Opinion
No. 63003-2-I.
January 11, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05575-9, Richard D. Eadie, J., entered January 26, 2009.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Ellington and Dwyer, JJ.
Melvin Talley appeals the denial of his motion to dismiss on the grounds that his right to a speedy trial was violated. He argues the trial was untimely because his case was not properly noted on the trial calendar until after the date the court initially set as the last allowable day for trial. However, because the entire period between the day Talley's case should have first appeared on the calendar and the day it did appear was properly excluded from the time for trial under CrR 3.3(e)(8), the last allowable date for Talley's trial was necessarily extended under CrR 3.3(b)(5). Because the trial court did not err in denying Talley's motion to dismiss and his pro se arguments also lack merit, we affirm his convictions of intimidating a witness and felony and misdemeanor violations of a no-contact order.
FACTS
Talley was arrested and incarcerated on July 24, 2008. On July 29, he was charged with felony violation of a no-contact order, misdemeanor violation of the same no-contact order, and tampering with a witness, all offenses allegedly involving the same victim. On September 2, 2008, Talley signed an agreed order continuing his case scheduling hearing to September 16, 2008. The order also set a new commencement date and noted that the last allowable day for trial under CrR 3.3 would be November 15, 2008. Over the next few weeks, omnibus hearings were held and the trial date was set for November 6.
On November 6, the trial calendar minute entry states that Talley's case was assigned to Judge Rogers. The court file reflects no further activity, however, until December 3, 2008, when the record shows that the parties appeared before Judge Carey.
At the hearing on December 3, the assigned deputy prosecutor explained that he had been in back-to-back trials and had, as a result, been unavailable for trial every single day since before November 6. Based on his unavailability, along with defense counsel's unavailability during much of the intervening period, the deputy prosecutor asked the court to retroactively grant an extension of the trial date for the intervening period. Defense counsel objected to the State's request, arguing that an extension was not appropriate because November 15 and the five-day "cure" period under CrR 3.3(g) had passed. The court declined to grant the State's motion, but found that the case had been on standby even though the case did not appear on the trial calendar. The court reasoned the intervening time period was properly excluded from the calculation of the last date allowable for trial and therefore the trial could still properly be heard without the necessity of granting any retroactive extensions. Although defense counsel had not brought a motion to dismiss under CrR 3.3, the court nonetheless authorized counsel to bring a properly noted motion to dismiss before the criminal motions judge.
The following week, the criminal motions judge heard the defense motion to dismiss. The State called the King County Superior Court criminal department manager Angela Lang to testify. Lang oversees the Superior Court criminal trial calendar. Lang testified that because there were multiple defendants with similar names, Talley's name did not appear between November 6 and December 2 on the daily trial calendar that her department creates each day for the prosecutor's office and the defender agencies. Lang explained the priority ranking system for the assignment of cases, and testified that because of the prosecutor's and defense counsel's trial schedules involving higher priority cases, even without that mistake, Talley's case still would have been kept on the calendar as a standby case only, and would not have been assigned for trial during any of the days between November 6 and December 2.
At the conclusion of the hearing, the trial court found that between November 6 and December 2, all parties had believed the matter was still listed on the trial calendar on standby status. Because of the unavailability of counsel and the shared mistaken belief regarding the case listing status, the court found that the period was properly excluded as the result of unavoidable circumstances under CrR 3.3(e)(8). The court also found that the defense had suffered no prejudice and denied Talley's motion to dismiss.
Talley later stipulated to facts and was convicted in a bench trial on amended charges.
Talley appeals the denial of his motion to dismiss.
ANALYSIS
The time for trial rule in superior court sets a specific number of days in which a criminal defendant must be brought to trial. When a defendant is in custody while awaiting trial, the time for trial is 60 days. CrR 3.3(b)(2). As amended in 2003, the rule establishes that the initial commencement date is the date of arraignment. The rule further identifies specific circumstances that trigger a new commencement date and start a new 60-day period. CrR 3.3(c)(2). It also excludes certain periods from the computation of the 60-day period and provides that the last allowable time for trial is extended to 30 days beyond the end of any such period. CrR 3.3(e); CrR 3.3(b)(5). If more than 60 days elapses after arraignment, and there has been no excluded period or event resetting the commencement date, then the trial is not timely under the rule, and the charges must be dismissed with prejudice. CrR 3.3(h). "The determination of whether a defendant's time for trial deadline has passed requires an application of court rules to particular facts . . . and is reviewed de novo." State v. Swenson, 150 Wn.2d 181, 186, 75 P.3d 513 (2003).
