.
¶29 The majority mistakenly compares CrR 7.8 to former CrR 7.7 without reason for its analogy. While the majority has clearly shown that the current RAPs governing PRPs include similar attorney-appointment provisions to prior CrR 7.7, it has not demonstrated any link between CrR 7.8 and the prior "post-conviction" rule.
¶30 Nor does the majority offer any reason why CrR 7.8 motions are not governed by the requirements of CrR 3.1(b)(2). Unlike the RAP provisions governing PRPs or prior CrR 7.7, CrR 7.8 contains no specific attorney-appointment *Page 702 provisions. Motions under CrR 7.8 are clearly governed by the general requirements of CrR 3.1(b)(2).
¶31 Since CrR 3.1(b)(2) applies, the State makes two arguments against CrR 3.1(b)(2) itself. The State claims that we do not have the authority to promulgate the rule and that the rule conflicts with RCW 10.73.150. Neither claim has merit.
¶32 Binding precedent compels me to conclude we have the authority to promulgate CrR 3.1(b)(2). As a general rule, this court has the inherent power to prescribe rules of procedure and practice. State v. Templeton, 148 Wn.2d 193, 212, 59 P.3d 632 (2002).
Id. at 213 (quoting State v. Smith, 84 Wn.2d 498, 501,527 P.2d 674 (1974))."Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated."
¶33 "[T]he right to counsel established by court rule is a `procedural' matter promulgated under this court's rule-making authority." Id. at 216. The provision of an attorney is the quintessential procedural right,12 the ultimate guardian of the substantive constitutional rights guaranteed to all criminal defendants, and thus CrR 3.1(b)(2) is well within this court's inherent power.
¶34 Even if within this court's power, the State alternatively claims CrR 3.1(b)(2) conflicts with RCW 10.73.150. That statute defines when the legislature requires counsel for indigent defendants. However nothing in that statute *Page 703 purports to limit this court's ability to promulgate rules that provide for counsel in additional circumstances, nor could the legislature impinge upon the inherent power of this court to make rules on matters of procedure and process without violating separation of powers.13 And it is this court's duty to construe statutes so as to avoid constitutional infirmities.State ex rel. Faulk v. CSG Job Ctr., 117 Wn.2d 493, 500,816 P.2d 725 (1991).
¶35 The State then contends even if it was error to not appoint counsel, the error was harmless. All parties cite the general maxim that violations of court rules are subject to harmless error analysis. Templeton, 148 Wn.2d at 220; State v.Jaquez, 105 Wn. App. 699, 716, 20 P.3d 1035 (2001).
¶36 Yet I have a very hard time discerning why the outright unconstitutional denial of an attorney is a structural error not subject to harmless error consideration, but denial of a rule-entitled attorney is. The United States Supreme Court has concluded that the denial of counsel when required by the constitution is "structural error" and is not subject to harmless error analysis in the first instance:
Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246,113 L. Ed. 2d 302 (1991). *Page 704One of those violations, involved in Gideon v. Wainwright, 372 U.S. 335[, 83 S.Ct. 792, 9 L. Ed. 2d 799] (1963), was the total deprivation of the right to counsel at trial. . . . These are structural defects in the constitution of the trial mechanism, which defy analysis by "harmless-error" standards. The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant. . . .
¶37 The interests are the same. Indeed, when Templeton applied a harmless error analysis, it relied on a case analyzing whether evidentiary error was harmless, not a structural error like the right to counsel. Templeton, 148 Wn.2d at 220 n. 126 (citing State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)). Similarly, Jaquez, 105 Wn. App. at 716, and the case upon which Jaquez relied, State v. Greer, 62 Wn. App. 779,790 n. 4, 815 P.2d 295 (1991), contain no analysis of why denial of the right to counsel under court rules should be treated any differently than the unconstitutional denial of counsel.
¶38 Moreover, in this context the failure to provide an attorney as required by the court rules can never be harmless under the harmless error test. The standard is whether "`within reasonable probabilities, . . . [if] the error [had] not occurred, the outcome of the trial would have been materially affected.'" Templeton, 148 Wn.2d at 220 (second alteration in original) (quoting Neal, 144 Wn.2d at 611).
¶39 Where the analysis of error which allegedly occurred at trial or plea is required, a trained legal mind is necessary. A layman cannot effectively determine whether certain errors occurred or effectively present legal analysis of such errors to the court for correction.14 We can never know what additional valid claims or persuasive argument an attorney could have made. Thus, I would opine denial of an appointed attorney in a situation requiring a lawyer's analysis and a lawyer's ability to present legal arguments can never be harmless. There is always a "reasonable *Page 705 probability" that an attorney could have identified an issue or presented an argument that would have swayed the trial court, which motion would have been within the trial court's discretion to grant under CrR 7.8.15
¶40 Indeed, the requirement for an attorney's specialized knowledge and training is so vital that where appointment of counsel is required by the constitution, "an outright denial of counsel is conclusively presumed to be prejudicial." City ofSeattle v. Ratliff, 100 Wn.2d 212, 219, 667 P.2d 630 (1983).
¶41 I dissent.
MADSEN, J., concurs with SANDERS, J.
On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and .140. A motion under section (b) does not affect the finality of the judgment or suspend its operation.
Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S. Ct. 792,9 L. Ed. 2d 799 (1963) (quoting Powell v. Alabama, 287 U.S. 45,68-69, 53 S. Ct. 55, 77 L. Ed. 158 (1932)).From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:
"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law."