STATE v. PENA, 22393-1-III (Wash.App. 2-8-2005)

No. 22393-1-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
Filed: February 8, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Okanogan County. Docket No. 03-2-00413-0. Judgment or order under review. Date filed: 08/26/2003. Judge signing: Hon. Jack G Burchard.

Counsel for Petitioner(s), James E Keech, Law Office of Scot Stuart, PO Box 3835, Omak, WA 98841-3835.

Counsel for Respondent(s), Stephen Michael Bozarth, Okanogan County Prosecutors Office, PO Box 1130, Okanogan, WA 98840-1130.

SWEENEY, A.C.J.

Desir`e Pena contends the Okanogan County District Court’s standard criminal procedure denied her a speedy trial. The court determines the speedy trial period at the time of arraignment. At the same time, the court sets a status hearing for a few weeks later at which the trial date is fixed. Ms. Pena requested numerous continuances of the status hearing, which the court granted. This resulted in a trial date more than 90 days beyond her arraignment. Ms. Pena contends this violated her speedy trial rights because she did not intend that her continuances be excluded from the speedy trial period. And she never signed a speedy trial waiver. She also disputes the court’s ruling that a motion for change of venue is a trial motion, as opposed to a pretrial motion, and counts as commencing the trial for speedy trial purposes. We agree with the district court’s handling of this matter and affirm her conviction.

FACTS
Ms. Pena was arrested in Okanogan County on February 16, 2003, for driving under the influence. She was arraigned in the Okanogan County District Court on February 18. The court determined that the last timely trial date pursuant to CrRLJ 3.3 was May 19, and set a status conference for March 17. Ms. Pena appeared in person on March 17. The court granted defense counsel’s request for a two-week continuance for ongoing plea negotiations and rescheduled the status hearing for March 31. On March 31, defense counsel requested another continuance until April 14. On April 14, the defense set a change of venue motion for April 28, tolling the trial period yet again. The court made a written record that these continuances were granted at the request of defense counsel. Clerk’s Papers (CP) at 44. On April 28, the defense asked to continue the venue motion until August. The court denied this motion but did continue the venue motion hearing until May 12. The court calculated that this extended the trial period to July 14. On May 12, the court denied the change of venue. Defense counsel then requested a status conference on June 2, extending the trial period to July 21. On June 2, Ms. Pena asked for a trial date. The court set trial for July 16, 2003.

On June 11, Ms. Pena moved to dismiss the prosecution on speedy trial grounds. The court denied the motion. The court explained that continuances requested by the defense are added to the speedy trial period. So, I just don’t see an issue there, but that on March 17, that two-week period to the 31st, is excluded. Maybe you didn’t intend for that, but [defense counsel’s] request on your behalf is such that the Court and the State cannot now, in retrospect, be penalized for that. . . . [W]e simply did what your attorney requested. . . . Likewise, on March 31st. . . .

CP at 19. Ms. Pena petitioned the Okanogan County Superior Court for a writ of review and for an order of dismissal for violation of the speedy trial rule. The superior court denied the writ and the order, finding no grounds for granting a writ under RCW 7.16.040 (statutory writs). And it concluded that Ms. Pena had an adequate remedy at law — an appeal. In a written opinion, the superior court notes that the district court followed its customary practice in readily granting defense motions for continuance on the understanding that this automatically extended the speedy trial period accordingly.

We granted discretionary review.

DISCUSSION
Throughout this opinion we are using former CrRLJ 3.3 (1995) which was in effect at the time of Ms. Pena’s trial. CrRLJ 3.3(c)(1) requires that a criminal defendant who is not in custody be brought to trial within 90 days of arraignment. The court may grant continuances of the trial date, however. CrRLJ 3.3(h). We are asked to decide whether the rule required the court to fix the trial date at arraignment, and whether a defendant implicitly waives speedy trial for the duration of a continuance granted on his or her own motion. We review a trial court’s decision to grant or deny a continuance for abuse of discretion. State v. Teems, 89 Wn. App. 385, 388, 948 P.2d 1336
(1997). It is not an abuse of discretion to grant a continuance under CrRLJ 3.3(h)(2) to allow defense counsel time to prepare. See State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984) (interpreting CrR 3.3); State v. Williams, 104 Wn. App. 516, 523, 17 P.3d 648 (2001). Ms. Pena contends that the defendant must agree to any continuance in writing, and the court must put its reasons for granting a continuance on the record. Since the requested continuances here were of pretrial status conferences, rather than the trial date, she contends the trial period was not tolled. She argues that delaying the status conference at which a trial date is to be set does not automatically extend the trial period any more than moving a bead on a wire changes the length of the wire. The State responds that CrRLJ 3.3(h) does not require both that the defendant sign a waiver and that the court make a record of its reasons. It says either/or. Here, although the judge did not obtain the defendant’s signature or articulate its reasons for granting the continuances, the court did make a record. Defense counsel stated on the record the reasons for requesting the continuances. It is clear that the court granted the continuances for the reasons stated. This is sufficient to permit review, which is all CrRLJ 3.3(h)(2) requires.

The court simply accommodated Ms. Pena’s own requests under CrRLJ 3.3(h)(2). Moreover, it was by the further grace of the court that Ms. Pena was not present and, therefore, unable to sign anything. The court could have required her presence for all proceedings. CrRLJ 3.3(d)(2). Because the court complied with CrRLJ 3.3(h)(2), the trial period was automatically tolled by operation of CrRLJ 3.3(g)(3).[1]

Nothing in CrRLJ 3.3 requires the trial date to be fixed at arraignment. The rule simply requires the defendant to be tried as provided by its terms. CrRLJ 3.3(a). Absent either a timely trial or a waiver, the prosecution must be dismissed. CrRLJ 3.3(i). But a trial outside the 90-day trial period is not untimely if the court grants a delay as provided by the rule. CrRLJ 3.3(h) provides for delays. A trial delayed pursuant to CrRLJ 3.3(h) is, therefore, timely. The defendant must waive her speedy trial rights in writing, if trial is not held as provided by the rule. CrRLJ 3.3(i), (j). A trial delayed pursuant to CrRLJ 3.3(h) is held as provided by the rule. The trial does not violate the defendant’s time for trial rights, so no written waiver is required.

Contrary to Ms. Pena’s contention, CrRLJ 3.3(h) provides for continuances or other delays. It does not restrict its application to delays of the trial. CrRLJ 3.3(h)(2). It says the court may continue the case. Accordingly, the district court did continue `the case.’ Moreover, a defendant waives her right to a speedy trial by requesting a continuance. State v. Valdobinos, 122 Wn.2d 270, 274, 858 P.2d 199 (1993). The district court correctly applied the court rules.

Ms. Pena next contends that the court misapprehended the speedy trial implications of a defense motion for change of venue. Ms. Pena filed a motion for change of venue from Okanogan because she lives in the Seattle area and her driver’s license was suspended when she was arrested. The district court set the motion for hearing. Again, defense counsel requested numerous delays, which the court in its discretion granted. Again, Ms. Pena contends that these delays should have been excluded from her speedy trial period.

If the State files criminal charges in the wrong court, a defendant’s change of venue motion does not toll the speedy trial period. State v. Lindbo, 94 Wn.2d 112, 114, 614 P.2d 1277 (1980). The defendant has the right to demand both a timely trial and the correct venue. Here, the State did not file the charge in the wrong court. Rather, Ms. Pena sought a discretionary transfer for her own convenience. The postponement, therefore, tolled the trial period pursuant to CrRLJ 3.3(g).

We affirm the judgment.

A majority of the panel has determined that 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.

KURTZ, J. and BROWN, J., concur.