Opinion
No. 33449-6-II.
May 23, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-1-01820-7, Beverly Grant, J., entered June 24, 2005.
Counsel for Appellant(s), Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Counsel for Respondent(s), Charles A. Johnston, Attorney at Law, 202 E 34th St, Tacoma, WA 98404-1503.
Reversed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Penoyar, JJ.
The State appeals the dismissal of the charges against Erick Donald Gilsdorf due to a rule-based speedy trial violation. The trial court dismissed the charges after finding that the State had failed to exercise due diligence in bringing Gilsdorf before the court following the mandate of the first appeal in this case. The State argues that under the current Rules of Criminal Procedure (CrR), the trial court erred when it considered the reason for the delay in bringing Gilsdorf before the court. Because the plain language of the current speedy trial rules prohibits the trial court from considering the reason for the delay, we agree and reverse the dismissal. But because the trial court did not reach the issue of whether the more than nine-month delay in bringing Gilsdorf before the court violated his constitutional speedy trial rights, we remand for consideration of that issue.
Gilsdorf does not argue that the current rules do not apply here.
Facts
In April 2001, the State charged Gilsdorf with unlawful manufacture of marijuana and unlawful possession of marijuana with intent to deliver. In July 2001, the trial court granted his motion to suppress evidence seized in the case and dismissed the charges with prejudice. The State appealed and we reversed the dismissal in an unpublished opinion. State v. Gilsdorf, noted at 116 Wn. App. 1053 (2003), review denied, 150 Wn.2d 1025 (2004). The clerk of the superior court received the mandate on January 22, 2004.
In response to a summons issued October 21, 2004, Gilsdorf's next physical appearance before the trial court was at an arraignment on November 2, 2004. He later moved to dismiss the charges, asserting that his speedy trial rights under CrR 3.3(a) and the federal and state constitutions had been violated.
From the time of his arraignment, Gilsdorf repeatedly reserved the right to challenge personal jurisdiction and to raise speedy trial issues. The State does not assert that he failed to preserve his speedy trial claim.
Citing State v. Striker, 87 Wn.2d 870, 557 P.2d 847 (1976), review denied, 122 Wn.2d 1012 (1993), and Seattle v. Hilton, 62 Wn. App. 487, 815 P.2d 808 (1991), Gilsdorf argued that the extensive, unexplained delay between the mandate and his next physical appearance before the court was unreasonable and, therefore, his speedy trial rights began to run from the time the trial court received the mandate rather than from the date of his first physical appearance following receipt of the mandate as required by CrR 3.3(c)(2)(iv).
In Striker, our Supreme Court held that even though the former version of CrR 3.3 provided that a defendant's time for trial was calculated from the date of the defendant's preliminary appearance, absent any controlling statute, a defendant's time for trial must be calculated from the date the charging information is filed rather than the date of the defendant's first appearance if the defendant is not promptly arraigned after the information is filed without justification. 87 Wn.2d at 875; State v. Galbreath, 109 Wn. App. 664, 668, 37 P.3d 315 (2002). The purpose of this rule was to protect defendants' constitutional speedy trial rights and the integrity of the legal system by fostering prompt trials once a prosecution is initiated. See Striker, 87 Wn.2d at 875. If the defendant's first appearance was unreasonably delayed, Striker (when read in conjunction with the former speedy trial rules) effectively created a constructive arraignment date 14 days after the filing of the information. See State v. Olmos, 129 Wn. App. 750, 756, 120 P.3d 139 (2005) (citing State v. Greenwood, 120 Wn.2d 585, 599-600, 845 P.2d 971 (1993)).
In Hilton, Division One applied Striker by analogy to former CrRLJ 3.3(d)(4), which provided that if a cause was remanded for trial after appellate court review, the time for trial began to run upon the defendant's next appearance in court following the court's receipt of the mandate. The Hilton court determined that the Striker constructive arraignment principles applied to courts of limited jurisdiction and to cases that were remanded after an appeal. Hilton, 62 Wn. App. at 492-94.
In response to the State's argument that the 2003 amendments to the speedy trial rules superseded the Striker/Hilton constructive arraignment principles, Gilsdorf further argued that the 2003 amendments did not supersede the general reasonableness requirement of Striker and Hilton because that requirement was intended to assure that there were no unreasonable delays in bringing a defendant to trial regardless of the rules.
Finally, he also argued that if the trial court could not consider the reasonableness of the delay, the State would be able to delay a remanded case indefinitely. The State responded that it could not delay indefinitely because it was also limited by the statute of limitations.