In State v. Carson, 128 Wn.2d 805, 816, 912 P.2d 1016 (1998), the defendant's trial was not called on the day set, and was thereafter delayed for several days because the judge and both counsel were involved in another unrelated case. Carson, 128 Wn.2d at 814-15. At the time, former CrR 3.3(d)(8) provided that "[w]hen a trial is not begun on the date set because of unavoidable or unforeseen circumstances beyond the control of the court or the parties, the court, even if the time for trial has expired, may extend the time within which trial must be held for no more than five days[.]" After the speedy trial period expired, the defendant moved to dismiss. Carson, 128 Wn.2d at 814. The trial court denied the motion and granted a series of retroactive five-day extensions to rectify the problem. Carson, 128 Wn.2d at 816.
The Washington Supreme Court affirmed. The Court noted that because the attorneys for both parties were unavailable on the original hearing date, and the State and court mistakenly believed that the expiration date had not yet arrived, retroactive five-day extensions were warranted because of unavoidable circumstances under former CrR 3.3(d)(8). Carson, 128 Wn.2d at 814-15.
Talley does not dispute that the situation here qualifies as "unavoidable circumstances" under Carson. His sole contention is that under the present version of CrR 3.3, once an initially determined expiration date has passed and the five-day "cure period" provided by CrR 3.3(g) has also passed, the trial court has no authority to determine a new expiration date, regardless of any intervening circumstances. Talley therefore argues that Carson does not control because that case was based on the pre-2003 version of the rule. We disagree.
Talley is correct that the present version of the rule no longer authorizes five-day extensions, and that the "cure" provision in CrR 3.3(g) now provides that a court may, within five days after the allowable time has expired, "only once in the case" continue the trial date for an incarcerated defendant for up to 14 days beyond the limits otherwise provided in the rule. However, Talley fails to consider the other critical changes to CrR 3.3 that apply here.
Most important of these is that unavoidable and unforeseen circumstances now provide a basis for excluding periods under CrR 3.3(e) when determining the last allowable date for trial, rather than a basis for granting a five-day extension. As the State argues, under the plain language of CrR 3.3(e), excluded periods are excluded from the computation of the time for trial by operation of the rule itself. No contemporaneous endorsement or explanation by the trial court is required. In addition, CrR 3.3(b)(5) now provides that if any period of time is excluded under section (e), "the allowable time for trial shall not expire earlier than 30 days after the end of that excluded period."
For some of the enumerated types of excluded periods, it is clear that there could be no such requirement because the necessary facts cannot be determined in advance. See, e.g., CrR 3.3(e)(1) (excluding time relating to competency proceedings); CrR 3.3(e)(4) (excluding time between dismissal and refiling a charge).
Accordingly, under the plain language of CrR 3.3, when the assigned prosecutor was justifiably unavailable for trial on November 6, as of that day, the last allowable date for trial changed from November 15 to December 6. Each day the deputy prosecutor and defense counsel continued to be unavailable thereafter likewise extended the last allowable date because the additional day was also excluded. CrR 3.3(b)(5).
We emphasize that our holding is limited to the particular facts here, where there is no dispute as to the nature of the unavoidable circumstances for each day of the period during which Talley's case did not appear on the calendar, or the lack of any bad faith on the part of the trial court or counsel. But on this record, we hold that Talley's trial was timely under CrR 3.3(b). Accordingly, the "cure period" of CrR 3.3(g) is irrelevant to our analysis.
Because we conclude that the trial was timely under the rule, we need not address the ternative argument that we should affirm by concluding defense'counsel waived the "State's" alternative argument that we should affirm by concluding defense'counsel waived the issue by failing to draw the trial court's attention to the problem with the daily calendar list earlier than counsel did.
In a pro se statement of additional grounds for review, Talley also argues, in a conclusory fashion, that his right to a speedy trial under the state and federal constitutions was violated. But he fails to present any analysis demonstrating a violation of his constitutional rights on these facts. See State v. Iniguez, 167 Wn. 2d 273, 217 P.3d 768, 776-79 (2009).
Affirmed.
We Concur: