State Of Washington v. Mary T. Walker ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
April 27, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53646-3-II
Appellant,
v.
MARY THELMA WALKER, PUBLISHED OPINION
Respondent.
WORSWICK, J. — The State appeals an order dismissing Mary Walker’s criminal charges
with prejudice for a CrR 3.3 time for trial violation. Walker was charged with one count of
fourth degree assault in municipal court, and that court arraigned her and set a trial date. The
charge was eventually dismissed without prejudice so that Walker’s charge could be refiled in
superior court. In superior court, on the day before the expiration of the time for trial period, the
trial court reset the trial date well beyond the expiration date. Walker did not object until seven
days later, when she moved to dismiss with prejudice. The trial court granted Walker’s motion.
The State moved for reconsideration, which was denied. We reverse and remand.
No. 53646-3-II
FACTS
I. CRIMINAL CHARGE AND MOTION TO DISMISS
In January 2018, Walker was charged with one count of fourth degree assault in Centralia
Municipal Court after allegedly striking a child while babysitting. On February 13, Walker was
arraigned in municipal court and pleaded not guilty. On August 28, rather than proceed to trial,
the prosecutor moved to dismiss her charge without prejudice to allow for charging as a felony in
superior court. On May 1, 2019, the State charged Walker with one count of third degree assault
of a child based on the same conduct.1 The trial court appointed counsel for Walker and allowed
her to remain released on her personal recognizance.
The trial court arraigned Walker on May 30, which was one day before expiration of time
for trial. Walker entered a plea of not guilty.
At the arraignment, the trial court incorrectly declared that the time for trial expiration
date was August 28, and it set a trial date for August 19 at the request of the State. The trial
court asked defense counsel if he agreed with the set trial date, to which counsel responded,
“I[’]ll be here.” Verbatim Transcript of Proceedings (VTP) (May 30, 2019) at 3.
On June 6, seven days after the trial date was set, Walker filed a motion “formally
object[ing]” to the August 19 trial date under CrR 3.3(d)(3) because the trial date violated the
time for trial rule. Walker also filed a motion to dismiss with prejudice for the same reason.
The State conceded that May 31 was the time for trial expiration date, but it argued that
Walker had no right to object after the expiration date because a motion to move the trial date
1
In calculating time for trial, all pending “related charges” are included. CrR 3.3(a)(5). A
“related charge” is “a charge based on the same conduct as the pending charge that is ultimately
filed in the superior court.” CrR 3.3(a)(3)(ii).
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into the time for trial period was no longer possible. That is, the State argued that a defendant
cannot object to a trial date for being outside of the time for trial period without simultaneously
moving that the trial date be scheduled within the time for trial period. The State further argued
that because the parties agreed at the May 30 hearing, which was within time for trial period, to
set the trial date to August 19, the rules permitted an exclusion period making the trial date
timely.
II. HEARING ON MOTION TO DISMISS AND RECONSIDERATION
On June 26, the trial court heard Walker’s motion to dismiss. The State argued that a
defendant’s right to object within 10 days of an improper trial date was inseparable from a
motion to move the trial date into the time for trial period under CrR 3.3(d)(3). The State further
argued that because Walker waited to object until after the time for trial date expired, she lost her
right to object, and the otherwise impermissible trial date must be treated as the last allowable
date for trial under CrR 3.3(d)(4).
Walker’s counsel argued that he complied with a plain reading of CrR 3.3 by making an
objection within 10 days of the trial-setting date, and that the impossibility of the trial court to
move the trial date to within the time for trial period should not prevent his ability to object.
Counsel argued that he had no obligation to make his objection at the May 30 hearing, that he
deliberately did not agree to the trial date, and that it would have been against his client’s
interests to object at that time.
Walker’s counsel further argued that just as the State had a choice of when to file charges
and hold a hearing to set the trial date, Walker also could choose when to object, stating:
On the 30th of May, when the court inquired of dates, I did not propose a
date. When the court said the date, my response was—and I was particular—I will
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No. 53646-3-II
be here that day. I did not agree to the date. . . . It’s not my fault or my client’s fault
that initial trial setting occurred on the day before speedy trial ran out. That’s clearly
the state’s issue.
