2020-10

Cimone Silverio Bastos v. Dean Scott Drago ( 2020 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CIMONE SILVERIO DE BASTOS,
DIVISION ONE
Respondent,
No. 80592-4-I
v.
UNPUBLISHED OPINION
DEAN SCOTT DRAGO,
Appellant.
LEACH, J. — Dean Drago appeals a domestic violence protection order
entered against him for his former wife Cimone Bastos and her two children, which
includes the parties’ ten-year-old son. Drago claims the trial court should have
granted his request for a continuance to obtain an attorney. He argues he had a
fundamental right to a continuance to obtain an attorney under article 1, section 10
of the Washington State Constitution. But, his request for continuance was
confusing, and he ultimately indicated he wished to proceed with the hearing.
Drago fails to show a violation of article 1, section 10 or an abuse of discretion in
the trial court’s decision to proceed with the hearing.1 We affirm.
1
Counsel for Drago did not serve Bastos with filings in this court at her
address disclosed in trial court. On September 4, 2020, after this case had been
set for consideration, Bastos filed a notice of appearance and a declaration
informing this court she had not been served and was not aware of this appeal
until August 31, 2020. By ruling of September 8, 2020, this court directed Drago’s
counsel to serve all appellant’s filings on appeal on Bastos at the address provided
in her notice of appearance. In light of the outcome of this appeal, we determined
a response brief from Bastos was unnecessary.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80592-4-I/2
FACTS
Bastos and Drago met in Brazil. They have a ten-year-old son together. At
the time of entry of the protection order at issue, they had just divorced.
Drago has a history of serious assault against Bastos. In November 2008,
Drago, then 49 years old, pleaded guilty to felony second degree assault domestic
violence committed against Bastos who was then 22 years old. According to the
certification for determination of probable cause, Drago physically and sexually
assaulted Bastos and strangled her into unconsciousness. His judgment and
sentence included a no-contact order to protect Bastos for 10 years. The
protection order expired on December 12, 2018.
On August 28, 2019, Bastos filed a petition for a domestic violence
protection order against Drago in King County Superior Court. Bastos later filed
an amended petition. But the amended petition, which was expressly considered
by the trial court for its decision, is not in the record because Drago did not
designate it as part of the record on review. 2 In her original petition, Bastos alleged
Drago had been stalking her and that he called and threatened to kill her fiancé
the day before the filing of her petition threatening her fiancé was “dead.” On
August 28, 2019, the trial court entered a temporary protection order and set a
hearing for September 11, 2019.3
2
The trial court docket also shows a declaration filed by Bastos and a
Renton Police report. The police report was mentioned by the trial court at hearing.
These documents are not in the record provided by Drago.
3
The trial court later issued an order modifying the temporary protection
order. The modified order is not in the record provided by Drago. Drago does not
cite the Domestic Violence Prevention Act chapter 26.50 RCW under which the
protection order was issued nor does he cite to case law under the act.
2
No. 80592-4-I/3
On September 11, 2019, the court conducted a hearing with a Portuguese
language interpreter. Both Bastos and Drago appeared pro se. It appears Bastos
requested the interpreter. Drago questioned the need for the interpreter stating he
understood “perfect English.” At the hearing, both parties presented conflicting
testimony about what had happened. After the hearing, the court entered a one
year domestic violence protection order against Drago that protects Bastos, the
parties’ ten-year-old son, and Bastos’ younger daughter she has with her fiancé.
The protection order suspended the parties’ parenting plan while providing for four
hours per week of supervised visitation with professional supervision to be
obtained at Drago’s expense.
ANALYSIS
Drago argues the domestic violence protection order should be reversed
because the trial court erred in denying his request for a continuance to obtain an
attorney. He contends he had a fundamental right to a continuance to obtain an
attorney under article 1, section 10 of the Washington State Constitution and that
the trial court abused its discretion in denying a continuance. Drago fails to show
a violation of article 1, section 10 or an abuse of discretion.
First, Drago fails to show he had a fundamental right to a continuance, in
order to obtain an attorney, in this case under article 1, section 10 of the
Washington State Constitution, which provides: “Justice in all cases shall be
administered openly, and without unnecessary delay.” None of the cases relied
3
No. 80592-4-I/4
on by Drago mandates a continuance to secure an attorney in a civil case.4
Second, Drago fails to show an abuse of discretion in the trial court’s
decision to proceed with the hearing after he requested a continuance. Drago
acknowledges whether to grant or deny a motion to continue a trial or a hearing is
within the trial court’s sound discretion.5 The trial court’s discretionary ruling will
not be disturbed on review absent “a clear showing of abuse of discretion, that is,
discretion manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.”6 Drago argues the trial court should have continued the
hearing because he repeatedly requested an attorney and expressed confusion
about what was happening. He argues a continuance would not have prejudiced
Bastos because the court could have simply extended the temporary protection
order. He argues the hearing without a continuance to obtain an attorney resulted
in “a limitation on his personal freedoms” and “a restriction and contraction of [his]
custodial rights”, regarding Bastos and their son.
Although Drago asked for a continuance, and later reminded the court about
this, his request was confusing. He ultimately indicated he wished to proceed with
the hearing. Drago initially requested a continuance to obtain a “criminal attorney”
stating: “This has turned into a criminal case.” The trial court asked Drago
questions about why he believed the case had turned into a criminal case. Drago
4
Powell v. Ala.,