Expressing concern about the significant delay in this case, the trial court asked the State to explain the delay. The State responded that the prosecutor's office has `lost track' of the case when it mandated due to problems with internal tracking and that there was no `good explanation' and `no good reason' for the delay. Report of Proceedings (RP) at 7-8.
The following discussion then ensued:
THE COURT: . . . So I mean here it appears and the new commencement date shall be the date of the defendant's appearance, that next [follows] the receipt by the clerk, which would be any time after January 7, `04 or after January 24th, '04. So you are still within — I mean if you look at the way the rule is written, you are still within the time frame, the way the rule is written now.
[PROSECUTOR]: That's the state's point, Your Honor.
THE COURT: I don't think it's necessarily the way the law should be imposed but the way the rule reads, he is in the time frame — the state is in the time frame.
[PROSECUTOR]: The other thing I want to clarify is in regard to the five year statute of limitations issue, I would point out to the Court, that runs from the date of violation. It's not five years after the date the mandate was filed. And so that's already halfway expired so at most at this point we're looking at two and a half years it is.
THE COURT: It does concern me that —
[PROSECUTOR]: I understand.
THE COURT: — the state can pick and choose and wait until, you know, he has been — it's been 289 days since this has first occurred here.
[PROSECUTOR]: Well . . .
THE COURT: It seems like an inordinate amount of time for the state to decide if it's going to do anything[,] 281 days since the first appearance. I don't think — you know, on one hand, I don't think the defendant should be penalized for waiting for the state to get it's act together.
[PROSECUTOR]: I understand that. I would suggest to Your Honor that there are a couple things. First, he could actually initiate the physical appearance in Court by noting — he can note up his own hearing to ask what's going on with the case.
THE COURT: But the onus — why would he knock on the state's door to say come convict me? I mean that's not his responsibility, you know and why would an attorney in good standing, you know, unless there was a warrant after him say, hey, you know, we haven't heard from the state in quite a while, so why don't you go and invite them to tell you what their plans are. That's not his responsibility. It's the state's.
[PROSECUTOR]: I understand. I don't personally necessarily agree with all the policy behind the rule. I just would argue to the Court that we are obligated under the rulings of interpretation to apply a plain language reading and under a plain language reading, we have complied with the language of the rule and as to the policy that's not the drafting committee ultimately.
THE COURT: I think there should be a distinction between making rules for the sake of making them so that they are convenient for the state and enforcing them so that the person, who is the alleged defendant, knows what the parameters are. 289 days is a long time for the state to get its act together and make up its mind.
I just don't think that the purpose — the real meaning behind the rule is to give that much latitude for the state to ignore. I am going to go ahead and grant [Gilsdorf's] motion and then they can take it up on appeal and maybe someone will clarify this rule.
RP at 13-16. The trial court then granted Gilsdorf's motion and dismissed the case. The State appeals.
ANALYSIS Rule-Based Speedy Trial Violation
We address whether the trial court erred when it considered the length and reasonableness of the delay in bringing Gilsdorf before the trial court following the court's receipt of the mandate. Because the current speedy trial rules do not specify delays of this nature and the plain language of the rules precludes the trial court from considering a delay caused by circumstances not addressed in the rules, we hold that the trial court erred in dismissing the case for a rule-based speedy trial violation.
Generally, a defendant who is not being detained in jail must be brought to trial within '90 days after [the] commencement date specified in [CrR 3.3].' CrR 3.3(b)(2)(i). Although Gilsdorf's initial commencement date was the date of his first arraignment as determined under CrR 4.1, the commencement date reset due to the intervening appeal. CrR 3.3(c)(1), (2)(iv). Thus, the new commencement date was November 2, 2004, the date of Gilsdorf's next appearance following the court's receipt of the mandate. CrR 3.3(c)(2)(iv). Neither CrR 3.3 nor any other speedy trial rule limits the time in which the State must bring the defendant before the court following the receipt of a mandate. Nor does the State direct us to any statute addressing this issue.
It is undisputed that Gilsdorf was not in jail during any of the relevant periods.
The rules define appearance as `the defendant's physical presence in the adult division of the superior court where the pending charge was filed,' if `the prosecutor was notified of the presence' and the defendant's presence `is contemporaneously noted on the record under the cause number of the pending charge.' CrR 3.3(a)((3)(iii). The parties do not dispute that Gilsdorf's next appearance following the mandate was at his November 2, 2004 arraignment.
