State v. Jones
| Decision Date | 16 December 2021 |
| Docket Number | No. 37704-1-III, No. 37705-9-III, No. 37706-7-III,37704-1-III |
| Citation | 500 P.3d 968 |
| Parties | STATE of Washington, Respondent, v. Joseph Theodore JONES, Appellant. State of Washington, Respondent, v. Nathaniel Dean Mowen, Appellant, State of Washington, Respondent, v. Thomas Keith Robertson, Appellant. |
| Court | Washington Court of Appeals |
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Jan Trasen, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, Lise Ellner, Attorney at Law, Po Box 2711, Vashon, WA, 98070-2711, Dana M. Nelson, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellants.
Mark Jeffrey Carroll, The Law Office of Mark J. Carroll, Po Box 758, Chelan, WA, 98816-0758, for Respondents.
PUBLISHED OPINION
Analogy is our best guide in all philosophical investigations; and all discoveries, which were not made by mere accident, have been made by the help of it. Joseph Priestley, 1769.
¶1 This is the second of two appeals by appellants Joseph Jones, Thomas Robertson, and Nathaniel Mowen to vacate restitution orders. As a result of the first appeal, this court vacated the first restitution order and remanded the case for a new restitution hearing. Appellants now seek annulment of the second restitution order on the basis that the restitution hearing breached the one-hundred-eighty day time requirement of RCW 9.94A.753(1). We must decide when the one-hundred-eighty day limitation period starts to run on remand from the court of appeals for a second restitution hearing.
¶2 We adopt appellants' argument that the statutory time restraint commences on the issuance of the court of appeals' mandate, and we thereby rule that the sentencing court conducted the second restitution hearing late. We also rule that any continuing jurisdiction of the sentencing court over the appellants did not extend to a dilatory restitution hearing, that the sentencing court never timely found good cause for the extension of the hearing date, and that Joseph Jones, Thomas Robertson, and Nathaniel Mowen did not waive the protections of RCW 9.94A.753(1). We therefore vacate the second restitution award against appellants.
¶3 The issues before this court are solely procedural, but we pen a short summation of the facts behind the convictions of appellants Joseph Jones, Thomas Robertson, and Nathaniel Mowen. On December 10, 2015, intruders stole three or four garbage bags of processed marijuana from a storage trailer of a marijuana retailer. An on-site security guard contacted local law enforcement to report the burglary. The guard informed police that each bag contained between $15,000 and $20,000 worth of marijuana.
¶4 Officers searched the retail business area and discovered footprints, which prints police followed from the storage trailer to a set of vehicle tire tracks. The business owner, Edward Rhinehart, suggested, to police, several possible suspects, including Joseph Jones, Thomas Robertson, and Nathaniel Mowen.
¶5 The next day, on December 11, 2015, law enforcement spoke with Nathaniel Mowen. Once confronted about the marijuana residue on his rear bumper, Mowen confessed to his involvement in the heist. Mowen also implicated associates Joseph Jones and Thomas Robertson.
¶6 The State of Washington charged Joseph Jones, Thomas Robertson, and Nathaniel Mowen with burglary in the second degree, theft in the first degree, possession with intent to deliver marijuana, possession of marijuana, and malicious mischief in the third degree. The three accused entered plea agreements with varying terms.
¶7 The superior court held a contested restitution hearing. At the hearing, Edward Rhinehart testified that a significant portion of his stolen marijuana went unrecovered. Rhinehart also complained that the marijuana recaptured was substantially damaged and needed to be sold at a discounted rate. During cross-examination of Edward Rhinehart, the sentencing court sustained the State's objection to Nathaniel Mowen's cross-examination of Rhinehart about the price at which Rhinehart could have sold the marijuana and thereby mitigated his loss. The sentencing court, based on the testimony of Rhinehart, ordered Joseph Jones, Thomas Robertson, and Nathaniel Mowen to jointly and severally pay restitution in the amount of $76,670.
¶8 Joseph Jones, Thomas Robertson, and Nathaniel Mowen appealed to this court, challenging the trial court's restitution award. State v. Mowen , No. 35536-5-III, slip op. at 1, 2019 WL 276022 (Wash. Ct. App. Jan. 22, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/355365_unp.pdf. This court held that the trial court violated the appellants' right to due process by prohibiting defense counsel from cross-examining Edward Rhinehart on damages. State v. Mowen , No. 35536-5-III, slip op. at 6-7. This court remanded for a new joint restitution hearing. State v. Mowen , No. 35536-5-III, slip op. at 11.
¶9 On March 20, 2019, this court issued a mandate to the trial court for further proceedings consistent with this court's opinion. The mandate directed the trial court as follows:
The sentencing court or criminal presiding judge is to place this matter on the next available motion calendar for action consistent with the Opinion.
Clerk's Papers (CP) at 385, 567, 568.
¶10 On April 29, 2019, former Okanogan County Prosecuting Attorney Arian Noma e-mailed defendants' respective counsel about scheduling a new restitution hearing. Before being elected county prosecutor, Noma had represented Thomas Robertson in this case. His e-mail to counsel stated that the prosecutor's office would remove itself from the restitution hearing because of a conflict.
¶11 On April 30, 2019, Prosecuting Attorney Arian Noma wrote, by e-mail, to counsel and informed them: "I will need to seek out other counties [sic] assistance" for the restitution hearing. CP at 197. Noma asked defense counsel whether Joseph Jones, Thomas Robertson, or Nathaniel Mowen objected to setting the hearing in June. None of the trio objected to Noma's request.
¶12 The trial court scheduled the remanded restitution hearing for June 19, 2019. At the hearing, Okanogan County Deputy Prosecuting Attorney David Stevens asked for a continuance on the ground that the prosecutor's office held a conflict with Thomas Robertson. Stevens explained that his office had contacted prosecuting attorneys in eighteen other counties, but none agreed to handle the hearing. The trial court continued the restitution hearing until August 16, 2019.
¶13 During the August 16 hearing, the State asked for another continuance because its prospective special deputy prosecuting attorney had declined to represent the State because of the potential loss of retirement benefits. The three appellants asked that the days of any continuance be held against the State for purposes of speedy sentencing rules. The sentencing court agreed with this request. The court, on its own, scheduled the new restitution hearing date for September 20, 2019.
¶14 Because the State contends that Joseph Jones, Thomas Robertson, and Nathaniel Mowen accommodated its request for a continuance and its request for a September 20 hearing date and because the State argues the sentencing court should have ruled good cause existed for the delay, we quote portions of the lengthy colloquy that transpired on August 16 as to whether the restitution hearing would proceed that day:
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