....
You know what the benefit is though, Judge. If somehow I object and we’re
within five days of speedy trial, there’s an opportunity under [CrR 3.3](g) to get a
cure period. And they’ve done that to me once.
....
. . . They filed it on May 1. There’s a lot of ways they could have done this
but didn’t. They waited until May 30th.
On May 30th we had the initial trial setting. Within 10 days, and that was
clearly out of speedy trial, I objected under the rules and therefore preserved my
client’s right to object, and we’re objecting right now. The [S]state agrees. We
can’t set it. . . .
Had I objected the day after we set it, they could have come in and used a
cure period. But the rules allow me to wait and use the rules effectively, and I did.
So they had no ability to use the cure period. There’s no way to fix this. There’s
nothing for the court to do but dismiss this case with prejudice, because clearly it
violated. There’s no saving.[2]
VTP (June 26, 2019) at 9-12.
The trial court agreed with Walker and granted the motion to dismiss with prejudice. The
trial court explained that under a plain reading of CrR 3.3, a defendant does not lose their right to
object so long as the objection was made within 10 days of the trial setting date. The trial court
stated that “[t]he fact that the [S]tate waited so long to file this that it could not be set within
speedy trial does not eliminate the defendant’s right to object.” VTP (June 26, 2019) at 15. The
2
In order to allow “‘flexibility in avoiding the harsh remedy of dismissal with prejudice,’” CrR
3.3 provides a “‘30-day buffer period’” for excluded periods and a “‘one-time ‘cure-period’ . . .
that allows the court to bring a case to trial after the expiration of the time for trial period.’”
State v. Saunders, 153 Wn. App. 209, 220, 220 P.3d 1238 (2009) (quoting State v. Flinn, 154
Wn.2d 193, 199 n.1, 110 P.3d 748 (2005)); CrR3.3(b)(5), (g).
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No. 53646-3-II
trial court reasoned that defense counsel’s knowledge of when they could bring an objection did
not matter as long as the objection was made within 10 days.3
The State filed a motion for reconsideration. In its brief supporting that motion, the State
raised a new argument based on defense counsel’s statements at the hearing that defense counsel
had intentionally delayed their objection in order to make the violation of time for trial incurable,
and thus they waived their right to object.
The trial court denied the State’s motion for reconsideration in a one page order without
stating its reasoning. The State appeals the trial court’s orders granting Walker’s motion to
dismiss and denying the State’s motion for reconsideration.
ANALYSIS
The State argues that the trial court erred when it granted Walker’s motion to dismiss
with prejudice for violations of CrR 3.3. First, it argues that the 10-day rule to object to a time
for trial violation does not apply when there are fewer than 10 days left before the expiration of
the time for trial period, citing State v. Austin, 59 Wn. App. 186, 796 P.2d 746 (1990). Second, it
argues that Walker waived her right to object to the time for trial violation when defense counsel
knowingly failed to advise the trial court that the date it set for trial was a violation of the time
for trial rule. For the same reasons, the State argued that the trial court erred when it denied the
State’s motion for reconsideration.
3
Although the trial court did not make any finding of fact regarding defense counsel’s
knowledge of a speedy trial violation on May 30, counsel’s arguments at the hearing make clear
that he was aware of the expiration of the speedy trial period violation on May 30, and chose not
to disclose this information.
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No. 53646-3-II
Walker responds that, under a plain reading of CrR 3.3(d)(3), she complied with the rule
when she objected within 10 days of the trial setting date and that the incurability of the violation
did not preclude her right to object. Walker also argues that defense counsel’s knowledge of the
time for trial violation as of May 30 is a question of fact not supported in the record on appeal.
