Opinion
No. 28221-6-II.
Filed: September 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 01-1-00462-7. Judgment or order under review. Date filed: 12/21/2001.
Counsel for Appellant(s), Thomas A. Ladouceur, Attorney at Law, 100 E 13th St. Ste 113, Vancouver, WA 98660-3230.
Counsel for Respondent(s), Matthew W Butler, Cowlitz County Prosecutors Office, 312 SW 1st Ave, Kelso, WA 98626-1799.
Jesse Edwin Goetz appeals his conviction for attempting to elude arrest and a corresponding exceptional sentence. He claims that (1) he was not arraigned and tried within the CrR 3.3 time for speedy trial, and (2) the superior court erred in imposing an exceptional sentence. Finding that Goetz was timely arraigned and tried and that the record and reasons support his exceptional sentence, we affirm.
FACTS I. Cowlitz County Eluding
On March 8, 2001, in Cowlitz County, Jesse Goetz fled in his car from city, county, and state police while they pursued him for nearly 45 miles. During the chase, Goetz reached speeds of at least 120 MPH, almost crashed with a truck, and avoided several spike strips before finally hitting one, crashing, and fleeing on foot. Police tracked him with dogs, but were unable to find him.
The next morning, Goetz broke into a hotel room and called his friends and relatives. Officers traced the calls, spoke with the people Goetz had called, and tried to obtain records of other collect calls Goetz may have made. But police were still unable to locate Goetz.
On May 24, 2001, the Cowlitz County Prosecutor charged Goetz with attempting to elude. An arrest warrant was issued.
II. Grays Harbor County Assault
On August 10, Goetz was arrested in Grays Harbor County on the Cowlitz County eluding warrant, during which he assaulted the arresting officer. Goetz pled guilty and was sentenced for the assault on September 17, 2001. He completed his sentence for the Grays Harbor County assault on October 25, 2001.
III. Transfer Back to Cowlitz County
On October 26, 2001, Goetz was transferred to Cowlitz County pursuant to a hold on the arrest warrant for his eluding charge. He was arraigned on November 6, 2001, and found guilty by stipulated facts on December 18, 2001. He objected to both his arraignment date and trial date as untimely under CrR 3.3.
The trial court ruled that Goetz's speedy trial rights had not been violated based on its assumption that the speedy trial time under CrR 3.3 did not begin to run until Goetz became `available' to Cowlitz County on October 26, 2001, after completing his Grays Harbor County sentence.
IV. Exceptional Sentence
Finding the standard range clearly too lenient (because Goetz had prior unscored misdemeanors and failures-to-appear), the court imposed an exceptional sentence of 12 months and one day. Enumerating reasons for departing upward from a standard range sentence, the court found that (1) Goetz was a danger to society; (2) he had acted with complete disregard for the safety of others when he drove 120 miles an hour in a 55 zone while passing a semi-truck on the right side; and (3) his license was suspended at the time he was eluding the police. Goetz appeals.
In its oral ruling at sentencing, the trial court explained, {T}he reasons I'm going to give him an exceptional sentence are because he has uncounted misdemeanors. He was going 120 miles an hour in a 55 zone, and passed a semi-truck on the right side. He was going 128 miles on the freeway, and was using all three lanes. And the only reason he stopped was because he was forced to stop by use of a {spike} strip. Videotape Proceedings (transcribed) (VP) at 12. From these facts the trial court concluded that Goetz `had a total and complete disregard for the lives and safety of anybody that was anywhere near him.' VP at 12.
ANALYSIS I. Speedy Trial A. 90-day Period Applies
The State must provide every defendant who is amenable to process with a speedy trial. State v. Hardesty, 110 Wn. App. 702, 707, 42 P.3d 450 (2002), rev'd on other grounds, 149 Wn.2d 230 (2003); CrR 3.3(c). If the defendant is detained in jail, he must be arraigned not later than 14 days after the information is filed in superior court. CrR 3.3(c)(1). If the defendant remains free from jail, he must be brought to trial not later than 90 days after arraignment. CrR 3.3(c)(1).
A defendant who is held in custody in another county on an unrelated charge is not considered to be "detained in jail on the current charge' for the purposes of CrR 3.3(c)(1).' State v. Huffmeyer, 145 Wn.2d 52, 57, 32 P.3d 996 (2001); Hardesty, 149 Wn.2d at 236. Because Goetz was in custody in Grays Harbor County on an unrelated charge, he was not `detained in jail' on the Cowlitz charge and, therefore, the 90-day speedy trial period applies to his Cowlitz County eluding charge. See Huffmeyer, 145 Wn.2d at 57.
B. Timely Arraignment
Goetz contends that his constructive arraignment date for the Cowlitz County charge should be 14 days from the date the Cowlitz County information was filed, May 26, because the State did not act with good faith and due diligence in attempting to locate him. We disagree.
Where the State allows a `long and unnecessary delay' before bringing in a defendant who is amenable to process before the court, the speedy trial period is deemed to commence when the information was filed; this sets `a constructive arraignment date 14 days after the information was filed where unnecessary delays have occurred.' Huffmeyer, 145 Wn.2d at 57 (quoting State v. Greenwood, 120 Wn.2d 585, 599, 845 P.2d 971 (1993)). But such was not the case here.
`{D}ue diligence requires that the state do something to locate the defendant and bring him or her to trial;' it requires `the expenditure of at least a minimal amount of effort to bring a defendant before the court in a timely manner.' Huffmeyer, 145 Wn.2d at 63.
The State did try to locate Goetz, repeatedly, without success. Police first attempted to pursue Goetz after the car chase and crash, but Goetz eluded them. They followed up on leads from Goetz's phone calls and interviewed his friends and relatives. They attempted to obtain additional phone records and continued to search for Goetz. The State expended more than a `minimal amount of effort' and exercised due diligence in trying to locate Goetz, at least while he remained at large. Thus, Goetz's constructive arraignment argument fails.
Instead, the second sentence of CrR 3.3(c)(1) applies:
If the defendant is not detained in jail or subjected to conditions of release, the defendant shall be arraigned not later than 14 days after that appearance in superior court which next follows the filing of the information or indictment.
Because Goetz was held in Grays Harbor County on an unrelated charge, he was `not detained in jail' on the Cowlitz County charge. Thus, CrR 3.3 did not require his arraignment in Cowlitz County until 14 days after his first appearance in Cowlitz County Superior Court.
Here, Goetz did not immediately appear in superior court after his transport back to Cowlitz County on October 26. Apparently, he first appeared in Cowlitz County Superior Court when he was arraigned on November 6. Even if Goetz had been brought to court in Cowlitz County at the first opportunity, his arraignment took place less than 14 days later.
C. Speedy Trial Calculation
Although we exclude from the speedy trial calculation the time that the State was diligently looking for Goetz while at large, this exclusion no longer applies after his arrest in Grays Harbor County on August 12.
Thereafter, CrR 3.3(g) deducts certain periods from the speedy trial calculation, including time spent in `{p}reliminary proceedings and trial on another charge.' Huffmeyer, 145 Wn.2d at 58; CrR 3.3(g)(2). Accordingly, the time between the May 26 filing of the Cowlitz information and Goetz's September 17 Grays Harbor guilty plea is excluded from the speedy trial calculation.
But the CrR 3.3(g)(2) exclusion ends when the charges are resolved by trial or guilty plea. Huffmeyer, 145 Wn.2d at 61-62. Thus, as Goetz argues and the State concedes, the trial court erred in excluding from the speedy trial calculation the time between Goetz's September 17 sentencing on the Grays Harbor assault and his October 26 release after serving that sentence. As the State argues, however, Goetz was, nonetheless, timely brought to trial.
Under CrR 3.(c)(1), the 90-day period within which the State was required to bring Goetz to trial in Cowlitz County began to run 14 days after he was amenable to Cowlitz County on September 17, when his Grays Harbor proceedings concluded. Accordingly, Goetz was timely tried on the Cowlitz County eluding charge on December 18, less than 104 days later.
II. Exceptional Sentence
RCW 9.94A.535 allows the sentencing court to impose a sentence outside the standard range if it finds, in written findings and conclusions, `that there are substantial and compelling reasons justifying an exceptional sentence.' RCW 9.94A.535. The statute lists aggravating and mitigating factors, but the factors are illustrative rather than exclusive. RCW 9.94A.535.
We uphold the trial court's findings of fact unless no substantial evidence supports the facts. State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991). We may reverse an exceptional sentence only if the record does not support the sentencing court's reasons, the reasons do not justify an exceptional sentence for this offense, or the sentence was `clearly excessive.' RCW 9.94A.585(4).
Goetz contends that his exceptional sentence violated the first two of these three requirements. Goetz specifically challenges the court's Findings of Fact Nos. 1, 2, and 3. He challenges the court's use of the plural `misdemeanors,' believing that the court improperly relied on three failure-to-appear charges. He also challenges the court's finding (1) that he passed a truck on the right during the chase, and (2) that he was driving with a suspended license during the chase. We address each argument in turn.
A. Prior Misdemeanor(s)
Finding of Fact No. 1 mentions `misdemeanors' and the three failure-to — appear (FTA) charges. After some discussion, the trial attorneys clarified with the trial court that Goetz was charged with only one incident of driving while license suspended (DWLS) but he had failed to appear on that charge three separate times. Although Goetz had not been convicted on the DWLS charge, the trial court said this made no difference in its ruling.
But the trial court's reference to `misdemeanors' in Finding of Fact No. 1 does not mean that the trial court counted the three FTA charges as three misdemeanors. Rather, the pluralization of `misdemeanor' may have been inadvertent. Goetz has not shown that Finding of Fact No. 1 was substantively erroneous.
B. Real Facts Doctrine
Goetz next contends that the court's Conclusion of Law No. 1 and the implied conclusion in Finding of Fact No. 1 do not justify an exceptional sentence. He argues that (1) the FTA charges are charges only, not convictions, and, as such, they are inappropriate bases for an exceptional sentence; and (2) the only substantiated fact the court listed for support was a single malicious mischief juvenile conviction, which is insufficient to support an exceptional sentence.
The `real facts doctrine' prohibits imposing an exceptional sentence based on `facts wholly unrelated to the current offense or those facts that would elevate the degree of the crime charged to a greater offense than charged.' State v. Jacobson, 92 Wn. App. 958, 972, 965 P.2d 1140 (1998), review denied, 137 Wn.2d 1033 (1999). But this doctrine `does not preclude reliance on facts that establish elements of additional uncharged crimes to enhance a sentence when those facts are part and parcel of the current offense.' Jacobson, 92 Wn. App. at 971-72 (quoting State v. Tierney, 74 Wn. App. 346, 352, 872 P.2d 1145 (1994), cert. denied, 513 U.S. 1172 (1995)).
Goetz's DWLS charge and the corresponding FTA charges do not fit neatly into either category. Although Goetz had not been convicted of DWLS, he had been charged with DWLS and he had failed to appear in court on the matter three times. Substantial evidence supports Finding of Fact No. 3, that Goetz was driving with a suspended license while eluding the police. And the trial court imposed the enhanced sentence in part because, while eluding the police, Goetz had been driving with a suspended license.
We hold that the trial court did not err by relying on the three FTA charges as justification for an exceptional sentence: In essence, Goetz had also `eluded' the court when he failed to appear to answer this DWLS charge on three occasions and, instead, continued to drive with a suspended license, including during the charged eluding incident.
C. Near Crash With Truck
We further disagree with Goetz that, absent these three FTA charges, the only other support for an exceptional sentence is his prior malicious mischief juvenile conviction. On the contrary, the trial court listed among its reasons for imposing an exceptional sentence that (1) Goetz was `obviously an extreme danger to society,' and (2) he `had a total and complete disregard for the lives and safety of anybody that was anywhere near him.' VP at 12.
We have previously held that extreme disregard for the safety of others is a valid ground for an exceptional sentence. State v. Dunivan, 57 Wn. App. 332, 337, 788 P.2d 576 (1990). Although considering future dangerousness is generally not permitted when imposing an exceptional sentence (except in sexual offense cases), Goetz does not argue that this reason provides inappropriate support for his exceptional sentence. Accordingly, we do not address this issue.
State v. Bolton, 68 Wn. App. 211, 214-15, 842 P.2d 989 (1992).
The trial here was conducted on stipulated facts, which included that Goetz almost crashed with a truck while eluding the police. Whether Goetz was passing the truck on the right at the time of the near-crash was irrelevant to the trial court's exceptional sentence rationale, which focused instead on Goetz' reckless driving. Finding of Fact No. 2 is supported by substantial evidence.
The trial court's Findings of Fact are substantially supported by the record, and the facts support the court's reasons for imposing the exceptional sentence. Thus, the trial court did not abuse its discretion in imposing an exceptional sentence.
We affirm.
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 QUINN-BRINTNALL, J., concur.