State v. Jungers, 090921 WACA, 37574-9-III

CourtCourt of Appeals of Washington
JudgeWE CONCUR: Pennell, C.J., Staab, J.
Writing for the CourtSIDDOWAY, J.
PartiesSTATE OF WASHINGTON, Respondent, v. CRAIG RUSSELL JUNGERS, Appellant.
Docket Number37574-9-III

STATE OF WASHINGTON, Respondent,

v.

CRAIG RUSSELL JUNGERS, Appellant.

No. 37574-9-III

Court of Appeals of Washington, Division 3

September 9, 2021

UNPUBLISHED OPINION

SIDDOWAY, J.

Craig Jungers appeals the judgment and sentence entered following his plea of guilty to three counts of first degree child molestation. He contends (1) he was deprived of his constitutional right to retained counsel of his choice; (2) he was constructively deprived of legal representation in negotiating his guilty plea; (3) RCW 9.94A.670(4)'s provision that a sentencing court "shall give great weight to the victim's opinion" whether an offender receives the special sex offender sentencing alternative (SSOSA) violates separation of powers, and denying him a SSOSA based on his victim's wishes constitutes cruel and unusual punishment; and (4) the trial court abused its discretion in denying him the SSOSA.

We find no error or abuse of discretion and affirm.

FACTS AND PROCEDURAL BACKGROUND

In October 2018, then 17-year-old H.N.[1] reported to police that Craig Jungers had sexually assaulted her multiple times some 10 years earlier. She told police she did not previously report the assault because Mr. Jungers was a friend of her family. She changed her mind when she became aware that Mr. Jungers had befriended a 9-year-old girl who came from a broken home, lived with an elderly grandmother, and had spent time alone with Mr. Jungers at his home. She feared Mr. Jungers was taking advantage of the girl.

Having obtained a phone intercept order, law enforcement recorded a telephone conversation between H.N. and Mr. Jungers on October 22. Although Mr. Jungers initially objected to speaking with H.N. on the phone and insisted that they meet where they could not be monitored, he was gradually drawn into a conversation with her about how their sexual contact started and the molestation that had occurred. He claimed that H.N. had initiated the sexual contact. During the conversation, Mr. Jungers repeatedly expressed concern that he could go to prison for the rest of his life.

The next day, as H.N. walked out of her house, Mr. Jungers slowly drove by. H.N. called her mother in a panic and her mother called police. Officers took Mr. Jungers into custody that day and on October 24, he was charged with three counts of child molestation in the first degree and one count of indecent liberties (forcible compulsion).

2018proceedings

Mr. Jungers was represented by privately-retained counsel in all of the proceedings below. At his first appearance on October 24, he was accompanied by Bradley Barshis, who told the court that his firm would be filing a notice of appearance. A notice of appearance was filed on November 13 by Elizabeth Mount Penner, a lawyer with Newton and Hall, a Kent-based law firm. Mr. Barshis was also present at the arraignment, which took place on November 13, and he explained that he and Ms. Penner were with the same firm. The trial court set the omnibus hearing for January 8, readiness for January 28, and trial for January 30.

2019proceedings

At the January 8 omnibus hearing, Ms. Penner appeared by telephone. The prosecutor, Carlee Bittle, informed the court that the parties were still in "discovery mode" and she was following up on material requested by the defense, so the omnibus was being continued by agreement. Report of Proceedings (RP)2 at 29. Ms. Bittle reported that the defense had not yet set any interviews. Omnibus was reset to February 25, readiness to March 18, and trial, March 20.

At the February 25 omnibus hearing, Mr. Jungers was present but Ms. Penner was not. Ms. Bittle explained that Ms. Penner had called the prior week to say she would be unavailable but had been told that a continuance could be agreed on and had advised her client of the agreed, continued dates. Mr. Jungers affirmed that he had discussed the continuance with Ms. Penner and he signed the revised scheduling order. Omnibus was continued to April 22, readiness May 13, and trial May 15.

At the April 22 omnibus hearing, Mr. Jungers was represented by a stand-in lawyer not associated with Newton and Hall. Ms. Bittle informed the court that Ms. Penner was requesting a continuance of trial to the first week of August due to her involvement in a jury trial, her unavailability for the entire month of June, and her need to interview witnesses in July. Ms. Bittle explained that the victim had her own reasons for wanting to avoid a May trial date (she was graduating from high school) so the State had no objection. Ms. Bittle stated, "I believe this should be the final continuance in this matter." RP at 38-39. The trial court expressed displeasure that defense counsel had not yet conducted any interviews, but continued the trial date to August 7. Omnibus was scheduled for July 22.

