Opinion
No. 52293-1-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-00031-5. Judgment or order under review. Date filed: 04/22/2003. Judge signing: Hon. Larry E McKeeman.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Jack Mempa contends his second conviction for delivery of cocaine should be reversed because he was not afforded a speedy trial. We reject his argument that there should have been a "constructive" change of venue date that caused his speedy trial period to expire while he was otherwise being timely tried.
The police set up a controlled buy between Mempa and a cooperating witness. Mempa arranged to meet the buyer in King County, and then took the buyer by car to Snohomish County, where Mempa got the drugs from another person. Mempa made the delivery in the car while returning to King County. The police arrested Mempa in King County and the King County Prosecutor charged him on September 18, 2001. On November 28, 2001, Mempa moved for a change of venue to Snohomish County. The trial court denied his motion. Mempa proceeded to trial, was found guilty, and appealed on March 11, 2002. On appeal, the State conceded that the trial court erred in denying the change of venue motion. This Court reversed, remanded, and issued its mandate on December 20, 2002.
Cause number 50103-8-I.
After our remand, King County ordered a change of venue to Snohomish County. Snohomish County charged Mempa on January 3, 2003, and arraigned him on January 17. At the omnibus hearing on January 24, Mempa moved to set the trial date within the speedy trial period but also maintained that no date would satisfy the speedy trial rule because he should have been tried in Snohomish County during the period he was being tried and sentenced in King County.
On February 13, 2003, Mempa moved to dismiss the charge on speedy trial grounds. The trial court denied his motion. Mempa proceeded to a stipulated trial on March 10, 2003, and the court found him guilty.
Mempa contends there should be a "constructive" change of venue date, similar to the constructive arraignment date recognized in State v. Striker. He argues that the date in his case should be November 28, 2001, the date his motion for a change of venue was erroneously denied. He reasons that he should have been tried under CrR 3.3(d)(5) within 37 days after November 28, 2001, or no later than January 4, 2002. Because he was not tried by that date, Mempa contends he was not afforded his speedy trial rights and the case against him should be dismissed.
87 Wn.2d 870, 557 P.2d 847 (1976).
CrR 3.3(d)(5) no longer exists. But the rule in effect when Mempa brought his motion for a change of venue provided: "If a change of venue has been granted pursuant to rule 5.2, the case shall be transferred to the receiving court as soon as practicable but within 7 days and the defendant shall be brought to trial as prescribed by this rule or not later than 30 days following the date upon which the court to which the case is being transferred for trial receives the filing of the case, whichever is later. If, however, after a change of venue is attempted, the criminal calendar of the receiving county will prevent compliance with the time limits within this section, the trial shall commence on the earliest available date permitted by the criminal calendar of the receiving county."
CrR 3.3(d)(5) does not apply. The rule refers specifically to cases where a change of venue "has been granted". It says nothing about cases where the appellate court later determines that a change of venue "should have been granted". Reading the rule as Mempa proposes would nearly always result in a dismissal when the trial court improperly denies a change of venue motion. King County was not bound by CrR 3.3(d)(5) because the change of venue motion was not granted. Snohomish County could not have tried Mempa because it had no case before it.
Mempa does not cite any decisions extending Striker as he urges and we are aware of none. In the opinion itself, the Supreme Court limited its holding to the situation where an indictment or information is filed before arrest and the accused, if amenable to process, is not brought promptly before the court. The court recognized the limits of the Striker rule in State v. Anderson in refusing to extend it to another CrR 3.3 argument. We see no basis to extend Striker to Mempa's case.
State v. Striker, 87 Wn.2d at 877.
94 Wn.2d 176, 182-83, 616 P.2d 612 (1980).
The applicable rule is the former version of CrR 3.3(d)(4). King County received this Court's mandate on December 23, 2002. It granted the change of venue and Mempa was charged in Snohomish County on January 3, 2003. He made his initial appearance in Snohomish County for his arraignment on January 17, 2003. The court minutes indicate that Mempa was not in custody. He was tried on March 10, 2003, within 90 days of his appearance in court following the superior court's receipt of our mandate. There was no violation of Mempa's speedy trial rights and the trial court correctly denied his motion to dismiss.
CrR 3.3(c)(2)(iv) now provides that the running of the speedy trial period is reset after an appeal and remand. CrR 3.3(d)(4) formerly provided: "Trial After Appeal or Stay. If a cause is remanded for trial after an appellate court accepts review or stays proceedings, the defendant shall be brought to trial not later than 60 days after that appearance by or on behalf of the defendant in superior court — which next follows receipt by the clerk of the superior court of the mandate or other written order, if after such appearance the defendant is detained in jail, or not later than 90 days after such appearance if the defendant is thereafter released whether or not subject to conditions of release."
In a "Statement of Additional Grounds for Review", Mempa contends he was denied an attorney in King County and that he would have argued that the change of venue was too late. Mempa was represented by counsel in the King County proceedings and in the subsequent Snohomish County trial. We therefore assume he is referring to the period after the case was remanded and before it was tried in Snohomish County. The record does not show whether or not Mempa had counsel during this period but we note that the argument that the change of venue came too late is virtually the same argument counsel made to Snohomish County and the argument counsel makes on appeal. We therefore fail to see how this contention provides an additional ground for review.
Mempa also contends our mandate in cause number 50103-8-I says nothing about a retrial and that CrR 3.3(d)(4) does not apply. But our opinion remands the matter for further proceedings. The remedy for the improper denial of a motion for a change of venue is a remand to transfer the case to the proper venue for a retrial. State v. Hillman, 42 Wn. 615, 619, 85 P. 63 (1906). There is no merit to Mempa's contention.
Affirmed.
SCHINDLER and APPELWICK., JJ., concur.