Opinion
No. 33813-1-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00843-0, Leonard W. Costello, Sally F. Olsen, and Jay B. Roof, JJ., entered September 9, 2005.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Mikah E. Richins appeals his conviction of six counts of gross misdemeanor violation of a court order, arguing that he was denied the right to a speedy trial when the State's failure to act with due diligence in providing discovery forced him to request a continuance, which in turn caused the State to request a continuance outside the speedy trial period due to a witness's unavailability. Because the trial court properly granted the continuances and Richins's trial therefore began within the speedy trial period, we affirm.
FACTS
On June 7, 2005, the State charged Mikah E. Richins with one count of second degree assault and one count of gross misdemeanor violation of a court order, both with domestic violence allegations. Richins was detained in jail; his speedy trial period expired on August 8.
All dates are in 2005.
The record does not contain the date of Richins's arraignment.
On July 27, the day trial was set to commence, Richins moved for a continuance until August 1 because the State had provided new discovery the previous evening and that morning. The State expressed concern that one of its witnesses would be unavailable that day, but the trial court granted the continuance.
Also on July 27, the State filed an amended information charging Richins with one count of first degree burglary, one count of felony violation of a court order, and six counts of gross misdemeanor violation of a court order. All counts included domestic violence special allegations.
The first two counts stem from an incident where Richins allegedly assaulted Tina Posadas, his girlfriend, inside her home on June 6. The six gross misdemeanor counts arise from phone calls Richins made to Posadas between June 29 and July 25 while he was incarcerated and awaiting trial.
On August 1, the State confirmed that the witness, a deputy sheriff, had begun a preplanned vacation and it moved for a continuance until August 24. The trial court granted the continuance. Trial did in fact begin August 24.
The jury acquitted Richins of the burglary and the felony court order violation, but convicted him of the six gross misdemeanor court order violations. It also found that Richins committed the court order violations against a family or household member.
ANALYSIS I. CrR 3.3
Richins contends that the State's failure to act with due diligence in amending the information forced him to request a continuance (but one within the speedy trial period), which had the "collateral consequence" of causing the State to request a continuance outside the speedy trial period because of a witness's unavailability. Br. of Appellant at 4.
A criminal charge not brought to trial within the time limits of CrR 3.3 shall be dismissed with prejudice. CrR 3.3(h). We review the application of the speedy trial rule to a set of facts de novo. State v. Carlyle, 84 Wn. App. 33, 35-36, 925 P.2d 635 (1996). We review a trial court's grant of a motion for a continuance for abuse of discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996).
If, as here, the defendant is in custody on the pending charges, the trial usually must commence within 60 days of arraignment. CrR 3.3(b)(1). However, if any period of time is excluded from the speedy trial period under CrR 3.3(e), the speedy trial period extends to at least 30 days after the end of the excluded period. CrR 3.3(b)(5). Excluded periods under CrR 3.3(e) include continuances and delays due to unavoidable or unforeseen circumstances that are beyond the control of the court or of the parties. CrR 3.3(e)(3), (8). A court may grant a continuance on motion of the court or a party. CrR 3.3(f)(2).
A. Additional Charges
When the State delinquently amends an information to allege new charges, a defendant's request for a continuance to prepare a defense does not act as a waiver of the defendant's right to a speedy trial if the defendant proves by a preponderance of the evidence that the State failed to act with due diligence and that the delay forced him to choose between his right to a speedy trial and the right to effective assistance of counsel. State v. Earl, 97 Wn. App. 408, 410, 984 P.2d 427 (1999) (quoting State v. Ralph Vernon G., 90 Wn. App. 16, 21, 950 P.2d 971 (1998)). In Earl, for example, we found no waiver of speedy trial rights when the defendant requested a continuance after the State added an additional charge involving a different victim on the day of trial and the charge was based on information the State had possessed for eight months. Earl, 97 Wn. App. at 411-12.
Here, the six additional court order violation charges arose from new information: phone calls Richins made from jail to the victim between June 29 and July 25. Four of the calls occurred on July 12 or later, from about two weeks until two days before the State filed the amended information. On the day the State filed the amended information, 12 days remained in the speedy trial period. And Richins's counsel felt that five additional days were sufficient to review the new evidence. Richins has not shown by a preponderance of the evidence that the State failed to act with due diligence or that the delay forced him to choose between his right to a speedy trial and the right to effective assistance of counsel.
Moreover, we are not persuaded by Richins's attempt to create a causal link between the continuance motions. The trial court clearly acted within its discretion to grant Richins's request for a continuance to review the new evidence and to prepare a defense to the new charges. See State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984) (finding no abuse of discretion in granting a continuance to allow counsel to prepare defense). And it also clearly acted within its discretion to grant the State's motion for a continuance due to witness unavailability. See State v. Torres, 111 Wn. App. 323, 331, 44 P.3d 903 (2002) (finding that scheduled vacation of an investigating officer is good cause for a continuance). While the State suggested that an August 1 trial date might be problematic, it did not have complete information at the time. The trial court did not abuse its discretion in continuing the trial to the date Richins requested based on the information the State had at the time. We do not require that the trial court speculate about all possible ramifications of granting a continuance.
