State of Washington v. Santiago Vasquez ( 2020 )

FILED
MARCH 26, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36550-6-III
Respondent, )
)
v. )
)
SANTIAGO VASQUEZ, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. —Santiago Vasquez appeals from the judgment and sentence imposed
for his Douglas County convictions for attempting to elude a pursuing police vehicle, first
degree unlawful possession of a firearm, and two counts of possession of controlled
substances. He contends, and the State concedes, that remand is necessary to strike the
requirement to pay supervision fees as determined by the Department of Corrections, and
the interest accrual provision on legal financial obligations. We agree. We reject
Vasquez’s contentions raised in a statement of additional grounds for review.
FACTS AND PROCEDURE
In light of the limited issues raised by counsel, the facts leading to Santiago
Vasquez’s convictions lack importance. After the jury found him guilty of the eluding,
unlawful firearm possession, and drug charges, the court imposed concurrent sentences
totaling 87 months in prison and 12 months of community custody. In preprinted
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language, the judgment and sentence orders Vasquez to “pay supervision fees as
determined by DOC.” Clerk’s Papers (CP) at 58. The court found Vasquez indigent and
imposed a $500 victim penalty assessment, the only fee requested by the State. A
boilerplate paragraph in section 4.3 of the judgment and sentence requires accrual of
interest on all legal financial obligations:
The financial obligations imposed in this judgment shall bear interest from
the date of the judgment until payment in full, at the rate applicable to civil
judgments. RCW 10.82.090.
CP at 61. The sentencing court imposed no restitution.
ANALYSIS
Santiago Vasquez contends the DOC supervision fee and interest accrual provision
must be struck from his judgment and sentence based on State v. Ramirez, 191 Wash. 2d
732, 426 P.3d 714 (2018). The State concedes. We agree.
House Bill 1783, which became effective June 7, 2018, prohibits trial courts from
imposing discretionary legal financial obligations on defendants who are indigent at the
time of sentencing. LAWS OF 2018, ch. 269, § 6(3); State v. Ramirez, 191 Wash. 2d at 746.
Ramirez held that the amendment applies prospectively and is applicable to cases pending
on direct review and not final when the amendment was enacted. State v. Ramirez, 191
Wash. 2d at 747. Among the changes was an amendment to RCW 10.82.090(1) to provide
that “[a]s of June 7, 2018, no interest shall accrue on nonrestitution legal financial
obligations.” LAWS OF 2018, ch. 269, §§ 1, 17(2)(h), 18. Costs of community custody
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are also discretionary, as provided in RCW 9.94A.703(2)(d). Unless waived by the court,
the court shall order an offender to pay supervision fees as determined by the department.
State v. Lundstrom, 6 Wn. App.2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied,
193 Wash. 2d 1007 (2019).
Santiago Vasquez’s case is controlled by Ramirez. He was indigent throughout
the trial court proceedings and remains indigent on appeal. The State concedes that the
judgment language requiring interest on his legal financial obligations is error, and that
the supervision fee is a discretionary one that the trial court did not intend to impose.
Accordingly, the DOC supervision fee and interest accrual provision on Vasquez’s
financial obligations should be struck pursuant to Ramirez. Given that the corrections
will involve no exercise of the court’s discretion, Vasquez’s presence is not required. See
State v. Ramos, 171 Wash. 2d 46, 48, 246 P.3d 811 (2011).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Santiago Vasquez has filed a statement of additional grounds that raises two
grounds for review.
In ground one, Santiago Vasquez contends his rights to due process and a speedy
trial were violated because he did not receive a timely preliminary appearance and
arraignment after his arrest in Douglas County on September 7, 2018, and his trial did not
occur within the sixty day speedy trial period. He explains that, on his arrest, he was
immediately transported to the Chelan County Jail, instead of the Okanogan County Jail
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where Douglas County houses its prisoners on a contract, and that he did not receive a
preliminary hearing until October 3, 2018. He contends that, had he been correctly
processed, he would have been timely arraigned from the Okanogan County Jail within
the seventy-two hours allotted by due process rights. We disagree.
The State of Washington filed the charging information against Santiago Vasquez
on October 3, 2018, and he made his preliminary appearance on that date. The court
determined probable cause, set bail, and appointed counsel for Vasquez. He was
arraigned on an amended information on October 15, 2018. At arraignment, the speedy
trial date was determined to be December 14, and trial was tentatively set for November
1. Defense counsel, Nick Yedinak, provisionally objected on the basis he was
researching the accurate arraignment date based on due process concerns raised
personally by Vasquez that his preliminary hearing was untimely.