We hold that the trial court erred when it granted Walker’s motion because it relied on
the erroneous legal conclusion that it did not matter if defense counsel knew the August 19 trial
date was a violation of time for trial and nonetheless failed to advise the court. Accordingly, we
hold that the trial court erred in granting the motion to dismiss the charge with prejudice and in
denying the State’s motion for reconsideration.
We review de novo a trial court’s application of the time for trial rule to a particular set of
facts. State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009). We review a trial court’s
denial of a motion for reconsideration for an abuse of discretion. State v. Englund, 186 Wn.
App. 444, 459, 345 P.3d 859 (2015).
Criminal defendants have a fundamental right to a speedy trial, secured by the Sixth
Amendment. Klopfer v. State of N.C., 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).
CrR 3.3, the time-for-trial rule, has the purpose of ensuring that a defendant’s constitutional right
to a speedy trial is effectuated. State v. Ollivier, 178 Wn.2d 813, 823, 312 P.3d 1 (2013). The
rule provides that an accused out-of-custody defendant must be brought to trial within 90 days of
arraignment. CrR 3.3(b)(2)(i), (c). A charge not brought to trial within the time for trial limit
must be dismissed with prejudice and the trial court loses its authority to try the case, regardless
of whether the defendant shows prejudice. State v. Saunders, 153 Wn. App. 209, 220, 220 P.3d
1238 (2009); State v. Ross, 98 Wn. App. 1, 5, 981 P.2d 888 (1999); CrR 3.3(h).
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No. 53646-3-II
Here, the parties agree that May 31, 2019, was the expiration date of Walker’s time for
trial period. On May 30, one day before the expiration date, the trial court set a trial date that
was in violation of the time for trial rule, but Walker did not object until seven days later. The
question for us is whether Walker’s objection was waived.
A. Timeliness of Objection under State v. Austin
Relying on State v. Austin, 59 Wn. App. 186, 796 P.2d 746 (1990), the State argues that
Walker’s delayed objection was waived because she filed a written objection after the time for
trial had expired. Walker urges this court not to follow Austin, arguing it contravenes a plain
reading of CrR 3.3. We disagree with the State that Austin controls here.
A defendant’s objection to a trial date set in violation of CrR 3.3 must be timely.
A party who objects to the date set upon the ground that it is not within the time
limits prescribed by this rule must, within 10 days after the notice is mailed or
otherwise given, move that the court set a trial within those time limits. . . . A party
who fails, for any reason, to make such a motion shall lose the right to object that
a trial commenced on such a date is not within the time limits prescribed by this
rule.
CrR 3.3(d)(3).
In the event a trial date is set outside the time allowed by CrR 3.3, but the defendant lost
the right to object to that date because she failed to timely object, the trial date becomes the last
allowable date for trial. CrR 3.3(d)(4).
In 2003, our Supreme Court amended the time for trial rule based on recommendations
from the Washington Courts Time-for-Trial Task Force. State v. George, 160 Wn.2d 727, 737,
158 P.3d 1169 (2007). The task force was concerned about “the degree to which the time-for-
trial standards [had] become less governed by the express language of the rule and more
governed by judicial opinions . . . [that had] at times expanded the rules by reading in new
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No. 53646-3-II
provisions.”4 Their final report recommended language to ensure CrR 3.3 was exhaustive and
comprehensive in its plain meaning. For example, as a result, CrR 3.3(h) was amended to
include, “No case shall be dismissed for time-to-trial reasons except as expressly required by this
rule, a statute, or the state or federal constitution.”
In Austin, Division One of this court upheld the trial court’s denial of a motion to dismiss
under CrR 3.3 when Austin objected at 4:15 p.m. on the day of expiration of the time for trial
period. 59 Wn. App. at 200, 202. In that case, on July 12, which was the original trial date and
the day before time for trial expired, the trial court continued the trial to July 14. Id. at 195. On
July 13, defense counsel realized that the trial was improperly continued and objected to the trial
date as being beyond the time for trial period. Id. at 195. Defense counsel’s objection, the court
reasoned, was too late, because it was filed “effectively after the speedy trial period had expired,
since the trial could not have immediately begun.” Id. at 200. The Austin court interpreted CrR
3.3 to hold that in such situations, when trial is set or reset with fewer than 10 days before the
expiration of time for trial, the defense must object “in sufficient time for the trial to commence
within the proper speedy trial period.” Id. at 200. Otherwise, the time for trial objection is
waived.5 Id. at 200.
