In Re The Detention Of: Joel S. Reimer ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
November 19, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of No. 51557-1-II
JOEL S. REIMER.
UNPUBLISHED OPINION
WORSWICK, J. — Joel Reimer appeals the trial court’s order denying his CR 59 motion
for a new trial and his CR 60 motion for relief based on various ineffective assistance of counsel
claims.1 Because neither motion was timely, we affirm the trial court’s order denying Reimer’s
motions.
FACTS
In 1992, a jury found Reimer to be a sexually violent predator (SVP), and the trial court
committed him to the Special Commitment Center (SCC). After 22 years, Reimer was granted
an unconditional discharge trial. The jury found that the State had proved beyond a reasonable
doubt that Reimer continued to be an SVP. Based on the jury’s verdict, the trial court entered an
order of commitment on October 27, 2016, ordering Reimer to remain committed at the SCC.
1
Reimer also argues that his due process rights were violated when he was denied access to his
legal files and records at the SCC. But Reimer failed to raise this issue at trial and has therefore,
failed to preserve it for appeal. “Generally, a defendant waives any issues he did not raise in the
trial court.” State v. Knotek, 136 Wash. App. 412, 422, 149 P.3d 676 (2006); RAP 2.5. Moreover,
Reimer’s claim is not supported by facts in the trial record. The facts he cites in his appellate
brief are from pro se motions that were made after his commitment trial. A personal restraint
petition is the proper avenue for Reimer to raise issues that require consideration of evidence and
facts not within the existing trial record. State v. Linville, 191 Wash. 2d 513, 525, 423 P.3d 842
(2018).
No. 51557-1-II
On November 4, 2016, Reimer filed a CR 59 motion for reconsideration of his motion for
a mistrial, which he had made during the trial, and for a new trial. Reimer based his motion on
(1) the State’s alleged violation of a motion in limine regarding impeachment of expert
witnesses, and (2) the alleged violation of Reimer’s right to be present at trial on October 20.
The trial court denied Reimer’s motion.2
On November 22, 2016, Reimer’s trial counsel filed a motion to withdraw due to a
complete breakdown of communication. The trial court granted the motion to withdraw on
December 5. Newly appointed counsel filed a notice of appearance on January 9, 2017.
On October 23, 2017, Reimer, through counsel, filed a “Restated Motion for New Trial”
under CR 59. Clerk’s Papers at 28 (capitalization omitted). The restated motion raised several
claims of ineffective assistance of Reimer’s original trial counsel based on several pro se
motions, which were not previously considered by the trial court because Reimer was
represented.
At a hearing on the restated motion, the trial court acknowledged that the motion for a
new trial is a creature of the court rule and ruled that the motion was “obviously well outside” of
the 10-day time limit for a CR 59 motion. Verbatim Report of Proceedings (Oct. 25, 2017) at 11.
The trial court further ruled that Reimer’s ineffective assistance counsel claims were more
properly the subject of an appeal or personal restraint petition. Accordingly, the trial court
denied Reimer’s restated motion for a new trial.
2
Reimer filed a notice of direct appeal to this court. This court considered the trial court’s order
of commitment as well as the order denying Reimer’s CR 59 motion, and issued its opinion
affirming Reimer’s commitment on December 18, 2018.
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No. 51557-1-II
Reimer subsequently filed a motion for reconsideration and/or to vacate the trial court’s
October 2016 order of commitment under CR 60(b)(1) and (11), which the trial court denied.
Reimer appeals the trial court’s orders denying his restated motion for new trial and his
motion for reconsideration.
ANALYSIS
I. CR 59
Reimer argues that the trial court erred by denying his restated CR 59 motion for a new
trial. Because Reimer’s restated motion was untimely, we disagree.
The decision to deny a new trial under CR 59 will not be reversed absent a strong
showing of abuse of discretion.3 Fritsch v. J.J. Newberry’s, Inc., 43 Wash. App. 904, 905, 720
P.2d 845 (1986). And motions for reconsideration under CR 59 are best left to the sound
discretion of the trial court and are also not reversed absent a showing of manifest abuse of
discretion. Wilcox v. Lexington Eye Inst., 130 Wash. App. 234, 241, 122 P.3d 729 (2005). A trial
court abuses its discretion when its decision is manifestly unreasonable or made on untenable
grounds or for untenable reasons. Mayer v. Sto Indus., Inc., 156 Wash. 2d 677, 684, 132 P.3d 115
(2006). A trial court necessarily abuses its discretion if it bases its ruling on an erroneous view
of the law. Mayer, 156 Wash. 2d at 684.
3
Reimer urges this court to review the denial of his CR 59 and 60 motions de novo. But it is
well established that we review a trial court’s decision on such motions for a manifest abuse of
discretion.
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No. 51557-1-II
CR 59(b) provides that a motion for a new trial be filed within 10 days after the entry of
the judgment, and the motion must “identify the specific reasons in fact and law as to each
ground on which the motion is based.”4 And a trial court may not extend the time period for
filing a motion under CR 59(b). CR 6(b).
Reimer failed to specify the legal bases for his motion as required by CR 59(a). More
importantly, Reimer failed to comply with the time requirement of CR 59(b). The trial court
entered the order of commitment on October 27, 2016, and Reimer did not file his restated
motion until nearly a year later on October 23, 2017, well after the 10-day time limit imposed by
the rule.
Reimer argues that the trial court erred by denying his motion as untimely “because the
initial motion for a new trial was timely filed and the trial court denied the initial motion without
prejudice for newly appointed counsel to renew it.” Br. of Appellant 5-6. That the original
motion was denied without prejudice does not free Reimer from the time restraints of the rule.
“A judgment without prejudice is the same as a judgment with prejudice in the sense that it
entirely disposes of the present action.” Rose v. Fritz, 104 Wash. App. 116, 121, 15 P.3d 1062
(2001). But Reimer cites to no law that allows a trial court to extend the 10-day time limit to file
a motion for new trial. Indeed, CR 6(b) prohibits a trial court from extending the time to take an
4
CR 59 authorizes the trial court to order a new trial based on (1) irregularities in the
proceedings of the court, (2) misconduct of the prevailing party or jury, (3) an accident or
surprise, (4) newly discovered evidence, (5) excessive or inadequate damages, (6) an error in the
assessment of the amount of recovery, (7) no evidence justifying the verdict or decision, (8) an
error in law at trial that was objected to at the time, or (9) substantial justice not being done.
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No. 51557-1-II
action under CR 59(b). Accordingly, we hold that the trial court did not abuse its discretion by
denying Reimer’s CR 59 motion as untimely.
II. CR 60
Reimer also argues that the trial court erred by denying his CR 60 motion for relief. We
disagree.
We also review a trial court’s denial of a CR 60(b) motion for manifest abuse of
discretion. Haley v. Highland, 142 Wash. 2d 135, 156, 12 P.3d 119 (2000). Unlike an appeal, a
CR 60(b) motion is not a means of correcting errors of law. Burlingame v. Consol. Mines and
Smelting Co., 106 Wash. 2d 328, 336, 772 P.2d 67 (1986). Accordingly, when a party appeals the
trial court’s denial of a CR 60(b) motion, we review only the trial court’s decision to deny the
motion—not the underlying order that the party seeks to vacate. Bjurstrom v. Campbell, 27 Wn.
App. 449, 450-51, 618 P.2d 533 (1980).
CR 60(b) allows a trial court to vacate a final judgment or order for specified reasons
such as mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. Reimer
based his motion on CR 60(b)(1), which authorizes a trial court to vacate a judgment for
“[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or
order,” and CR 60(b)(l1), which authorizes a trial court to vacate a judgment for “[a]ny other
reason justifying relief from the operation of the judgment.” CR 60(b)(11) is “a catchall
provision, intended to serve the ends of justice in extreme, unexpected situations.” In re Det. of
Ward, 125 Wash. App. 374, 379, 104 P.3d 751 (2005). Relief under CR 60(b)(11) is limited to
“extraordinary circumstances” relating to “irregularities extraneous to the action of the court or
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No. 51557-1-II
questions concerning the regularity of the court’s proceedings.” In re Marriage of Yearout, 41
Wash. App. 897, 902, 707 P.2d 1367 (1985).
A party seeking relief under CR 60(b) must make the motion within a reasonable time.
CR 60(b). If the party does not move within a reasonable time, he is barred from relief under CR
60(b). Ward, 125 Wash. App. at 380. The major considerations in determining the timeliness of a
CR 60(b) motion are (1) whether the delay prejudiced the nonmoving party, and (2) whether the
moving party has good reasons for failing to bring the motion earlier. Luckett v. Boeing Co., 98
Wash. App. 307, 312, 989 P.2d 1144 (1999). The second consideration weighs strongly against
Reimer. When appealing from a trial court’s ruling that the CR 60(b) motion was untimely, the
moving party must show good reasons explaining the delay—even if there was no prejudice to
the nonmoving party. Luckett, 98 Wash. App. at 313.
Here, Reimer contends that his delay in filing his CR 60 motion was reasonable because
it was filed shortly after counsel was appointed. However, the record does not support Reimer’s
contention. Although Reimer claims that counsel was not appointed for nearly a year following
the entry of his commitment order, the record shows that counsel filed a notice of appearance on
January 9, 2017, 10 months before Reimer filed his CR 60 motion. Reimer gives no explanation
as to why the motion could not have been filed within a reasonable time after counsel appeared
on his case. Because Reimer failed to file his CR 60 motion within a reasonable time, we hold
that the trial court did not abuse its discretion by denying his motion.
Accordingly, we affirm the trial court’s denial of Reimer’s CR 59 and 60 motions.
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No. 51557-1-II
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 in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Lee, A.C.J.
Melnick, J.
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