287 U.S. 45

, 53,

53 S. Ct. 55

77 L. Ed. 158

(1932); Doe v.
Puget Sound Blood Center,

117 Wash. 2d 772

, 780-81,

819 P.2d 370

(1991); King v.
Olympic Pipeline Co.,

104 Wash. App. 338

, 348-68,

16 P.3d 45

(2000); 1519-1525
Lakeview Blvd. Condominium Ass’n v. Apartment Sales Corp.,

101 Wash. App. 923

,
933-37,

6 P.3d 74

(2000).
5
State v. Miles,

77 Wash. 2d 593

, 597-98,

464 P.2d 723

(1970).
6
In re Schuoler,

106 Wash. 2d 500

, 512,

723 P.2d 1103

(1986).
4
No. 80592-4-I/5
testified he had not been arrested or charged with any crime at this time. When
asked whether he was under any criminal investigations, Drago stated he had just
received a “temporary NCO for 14 days and then temporary hold of parenting
plan.” When asked whether he meant a temporary protection order entered in this
case, Drago stated: “I believe so. I’m not positive because I’m not an attorney.
That’s why I’m asking for a continuance to get an attorney.” The court explained
the temporary protection orders entered in the case were “not criminal NCOs” but
were “civil orders.” The court then asked Drago to clarify the reason for his
continuance request, and Drago stated he was going to file a criminal action. The
court indicated a criminal action would not be a reason to continue the hearing:
Court:        The issue in front of the Court is the petition for
protection. You have asked for a continuance based
on a criminal action but I can find nothing that is
pending. And it sounds like you don’t believe there is
criminal action that has been filed against you.
Drago:        No. I’m going to be filing a criminal action.
Court:        I see. That wouldn’t be a reason to continue this
hearing. It’s a separate matter entirely.
Drago explained if he told the court about “the whole process, then the prosecution
would know.” He added he had “documentation of perjury” by Bastos. The court
asked Drago if he wished to proceed with the hearing, reminding him of its limited
time on the calendar that day, and after discussion with the court about the process
Drago answered yes:
Court:        So the question this morning is whether you want to go
forward in responding to this petition?
Drago:        Is there a petition of me seeing my son in there?
5
No. 80592-4-I/6
Court:        The petition, which you got a copy of, describes the
event that occurred on August 27, 2019. That, in part,
forms the basis for the request to suspend your contact
with your son.
Drago:        Okay. The report that you have does not explain what
happened on that day. It does not have one word
about what I want to say about it. Everything in there
is - - it’s completely incomplete. It only has many false
allegations. It has none of what I - - you know, my side
of the story in there. So all you’re reading is one side.
You’re not - - so you have no idea what the other side
is because I didn’t put one word of my side of the story
into the report.
Court:        That’s why you’re both sworn under oath, and this is
your opportunity to describe your side of the story.
Drago:        Okay.
Court:        However, that being - -
Drago:        The whole side?
Court:        That being said, I do have other cases on the calendar,
and you do have to be mindful of your time. Do you - -
Drago:        Okay.
Court:        Do you want to explain what you believe happened on
that day?
Drago:        Yes.
After providing confusing reasons for requesting a continuance, Drago indicated
he wished to proceed with the hearing and presented his side of the story. Under
these circumstances, the trial court did not abuse its discretion in proceeding with
the hearing.
We find the cases cited by Drago distinguishable. They do not support his
6
No. 80592-4-I/7
abuse of discretion claim. 7 Drago fails to show a constitutional violation or an
abuse of discretion in the trial court’s decision to proceed with the hearing. We
affirm.
WE CONCUR:
7
State v. Woods,

143 Wash. 2d 561