Opinion
No. 60337-0-I.
September 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06151-5, Gregory P. Canova, J., entered June 22, 2007.
UNPUBLISHED OPINION
Cedric Jackson appeals his conviction and sentence for attempting to elude police and unlawfully possessing a handgun. He argues that he did not receive a timely trial under the court rules and that his sentencing court failed to determine whether two of his prior offenses constituted the same criminal conduct. The trial court did not abuse its discretion in granting continuances and therefore did not violate Jackson's rights under the time for trial rules. Jackson waived his same criminal conduct argument by advancing the same standard range at sentencing that the State urged. Jackson's pro se arguments also fail. We affirm.
FACTS
At approximately 8 p.m. on October 13, 2005, a Seattle Police patrol officer signaled a Chevrolet Suburban to stop because its license plate appeared to be registered to another vehicle. The Suburban's driver continued for several blocks without stopping before suddenly pulling up onto the curb and almost hitting a pedestrian. As the Suburban stopped, the driver fled on foot, eventually escaping by running through a parking garage.
A federal homeland security agent in the area saw the fleeing driver throw something wrapped in a bandana under a parked car. The agent pointed the object out to police, who recovered a bandana and handgun. The Suburban contained a cell phone and papers with Cedric Jackson's name and address.
Later that night, Jackson's girl friend of five years, Ihronda Payne, reported to police that a man she could not identify had carjacked the Suburban from her earlier that evening. When the officer asked her about Jackson, she said he was in jail or a halfway house and she did not know how his jacket and cell phone came to be in her car.
The patrol officer picked Jackson's photograph from a six-picture montage with 50 to 60 per cent certainty that Jackson was the driver. The federal agent independently picked Jackson's picture with 90 to 95 per cent certainty.
Jackson was charged with attempting to elude a pursuing police vehicle and first degree unlawful possession of a firearm. Because he was in federal custody for other offenses, he was not arraigned until August 2006. After Jackson agreed to two continuances and was released on bail, his trial was set for January 16, 2007. At Jackson's January 5 omnibus hearing, defense counsel presented the State, for the first time, with information regarding approximately 20 potential alibi witnesses in addition to Payne. The State requested and was granted a continuance to investigate. The court recalculated Jackson's time for trial expiration date as March 9 and set trial on February 7.
From February 7 through February 12, the court repeatedly continued the trial date because the assigned prosecutor was in trial on an in-custody case. On February 13, the prosecutor asked the court to commence the trial, but no courtrooms were available and the court set the case over one day without extending Jackson's time for trial expiration date. On February 14, the court had the prosecutor begin another case involving an in-custody defendant and accordingly continued Jackson's case multiple times over the following week. On February 21, the court set Jackson's case over one day because of defense counsel's illness. On February 22, the prosecutor was again in trial, and after a series of continuances for that reason, the court set Jackson's case for trial on March 20 with an expiration date of April 19. On March 20, the court continued the matter one day without resetting the expiration date because no courtroom was available.
On March 21, the prosecutor moved to continue the matter because the homeland security agent was on federal business in Colorado through March 30. Defense counsel, for the first time, objected to the continuance, complaining of court congestion and arguing that whenever it appeared trial might begin, the court instead commenced trial on one of the prosecutor's in-custody cases to which the court assigned higher priority. Counsel also complained she was unable to schedule her own vacation because Jackson's case was on standby for so long and, without providing any specific information, also complained she was at risk of losing alibi witnesses. The prosecutor responded by listing each prior continuance and the reason therefor and reporting that other prosecutors in his unit were similarly backed up. The judge granted a continuance because of the agent's absence, but only to March 29, reasoning that the trial could begin before the agent testified. The court affirmatively found the State had not mismanaged the prosecutor's case load, noting that one of his cases had in fact been reassigned and one of his in-custody cases had taken longer than anyone anticipated because a number of the trial participants had become ill.
On March 29, the court set the trial over to April 2 because the court had again sent the prosecutor to trial on an in-custody case. Another series of short continuances followed during that trial. On April 10, the court set the matter over one day without resetting the expiration date because no courtrooms were available. On April 11, the court granted a five-day continuance because of a training schedule and vacation of two State witnesses. On April 16, defense counsel was on emergency leave and on April 17 and 18, the prosecutor was again in trial.
Trial commenced on April 19. The defense called Payne and several other alibi witnesses who testified that Jackson had been at a restaurant at a birthday party in his honor at the time of the incident. In rebuttal, the State produced documentary evidence recovered in a search of Payne's apartment by a federal probation officer suggesting Payne and Jackson manufactured fraudulent alibi evidence for trial. Jackson was convicted.
