State v. Lopez
| Decision Date | 05 August 2014 |
| Docket Number | No. 31168-6-III,31168-6-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ELVIS CAMILLO R. LOPEZ, Appellant. |
BROWN, A.C.J. — Elvis Camillo Renteria Lopez appeals his convictions and sentences for first degree robbery, second and third degree assault, and two counts of attempting to elude a police vehicle. In a brief filed by his appellate attorney, Mr. Lopez contends the court violated his speedy trial and sentencing rights, he received ineffective assistance of counsel from his trial attorney, and the court miscalculated his offender score. In two pro se statements of additional grounds for review, Mr. Lopez expresses concerns regarding his speedy trial right, evidence sufficiency, the effectiveness of his trial attorney, prosecutorial misconduct, prosecutorial vindictiveness, and double jeopardy. We disagree with all of Mr. Lopez's contentions and concerns, except regarding his offender score. Accordingly, we affirm and remand for the limited purpose of determining Mr. Lopez's offender score and resentencing him, if necessary.
On April 13, 2010, law enforcement arrested Mr. Lopez following an incident generally involving assaultively taking Ramona Gonzalez's car and assaulting law enforcement officers with the car during the ensuing chase. The State soon charged him with 12 crimes but amended the charges to first degree robbery of Ms. Gonzalez, second degree taking a motor vehicle without her permission, second degree assault of Benton County Sheriffs Deputy Patrick Tomren, third degree assault of Benton County Sheriff's Deputy Arin Reining, and two counts of attempting to elude a police vehicle.
A jury found Mr. Lopez guilty of all amended counts on April 26, 2012, about a month after his case was retried. Upon the State's motion, the court dismissed Mr. Lopez's conviction for taking a motor vehicle without permission because it merged with his robbery conviction. The court sentenced Mr. Lopez to 11 years of confinement on September 4, 2012.
Four successive lawyers represented Mr. Lopez in the 2 years and 10 days between his arrest and guilty verdict. A fifth lawyer represented Mr. Lopez at the end of the four months and nine days between his guilty verdict and sentencing.
The court appointed Mr. Lopez's first attorney, Gary Metro, on April 21, 2010. The court ordered an expert evaluation of Mr. Lopez's competency to stand trial on June 9, 2010, and found him competent on July 22, 2011. Meanwhile, Mr. Lopez retained a second attorney, Matthew Rutt. Mr. Rutt presented a substitution of counsel form and the court orally approved it on October 27, 2010. Mr. Rutt withdrew on March30, 2011, explaining Mr. Lopez had become extremely hostile toward him and they were unable to work together. Mr. Lopez agreed to the withdrawal.
The court appointed Mr. Lopez's third attorney, Samuel Swanberg, on March 30, 2011. Mr. Lopez soon told Mr. Swanberg he did not want to work with him and would retain a different lawyer. Mr. Lopez then retained a fourth attorney, Scott Etherton. Mr. Etherton presented a substitution of counsel form and the court orally approved it on August 17, 2011. While Mr. Etherton did not file this form until December 7, 2011, he continued appearing on Mr. Lopez's behalf so that it was clear Mr. Etherton alone was representing Mr. Lopez.
On September 21, 2011, Mr. Etherton moved to continue the trial for a lengthy period, stating he needed additional time to review the voluminous discovery so he could provide effective assistance. Mr. Lopez refused to waive his speedy trial right. The court granted the continuance, reasoning Mr. Etherton needed additional time to adequately prepare. Mr. Lopez objected, demanding both a speedy trial and effective assistance of counsel.
At an omnibus hearing on October 19, 2011, Mr. Lopez presented an oral motion to dismiss the charges against him, arguing he had been forced to choose between a speedy trial and effective assistance of counsel. Tensions between Mr. Lopez and Mr. Etherton became apparent. The court instructed Mr, Lopez to present his concerns in a written motion.
On November 30, 2011, Mr. Etherton moved to continue the trial because, after the court set the trial date, he scheduled a major surgery requiring extensive recovery.Mr. Lopez objected. The court eventually granted the continuance on December 7, 2011, after further discussions revealed it was necessary considering not only Mr. Etherton's surgery and recovery, but also his need for additional time to review the State's newly discovered video evidence and investigate Mr. Lopez's ongoing mental health issues. Mr. Lopez objected, asserting his speedy trial right and arguing Mr. Etherton had a conflict of interest because he needed to file a motion to dismiss but was not following Mr. Lopez's directions.
