State v. Charlton
| Decision Date | 09 August 2022 |
| Docket Number | 55544-1-II |
| Citation | 515 P.3d 537 |
| Parties | STATE of Washington, Respondent, v. Michael Shawn CHARLTON, Appellant. |
| Court | Washington Court of Appeals |
Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St., Seattle, WA, 98115-6655, for Appellant.
William Anton Leraas, Grays Harbor Co. Pros. Ofc., 102 W Broadway Ave., Rm. 102, Montesano, WA, 98563-3621, for Respondent.
PUBLISHED OPINION
¶ 1 Michael Charlton appeals his convictions of third degree child rape and third degree child molestation and the imposition of two community custody conditions. The primary issue on appeal arises from the fact that the trial court did not appoint defense counsel for Charlton at his first two preliminary court appearances following his arrest. Charlton argues that the preliminary hearings were critical stages of the criminal proceedings, and therefore this failure to appoint counsel violated the Sixth Amendment to the United States Constitution and constituted structural error requiring reversal of his convictions.
¶ 2 We hold that (1) the constitutional right to counsel attached at Charlton's first two appearances; (2) Charlton's first court appearance was not a critical stage of the criminal proceedings, but Charlton's second appearance was a critical stage because the trial court addressed the setting of bail; (3) even though the second appearance was a critical stage, we apply a harmless error analysis rather than finding structural error because the violation did not pervade or contaminate the entire criminal proceeding; (4) the trial court's violation of Charlton's right to counsel at the second court appearance was harmless; and (5) as the State concedes, community custody condition 14 prohibiting Charlton from possessing a computer or any computer components and community custody supervision fees must be stricken from the judgment and sentence.
¶ 3 Accordingly, we affirm Charlton's convictions, but we remand for the trial court to strike community custody condition 14 and the community custody supervision fee provision from the judgment and sentence.
¶ 4 On December 28, 2019, Charlton's stepdaughter disclosed to police that Charlton had engaged in sexual contact with her a few days earlier. Two days later police arrested Charlton for third degree child rape, third degree child molestation, and indecent liberties.
¶ 5 On December 31, Charlton first appeared in Grays Harbor County Superior Court. The State had not yet charged Charlton. No attorney for Charlton was present during this appearance, nor did the court advise him of his right to counsel at that time.
¶ 6 The court confirmed Charlton's identity and informed him of the crimes for which he had been arrested. When asked if he understood the potential charges, Charlton responded, "I guess so." Report of Proceedings (RP) at 5. The court informed Charlton that the prosecuting attorney was still in the process of gathering information from the police and needed more time before making the final decision regarding the filing of charges against him. The prosecutor requested that the court impose bail to prevent Charlton from returning to his house because that might interfere with the investigation and pose other problems. The prosecutor also requested a sexual assault protection order.
¶ 7 The court noted that the State had until January 3, 2020 to file charges and told Charlton that he would be informed of the charges that would be filed against him at that time. The court also set bail in the amount of $25,000. Charlton began to reply, but the prosecutor interjected and modified his request for a sexual assault protection order by asking for a no-contact order between Charlton, the victim, and the victim's mother. The court agreed to impose a no-contact order.
¶ 8 The court entered an order finding that probable cause existed to believe that Charlton had committed the crimes of third degree child rape, third degree child molestation, and indecent liberties, and ordered Charlton to appear on January 3. The court also entered an order setting bail at $25,000 and prohibiting Charlton from having contact with the victim or the victim's mother.
¶ 9 On January 3, the State filed an information formally charging Charlton with third degree child rape, third degree child molestation, and indecent liberties. Charlton appeared in court that afternoon, again without counsel present. The prosecutor informed the court that the information had been filed. The prosecutor then handed the court Charlton's handwritten application for pretrial release and an indigency screening form.
