Opinion
No. 52775-4-I.
Filed: February 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 01-1-00228-1. Judgment or order under review. Date filed: 01/07/2003.
Counsel for Appellant(s), Charles William Iv Lane, Attorney at Law 407 Adams St. SE Ste 205 Olympia, WA 98501-6917
Peter Nieves (Appearing Pro Se) Larch C.C.D.O.C. #849505 15314 NE Dole Valley Rd Yacolt, WA 98675
Counsel for Respondent(s), Steven Curtis Sherman Thurston County Pros Ofc 2000 Lakeridge Dr SW Olympia, WA 98502-6045.
Peter Nieves appeals his conviction of manufacturing methamphetamine, contending that the trial court erroneously admitted the evidence against him and erred by failing to enter CrR 3.6 findings following his motion to suppress. The failure to enter written findings is not harmless because there are no oral findings. Under the unique facts of this case, Nieves has been prejudiced and the usual remedy of a remand is insufficient. We dismiss.
Nieves brought a motion to suppress that dealt with officers' warrantless nighttime entries onto Nieve's rural wooded private property. To enter, the officers bypassed one sign that instructed visitors to honk three times and another that prohibited trespassing. Nieves and a police officer provided conflicting testimony. At the conclusion of testimony and argument, the trial court announced that the issue was a close one, and said it was taking the motion under advisement.
When trial later commenced, defense counsel questioned the court regarding the lack of an announced decision on the suppression motion. The court stated: `[a]t this point I have denied the suppression for purposes of our trial. I still have it under consideration.' The court then inquired into whether defense counsel was retained or appointed, and upon learning counsel was appointed, said `I'm just determining how much I'm costing the defendant by not making a final determination on the 3.6 issue before the three-day trial.'
Record of Proceedings (RP) (Oct. 29, 2002) at 143.
RP (Oct. 29, 2002) at 143.
The trial court later admitted the evidence at trial. Nieves was convicted and the court sentenced him to a drug treatment sentence including 29.75 months of incarceration. The court never provided an oral ruling on the motion to suppress and no hearing was ever scheduled for entry of written CrR 3.6 findings.
In Nieve's opening brief, he assigned error both to the failure to enter findings and to admitting the evidence. Later in his brief, however, he explained that the unusual failure to provide even oral findings prejudiced him to the extent that he was unable to craft a substantive argument as to the court's error in denying the motion to suppress. He asked that the conviction be dismissed under the authority of State v. Smith, in which this court ordered dismissal for failure to file CrR 3.6 findings when the trial court's oral findings were unclear. The State responded by filing a motion on the merits, in which it cited State v. Byrd, and contended that the failure to enter findings was harmless because Nieves failed to support his assignment of error as to the admission of the evidence with argument or citation to authority.
68 Wn. App. 201, 211, 842 P.2d 494 (1992).
83 Wn. App. 509, 512, 922 P.2d 168 (1996).
In response to the opening brief and the State's motion on the merits, a commissioner of Division II of this court directed the State to have CrR 3.6 findings entered in the superior court or advise the court of appeals if the superior court declined to enter findings. The state apparently never asked the superior court to do so, instead replying to the commissioner's order with a letter stating: `[T]he State is unable to glean from the record sufficient details to prepare appropriate findings of fact and conclusions of law. Consequently, the State is advising the court per [the commissioner's] order that no findings will be filed.' A commissioner of this court thereafter denied the State's motion on the merits and directed the State to file a response brief. The State has now done so, in a two-page brief repeating its contentions from the rejected motion on the merits.
After the State's response, the case was transferred to Division I.
Failing to enter CrR 3.6 findings is error. Such error is harmless if the court's oral opinion and the record of the hearing are `so clear and comprehensive that written findings would be a mere formality.' The absence of written findings is not grounds for reversal absent prejudice. This case is unlike other cases dealing with late or absent written findings because there are no oral findings. We disagree with the State's contention that Nieves waived the claim that he was harmed by the error by not providing argument supporting his assignment of error as to admission of the evidence. The trial court acknowledged it was a close question. The suppression hearing included disputed facts and a complex interplay of factors relating to the time, place, manner and physical circumstances of the warrantless entries. A defendant is not required to speculate as to all possible theories that the trial court might have relied upon before presenting his appellate argument. Nor is this court required to address all conceivable grounds that might have formed the basis of the court's ruling.
CrR 3.6(b) states that `(i)f an evidentiary hearing (on a motion to suppress physical, oral, or identification evidence) is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law.' (Emphasis added).
State v. Smith, 76 Wn. App. 9, 16, 882 P.2d 190 (1994); See also, State v. Ferguson, 76 Wn. App. 560, 561 n. 1, 886 P.2d 1164 (1995) (absence of CrR 3.6 findings harmless error if oral ruling permits meaningful review of suppression decision).
State v. Haynes, 16 Wn. App. 778, 788, 559 P.2d 583 (1977).
Byrd, relied upon by the State, is properly distinguished on this basis because Byrd involved delayed written findings following oral findings, and Byrd alleged no prejudice once the written findings were filed. 83 Wn. App. at 512.
State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
Head, 136 Wn.2d at 624 (1998).
Finding the error not harmless, we must determine the proper remedy. Nieves cites this court's decision in Smith, which established a presumption that the absence of written findings would require dismissal. But after Smith, the Supreme Court in State v. Head disagreed with the Smith presumption, holding that remand for entry of written findings is the normal rule. Under Head, reversal is only appropriate if the appellant is prejudiced. While we will not infer prejudice from delay alone, we conclude that this case is unique in several respects.
136 Wn.2d 619, 964 P.2d 1187 (1998).
Head, 136 Wn.2d at 622-24.
Head, 136 Wn.2d at 625.
First, we have not encountered a similar case of a complete failure to enter either oral or written findings, even insufficient ones. Second, the nature of the suppression hearing was such that one cannot draw any inference as to what the court's basis was for what was apparently its ultimate denial of the motion. Given the conflicting evidence, the theories involved and the trial court's view that the issue was close, Nieves' counsel's choice not to speculate as to the court's reasoning was appropriate. Third and most significantly, when directed by this court to submit findings to the trial court, the State declined to do so.
Given the State's position, ordering a remand now would appear to be a futile gesture. Moreover, even if we now ordered a remand and it actually resulted in the filing of findings, both parties would need the opportunity to challenge the findings, supplement the record, and file additional briefing before this court could resolve the case. Nieves, who has not been released pending appeal, would likely have served most or all of his incarceration. Considering together the clear prejudice to Nieve's ability to prosecute his appeal, the denial of effective fruits of the appeal by the delay, and the State's decision to disregard this court's order to obtain findings, we conclude this is the rare case where the only meaningful remedy is dismissal. Reversed and dismissed with prejudice.
State v. Witherspoon, 60 Wn .App. 569, 572, 805 P.2d 248 (1991).
Witherspoon, 60 Wn. App. at 572, (defendant suffered `real prejudice' because he had been in custody since filing the appeal and therefore could not be afforded the same relief following remand, given the additional delay that would be required to resolve the appeal); C.f. State v. Bennett, 62 Wn. App. 702, 711, 814 P.2d 1171 (1991) (liberty interest not affected by delay in appellate proceedings due to late findings when juvenile detention was completed before findings were due.)
AGID and BAKER, JJ., concur.