STATE v. ELWICK, 25711-4-II (Wash.App. 12-7-2001)

No. 25711-4-II.The Court of Appeals of Washington, Division Two.
Filed: December 7, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

District Court County: Clallam, No. 92-1-00054-6, Hon. Leonard W. Costello, February 15, 2000, Judgment or order under review.

Counsel for Appellant(s), Craig A. Ritchie, Ritchie Law Firm P.S., 212 E 5th St, Port Angeles, WA 98362-3008.

Counsel for Respondent(s), John G. Prentiss, Clallam Co. Deputy Pros. Atty., 223 E 4th St, P.O. Box 863, Port Angeles, WA 98362.

KAREN G. SEINFELD, J.

In 1992, the district court found Thomas Elwick guilty of driving under the influence; the superior court affirmed his conviction in February 1993. Seven years then passed before the State requested the superior court to remand the matter back to the district court for sentencing. Elwick opposed the motion, arguing a violation of his right to speedy sentencing. We agree and now set aside the 1992 guilty verdict and dismiss the charge.

FACTS
According to the parties, the district court destroyed the record in this case. But the parties agree that the State charged Elwick in March 1991 with driving under the influence, that he was found guilty in district court in February 1992, and that the superior court affirmed his conviction in a memorandum decision a year later in February 1993. In its opinion, the superior court stated that it would `sign an order in conformity with this opinion upon presentation.’ Clerk’s Papers at 17.

The State took no further action until January 10, 2000, when it asked the superior court to remand Elwick’s case back to the district court for sentencing. Elwick objected but, on February 15, 2000, the superior court ordered the denial of Elwick’s appeal, the affirmance of the district court findings, and the remand of the case to district court for sentencing. We subsequently granted Elwick’s petition for discretionary review to consider whether the facts of this case established presumptive prejudice, thereby requiring dismissal of the conviction.

ANALYSIS
The constitutional speedy trial right encompasses a right to speedy sentencing. Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360
(1994). See also State v. Edwards, 93 Wn.2d 162, 167 n. 2, 606 P.2d 1224
(1980) (citing cases). CrR 7.1 and RCW 9.94A.110, which establish a specific time period for sentencing, also embody this right. Ellis, 76 Wn. App. at 394-95; RCW 9.94A.110 (sentencing hearing should occur within 40 court days of conviction although the court may grant an extension for good cause shown). But a sentencing delay does not violate the constitutional speedy sentencing right unless the delay is `purposeful or oppressive.’ Ellis, 76 Wn. App. at 394.

Determining if a delay is `purposeful or oppressive’ involves balancing a number of factors, including the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant. Ellis, 76 Wn. App. at 394. Here, as the State acknowledges, the length of the delay — seven years — was `unusual.’ Thus, this factor heavily supports Elwick’s argument that the delay was oppressive. See Ellis, 76 Wn. App. at 395 (two-year delay presumptively prejudicial where delay sole fault of court and prosecutor).

Our scant record provides no information regarding the second factor, the reason for the delay. But there is no suggestion that Elwick was unavailable or otherwise contributed to this lengthy period; rather, the State concedes that the delay was a result of its own `inadvertent oversight.’ Although State nonfeasance should weigh less heavily in favor of the defendant than would purposeful misconduct, the factor is neutral where the defendant did not contribute to the delay. See, e.g., Ellis, 76 Wn. App. at 393, 395 (affirming dismissal of conviction after two-year sentencing delay where prosecutor and court agreed that case `fell through the cracks’ and defendant was not at fault); State v. Sterling, 23 Wn. App. 171, 172, 177, 596 P.2d 1082 (1979) (factor neutral where delay due to State nonfeasance and the defendant contributed to the delay by failing to appear for original sentencing date). Thus, this factor does not offset the `unusual’ delay.

The record is also silent as to the third factor, the defendant’s assertion of his right to speedy sentencing. In its brief, the State characterizes Elwick as a man trying to `avoid justice’ by `lying low’ for seven years. But at oral argument, the State conceded that there was no evidence of Elwick’s unavailability. Thus, this case differs significantly from those cases where the defendant contributed or agreed to the delay. See, e.g., State v. Braithwaite, 34 Wn. App. 715, 721-22, 724, 667 P.2d 82 (1983) (no speedy sentencing violation where part of five-year and four-month delay due to habitual criminal charge and defendant agreed to or caused the rest); State v. Kelly, 20 Wn. App. 705, 708-10, 582 P.2d 891 (1978) (two-year delay not unreasonable where due in part to defendant absconding the jurisdiction). Cf. Ellis, 76 Wn. App. at 392 (after conviction, defendant contacted defense counsel over the next 30-40 days to find out when he would be sentenced). Like factor two, this factor also does not offset the `unusual’ delay.

The last factor, prejudice to the defendant, provides some additional support for Elwick’s argument. He notes that the sentence would include a loss of his driver’s license, a hardship for him because since 1993, he contracted cancer and, as he lives in a rural area, he needs his vehicle to get to his medical treatment provider. He also cites the possibility of increased insurance premiums and the destruction of the district court record in the interim as additional evidence of prejudice.

The State responds that these assertions of prejudice are inconsequential:

Elwick’s potential sentence includes only two days of jail and it is unlikely that the district court would require him to serve any jail time.

We agree that these assertions of prejudice, standing alone, might not support dismissal, but we consider the prejudice along with the egregious delay. See Ellis, 76 Wn. App. at 393, 395 (affirming trial court’s dismissal of conviction for speedy sentencing violation where, during two-year delay, defendant reconciled with divorced wife and was promoted to supervisory position at work). Given the extreme length of the delay, the absence of any apparent fault on Elwick’s part, and the evidence of some prejudice, we conclude that the delay was presumptively prejudicial, a presumption that the State has failed to rebut. See Ellis, 76 Wn. App. at 395. Thus, we find a violation of Elwick’s right to speedy sentencing. Under Ellis, the appropriate remedy is to set aside the verdict and dismiss the charge. 76 Wn. App. at 395. Consequently, we reverse and remand for entry of an order dismissing the charge against Elwick.

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 pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: MORGAN, P.J., HOUGHTON, J.