But CrR 3.3(a)(4) provides:
The allowable time for trial shall be computed in accordance with this rule. If a trial is timely under the language of this rule, but was delayed by circumstances not addressed in this rule or CrR 4.1, the pending charge shall not be dismissed unless the defendant's constitutional right to a speedy trial was violated.
Additionally, CrR 3.3(h) provides that `[n]o case shall be dismissed for time-to-trial reasons except as expressly required by this rule, a statute, or the state or federal constitution.'
As noted above, nothing in CrR 3.3 or any other speedy trial rule allows a trial court to dismiss charges because of an unreasonable delay in bringing the defendant before the court following the mandate of a direct appeal. Accordingly, because CrR 3.3(a)(4) expressly limits the trial court's authority to dismiss this case to circumstances where the defendant's constitutional speedy trial rights were violated, the trial court erred in dismissing this case for a rule-based speedy trial violation based on the delay in bringing Gilsdorf before the court. Furthermore, because the plain language of the speedy trial rules specifically preclude the trial court from looking beyond the speedy trial rules, statutes, or constitutional provisions, the Striker and Hilton constructive arraignment principles no longer apply to rule-based violations. See also State v. Olmos, 129 Wn. App. 750, 120 P.3d 139 (2005) (amendments to rules superseded the constructive arraignment principles in Striker and State v. Greenwood, 120 Wn.2d 585, 845 P.2d 971 (1993)); State v. Castillo, 129 Wn. App. 828, 120 P.3d 137 (2005) (CrR 4.1(a)(2) precluded court from considering reason for delay in bringing defendant before the court when determining whether defendant was timely arraigned). We must reverse the trial court's dismissal.
We note that under CrR 4.1(a)(2), the State had 14 days to arraign Gilsdorf following his first appearance after the State filed the information but that `[a]ny delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for that delay.' CrR 4.1 is not directly applicable to this case because the relevant commencement date here runs from the date of Gilsdorf's first appearance following the mandate, not the date of his arraignment. But to the extent it applies by analogy, CrR 4.1(a)(2) would specifically preclude the trial court from considering the delay in bringing Gilsdorf before the court.
Constitutional Right to Speedy Trial
Both the federal and state constitutions also guarantee a right to a speedy trial. U.S. Const. amend. VI; Const. art. I, sec. 22 (amend. 10). A trial court must examine several factors not relevant to a rule-based speedy trial violation to determine whether delay in bringing a case to trial requires dismissal.
To determine whether a defendant's federal constitutional speedy trial rights have been violated, the court must balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant. State v. Hudson, 130 Wn.2d 48, 57 n. 5, 921 P.2d 538 (1996) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520 (1992); State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989)). In addition, the court should also consider any other relevant circumstances. Fladebo, 113 Wn.2d at 393. Our Supreme Court `has previously developed a somewhat similar test for deprivations of the right under Const. art. 1 [sic], sec. 22 (amend. 10).' Fladebo, 113 Wn.2d at 393-94 (citing State v. Christensen, 75 Wn.2d 678, 686, 453 P.2d 644 (1969); State v. Bradfield, 29 Wn. App. 679, 683, 630 P.2d 494, review denied, 96 Wn.2d 1018 (1981)). Under that test, the court must consider (1) whether the delay itself was long enough to amount to a denial of the right to speedy trial; (2) whether the defense was prejudiced by the delay; (3) whether the delay was purposeful and designed by the state to oppress the defendant; or (4) whether the defendant was subject to a long and undue imprisonment in jail while awaiting trial. Fladebo, 113 Wn.2d at 394 n. 3 (citing Christensen, 75 Wn.2d at 686).
Here, even though Gilsdorf asserted both a rule-based and a constitutional speedy trial violation, the trial court's ruling oral shows that it dismissed the case solely based on a rule-based speedy trial violation and it did not reach the constitutional factors. Given the significant delay between the date of the mandate and Gilsdorf's arraignment and State's inability to justify the delay beyond asserting that it had lost track of the case after the mandate, it is possible Gilsdorf can show a constitutional violation. However, because the trial court based its ruling solely on the speedy trial rules, it never determined whether there was also a constitutional violation and it did not make any findings relevant to this issue. Thus, on remand the trial court should initially address the constitutional speedy trial issue.
We note that the State argues that we should reject any implied constitutional claim because the record before us does not support such a claim. The State is correct that we cannot determine whether Gilsdorf's constitutional speedy trial right was violated based on this record. But the trial court did not reach the constitutional issue below, apparently because it found the rule-based claim dispositive, so remand is appropriate.
We reverse and remand for further proceedings.
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.
BRIDGEWATER, J. and PENOYAR, J., concur.