¶ 10 The court confirmed Charlton's identity, read the charges in the information to him, and asked if Charlton understood the charges. Charlton replied, "Yes, I think I do." RP at 11. The court then advised Charlton of his rights to an attorney and to remain silent. Charlton stated that he was hoping for a court-appointed attorney. The court determined that Charlton qualified for appointment of counsel and appointed defense counsel to represent him. The court set an arraignment hearing for January 6.
¶ 11 After confirming with the prosecutor that probable cause had been found at the previous hearing, the court asked for the State's position regarding conditions of release. The court reaffirmed the no-contact order with the victim and victim's mother due to concerns about witness tampering. The court declined to order that Charlton have no contact with his biological children. There later was a discussion between Charlton and the court about how he could see his biological children when he could not contact their mother.
¶ 12 Regarding bail, the prosecutor confirmed that Charlton did not have any criminal history, but expressed concern about where Charlton would go because the no-contact order prevented him from returning to his home. The prosecutor proposed that bail remain at $25,000, which "seem[ed] to be doing the trick." RP at 15. Charlton informed the court that he could live in a trailer on his parents’ property.
¶ 13 The court maintained bail at $25,000 rather than increasing it in light of Charlton's lack of criminal history, the place he could live, and his ties to the community. But the court stated that the bail was "cash, no bond." RP at 16. In addition, the prosecutor served Charlton with a sexual assault protection order prohibiting contact between Charlton and the victim and a no contact order between Charlton and the victim's mother.
¶ 14 On January 6, Charlton appeared for the scheduled arraignment. Defense counsel apparently was not present. The prosecutor stated that defense counsel might be requesting that the arraignment be rescheduled for a week later, and the prosecutor did not object. Charlton stated that he had not been able to meet with his counsel. The court rescheduled the arraignment for January 13.
¶ 15 On January 13, Charlton appeared in court along with defense counsel. Defense counsel entered a plea of not guilty for all three counts on Charlton's behalf and requested Charlton's release from custody on personal recognizance. The court granted this request and released Charlton from custody until trial.
¶ 16 Charlton waived his right to a jury trial. The trial court found Charlton guilty of third degree rape and third degree child molestation. The court dismissed the indecent liberties charge.
¶ 17 At sentencing, the trial court imposed condition 14 as a community custody condition, which prohibited Charlton from possessing a computer or any computer components. The court found Charlton to be indigent and expressly waived community custody supervision fees.
¶ 18 Charlton appeals his convictions and the imposition of community custody condition 14 and community custody supervision fees.
¶ 19 CrR 3.2.1(d)(1) provides that a person who is detained in jail after a warrantless arrest "shall be brought before the superior court as soon as practicable after the detention is commenced ... but in any event before the close of business on the next court day." See State v. Reisert , 16 Wash. App. 2d 321, 326, 480 P.3d 1151, review denied, 197 Wash.2d 1023, 492 P.3d 169 (2021) ().
¶ 20 CrR 3.2.1(e)(1) provides that "[at] the preliminary appearance, the court shall provide for a lawyer pursuant to rule 3.1."
CrR 3.1(b)(1) states, "The right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest."
¶ 21 At the preliminary appearance, the court must orally inform the accused:
¶ 22 There is a presumption that the accused will be released on personal recognizance pending trial unless the court finds one of three factors, including that there is a likely danger that the accused "will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice." CrR 3.2(a)(2)(b). If the court finds that release should be denied, "the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charges." CrR 3.2.1(e)(2).
¶ 23 Unless an information has been filed, an accused may not be detained in jail for more than 72 hours after the detention, excluding Saturdays, Sundays, and holidays. CrR 3.2.1(f)(1). If no information has been filed at the time of the preliminary appearance, the court must release the accused or set a time within that 72-hour period when the accused must appear in court. CrR 3.2.1(f)(2).
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...beyond a reasonable doubt that the verdict would have been the same without the error. State v. Charlton, 23 Wn.App. 2d 150, 168, 515 P.3d 537 (2022), granted, 200 Wn.2d 1025 (2023). Under the nonconstitutional standard, an error is harmless if there is no reasonable probability that the er......