Opinion
No. 22824-0-III
Filed: May 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No. 03-1-01002-6. Judgment or order under review. Date filed: 02/06/2004. Judge signing: Hon. Robert G Swisher.
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G 7122 W Okanogan Pl Kennewick, WA 99336.
Michael Burgess was convicted of third degree assault. Before trial, there were a number of continuances. On appeal, Mr. Burgess contends that his right to a speedy trial was violated. He also contends that the trial court violated a duty to conduct an independent inquiry before allowing him to waive his right to a jury trial. We affirm Mr. Burgess's conviction.
FACTS
In September 2003, Michael Burgess was an inmate at the Benton County Jail awaiting trial on a drug-related offense. While in jail, he assaulted Officer Yvonne Mercer. He was charged with third degree assault and arraigned on October 24, 2003. Trial was set for December 15. At the pretrial hearing, defense counsel asked that trial be moved to December 29. Mr. Burgess signed a waiver of his right to a speedy trial that stipulated to a trial date of December 29. A stipulation continuing the trial date to December 29 was entered by the court. During the next pretrial hearing, Mr. Burgess stated that he was ready for trial. His counsel, however, stated that he had a conflict that might require him to seek a continuance because he was scheduled for another trial on that date. The court agreed that good cause existed for the continuance and that two juries would be picked for December 29, but only one would actually serve on that date.
On December 29, Mr. Burgess presented the trial court with a waiver of jury trial. Mr. Burgess stated that he had discussed the waiver with his attorney, understood that he had the right to a jury, understood that by waiving the right to a jury he was subjecting himself to a bench trial, and was still willing to waive the right to a jury trial. The trial court signed the waiver.
On December 30, 2003, the prosecuting attorney moved for a two-week continuance because the complaining witness, Officer Mercer, was on vacation. Defense counsel consented to the continuance, characterizing the continuance as `the sort of good cause continuance contemplated in the new rule.' Report of Proceedings (RP) (Dec. 30, 2003) at 3. Nevertheless, counsel advised the court that his client wished to move forward on the matter. An order was entered continuing the matter until January 13, 2004. Mr. Burgess was released on his own recognizance. Because Mr. Burgess had been convicted of an unrelated drug offense, he was transported to prison.
On January 12, 2004, the prosecuting attorney moved for a one-week continuance because the State was unable to produce a necessary witness. Defense counsel did not object and a new trial date was set for January 20. On January 20, the prosecuting attorney and defense counsel jointly moved for a one-day continuance. Specifically, they requested the continuance due to witness unavailability on January 20 and defense counsel's unavailability during the subsequent morning session. The court agreed and the trial convened on January 21. The trial court found Mr. Burgess guilty of third degree assault.
ANALYSIS
Speedy Trial. Mr. Burgess argues that the trial court abused its discretion in granting continuances and in failing to bring him to trial within 60 days. Essentially, he points out that he was incarcerated for 89 days and should have been tried within 60 days. Arguing insufficient cause for the continuances, Mr. Burgess insists that his speedy trial rights were violated and that his conviction should be reversed.
Standard of Review. A trial court's grant or denial of a motion for a continuance is reviewed on a manifest abuse of discretion standard. State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984). Incarcerated Defendant. Mr. Burgess contends that his right to a speedy trial was violated because his trial did not occur within 60 days. The State responds that the time period for speedy trial was extended to 90 days because Mr. Burgess was released on his own recognizance. An incarcerated defendant shall be brought to trial within 60 days. CrR 3.3(b)(1), (5); CrR 3.3(c)(1). Unless time is excluded under CrR 3.3(e), a trial brought against a defendant after the 60-day period has elapsed must be dismissed with prejudice. State v. Harris, 122 Wn. App. 498, 504, 94 P.3d 379 (2004). Under CrR 3.3(b)(3), the period is extended to 90 days if the defendant is released during the 60-day period. Here, Mr. Burgess was released 7 days beyond the 60-day period. Accordingly, Mr. Burgess was entitled to trial within 60 days during the period that he was incarcerated and he would be entitled to have his conviction dismissed with prejudice unless the delays during that period are excluded under CrR 3.3(e).
Continuances. Excluded periods under CrR 3.3(e) include continuances granted by the trial court under CrR 3.3(f). Under CrR 3.3(f), the trial court may grant a continuance upon a written agreement of the parties or upon a motion by the court or a party. Each motion for a continuance will be addressed separately.
December 15 to December 29. The trial date of December 15 was moved to December 29 by written agreement of the parties. Excluded periods include continuances based upon the written agreement of the parties. CrR 3.3(f). To be valid, written agreements must be signed by the defendant. CrR 3.3(f)(1). Here, Mr. Burgess signed the written agreement consenting to a trial date of December 29, 2003. The trial court did not abuse its discretion in granting the continuance to December 29 and the continuance is an excluded period.
December 29 to December 30. The trial date of December 29 was continued to December 30 upon defense counsel's request. If a party has brought a motion for a continuance, or the motion is brought on his behalf, he has waived his objection to the requested delay. CrR 3.3(f)(2). A continuance requested by the defense counsel constitutes an excluded period. State v. Valdobinos, 122 Wn.2d 270, 274-75, 858 P.2d 199 (1993). Here, the one-day continuance was waived by Mr. Burgess because it was requested by his counsel. Accordingly, the trial court did not abuse its discretion in granting the continuance to December 30 and the continuance is an excluded period.
