STATE v. JOHNSON, 20145-7-III (Wash.App. 7-29-2003)

No. 20145-7-IIIThe Court of Appeals of Washington, Division Three. Panel Nine.
Filed: July 29, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Okanogan County Docket No: 00-2-00116-1 Judgment or order under review Date filed: 04/06/2001

Counsel for Petitioner(s), Karl F Sloan, Attorney at Law, P.O. Box 1130, Okanogan, WA 98840-1130.

Counsel for Respondent(s), Lenell Rae Nussbaum, Attorney at Law, Market Pl Two Ste 200, 2001 Western Ave, Seattle, WA 98121-2163.

KURTZ, J.

At the conclusion of a trial in district court, Lynn R. Johnson was convicted of driving under the influence and first degree driving while license suspended or revoked. Mr. Johnson appealed to superior court on several grounds and alleged a violation of the speedy trial rule. The superior court concluded that the case was not brought to trial within the time for trial period and dismissed the charges against Mr. Johnson with prejudice. This court granted discretionary review. The State contends the superior court erred by reversing Mr. Johnson’s convictions on speedy trial grounds. Mr. Johnson contends the charges were properly dismissed and also challenges the sufficiency of the charging document, the jury instructions, and the evidence. Additionally, Mr. Johnson contends that he was denied his constitutional right to be present during a critical part of the proceedings and his right to have an adequate record on appeal. Because this case was not brought to trial within the time limits set forth in CrRLJ 3.3, we hold the superior court did not err by dismissing the charges with prejudice.

FACTS
Substantive Facts. On November 7, 1999, State Route 20 was closed to all traffic due to a gasoline spill. Robert Lloyd was working as part of the clean-up crew that was excavating the contaminated soil. While on the job, Mr. Lloyd saw a white van drive through the closed area, heading east. Mr. Lloyd made contact with the driver and asked the driver if he knew the gate on the east side of the pass was closed. The driver asked Mr. Lloyd if he would open the gate, and Mr. Lloyd let the van through the gate; the van headed toward Winthrop.

Later, Mr. Lloyd would testify that he saw no one but the driver inside the van and that he suspected that the driver had been drinking. Mr. Lloyd also testified that Lynn R. Johnson’s booking photograph fit the general description of the driver of the van.

After Mr. Lloyd let the van through the gate, he called the police and reported his concern that the driver of the van was intoxicated. His report included a description of the van and information regarding its license plate. Trooper Dan Tindall and Deputy Marshall Steve Larson responded. Within minutes of receiving the report, Trooper Tindall located the van, parked by a store in the town of Winthrop. Trooper Tindall saw no other vehicles or pedestrians in the area. When he examined the vehicle, he discovered that the license plate on the front dash did not match the license plate attached to the back of the van. Furthermore, he learned that neither plate was associated with the vehicle. The trooper also found a nearly empty pint of whiskey on the floor in front of the driver’s seat.

Finally, the trooper determined that the owner of the van was Lynn Johnson and that Mr. Johnson’s driving status was revoked.

When Deputy Larson arrived, he and Trooper Tindall observed Mr. Johnson walking toward the van. While the officers were observing Mr. Johnson, he staggered and even bumped into a pole. The officers approached Mr. Johnson and determined that he had a strong odor of intoxicants, exhibited slurred speech, and had bloodshot eyes. The officers told Mr. Johnson not to drive and offered him a ride. Mr. Johnson replied that he did not drive. Mr. Johnson walked over to a nearby bench and sat down. The officers left the vicinity but returned almost immediately. Mr. Johnson and the van were gone. Within a few minutes, Deputy Larson found the van approximately six miles west of Winthrop. The van was on the westbound shoulder, but it was facing east. Deputy Larson drove past the van and turned around. The officers found no one in the van and did not observe any other pedestrians or traffic along the roadway. The officers observed one clear set of footprints leading from the driver’s side door, away from the road into the wood; there were no other prints around the van and no indications of anyone else’s presence in the area. After Mr. Johnson was located, he was placed under arrest for obstructing and driving while his license was revoked in the first degree.

