State of Washington v. Jarrod E. Veilleux ( 2014 )

FILED
AUG 12,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31480-4-III
Respondent, )
)
v. )
)
JARROD VEILLEUX, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Jarrod Veilleux appeals his conviction for unlawful possession of a
fireann, arguing that he was denied a timely trial and that the court should have given a
mitigated exceptional sentence. We affirm.
FACTS
Mr. Veilleux, who was on parole from the state of Montana, visited a tavern in
Spokane Valley with a friend, Terrance Riley, on February 24, 2012. Mr. Veilleux, who
was not allowed to possess any guns, carried a gun in his waistband. An altercation later
developed and Mr. Veilleux shot Aaron Haymond.
Charges of attempted first degree murder, first degree assault, and first degree
unlawful possession of a fireann were filed against Mr. Veilleux, while Mr. Riley was
charged with first degree rendering criminal assistance. An arrest warrant was issued for
No. 31480-4-111
State v. Veilleux
Mr. Veilleux on April 9, 2012. The warrant noted that Mr. Veilleux was in prison in
Montana.
Mr. Veilleux was returned to Spokane County and arraigned on July 12,2012.
His trial date was initially set for September 4,2012, but was re-set to September 10, at a
pre-trial hearing. Riley's counsel moved to continue the trial as he was in trial on another
case before Judge Eitzen, who ultimately was assigned to the Veilleux and Riley trial.
Veilleux's counsel objected, arguing that her expert witness could appear less
expensively in September before the college school year started up. She requested that
the court sever the cases and retain the September 10, trial date. The prosecutor argued
against severance, noting that he had 24 witnesses who would then be subjected to two
trials instead of one and that the pre-school discount for one witness paled in comparison
to the additional costs to the court and prosecutor. The court denied severance and set the
joint trials for October 8.
Mr. Veilleux's counsel sought to continue trial from October 8 to October 10, but
a State's witness had a vacation schedule conflict starting October 12, so the court found
good cause to continue the case and re-scheduled trial for November 5. The defense
expert had a conflict with the new trial date and Mr. Veilleux's counsel sought an
additional continuance. The court found good cause to continue the case and set trial for
November 26. The prosecutor learned that a witness would be unavailable for that date
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and sought a continuance to January 7, 2013. The court again found good cause for the
continuance and granted the extension over defense objection.
Jury trial began January 7. The defense conceded the unlawful possession charge,
but raised self-defense and lawful use of force defenses to the remaining counts. The jury
subsequently acquitted Mr. Veilleux on the attempted murder and assault charges, but
convicted him on the unlawful possession charge. Mr. Riley also was acquitted.
The trial court imposed a top-end sentence of 116-months on the unlawful
possession conviction despite a defense request for an exceptional sentence below the
standard range, and declined to reduce the sentence after hearing a defense motion for
reconsideration. The court reasoned that Mr. Veilleux had violated his parole by leaving
Montana, going to a bar, and possessing the gun. Mr. Veilleux then timely appealed to
this court.
ANALYSIS
Mr. Veilleux argues that the trial continuances violated his right to a timely trial
under erR 3.3 and his constitutional right to a speedy trial. He also contends that the
court erred in not granting him a mitigated sentence. We will address those contentions
in the order stated.
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CrR 3.3
Mr. Veilleux argues initially that his time for trial rights were violated by the
continuances of the initial trial date rather than severing the defendants. As the trial court
properly found good cause to grant the continuances, this argument is without merit.
erR 3.3 requires trial within 60 days of arraignment for defendants who are
detained on the current charges, while requiring trial within 90 days for all others,
including those held in custody on unrelated matters. erR 3.3(a)(3)(v); erR 3.3(b)(1),
(2). When a trial is continued in accordance with erR 3.3(f)(2), the effect of the
continuance is to exclude the period of the continuance from the time for trial
period. erR 3.3( e)(3).1 The decision to grant or deny a continuance is reviewed for
abuse of discretion. State v. Ollivier, 178 Wn.2d 813, 822-23,312 P.3d 1 (2013).
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Mr. Veilleux primarily argues that the trial court erred in continuing the cases
from the September 10 trial date to October 8 in order to keep the two defendants joined.
As Mr. Veilleux was in custody in Montana, the 90 day time for trial period applied to his
case. erR 3.3(a)(3)(v). Since he had been arraigned on July 12, trial was required to be
held by October 10,2012. Thus, even if the court had erred in granting severance and
I When there is an excluded period, the time for trial does not expire until 30 days
after the end of the excluded period. erR 3.3(b)(5). This is colloquially known as a
"buffer" period.
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continuing the trial from the September 10th date, there was no violation of the rule
because the new October 8th trial date was still set within the original 90-day period.