On June 20, Ms. Penner, who had evidently left the Newton and Hall firm, filed a notice of withdrawal and substitution of counsel, identifying Harry Steinmetz as "substituting attorney." CP at 19. Mr. Steinmetz appeared for the July 22 omnibus hearing. Mr. Steinmetz informed the trial court that although he had only recently joined Newton and Hall, he had met with Mr. Jungers, reviewed most of the discovery, spoken with the prosecutor, and "I do have a plan of where I want to go with this." RP at 47. He apologized for Ms. Penner "dropp[ing] the ball" but told the court "I think we've made more progress in the last month than has been made in the entire time of this case." Id. Ms. Bittle said she believed "a short continuance would be appropriate." RP at 56. The trial court continued the trial date to October 9, with an omnibus hearing scheduled for August 20.

At around this same time, Mr. Steinmetz was arranging for a certified sexual offender treatment provider to evaluate Mr. Jungers for purposes of seeking a SSOSA should Mr. Jungers plead guilty or be found guilty of the charges. The evaluation was funded privately by Mr. Jungers, with the understanding that the provider, Julie Crest, would initially forward her completed report only to Mr. Steinmetz. Ms. Crest conducted her first clinical interview and testing of Mr. Jungers on July 31. She performed a second clinical interview of Mr. Jungers on August 7.

The August 20 omnibus hearing was not attended by Mr. Steinmetz or Ms. Bittle. An associate of Mr. Steinmetz's appeared with Mr. Jungers and another deputy prosecutor appeared for the State. Mr. Steinmetz's associate told the court that Mr. Steinmetz would be involved in other trials "for quite a while" and was asking that the trial be continued to December 4. RP at 51-52. The trial court expressed annoyance with another request to continue. Mr. Steinmetz's associate stated his understanding that Mr. Steinmetz "is currently in negotiations with Ms. Bittle and those are ongoing." RP at 53. The prosecutor filling in for Ms. Bittle told the court that the State opposed a further continuance and "[t]he victim was very specific that she does not want another continuance." RP at 53. The prosecutor informed the court that the victim was enlisting in the military, which created additional cause for concern about any continuance.

The trial court was reminded that Mr. Steinmetz had taken over Mr. Jungers's defense after Ms. Penner left his firm, at which point Mr. Jungers tried to interject. The trial court allowed him to speak briefly, and Mr. Jungers said: MR. JUNGERS: I had a difficult time contacting Ms. Mount [Penner].

THE COURT: Okay.

MR. JUNGERS: She put me off on my visit to their officers [sic] to look at discovery and never renewed it. So, there was a lot of discovery that I never looked at. She made one appearance here, one appearance by telephone and one appearance by proxy, somebody else somewhere, some guy I've never seen before and one time there was nobody here at all and the prosecutor actually helped me. So, really I understand there were continuances, but there wasn't anything being done to forward my defense. Now, thanks to emails on my part, we're getting some progress.

RP at 58-59.

The trial court declined at the August hearing to continue the trial date. It determined from Mr. Steinmetz's associate that Mr. Steinmetz could "probably" attend a continued omnibus hearing in two weeks and re-set the omnibus hearing for September 4. RP at 59.

Mr. Steinmetz appeared on September 4 and made his own request for a continuance due to an eight week murder trial scheduled to begin in about a week. Ms. Bittle objected again, noting the case had already been continued six times and the victim was trying to move forward with her life. The court informed Mr. Steinmetz that if it were to continue the date, there would likely not be any more continuances granted absent an emergency. The trial court then continued the omnibus hearing to November 6, with trial set for December 4.

An associate of Mr. Steinmetz's appeared at the November 6 hearing and reported that Mr. Steinmetz was still involved in the murder trial, which had run longer than expected. Ms. Bittle informed the court that "the victim in this matter has contacted not only our office, but also the law enforcement that's been working on this case and let them know that she'd like to have this case moving forward. It's been going on for a year." RP at 85. The trial court continued omnibus for a week, to November 13.

On November 11, Ms. Crest completed a confidential SSOSA evaluation of Mr. Jungers, in which she expressed her opinion that "Mr. Jungers' is not an appropriate candidate for the SSOSA sentencing option." Clerk's Papers (CP) at 170 (text prior to revision). She reported the following conclusions: Mr. Jungers is a 76-year-old man who is admitting to having engaged in sexual...

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