At trial, Mr. Johnson testified that he was not the driver and that a person named Paul Hanson had been driving. Mr. Johnson stated that he was sleeping in the back of the van on a mattress. According to Mr. Johnson, when they reached Winthrop, Mr. Hanson went to make a phone call while Mr. Johnson looked for his shoes and put them on. Mr. Johnson testified that after the officers made contact with him — and left — Mr. Hanson returned and the two men drove off in the van. According to Mr. Johnson, Mr. Hanson became nervous when told of Mr. Johnson’s encounter with the officers and Mr. Hanson parked the van and left on foot. Mr. Johnson then got out of the van and was sitting on a log when the officers arrived. Mr. Johnson testified that he knew his driving status was revoked and that he had not taken any action to reinstate his license. He denied being intoxicated at the time of the incident. Procedural Facts. Mr. Johnson was arrested on November 7, 1999. As a result of this arrest, two charges were filed. On November 8, Mr. Johnson was arraigned on the charge of driving while license suspended or revoked in the first degree. Later, on November 12, 1999, Mr. Johnson was charged with driving under the influence. On November 22, the case was set for a readiness hearing on December 10, 1999, with a trial date of December 16. Mr. Johnson was not at this hearing; however, his counsel asked that the case remain on the calendar for trial on December 16. At the hearing on December 14, the prosecutor notified the court to strike the trial date; the prosecutor reported that the defense would seek a continuance. The district court struck the trial date. On December 16, Mr. Johnson and defense counsel appeared in court. Defense counsel requested a continuance. The district court set the case for a status hearing on January 10, 2000, but the court did not set a new trial date. No written waiver of the right to speedy trial was obtained.

The next day, December 17, the clerk sent a written notice of the January 10 status conference. That same day, Mr. Johnson, who was still in custody, sent the court a written objection to a `trial date’ of January 10. Clerk’s Papers (CP) at 277. On December 21, Mr. Johnson was brought to district court where he advised the court of his objection to a trial date outside the 60 days permitted under CrRLJ 3.3. The court informed Mr. Johnson that the time within the requested continuance would be excluded from the 60-day period. The court also denied Mr. Johnson’s request for a bail reduction.

A status conference was held on January 10; Mr. Johnson was not present but was represented at the conference by his new counsel. At this conference, the court set the case for another status conference on January 21 and for trial on January 26. On January 13, the defense filed another written objection to the trial date advising the court that the trial date was outside the 60-day time limit set forth in CrRLJ 3.3. On January 21, the district court denied Mr. Johnson’s motion to dismiss for violation of CrRLJ 3.3. The district court excluded the time from December 16 to January 26 from the calculations under the rule. The record from the hearing indicates that the court determined that the continuance requested by Mr. Johnson was a `waiver by operation of law.’ CP at 207. Trial was not held on January 26 because there were not enough jurors left after voir dire. The State suggested the trial be held on the following day; the court suggested that the trial be held on January 28. Defense counsel had a conflict with January 28, but counsel offered to see if the other matter could be rescheduled. Alternatively, defense counsel suggested that Mr. Johnson’s bail be reduced so that Mr. Johnson could afford to make bail. Due to scheduling problems, the trial was not held until February 9, 2000. Meanwhile, the court reduced bail and Mr. Johnson was released on bail on January 27. Mr. Johnson was convicted of driving under the influence and first degree driving while license suspended or revoked. Mr. Johnson appealed his convictions to superior court. The superior court concluded that the trial court did not `continue’ the case within the meaning of CrRLJ 3.3(h)(2) when the trial was struck on December 16 because a `continuance’ requires setting a new trial date within the time limits set forth in the rule. CP at 278-79. The superior court reversed the convictions and dismissed the charges with prejudice.

The State filed a motion for discretionary review. This court granted the State’s request for discretionary review and also permitted Mr. Johnson to raise the other issues not addressed by the superior court in its decision in the RALJ appeal.

ANALYSIS
The trial court bears the ultimate responsibility to ensure that the trial is held within the speedy trial period. CrRLJ 3.3(a); State v. Jenkins, 76 Wn. App. 378, 383, 884 P.2d 1356 (1994). CrRLJ 3.3(f)(1) provides, in part, that the court `shall, within 15 days of the defendant’s arraignment, or at the pretrial hearing, set a date for trial which is within the time limits prescribed by this rule.’ Here, the trial court struck the trial date, granted a continuance to a status conference, and did not set a new trial date. Significantly, CrRLJ 3.3(f)(2) provides, in part:

When the court determines that the trial date should be reset for any reason, including but not limited to the applicability of a period of extension pursuant to section (d) or a period of exclusion pursuant to section (g), the court shall set a new date for trial which is within the time limits prescribed and notify each lawyer or party of the date set as provided by subsection (f)(1). Moreover, a party who objects to the setting of a trial outside the time for trial period must raise this objection within 10 days of receiving the notice of the trial setting because the failure to object results in the waiver of the objection. CrRLJ 3.3(f)(2). Here, Mr. Johnson was arrested on November 7, 1999, and was arraigned on the charge of first degree driving while license revoked on November 8. On November 12, Mr. Johnson was charged with driving under the influence arising from the same November 7 incident. When multiple crimes arise from the same criminal episode, the time for trial period for all crimes is calculated from the time that the defendant is held to answer any charge with respect to that episode. See State v. Harris, 130 Wn.2d 35, 40-42, 921 P.2d 1052
(1996). Hence, the date for the status conference, January 10, 2000, was beyond the 60-day time for trial period. Instead of evaluating the trial court’s decision to grant the continuance under an abuse of discretion standard, the superior court based its decision on the consideration of the larger question of whether an open-ended continuance constitutes a `continuance’ for purposes of CrRLJ 3.3(h)(2). The superior court concluded that the trial court did not grant a continuance within the meaning of CrRLJ 3.3(h)(2) because the trial court merely struck the trial date — and then failed to set a new trial date until January 10, 2000, after the 60-day period had expired. The superior court, citing CrRLJ 3.3(f)(2), determined that a “continuance’ requires setting a new trial date, and requires that it be set within the time limits of the rule.’ CP at 279.

In response, the State argues that this was error because the trial court had the authority to grant an open-ended continuance and that the trial court’s decision was not an abuse of discretion. Additionally, the State contends that the trial court’s decision to strike the trial date was proper because the court did not reset the trial date, but instead granted a continuance under CrRLJ 3.3(h). Under CrRLJ 3.3(h)(2), a court is authorized to grant a continuance or other delay upon the motion of a party and `the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of his or her defense.’ Under this provision, the court must state `on the record or in writing’ the reasons for the continuance. In contrast, a continuance under CrRLJ 3.3(h)(1) may be granted ‘[u]pon written agreement of the parties which must be signed by the defendant or all defendants.’ This court must evaluate the trial court’s decision to grant the continuance under an abuse of discretion standard. State v. Terrovona, 105 Wn.2d 632, 651, 716 P.2d 295 (1986). `The decision is discretionary because the court must consider various factors such as diligence, materiality, due process, a need for an orderly procedure and the possible impact on the result of the trial.’ State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146 (1982). Discretion is abused only when it is exercised on untenable grounds or for untenable reasons. State v. Warren, 96 Wn. App. 306, 309, 979 P.2d 915 (1999) (quoting State v. Silva, 72 Wn. App. 80, 83, 863 P.2d 597 (1993)). Any continuance here was entered under CrRLJ 3.3(h)(2) as there was no agreement signed by the parties. Consequently, the trial court was required to make an assessment of whether the continuance was required in the administration of justice and whether the defendant would be substantially prejudiced by the continuance. We review prejudice to the defendant as apparent at the time of the continuance. State v. Ford, 125 Wn.2d 919, 927, 891 P.2d 712 (1995). However, when reviewing a court’s decision to grant a continuance, the appellate court may examine the entire record to determine the trial court’s reason for granting the continuance. State v. Greene, 49 Wn. App. 49, 55, 742 P.2d 152 (1987). Here, there is no indication that the court made an inquiry as to whether the defendant would be prejudiced by the continuance or that such inquiry was even possible when the court granted an open-ended continuance and failed to reset the trial date within the time for trial period. A continuance under CrRLJ 3.3(h)(1) requires a written agreement signed by the parties and all defendants. The safeguards provided in CrRLJ 3.3(h)(1) are meaningless if defense counsel can ask for a continuance under CrRLJ 3.3(h)(2) and no inquiry is possible as to whether the defendant will be substantially prejudiced. Equally troubling, because no trial date was set, there was nothing to trigger the procedural safeguards contained in CrRLJ 3.3(f).

In summary, we conclude that the trial court abused its discretion by granting a continuance without making an inquiry as to whether the continuance was required in the administration of justice or whether the defendant would be substantially prejudiced by the continuance. Because the continuance was improperly granted, Mr. Johnson’s case was not brought to trial within the time limits set forth in CrRLJ 3.3. We hold the superior court did not err by dismissing the charges with prejudice.

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SWEENEY and KATO, JJ., concur.