At sentencing, the State alleged Jackson had a criminal history that resulted in an offender score of seven and resulting standard range of 67 to 89 months on the more serious firearm charge. Defense counsel did not object to the State's calculation of the standard range. Counsel argued that the court should impose a sentence of 75 months in the middle of the range, rather than 89 months at the high end of the range. The trial court sentenced Jackson to 89 months on the firearm charge and 17 months on the eluding charge, to be served concurrently. Jackson appeals.
Time for Trial Under CrR 3.3
Jackson argues that the trial court repeatedly continued his trial date over his counsel's continuing objections for ten weeks without adequately developing the record necessary to support the extensions. He therefore contends that his trial, which commenced on April 19, was untimely under the court rule because his time for trial expiration date remained March 9. We disagree.
Generally, the State must bring a defendant who is out of custody to trial within 90 days after his or her arraignment. CrR 3.3(b)(1), 3.3(c)(1). The parties may agree to continue the trial past 90 days or "the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense."
CrR 3.3(f)(2). "[T]he decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). "We will not disturb the trial court's decision unless the appellant or petitioner makes `a clear showing . . . [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Downing, 151 Wn.2d at 272 (alteration in original) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A decision is manifestly unreasonable if the court decides the issues in a way that no other reasonable person would do. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
Preliminarily, we note that Jackson's claim that his attorney consistently objected to all continuances is markedly inaccurate. For example, contrary to Jackson's contention on appeal, his first actual objection to a continuance that appears in the record was at the March 21 hearing at which the State moved to continue the trial because the federal agent was unavailable. Even more striking is the late-provided record of proceedings from April 11 that not only refutes Jackson's claim that his counsel objected to the State's motion to continue on that date, it establishes beyond question that his counsel affirmatively agreed to a continuance.
Jackson did not initially designate the transcript of proceedings from April 11. The State noted this omission in its response and argued that Jackson's claim that the court erred by granting that particular continuance therefore should not be considered. See State v. Wade, 138 Wn.2d 460, 465, 979 P.2d 850 (1999) (appellate court properly declines to consider a claim of error when faced with material omission in the record). Jackson's appellate counsel thereafter ordered the transcript and provided it to this court without filing a reply brief discussing the supplemented record.
It appears that appellate counsel initially relied on an affidavit Jackson's trial counsel filed several months after filing the notice of appeal. However, while the affidavit purported to supplement the record regarding the court's time for trial rulings, trial counsel never placed it before any trial or pretrial judge with a motion to reconsider or dismiss. The affidavit therefore does not help Jackson because it could not have affected the trial court's decisions to grant the continuances at issue here.
Confining our review to facts actually established by the record, while the sheer number of continuances in this case concerns us, we find no abuse of discretion by the trial court.
The reasons provided for the continuances Jackson challenges fall into three categories: unavailability of counsel for the State or defense, unavailability of courtrooms, and unavailability of necessary State's witnesses.
As for continuances caused by the unavailability of counsel, (citing State v. Chichester, 141 Wn. App. 446, 170 P.3d 583 (2007) and State v. Kelley, 64 Wn. App. 755, 767, 828 P.2d 1106 (1992)), Jackson contends that the trial court failed to ensure the State was responsibly managing the prosecutor's case load and should have required the prosecutor's office to reassign his case. Chichester and Kelley, however, are properly distinguished.
Jackson does not discuss the two continuances occasioned by his counsel's illness and emergency leave, but those clearly were justified under the rule. See CrR 3.3(e)(8).
In Chichester, the trial court did not grant an extension but rather declined to grant one. Moreover, Chichester recognized in any event that "there is no per se requirement for the State to reassign a case when the originally assigned prosecutor becomes unavailable. Chichester, 141 Wn. App. at 455 (citing State v. Heredia-Juarez, 119 Wn. App. 150, 154-55, 79 P.3d 987 (2003).
In Kelley, this court addressed the propriety of a five-day extension to the defendant's original time for trial expiration date because the initially assigned deputy prosecutor had a prescheduled vacation and the next most available prosecutor was already in trial. Kelley, 64 Wn. App. at 767. As this court observed in Heredia-Juarez, Kelley's analysis does not directly apply when a continuance is granted without a reassignment. Nothing in Kelley requires routine reassignment of a prosecutor's case because of a busy trial schedule. Heredia-Juarez, 119 Wn. App. at 154.