But Austin exceeds the plain meaning of CrR 3.3, which first provides that “[i]t shall be
the responsibility of the court” to ensure a timely trial. CrR 3.3(a)(1). CrR 3.3(d)(3) does not
4
WASHINGTON COURTS TIME–FOR–TRIAL TASK FORCE, FINAL REPORT B I. at ¶ 6
(Oct. 2002) (on file with Admin. Office of the Courts), available at http://www.courts.
wa.gov/programs_orgs/pos_tft (last visited April 5, 2021).
5
Austin was decided under former CrR 3.3(f)(2) (1986), but the operative language regarding
the 10-day rule is the same as the current CrR 3.3 (d)(3).
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No. 53646-3-II
state or imply that this responsibility changes when a trial date is set during the last 10 days
before the expiration of the time for trial period. The implied waiver rule under Austin punishes
unwitting defendants and unfairly relieves the court of its responsibility to ensure a timely trial is
held. In Austin, the defendant moved at his first opportunity.
We disagree with Austin because it places the burden and responsibility on the defendant
to ensure a timely trial where the rule expressly states otherwise. Thus, the State’s argument that
Walker waived her time for trial objection based merely on the timing of the objection fails.
B. Duty To Advise the Tribunal of Known Time for Trial Violation
The State next argues that under State v. Malone, 72 Wn. App. 429, 864 P.2d 990, 994
(1994), and State v. White, 94 Wn. 2d. 498, 617 P.2d 998 (1980), Walker’s knowing and
deliberate failure to advise the tribunal of the time for trial violation at the time the trial date was
set constitutes a waiver of her objection. The State argues that Walker’s statements at the June
26 hearings prove that defense counsel knew of the time for trial violation when the trial date
was set on May 30. Walker urges this court to not follow Malone, and alternatively argues that
whether counsel knew of the time for trial violation is a question of fact for the trial court, and
the trial court made no such finding. We agree with the State and hold that where a defense
attorney knows of and fails to timely advise the trial court of a speedy trial violation, the
objection is waived.
Although ultimate responsibility for ensuring compliance with the time for trial rule is
with the trial court, primary responsibility for bringing the defendant to trial within the time for
trial period is with the State. State v. Wilks, 85 Wn. App. 303, 309, 932 P.2d 687, review denied,
133 Wn.2d 1002, 943 P.2d 663 (1997). A defense attorney has a duty to protect a client’s right
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No. 53646-3-II
to a speedy trial. Malone, 72 Wn. App. at 433-34. “A defendant has no duty to bring himself to
trial,” Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), but defense
counsel does bear some responsibility to assert the client’s speedy trial rights and to assure
compliance before the time for trial period expires. State v. Carson, 128 Wn.2d 805, 815, 912
P.2d 1016 (1998).
If at any point before the time for trial period expires defense counsel becomes aware that
the trial date has been set in violation of time for trial rules, defense counsel has a duty as an
officer of the court to so advise the court. White, 94 Wn.2d. at 502-03; Malone, 72 Wn. App. at
435. Additionally, defense counsel has an affirmative duty to “investigate those easily
ascertainable facts that are relevant to setting the trial date within the speedy trial period.”
Malone, 72 Wn. App. at 435. Failure to uphold these duties constitutes a waiver. Id. at 435-36.
