Opinion
No. 37391-2-II.
November 25, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00723-1, James W. Lawler, J., entered February 28, 2008.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
Justin Lloyd Haynes appeals his Lewis County convictions of unlawful possession of a controlled substance (methamphetamine) and unlawful use of drug paraphernalia. Haynes contends that the trial court should have dismissed the charges on the basis of violation of his speedy trial rights. He argues that the court improperly applied CrR 3.3(c)(2)(ii), restarting the time for trial, even though his failure to appear was based on his detention in another county. We agree that the "failure to appear" provision does not apply here, but find no speedy trial violation and affirm.
A commissioner of this court reviewed this matter pursuant to RAP 18.14 and referred it to a panel of judges.
FACTS
On October 22, 2007, the State charged Haynes with one count of unlawful possession of a controlled substance, one count of unlawful use of drug paraphernalia, and one count of third degree theft. Haynes pleaded not guilty to the charges on November 1, 2007. The court set trial for January 14, 2008, and released him. Because Haynes faced charges on an unrelated matter in Grays Harbor County, he was transported to the Grays Harbor County Jail. On November 26 or 28, 2007, he pleaded guilty in that matter, and on December 3, the court sentenced him to six months in the Grays Harbor County Jail.
In the meantime, Haynes failed to appear for a November 29 omnibus hearing in Lewis County Superior Court. Defense counsel informed the trial court about Haynes's whereabouts and his sentencing date. Counsel reminded the court and the State about Haynes's circumstances on January 10, 2008, when he again failed to appear. The court issued a transport order on January 15, 2008.
On January 31, 2008, Haynes appeared in the Lewis County Superior Court, and the court reset his trial for the week of February 18, 2008. He moved to dismiss the charges under CrR 3.3(h), but the court denied the motion, relying on CrR 3.3(c)(2)(ii). Haynes waived his right to a jury, in favor of a bench trial on stipulated facts. On February 19, 2008, the trial court found him guilty of the possession crimes, but dismissed the third degree theft charge.
ANALYSIS
CrR 3.3(c)(2)(ii) authorizes the trial court to set a new commencement date for the speedy trial period upon "[t]he failure of the defendant to appear for any proceeding at which the defendant's presence was required."
Haynes contends that this provision applies only when the failure to appear is willful. He is correct.
In State v. George, 160 Wn.2d 727, 738, 158 P.3d 1169 (2007), our Supreme Court made it clear that the failure to appear provision is not a catchall provision that allows a trial court to reset the time for trial, regardless of why the defendant was absent. It applies only to defendants who deliberately absent themselves from proceedings.
Contrary to the State's argument, the law announced by State v. George cannot be disregarded simply because that case involved a court of limited jurisdiction, not a superior court. The rules for the two courts are identical. They should be applied consistently. See State v. Kennison, 25 Wn. App. 396, 398, 607 P.2d 877 (1980).
See CrRLJ 3.3(c)(2)(ii).
Nevertheless, the trial court's erroneous reliance on CrR 3.3(c)(2)(ii) does not require reversal. This court may affirm on any ground established by the law and the record. State v. Motter, 139 Wn. App. 797, 802, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008). Correctly interpreted, the rules still support the trial court's decision.
As a general rule, a defendant must be brought to trial within 60 days of arraignment if he is detained in jail, and within 90 days if he is not. CrR 3.3(b). A defendant is not "detained in jail" as contemplated by CrR 3.3(b)(1) unless he is detained solely on the current charge. If he is detained by a county other than the charging county on an unrelated matter, the 90-day period applies. See State v. Bernhard, 45 Wn. App. 590, 594-95, 726 P.2d 991 (1986), review denied, 107 Wn.2d 1023 (1987). This is because a defendant detained for both current and unrelated charges would remain incarcerated on one, if not the other, and so does not suffer any additional loss of liberty. State v. Hardesty, 149 Wn.2d 230, 236, 66 P.3d 621 (2003); Bernhard, 45 Wn. App. at 594. Accordingly, in this case, Haynes's speedy trial period was 90 days.
CrR 3.3 also provides that certain periods may be excluded from the time for trial. CrR 3.3(e)(2) excludes the time spent in proceedings on unrelated charges, including arraignment, pre-trial proceedings, trial and sentencing. There were 109 days between Haynes's arraignment on November 1, 2007, and his trial on February 19, 2008. He was detained pursuant to Grays Harbor County proceedings for 32 days (November 1 through his sentencing on December 3). Excluding those days, his trial occurred on the 78th day, well within the required period. Accordingly, the trial court properly refused to dismiss the charges.
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.
QUINN-BRINTNALL, J. and PENOYAR, J., concur.