On October 29, 2018, Nick Yedinak requested to continue the trial to November 5
so Santiago Vasquez could consider a plea offer from the State. Yedinak again expressed
Vasquez’s due process concerns, but told the court he perceived no violation. The court
continued trial to December 13 because it would not have a jury on November 5, and
Yedinak was unavailable for a November 15 trial setting. There was no objection.
In a November 5, 2018 status hearing, Nick Yedinak told the court the county
prosecutor had informed him that Vasquez was arrested on a DOC warrant when he was
apprehended for the current crimes on September 7. He then served a 25-day DOC jail
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sanction in the Chelan County Jail before receiving his preliminary hearing on the current
charges. Yedinak said he considered this a violation of the timely first appearance rule
under 3.2.1(d), but not a speedy trial concern. The State disagreed with any violation.
The trial court stated it would entertain a speedy trial issue if a motion was filed, but the
trial would proceed. Vasquez did not file a speedy trial motion. The case proceeded to
trial on December 13. Yedinak renewed Vasquez’s objection to the untimely preliminary
appearance and moved for dismissal. The court denied the motion on the basis the trial
was within the speedy trial period.
CrR 3.2.1(d) requires that a defendant detained in jail be brought before the court
for a preliminary appearance before the close of the business on the next court day after
the detention was commenced. CrR 3.2.1(f) provides for a 72-hour time limit, exclusive
of weekend days and holidays, for detaining the accused in jail unless an information is
filed. CrR 4.1(a) requires that a defendant detained in jail be arraigned not later than
fourteen days after the information is filed. If a party objects to the arraignment date, the
court must establish and announce the proper date of arraignment and that date shall
constitute the arraignment date for purposes of CrR 3.3. Id. If a party fails to object, the
arraignment date shall be conclusively established as the date the defendant was actually
arraigned. CrR 4.1(b). Under Cr 3.3(c)(1), the initial speedy trial commencement date is
the date of arraignment as determined under CrR 4.1.
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Although Santiago Vasquez was arrested on September 7, 2018, the only
indication in our record is that he was arrested on a DOC warrant and served a 25-day jail
sanction ending October 2. The current charges were filed on October 3, and Vasquez
received his preliminary appearance that day. He was arraigned on October 15. Nick
Yedinak ultimately found no grounds to challenge the arraignment date or the December
14 speedy trial date. Continuances of the original November 1 trial date were at defense
request and by the court for administrative reasons. Both were proper under CrR
3.3(f)(2). Vasquez did not object to resetting the trial to December 13, and he did not file
a speedy trial motion. He did not preserve a speedy trial claim. CrR 3.3(d)(2).
With respect to the timing of Santiago Vasquez’s preliminary appearance, the rule
itself does not contemplate dismissal as a remedy for a violation—only release from
custody. CrR 3.2.1(f). At best, caselaw indicates that a speedy appearance violation
merely starts the sixty day CrR 3.3 speedy trial time period running at the time the
defendant should have received a preliminary appearance. See State v. Lewis, 19 Wn.
App. 35, 45, 573 P.2d 1347, 1353 (1978); State v. Stanmore, 17 Wash. App. 61, 562 P.2d
251 (1977). Nevertheless, our record does not show that Vasquez was not detained and
charged for the current crimes until October 3, the date he also received his preliminary
appearance. He shows no violation. In any event, even if he was detained on the current
criminal charges on September 7 and should have received a preliminary appearance the
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next day, his initial November 1 trial setting was still within sixty days. As discussed,
continuances thereafter did not implicate his speedy trial rights.
In ground two, Santiago Vasquez contends he received ineffective assistance of
counsel from Nick Yedinak. He claims Yedinak failed to preserve his speedy trial rights,
showed no interest in the case, and failed to communicate or consult with him enough
times to set up a plausible defense. We have reviewed the record and find no deficient
performance by counsel under the standards in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Vasquez shows no grounds for relief.
We remand to strike the community supervision fees and interest accrual provision
in the judgment and sentence. We otherwise affirm the judgment and sentence.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________ _________________________________
Siddoway, J. Pennell, C.J.
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