In White, our Supreme Court affirmed dismissal of a rape conviction when the trial date
was erroneously set beyond the time for trial period and there was no indication defense counsel
was aware of the time for trial violation when he failed to object. 94 Wn.2d at 503. The case in
White was dismissed even though defense counsel did not inform the court at the trial setting that
the date was six days beyond the speedy trial period. 94 Wn.2d at 498, 502. The White court
reasoned that although an attorney’s primary duty is to serve the client, an attorney is also an
officer of the court, where he owes a duty of frankness and honesty under the Rules of
Professional Conduct. 94 Wn.2d at 502. White explains that “[t]he selection of a proper trial
date is a mutual task with ultimate responsibility in the court.” 94 Wn.2d at 502. The White
court addressed the apparent discord between defense counsel’s duty to the client to obtain the
best outcome for the client and counsel’s duty as an officer of the court to not delay an objection
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No. 53646-3-II
because “counsel best serves both his client and the adversary system by assuring compliance
with the rule when trial dates are set.” 94 Wn.2d at 502.
The White court explained that “[i]f at the trial setting defendant’s counsel was aware that
the trial date fixed was beyond the 60-day limit, he had a duty to so advise the court.” White, 94
Wn.2d 502-03. In affirming dismissal for White, our Supreme Court explained that defense
counsel’s knowledge of the error was germane to its holding: “Had we any indication counsel
was in any way attempting to mislead the court or, in this instance that he recognized the court
had fixed an erroneous date and remained silent, our view would be different.” 94 Wn.2d at 503.
Malone, drawing from the shared duty of the court and counsel, expands on the notion
that an attorney has a duty to inform the court of known errors in setting the trial date to include
an affirmative duty to investigate “easily ascertainable facts” relevant to such an error. 72 Wn.
App. at 435. In Malone, the trial court set the trial date beyond the time for trial limit. 72 Wn.
App. at 432. The record was silent as to when defense counsel learned of this error, but the
parties did not dispute that the information relating to the amount of time elapsed was easily
available to counsel. 72 Wn. App. at 434. Division One of this court held that, because the
defense counsel’s objection was untimely, the objection was waived, reasoning that “[j]ust as
defense counsel cannot wait to object to a known speedy trial violation until after the speedy trial
period expires, defense counsel cannot wait to investigate easily ascertainable facts relevant to
setting the correct trial date until after the speedy trial period expires.” 72 Wn. App. at 435.
Here, the trial court erroneously concluded that defense counsel’s knowledge of the time
for trial violation was not germane to its decision to dismiss. Because the trial court relied on
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this erroneous conclusion of law to make its decision, we hold that the trial court erred when it
granted Walker’s motion to dismiss with prejudice.
Walker argues that the record does not support a finding that defense counsel knew on
May 30 that the trial date was beyond the time for trial limit. We disagree. Although the trial
court made no specific finding of fact about what defense counsel knew, defense counsel’s
statements at the June 26 hearing are sufficiently clear for us to determine counsel’s knowledge
on May 30. Defense counsel stated that when he said, “I’ll be here,” in response to the trial court
setting the erroneous trial date, he deliberately did not offer an express agreement to the trial date
and that this was as a tactic to inhibit the State’s ability to cure the error. Defense counsel stated
that he was allowed to wait to object until after the time for trial rule violation became incurable,
and that is what “[he] did.” This is a plain admission that he knew on May 30 that the trial date
was improper.
Defense counsel’s failure to notify the trial court of the violation constitutes a waiver of
the sort described in White. We agree with Malone that if defense counsel knows or should have
known from easily ascertainable facts of a time for trial violation before the speedy trial period
expires, he has a duty to raise the issue before the period expires to avoid waiver. Therefore, we
hold that the facts clearly support that defense counsel knew of the time for trial rule violation
and waived the objection by not raising the issue with the trial court.
CONCLUSION
In conclusion, we disagree that Austin controls here because it is the trial court’s
responsibility to conduct a timely trial. However, the record here shows that Walker’s counsel
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No. 53646-3-II
knowingly delayed objecting to the time for trial error, and thus waived Walker’s objection.
Consequently, the trial erred when it granted Walker’s motion to dismiss. We reverse and
remand.
_____________________________
Worswick, J.
We concur:
_________________________________
Lee, C.J.
_________________________________
Glasgow, J.
13