State v. Walker

17 Wash.App.2d 275

485 P.3d 970

STATE of Washington, Appellant,

v.Mary Thelma WALKER, Respondent.

No. 53646-3-II

Court of Appeals of Washington, Division 2.

Filed April 27, 2021

Sara I. Beigh, Lewis County Prosecutors Office, 345 W Main St. Fl. 2, Chehalis, WA, 98532-4802, for Appellant.

Gregory Charles Link, Maureen Marie Cyr, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Respondent.

PUBLISHED OPINION

Worswick, J. ¶ 1 The State appeals an order dismissing Mary Walker's criminal charges with prejudice for a CrR 3.3 time for trial violation. Walker was charged with one count of fourth degree assault in municipal court, and that court arraigned her and set a trial date. The charge was eventually dismissed without prejudice so that Walker's charge could be refiled in superior court. In superior court, on the day before the expiration of the time for trial period, the trial court reset the trial date well beyond the expiration date. Walker did not object until seven days later, when she moved to dismiss with prejudice. The trial court granted Walker's motion. The State moved for reconsideration, which was denied. We reverse and remand.

FACTS

I. CRIMINAL CHARGE AND MOTION TO DISMISS

¶ 2 In January 2018, Walker was charged with one count of fourth degree assault in Centralia Municipal Court after allegedly striking a child while babysitting. On February 13, Walker was arraigned in municipal court and pleaded not guilty. On August 28, rather than proceed to trial, the prosecutor moved to dismiss her charge without prejudice to allow for charging as a felony in superior court. On May 1, 2019, the State charged Walker with one count of third degree assault of a child based on the same conduct.¹ The trial court appointed counsel for Walker and allowed her to remain released on her personal recognizance.

¶ 3 The trial court arraigned Walker on May 30, which was one day before expiration of time for trial. Walker entered a plea of not guilty.

¶ 4 At the arraignment, the trial court incorrectly declared that the time for trial expiration date was August 28, and it set a trial date for August 19 at the request of the State. The trial court asked defense counsel if he agreed with the set trial date, to which counsel responded, "I[’]ll be here." Verbatim Transcript of Proceedings (VTP) (May 30, 2019) at 3.

¶ 5 On June 6, seven days after the trial date was set, Walker filed a motion "formally object[ing]" to the August 19 trial date under CrR 3.3(d)(3) because the trial date violated the time for trial rule. Walker also filed a motion to dismiss with prejudice for the same reason.

¶ 6 The State conceded that May 31 was the time for trial expiration date, but it argued that Walker had no right to object after the expiration date because a motion to move the trial date into the time for trial period was no longer possible. That is, the State argued that a defendant cannot object to a trial date for being outside of the time for trial period without simultaneously moving that the trial date be scheduled within the time for trial period. The State further argued that because the parties agreed at the May 30 hearing, which was within time for trial period, to set the trial date to August 19, the rules permitted an exclusion period making the trial date timely.

II. HEARING ON MOTION TO DISMISS AND RECONSIDERATION

¶ 7 On June 26, the trial court heard Walker's motion to dismiss. The State argued that a defendant's right to object within 10 days of an improper trial date was inseparable from a motion to move the trial date into the time for trial period under CrR 3.3(d)(3). The State further argued that because Walker waited to object until after the time for trial date expired, she lost her right to object, and the otherwise impermissible trial date must be treated as the last allowable date for trial under CrR 3.3(d)(4).

¶ 8 Walker's counsel argued that he complied with a plain reading of CrR 3.3 by making an objection within 10 days of the trial-setting date, and that the impossibility of the trial court to move the trial date to within the time for trial period should not prevent his ability to object. Counsel argued that he had no obligation to make his objection at the May 30 hearing, that he deliberately did not agree to the trial date, and that it would have been against his client's interests to object at that time.

¶ 9 Walker's counsel further argued that just as the State had a choice of when to file charges and hold a hearing to set the trial date, Walker also could choose when to object, stating:

On the 30th of May, when the court inquired of dates, I did not propose a date. When the court said the date, my response was—and I was particular—I will be here that day. I did not agree to the date. ... It's not my fault or my client's fault that initial trial setting occurred on the day before speedy trial ran out. That's clearly the state's issue.

....

