Opinion
No. 51491-1-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-00453-3. Judgment or order under review. Date filed: 11/07/2002. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Kevin L Hendrickson (Appearing Pro Se), #909340, Stafford Creek Correction Center, 191 Constantine Way, Aberdeen, WA 98520.
Counsel for Respondent(s), Charles Franklin Blackman, c/o Snohomish County Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Kevin Hendrickson appeals the judgment and sentence entered following his conviction for forgery. We reject his sole argument on appeal that the trial court abused its discretion in granting a speedy trial continuance under former CrR 3.3(h)(2) and affirm.
FACTS
Hendrickson was serving time in prison for several convictions arising from identity theft. On March 5, 2002 he was charged with forgery. On March 27 he was transported from the Washington State Prison in Walla Walla to Snohomish County, where he was arraigned on the forgery charge and trial was set for June 7. At the omnibus hearing on March 29, Hendrickson asked to be returned to the prison rather than remain in the Snohomish County jail. Hendrickson's counsel made this request for Hendrickson, although counsel advised against it. The agreed omnibus order, signed by Hendrickson, his attorney, the prosecuting attorney, and the trial court, provided that the defense reserved the right to seek a continuance.
On Thursday, June 6 the prosecutor filed a motion and order to transport Hendrickson from prison to Snohomish County to appear for a jury trial continuance hearing on Monday, June 10. On June 10 Hendrickson appeared with counsel; the hearing was continued to June 11 by agreement. On June 11 the hearing was continued to June 13 by agreement. On June 13, Hendrickson appeared with counsel. The court entered an order setting bail and authorizing detention to hold Hendrickson locally and continued the hearing to June 14.
The prosecutor appeared at the hearing. Defense counsel was not present. The record does not establish whether Hendrickson was present.
On June 14 Hendrickson again appeared with counsel. Counsel orally moved to continue the trial date to late August 2002. Counsel sought additional time to prepare for trial; counsel needed time to contact and speak with witnesses that Hendrickson identified and noted that contacting them would not be easy. Defense counsel also had a planned vacation and his first day back would be July 22. Hendrickson objected to a continuance and refused to sign a speedy trial waiver.
The trial court continued the trial date to July 26, finding that there was good cause for the continuance. The court found that Hendrickson's request to go back to the institution after arraignment impeded defense counsel's ability to communicate with him and prepare for trial; that Hendrickson had made representations to his counsel to carry the matter out as long as possible; that the prosecutor was prepared to proceed to trial and but for Hendrickson's representations would have gone to trial; that the delay was the result of Hendrickson's actions and the court would grant the continuance over his objection; and that the first available date for trial given defense counsel's personal and professional schedule was July 26. On June 21 Hendrickson filed a pro se motion to dismiss for violation of speedy trial. On July 18 Hendrickson's attorney withdrew and retained counsel substituted. Defense counsel briefed the motion to dismiss. Subsequently counsel repeatedly noted and then struck the motion. There is no indication that counsel ever sought a ruling on it.
There were multiple continuances of the trial date after the June 14 order setting trial for July 26. Trial commenced on October 7. None of the continuances after June 14 are challenged on appeal.
DECISION
Hendrickson contends that he was denied his right to a speedy trial when on June 14 the trial court continued the trial date to July 26. He argues that the motion for a continuance was untimely, the trial court failed to adequately inquire into the bases for the requested continuance, the court's reasons for granting the continuance were inadequate, and the court failed to find that Hendrickson would not be substantially prejudiced by the delay. We reject these arguments.
A trial court, on its own or on the motion of the State or a party, may continue a trial when required in the administration of justice and the defendant will not be substantially prejudiced. We review a trial court order granting a continuance for an abuse of discretion. A continuance granted by the trial court will be disturbed only if the decision was manifestly unreasonable, or exercised on untenable grounds or for untenable reasons.
Former CrR 3.3(h)(2). State v. Woods, 143 Wn.2d 561, 579, 23 P.2d 1046 (2001).
State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984).
Woods, 143 Wn.2d at 579.
A motion for a continuance under former CrR 3.3(h)(2) "must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule." Hendrickson has cited no authority that a motion for a continuance under this rule must be in writing. In any event, Hendrickson concedes that before the June 7 trial date defense counsel and the prosecutor agreed to seek a continuance. It is well established that a trial court may grant a continuance over a defendant's objection to allow defense counsel additional time to prepare for trial. Here the trial court properly inquired regarding the need for a continuance, and the reasons for the continuance were adequate. Defense counsel's preparation had been delayed because Hendrickson was in prison 300 miles away, a fact that Hendrickson was on notice of at the March 29 omnibus hearing, and defense counsel needed additional time to contact witnesses that Hendrickson wanted counsel to contact. There is no suggestion in the trial record or on appeal that Hendrickson suffered any prejudice as a result of the continuance. Indeed, without a continuance Hendrickson might argue on review that he was prejudiced and denied the effective assistance of counsel. Hendrickson does not challenge the trial court's finding that Hendrickson made representations to counsel to delay the matter as long as possible.
This is borne out by the June 6 motion and order for transport, which sought Hendrickson's presence in Snohomish County on June 10 for a trial continuance hearing.
Woods, 143 Wn.2d at 580-81 (trial court did not abuse its discretion in granting a four-month continuance for defense counsel to review State's DNA tests and seek independent testing and granting second two-month continuance due to State's delay in handling DNA evidence and defense counsel's heavy caseload); State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (defense counsel sought continuance for approximately one month to interview witnesses and begin preparation for penalty phase; trial court committed no error in granting continuance over defendant's objection); Campbell, 103 Wn.2d at 13-15 (trial court did not err in granting defense counsel's requested 9-week continuance over defendant's objection to ensure effective representation and a fair trial).
Campbell, 103 Wn.2d at 15.
Affirmed.
APPELWICK and BECKER, JJ., concur.