State v. Wilson

STATE OF WASHINGTON, Respondent, v. JOSEPH K. WILSON, Petitioner.

No. 37901-9-III

Court of Appeals of Washington, Division 3

April 28, 2022

UNPUBLISHED OPINION

Szambelan, J.P.T. ^[*]

Joseph Wilson asserts that his trial date violated his right to speedy disposition under the intrastate detainer act^[1] (IDA). The dispositive issue involves whether he waived this right before the 120-day time period expired. We conclude that Wilson waived his right to a speedy disposition. His trial date was timely and the trial court's denial of his motion to dismiss is affirmed and remanded for proceedings consistent with this opinion.

FACTS

On June 29, 2017, in Columbia County Superior Court, the State filed an information that charged Joseph Wilson with harassment attempted residential burglary and malicious mischief in the third degree. The court arraigned him on July 26, 2017, and he pleaded not guilty. From his arraignment to when he served the State with his statutory request for a speedy disposition on May 17, 2019 there were numerous delays and resetting of his trial date for a variety of reasons that are not at issue.

On February 20, 2019, the court scheduled trial for May 2019 and pre-trial motions on April 17, 2019. The State appeared for pre-trial motions on April 17, 2019. However, Wilson and his attorney, Jane Richards, were not present. The State informed the court that Wilson sent letters to the prosecutor stating that he fired Ms. Richards. Wilson was incarcerated at the Airway Heights Corrections Center. The State requested and received a bench warrant. The court struck the trial date.

On May 10, 2019, Mr. Wilson filed motions to (1) quash his bench warrant, (2) change venue, and (3) recuse the assigned judicial officer, Court Commissioner G. Scott Marinella, for a conflict of interest. This motion was not resolved by May 17, 2019, when the State received Wilson's "Request for Speedy Disposition," under RCW 9.98.010.

On June 5, 2019, the court allowed Wilson's defense counsel, Ms Richards, to withdraw, and appointed him a new attorney, Julie Karl, without objection from Wilson. On that date, Ms. Karl asked for the case to be continued until July 3, 2019, so she could familiarize herself with Wilson's case after having just been appointed. The trial court granted this continuance with the acquiescence of all parties. The parties appeared before Commissioner Marinella in Superior Court on July 3, 2019. Commissioner Marinella acknowledged receiving Wilson's motions that sought to quash the bench warrant, move venue, and recuse himself due to a conflict of interest. Wilson alleged in his recusal motion that he felt Commissioner Marinella could not be fair and impartial. Given Wilson's motion for recusal, Commissioner Marinella stated that he was unable to rule on Wilson's cases. The trial court set the next hearing with a new judge for July 24, 2019. Wilson agreed and did not object.

On July 24, 2019, the State discussed Wilson's speedy disposition motion and requested a trial date, which was ultimately not set. With Wilson's agreement, Ms. Karl moved to withdraw from representation due to her previous advocacy for the victim as a conflict. The court then appointed Vic Bottomly to represent Wilson, without objection. After some discussion attempting to set a trial date, the trial court set a status review hearing for August 7, 2019.

At the August 7, 2019 status review hearing, the State requested to set a trial date. Mr. Bottomly stated that he needed time to discuss the case with Wilson. Mr. Bottomly stated Wilson "might be willing to drop the speedy disposition [motion] if we can get a trial date shortly after his release," which was scheduled for October 7. Report of Proceedings (RP) at 122. Wilson then stated, "Yes. I'm-I'm requesting to drop-or actually I'm willing to drop the speedy disposition." RP at 122. Wilson continued:

So, in all fairness, you know, seeing as how you just got appointed, you know, with-with the hectic things going on, I'm requesting no-that this be put out into October, maybe into November, you know, after my release, considering my circumstances that I've got going on now.

RP at 123. Mr. Bottomly agreed and requested a continuance to set a trial date. RP at 123. The court scheduled trial on October 21, 2019. Wilson reiterated,

So, I mean, I'm going to be in the community working. That's why-I requested, you know, potential willingness to drop that speedy disposition and have this put out, you know, past my release date of October 7th, you know, maybe into November. You know, that way I could finish this sentence and not have to worry about-you know, all the other stuff-if anybody can understand that.

RP at 125. He later stated, "So, yeah, I-I would like to get this continued out as-as far as possible." RP at 127. Following these statements and a discussion on the availability of the parties, trial was set for October 21, 2019.