Mr. Veilleux's argument is of no consequence. 2
His real complaint is with the ensuing continuances, although he quite
understandably does not take issue with them, particularly since two of them were at
defense request. 3 Continuances in order to obtain a witness for trial or to accommodate
a witness or attorney's vacation are long recognized as valid under CrR 3.3. E.g.,
Torres, 111 Wn. App. at 331; State v. Selam, 97 Wn. App. 140, 143,982 P.2d 679(1999); State v. Grilley, 67 Wn. App. 795, 799, 840 P.2d 903 (1992). Since each of the
continuances beyond the original trial date were for the valid purpose of obtaining or
accommodating witness schedules, there was no abuse of discretion.
Mr. Veilleux received a timely trial under CrR 3.3.
Constitutional Speedy Trial
Mr. Veilleux also contends that his constitutionally guaranteed right to a speedy
trial was also violated. Since he was tried within six months of his arraignment, he has
failed to articulate a constitutional speedy trial claim.
2 Joinder of defendants and maintaining joinder of defendants are valid bases for
continuing a case. State v. Torres, 111 Wn. App. 323, 332, 44 P.3d 903 (2002). Thus, the
court did not err in granting the continuance and denying severance.
3 The continuance rule concludes with this observation: "The bringing of such
motion by or on behalf of any party waives that party's objection to the requested delay."
CrR 3.3(f)(2) (final sentence).
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Both the Sixth Amendment and article I, section 22 of the Washington
Constitution provide a right to a speedy trial. The rights provided by the two
constitutions are equivalent. State v. Iniguez, 167 Wn.2d 273,290,217 P.3d 768 (2009).
We review de novo an allegation that these rights have been violated. Id. at 280.
Because some delay is both necessary and inevitable, the appellant bears the burden of
demonstrating that the delay between the initial accusation and the trial was unreasonable
and created a "presumptively prejudicial" delay. Id. at 283. Once this showing is made,
courts must consider several nonexclusive factors in order to determine whether the
appellant's constitutional speedy trial rights were violated. Id. These factors include the
length and reason for the delay, whether the defendant has asserted his right, and the
ways in which the delay caused prejudice. Barker v. Wingo, 407 U.S. 514, 530,
92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). None of the Barker factors are either sufficient
or necessary to demonstrate a constitutional violation. Iniguez, 167 Wn.2d at 283.
A delay of less than 8 to 12 months will seldom even present a constitutional
question. Id. at 291-93. The more limited delay at issue here is not enough to raise a
claim of presumptive prejudice and there is no need to even conduct an analysis of the
other factors. Id. at 282-83. Our Supreme Court has expressly rejected any formulaic
presumption that leads to a threshold showing of presumptive prejudice; rather, it has
stated that this inquiry is necessarily dependent upon the specific circumstances of each
case. Id. at 283. Several factors to be considered in this initial inquiry include not only
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the length of the delay, but the complexity of the charges and reliance on eyewitness
testimony. Id. at 292.
Those factors suggest a much lengthier delay in this case would have been
justified under the constitutions. The State listed 24 witnesses, and the defense would
need to interview many of those people. The defense also had its own witnesses,
including an important expert, and had to develop its self-defense case. As the charges
included attempted first degree murder, this was not a simple case to prepare. It is
impressive that the parties were able to bring the matter to a jury as rapidly as they did.
Mr. Veilleux has not established that there was a significantly long delay to justify
an inquiry into the constitutional speedy trial rights. Accordingly, there was no violation
of either constitutional speedy trial guarantee.
Sentencing
Lastly, both appellate counsel and Mr. Veilleux, in his Statement of Additional
Grounds (SAG), claim that the court erred in not granting him a mitigated sentence. 4
Appellant presents no reviewable issue for our consideration.
The general rule is that a standard range sentence cannot be appealed.
RCW 9.94A.585(1). Accordingly, when the trial court declines to impose an exceptional
4 The SAG also raises a claim, without adequate supporting argument, that the
officers improperly communicated with each other during trial. The claim presents no
basis for relief. We also note that since he was acquitted on the other counts and
admitted his guilt on the unlawful possession charge, he could not possibly have been
prejudiced by any trial errors.
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sentence, the only available method of attacking that decision is to establish that the
trial court failed to do something it was required to do at sentencing. State v. Mail,
121 Wn.2d 707,712,854 P.2d 1042 (1993). A defendant may also challenge the trial
court's usage of an impermissible basis for refusing an exceptional sentence.
State v. Garcia-Martinez, 88 Wn. App. 322, 329-30, 944 P.2d 1104 (1997).
Here, Mr. Veilleux has not identified any required procedures that the sentencing
judge failed to follow. She considered, and ultimately rejected, his request for a
mitigated sentence. She similarly considered, and again rejected, his request that she
reconsider the sentence. He simply presented insufficient grounds for an exceptional
sentence.
Mr. Veilleux has not presented any basis for challenging the standard range
sentence imposed in this case. This argument, too, is without merit.
The conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Brown, J.
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