The fundamental requirement is that the State responsibly manages its prosecutors' case loads, which the trial court here found the State had done. See Heredia-Juarez, 119 Wn. App. at 154. In making its finding, the court did inquire into the possibility of reassignment of the prosecutor's current cases and further noted that one of his less complicated cases had already been reassigned. Jackson faults the court for accepting the prosecutor's representations that Jackson's case was not appropriate for reassignment and that other prosecutors were carrying similar case loads, but points to nothing in the record that would require the court to disbelieve those representations. Jackson also fails to consider the prosecutor's detailed explanation of why his in-custody cases took longer than anticipated because of unforeseen circumstances, including the illness of defendants, defense attorneys and in one case, the judge. We reject Jackson's contention that the trial court abused its discretion by failing to adequately investigate the circumstances of the prosecutor's case load.
Jackson faults the trial court for not explaining how it knew this, but it is clear that these continuances took place in the criminal presiding department in which criminal trial assignments were made every day.
While Jackson's counsel also made a vague assertion about delay costing her witnesses at the March 21 hearing, she never identified any desired witness she actually lost because of delay. As trial commenced, defense counsel endorsed even more witnesses than she previously disclosed in January. At that time, she told the court she did not know if she had lost any of the original witnesses and because many of the defense witnesses would offer cumulative testimony, she might therefore elect not to call some of them. Ultimately, the defense called eight witnesses.
As for the three one-day continuances because courtrooms were unavailable, Jackson acknowledges that the trial court did not actually extend his time for trial expiration date in any of them. Accordingly, the cases Jackson relies on State v. Mack, 89 Wn.2d 788, 794, 576 P.2d 44 (1978) and State v. Kokot, 42 Wn. App. 733, 736-37, 713 P.2d 1121 (1986) are distinguishable. In those cases, the trial court granted continuances past the time for trial expiration date and did not merely continue the case one day within the time for trial period as occurred here.
See Brief of Appellant at 17. ("[A]dmittedly, the delay due to courtroom congestion did not directly change Jackson's speedy trial date because the trial court did not reset the speedy trial period on these particular orders[.]")
Given the substantial amendments to CrR 3.3 in 2003, a panel from Division Two of this court has questioned the continuing validity of Mack and Kokot, which were based on the earlier rule. See State v. Kenyon, 143 Wn. App. 304, 313-14, 177 P.3d 196 (2008).
Without supporting authority, Jackson suggests that we should nonetheless consider the February 13 continuance problematic because of the continuances that followed. But a defendant waives a court-rule based time for trial objection by failing to make it before the expiration of the time for trial period. State v. Malone, 72 Wn. App. 429, 433, 864 P.2d 990 (1994). Here, the time for trial expiration date on February 13 was March 10, but Jackson did not even indirectly complain about the continuance until March 21. See Clerk's Papers at 76. Accordingly, even if the trial court erred, Jackson waived the complaint about the February 13 continuance he advances here.
Finally, while Jackson challenges the two continuances based upon witness unavailability, the record supports the continuance on March 21 and, as discussed above, shows that Jackson's counsel actually agreed to the continuance on April 11. Moreover, because the earlier extensions were proper, Jackson's correct time for trial expiration date was April 19 before any of the continuances based on witness unavailability. Jackson's trial commenced on April 19 and therefore was timely even if those continuances lacked good cause.
Prior Offenses as Same Criminal Conduct
Jackson next challenges his offender score, arguing that the trial court failed to determine whether two of his prior convictions constituted the same criminal conduct. But Jackson did not raise this argument at sentencing. Instead, he and his counsel each argued for a sentence within the same standard range the State submitted was proper, a range that necessarily reflected the implicit determination that the two offenses were not the same conduct. Under these circumstances, Jackson waived his claim. State v. Wilson, 117 Wn. App. 1, 21, 75 P.3d 573 (2003). Jackson asks us to reconsider Wilson, but he has not persuaded us that Wilson is wrongly decided. We adhere to its holding here.
Pro Se Arguments
In a pro se statement of additional grounds for review, Jackson argues that the trial court should have suppressed or excluded the documentary evidence his federal probation officer recovered showing he and Payne created a fraudulent business and attempted to use it to create a false alibi. As for his claim that the evidence was unlawfully seized, the record shows his probation officer, who was also Payne's probation officer, entered Payne's apartment lawfully pursuant to a valid search warrant and immediately recognized the documents in plain view as evidence of probation violations. State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307 (2005); State v. Hudson, 124 Wn.2d 107, 114, 874 P.2d 160 (1994). Jackson further contends that the evidence was untimely disclosed to the defense, but the record shows that the prosecutor provided defense counsel copies of the documents immediately upon receiving them, which was even before Payne testified. And Jackson's claim that an inadequate chain of custody was shown to authenticate the evidence fails because the probation officer who testified was the same officer that personally seized it.
Affirmed.