Between October 2019 and August 2020, Wilson failed to appear at several scheduled hearings, and otherwise requested the matter be continued. On September 16, 2020, Wilson filed a motion to dismiss on the grounds that between May 17, 2019, and October 22, 2019, his right to speedy disposition was violated. On November 18, 2020, the trial court entered the following findings of fact (FOF) and conclusions of law (COL) relevant to this appeal:

• FOF 1.26, on April 17, 2019, the Defendant failed to appear for pretrial readiness hearing, and the trial was struck. The Court issued a bench warrant at the State's request in the amount of $20, 000 cash or surety.

• FOF 1.27, on May 15, 2019, the Defendant filed a motion to quash the bench warrant, a motion for disqualification of judge in this matter, and a motion for change of venue.

• FOF 1.28, defendant's "Request for Speedy Disposition" under RCW 9.98.010 was received by the State on May 17, 2019.

• FOF 1.29, defendant's "Request for Speedy Disposition" was filed with the Court on May 20, 2019.

• FOF 1.30, at a hearing on June 5, 2019, defense counsel was allowed to withdraw, and a new attorney was appointed.

• FOF 1.31, on July 3, 2019, the defense filed a motion to recuse Commissioner Marinella for a conflict of interest, and the matter was continued to July 24, 2019, to allow the Court to secure the services of another judge. Wilson contests this finding for purposes of this appeal.

• FOF 1.32, on July 24, 2019, defense counsel was allowed to withdraw, and a new attorney was appointed. Defendant was released from custody on this matter. Wilson contests this finding for purposes of this appeal.

• FOF 1.33, on August 7, 2019, trial was set in this matter for October 21, 2019. The Defendant entered no objection to this trial date. The Court minutes do not indicate a continuance was requested but does note that defense would supplement the record with a waiver of speedy trial.

• FOF 1.34, on October 7, 2019, the Defendant was released from DOC incarceration.

• FOF 1.35, on October 9, 2019, the Defendant requested that the trial be struck. The Court reset trial in this matter for November 5, 2019. The Defendant did not object to this trial date. FOF 1.36, on October 30, 2019, the Defendant failed to appear for pretrial readiness hearing in this matter. The trial date was struck, and a waiver of speedy trial was filed through February 28, 2020. Trial was set in this matter for February 20, 2020, and the Defendant entered no objection to this trial date.

• COL 2.1, the Defendant's Request for Speedy Disposition pursuant to RCW 9.98.010 and .020 was properly filed and served upon the Prosecuting Attorney.

• COL 2.2, the time for the State to bring the Defendant to trial under RCW 9.98.010 began to run on May 17, 2019, the date on which the State received the request.

• COL 2.3, once the State received the request, it had 120 days to bring the Defendant to trial.

• COL 2.4, the 120-day time limit may be extended for good cause shown, per RCW 9.98.020. State v. Johnson, 79 Wn.2d 173, 177, 483 P.2d 1261 (1971).

• COL 2.5, when a defendant affirmatively works to delay his own trial by requesting a continuance or other relief that necessarily delays trial, he extends the time period in which the State must bring his case to trial, pursuant to the holding in Johnson.

• COL 2.6, when the Defendant files a waiver of speedy trial, he extends the time period in which the State must bring his case to trial.

• COL 2.7, when the Defendant fails to appear and occasions the rescheduling of hearings and trial, he extends the time period in which the State must bring his case to trial.

Clerk's Papers (CP) at 18-25.

In addition to contesting FOF 1.27, 1.31-1.32 as specified above, Wilson further contests the following COL 2.8-2.14 entered by the trial court.

• COL 2.8, when the Defendant requests a change of counsel or disqualification of judge, he extends the time period in which the State must bring his case to trial.

• COL 2.9, the change of counsel on July 24, 2019, and the reference to a waiver of speedy trial in the Court minutes for the hearing on August 7, 2019, constitute good cause continuances for the purposes of RCW 9.98.020.

• COL 2.10, if trial is set at the convenience of the Court and Parties outside of the 120-day time limit, and the Defendant files no objection, the new end-date becomes the date of the trial or the time specified in the waiver of speedy trial.

• COL 2.11, the Defendant's requests for continuance, failures to appear, waivers of speedy trial, and requests to strike and reset trial dates were all affirmative acts by the Defendant which extended the time in which the State was required to try him.

• COL 2.12, the acts of the Defendant which delayed trial are excluded periods which should be

...