December 30 to January 13. The continuance from December 30 to January 13 was requested by the prosecuting attorney. Defense counsel agreed to the continuance, calling it `the sort of good cause continuance contemplated in the new rule.' RP
(Dec. 30, 2003) at 3. In other words, Mr. Burgess waived his speedy trial rights to the continuance. But Mr. Burgess responds that he objected to the continuance and, thus, did not waive his speedy trial rights. To constitute a valid objection, the objecting party must provide notice that the trial date is not within the time limits and move that the trial court set trial within the time limits. CrR 3.3(d)(3). In this case, Mr. Burgess stated that he wished to proceed forward on the matter. He did not mention that the new trial date was not within the time limits or move to set trial within the time limits. As a result, he did not validly object to the continuance.
Even if Mr. Burgess had objected, the continuance would stand. A trial court does not abuse its discretion in granting a continuance in order to accommodate a planned vacation of an arresting officer because investigating officers may not otherwise ever be able to take vacations. State v. Grilley, 67 Wn. App. 795, 799, 840 P.2d 903 (1992). Here, the continuance was granted because the State's complaining witness was on vacation. Hence, the trial court's granting of the continuance did not constitute an abuse of discretion and the continuance is an excluded period.
January 13 to January 20. The continuance from January 13 to January 20 was requested by the prosecuting attorney because the State was unable to produce a necessary witness. Mr. Burgess did not object to the continuance. The unavailability of a material State witness is a valid ground for a continuance if three factors are satisfied:
(1) there is a valid reason for the unavailability; (2) it is reasonable to believe that the witness will become available within a reasonable time; and (3) there is no substantial prejudice. State v. Day, 51 Wn. App. 544, 549, 754 P.2d 1021 (1988). Two of the three factors are satisfied. First, it was reasonable to believe that the witness would become available within a reasonable time. Trial was continued for only one week. And second, there was no substantial prejudice to the defendant. The defendant has not asserted that he was prejudiced. Determining whether there was a valid reason for the unavailability is more difficult. The record does not establish the reason for the unavailability. But a detailed analysis of this issue is unnecessary. Mr. Burgess did not object to the one-week continuance. Thus, the trial court did not abuse its discretion in granting the continuance to January 20 and the continuance is an excluded period.
January 20 to January 21. The continuance from January 20 to January 21 was the result of a joint motion brought by the prosecuting attorney and defense counsel. Because defense counsel joined in the motion for a continuance and Mr. Burgess did not object to the continuance, Mr. Burgess waived his objection to the requested delay.
CrR 3.3(f)(2); Valdobinos, 122 Wn.2d at 274-75. The trial court did not abuse its discretion in granting the continuance to January 21 and the continuance is an excluded period. In conclusion, the trial court did not abuse its discretion in granting any of the continuances and the various continuances constitute excluded periods under CrR 3.3(e). Because the continuances constitute valid excluded periods under CrR 3.3(e), Mr. Burgess's right to a speedy trial was not violated.
Waiver of Right to Jury. Mr. Burgess postulates that the trial court failed to comply with a fundamental duty to assure, on the record, that the defendant knowingly, intelligently, and voluntarily waived his right to a jury trial. In order to waive his or her right to a jury trial, the defendant files a written waiver to which the trial court consents. CrR 6.1(a). In determining whether to consent, the trial court determines if the waiver was made knowingly, voluntarily, and intelligently. State v. Downs, 36 Wn. App. 143, 144, 672 P.2d 416 (1983). Even if the trial court has not consented, a written waiver by itself is sufficient if other evidence establishes that the written wavier was made knowingly, voluntarily, and intelligently. Id. at 144-45.
Here, Mr. Burgess effectively waived his right to a jury trial. He signed a written waiver. He stated that (1) he had discussed waiving a jury trial with his attorney,
(2) understood that he had the right to a jury, (3) understood that by waiving the right to the jury he was subjecting himself to a bench trial, and (4) he was still willing to waive the right to a jury trial. The trial court correctly determined that Mr. Burgess knowingly, voluntarily, and intelligently waived his right to a jury trial.
Without citing any legal authority, Mr. Burgess nonetheless contends that the trial court has a duty to assure that the defendant knows what right he has waived. In other words, Mr. Burgess believes that the trial court has the duty to engage in an independent inquiry on the record to determine if the defendant adequately understands the constitutional right that he is waiving. In State v. Likakur, 26 Wn. App. 297, 303, 613 P.2d 156 (1980), the court held that requiring the trial court to conduct an independent inquiry to determine if a party has the requisite understanding and capacity to sign a waiver would constitute undue interference with the orderly process of a criminal trial. Similarly, the trial court here had no duty to conduct an independent inquiry of Mr. Burgess's understanding of his constitutional rights. Mr. Burgess signed the waiver and orally acknowledged to the trial court that he understood what he was signing. The trial court complied with its duty under CrR 6.1(a). In conclusion, Mr. Burgess knowingly, intelligently, and voluntarily waived his right to a jury trial.
We affirm Mr. Burgess's conviction.
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.
SCHULTHEIS, J., and BROWN, J., concur.