Richins also faults the trial court for failing to schedule the trial for the day following his continuance motion, when the witness would have been available. Although it is unclear, the record suggests that no judges or courtrooms were available that day. Regardless, Richins told the trial court it was "acceptable" to schedule the trial and a status hearing for August 1 even after learning of the potential witness unavailability that day. RP (July 27, 2005) at 3.
B. Time Allowed after Excluded Period
In any event, the August 24 trial date did not violate CrR 3.3. Delays due to "[u]navoidable or unforeseen circumstances" are excluded from the speedy trial period under CrR 3.3(e)(8). And when time is excluded under CrR 3.3(e), the speedy trial period expires at least 30 days after the end of the excluded period. CrR 3.3(b)(5). Here, the trial court granted the State's motion to continue trial from August 1 to August 24 because of "the nature and extent of the witness problem," an unavoidable circumstance. Report of Proceedings (RP) (Aug. 1, 2005) at 7. Therefore, the speedy trial period ended 30 days later on September 23. CrR 3.3(b)(5). Richins's August 24 trial was within the speedy trial period.
But Richins contends that CrR 3.3(b)(5) should not extend Richins's speedy trial period for 30 days beyond the continuance. Asserting that "this is the exception that swallows the rule," Richins points out that any continuance would result in an additional 30-day speedy trial extension. Reply Br. of Appellant at 3-4. He maintains that this result is incompatible with several of the excluded periods of CrR 3.3(e), including periods excluded by agreement of the parties, when a judge is disqualified, and the "cure period" provided for in CrR 3.3(g). Reply Br. of Appellant at 4-5.
We interpret court rules as we do legislatively drafted statutes. State v. Carson, 128 Wn.2d 805, 812, 912 P.2d 1016 (1996). Because statutory interpretation is a question of law, we review the issue de novo. City of Pasco v. Pub. Employment Relations Comm'n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992).
As with a statute, if a rule's meaning is plain on its face, we give effect to that plain meaning. Carson, 128 Wn.2d at 812. CrR 3.3(b)(5) plainly states that the allowable time for trial expires at least 30 days after the end of any period excluded under CrR 3.3(e). We have previously held that "[u]nder its plain language, CrR 3.3(b)(5) allows a trial court to extend the trial start date at least 30 days beyond the end of an excluded period." State v. Farnsworth, 133 Wn. App. 1, 12, 130 P.3d 389 (2006), review granted, remanded by 151 P.3d 976 (2007). Richins cites no authority for the proposition that CrR 3.3(b)(5) means anything other than what it says.
Our Supreme Court has explained that CrR 3.3(b)(5) created a "30-day buffer period" whenever a period of time is excluded from computing the time for trial, thus "allow[ing] a trial court more flexibility in avoiding the harsh remedy of dismissal with prejudice." State v. Flinn, 154 Wn.2d 193, 199 n. 1, 110 P.3d 748 (2005). Although Richins contends the 30-day speedy trial extension of CrR 3.3(b)(5) is incompatible with the CrR 3.3(e) exclusions, his examples merely show that CrR 3.5(b) does exactly what it purports to do: it gives trial courts more flexibility in scheduling trial dates after continuances.
II. Right to Speedy Trial
Richins also argues that the continuances violated his constitutional right to a speedy trial.
The United States and Washington constitutions guarantee the right to a speedy trial. U.S. Const. amend. VI; Wash. Const. art. I, § 22. But the speedy trial rules of CrR 3.3 are not of constitutional magnitude. State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989) (citing State v. White, 94 Wn.2d 498, 501, 617 P.2d 998 (1980)). The threshold for a constitutional speedy trial violation is much higher than that for a violation of CrR 3.3; where a defendant is not prejudiced by a "minor" delay, we need not dismiss the charges. Fladebo, 113 Wn.2d at 393-94.
Richins's trial began 79 days after he was charged, 19 days after the general 60-day time for trial. This delay is relatively short and, as explained above, it did not violate CrR 3.3. Richins nevertheless contends that he was prejudiced by the delay because it was the result of his forced choice between fully prepared counsel or a speedy trial. But, as we have explained, Richins has not shown that the State failed to act with due diligence in amending the information or that the delay forced him to choose between his right to a speedy trial and the right to effective assistance of counsel.
Because Richins was tried within the time specified by CrR 3.3 and because the threshold for constitutional violations is higher than that for CrR 3.3 violations, Richins's claim of a violation of his constitutional right to a speedy trial fails.
Affirmed.
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.
HUNT, J. and PENOYAR, J., concur.