On March 2, 2012, the court granted the State's motion to continue the trial because the prosecutor was ill. Mr. Lopez objected. Trial began on March 19, 2012, and the court declared a mistrial the next day. On April 4, 2012, the court granted the State's motion to continue the retrial because a witness was unavailable. Mr. Lopez objected. Retrial began on April 23, 2012, and the jury rendered its guilty verdict three days later.
Mr. Etherton moved to continue the sentencing hearing on June 7, 2012, because he needed additional time to prepare. Mr. Lopez refused to waive his speedy sentencing right. The court granted the continuance, considering the lengthy sentence Mr. Lopez faced. On July 9, 2012, Mr. Etherton did not attend a scheduled sentencing hearing because he had unexpected car trouble and could not secure other transportation. Mr. Etherton therefore moved to continue the sentencing hearing. The court granted the continuance, reasoning it could not properly sentence Mr. Lopez without some defense counsel present. Mr. Lopez objected and filed a pro se motion to dismiss, albeit deficient in form, asserting his speedy sentencing right. Additionally, Mr.Lopez argued Mr. Etherton had a conflict of interest because he needed to file a motion to dismiss but was not listening to Mr. Lopez's concerns.
Mr. Etherton moved to continue the sentencing hearing again on August 7, 2012, for various personal and professional reasons. Mr. Lopez filed a pro se motion to dismiss, essentially accusing Mr. Etherton of violating Mr. Lopez's speedy trial and sentencing rights. On its own initiative, the court put the case on hold to allow Mr. Etherton time to contemplate his ethical obligations to Mr. Lopez. Mr. Etherton withdrew on August 15, 2012, explaining the pro se motion to dismiss created a conflict of interest disqualifying him from further representing Mr. Lopez.
The court appointed Mr. Lopez's fifth lawyer, Scott Johnson, on August 15, 2012. On its own initiative, the court continued the sentencing hearing because Mr. Johnson needed time to prepare. The court finally conducted the sentencing hearing on September 4, 2012. Mr. Lopez appealed.
The issue is whether the court violated Mr. Lopez's speedy trial and sentencing rights. He invokes these rights as established by constitutional provisions and delineated by a statute and a court rule. See U.S. CONST, amend. VI; WASH. CONST, art. I, § 22; RCW 9.94A.500(1); CrR 3.3. He contends the court abused its discretion in granting multiple continuances that prejudiced him. We review decisions granting continuances for abuse of discretion and review alleged violations of speedy trial orsentencing rights de novo.1 State v. Ollivier, 178 Wn.2d 813, 822-23, 826, 312 P.3d 1 (2013); State v. Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009); State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984).
We begin with the speedy trial court rule. If a criminal defendant is detained in jail pending trial, a court must bring him or her to trial within the longer of 60 days from the commencement date or 30 days from the expiration of excluded periods. CrR 3.3(b)(1). The commencement date is initially the date of arraignment. CrR 3.3(c)(1). But certain events, including mistrials and disqualifications of counsel, reset the commencement date. CrR 3.3(c)(2)(iii), (vii). And certain periods, including competency proceedings, continuances, and unavoidable or unforeseen circumstances beyond control, are excluded in computing the time for trial. CrR 3.3(e)(1), (3), (8).
The court may continue the trial upon motion "when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." CrR 3.3(f)(2). "The bringing of such motion by or on behalf of any party waives that party's objection to the requested delay." Id. This waiver applies even where, as here, the defendant personally objects to a continuance requested by defense counsel on the defendant's behalf. See Ollivier, 178 Wn.2d at824. Because Mr. Etherton requested the challenged trial continuances in the course of representing Mr. Lopez's interests, Mr. Lopez waived his objection to those continuances.2 Regardless, the trial court complied with the speedy trial court rule.
A court does not abuse its discretion by granting a continuance over the defendant's personal objection where, as here, defense counsel needs additional time to adequately prepare and provide effective assistance. See Ollivier, 178 Wn.2d at 824 n.2, 825 n.4 (citing Kenyon, 167 Wn.2d at 138; Campbell, 103 Wn.2d at 15). And, the same can be said where, as here, defense counsel has scheduled a major surgery requiring extensive recovery.3 No other option existed but to continue the trial because another attorney in Mr. Etherton's law firm was not qualified to try the case alone. It was reasonable for the court to conclude these continuances were "required in the administration of justice" and not "prejudicial to the defendant] in the presentation of his or her defense." CrR 3...
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