You know what the benefit is though, Judge. If somehow I object and we're within five days of speedy trial, there's an opportunity under [ CrR 3.3 ](g) to get a cure period. And they've done that to me once.

....

... They filed it on May 1. There's a lot of ways they could have done this but didn't. They waited until May 30^th.

On May 30^th we had the initial trial setting. Within 10 days, and that was clearly out of speedy trial, I objected under the rules and therefore preserved my client's right to object, and we're objecting right now. The [S]state agrees. We can't set it. ...

Had I objected the day after we set it, they could have come in and used a cure period. But the rules allow me to wait and use the rules effectively, and I did. So they had no ability to use the cure period. There's no way to fix this. There's nothing for the court to do but dismiss this case with prejudice, because clearly it violated. There's no saving.^[2]

VTP (June 26, 2019) at 9-12.

¶ 10 The trial court agreed with Walker and granted the motion to dismiss with prejudice. The trial court explained that under a plain reading of CrR 3.3, a defendant does not lose their right to object so long as the objection was made within 10 days of the trial setting date. The trial court stated that "[t]he fact that the [S]tate waited so long to file this that it could not be set within speedy trial does not eliminate the defendant's right to object." VTP (June 26, 2019) at 15. The trial court reasoned that defense counsel's knowledge of when they could bring an objection did not matter as long as the objection was made within 10 days.³

¶ 11 The State filed a motion for reconsideration. In its brief supporting that motion, the State raised a new argument based on defense counsel's statements at the hearing that defense counsel had intentionally delayed their objection in order to make the violation of time for trial incurable, and thus they waived their right to object.

¶ 12 The trial court denied the State's motion for reconsideration in a one page order without stating its reasoning. The State appeals the trial court's orders granting Walker's motion to dismiss and denying the State's motion for reconsideration.

ANALYSIS

¶ 13 The State argues that the trial court erred when it granted Walker's motion to dismiss with prejudice for violations of CrR 3.3. First, it argues that the 10-day rule to object to a time for trial violation does not apply when there are fewer than 10 days left before the expiration of the time for trial period, citing State v. Austin , 59 Wash. App. 186, 796 P.2d 746 (1990). Second, it argues that Walker waived her right to object to the time for trial violation when defense counsel knowingly failed to advise the trial court that the date it set for trial was a violation of the time for trial rule. For the same reasons, the State argued that the trial court erred when it denied the State's motion for reconsideration.

¶ 14 Walker responds that, under a plain reading of CrR 3.3(d)(3), she complied with the rule when she objected within 10 days of the trial setting date and that the incurability of the violation did not preclude her right to object. Walker also argues that defense counsel's knowledge of the time for trial violation as of May 30 is a question of fact not supported in the record on appeal.

¶ 15 We hold that the trial court erred when it granted Walker's motion because it relied on the erroneous legal conclusion that it did not matter if defense counsel knew the August 19 trial date was a violation of time for trial and nonetheless failed to advise the court. Accordingly, we hold that the trial court erred in granting the motion to dismiss the charge with prejudice and in denying the State's motion for reconsideration.

¶ 16 We review de novo a trial court's application of the time for trial rule to a particular set of facts. State v. Kenyon , 167 Wash.2d 130, 135, 216 P.3d 1024 (2009). We review a trial court's denial of a motion for reconsideration for an abuse of discretion. State v. Englund , 186 Wash. App. 444, 459, 345 P.3d 859 (2015).

¶ 17 Criminal defendants have a fundamental right to a speedy trial, secured by the Sixth Amendment. Klopfer v. State of N.C. , 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). CrR 3.3, the time-for-trial rule, has the purpose of ensuring that a defendant's constitutional right to a speedy trial is effectuated. State v. Ollivier , 178 Wash.2d 813, 823, 312 P.3d 1 (2013). The rule provides that an accused out-of-custody defendant must be brought to trial within 90 days of arraignment. CrR 3.3(b)(2)(i), (c). A charge not brought to trial within the time for trial limit must be dismissed with prejudice and the trial court loses its authority to try the case, regardless of whether the defendant shows prejudice. State v. Saunders , 153 Wash. App. 209, 220, 220 P.3d 1238 (2009) ; State v. Ross , 98 Wash. App. 1, 5, 981 P.2d 888 (1999) ; CrR 3.3(h).

¶ 18 Here, the parties agree that May 31, 2019, was the expiration date...