State v. Maling
| Decision Date | 18 December 2018 |
| Docket Number | No. 35272-2-III,35272-2-III |
| Citation | 431 P.3d 499 |
| Parties | STATE of Washington, Respondent, v. John Martin MALING, Appellant. |
| Court | Washington Court of Appeals |
Andrea Burkhart, Two Arrows, PLLC, 8220 W. Gage Blvd. #789, Kennewick, WA, 99336, for Appellant.
Joseph Anthony Brusic, Yakima County Prosecutor's Office, 128 N 2nd St. Rm. 329, Yakima, WA, 98901-2621, Michael James Austen Ellis, Yakima County Prosecuting Attorney's Office, 128 N 2nd St. Rm. 233, Yakima, WA, 98901-2639, for Respondent.
PUBLISHED OPINION
¶ 1 Under Washington’s speedy trial rules, an individual incarcerated on criminal charges generally must be brought to trial within 60 days of arraignment. The time for trial period can be extended to 90 days if, prior to the expiration of the 60-day limit, the defendant is released from custody.
¶ 2 John Maling’s case was placed on the superior court docket after the prosecutor noticed Mr. Maling’s 60-day in-custody trial deadline was within hours of expiring. Upon appearing before the court, the prosecutor made an oral motion for release. The trial court granted the motion and Mr. Maling’s speedy trial deadline was extended by an additional 30 days.
¶ 3 On appeal to this court, Mr. Maling argues the trial court’s release order was invalid because it was not preceded by a written motion filed at least five days before the court hearing. We are unpersuaded. Trial courts hold the responsibility for ensuring compliance with speedy trial rules. The ability to meet this obligation is not hindered by the technical requirements for motion practice applicable to litigants. The judgment of conviction is therefore affirmed.
¶ 4 On December 3, 2015, the State of Washington charged John Maling with three counts of possession of a controlled substance with intent to deliver. Mr. Maling failed to appear for an August 29, 2016, pretrial hearing, and the court issued a bench warrant for Mr. Maling’s arrest.
¶ 5 On September 1, 2016, Mr. Maling appeared in court for arraignment. The trial court imposed $100,000 bail and scheduled the next hearing for October 10. Consistent with CrR 3.3(c)(2)(ii), the trial court noted that, because of Mr. Maling’s failure to appear on August 29, the 60-day speedy trial period recommenced on September 1. As a result, Mr. Maling’s 60-day statutory speedy trial period would expire on October 31.
¶ 6 Mr. Maling never posted bail. The October 10 hearing did not occur due to an apparent oversight.
¶ 7 On October 31, 2016, an unidentified third party alerted the prosecution that Mr. Maling remained in custody. The prosecution then added Mr. Maling’s case to the court’s afternoon docket for a hearing. Mr. Maling’s counsel happened to be present at the courthouse on the afternoon of October 31 on another matter and appeared in court with Mr. Maling for the hearing, which commenced at approximately 3:30 p.m. During the hearing, the State advised the court the case "[was] a mess." Report of Proceedings (Oct. 31, 2016) at 9. The State requested the court either continue the trial schedule or alternatively, release Mr. Maling.
¶ 8 Defense counsel objected to the court granting a continuance and argued the speedy trial period had expired.1 The defense also made an oral motion for dismissal. The State asserted the 60-day deadline for trial would not expire for another hour and 47 minutes.
¶ 9 After hearing from the parties, the trial court ordered Mr. Maling’s release from custody on his own recognizance. The court preserved Mr. Maling’s right to later argue infringement of his speedy trial rights since Mr. Maling received only one hour’s verbal notice of the October 31 hearing. The trial court recalculated his time for trial as being 90 days, rather than 60, from the September 1 arraignment. Jail authorities later released Mr. Maling on October 31.
¶ 10 Mr. Maling and the State later agreed to continue the trial beyond 90 days in part to allow for settlement negotiations, with Mr. Maling presumably reserving the right to object to violation of the 60-day incarceration speedy trial rule. On March 20, 2017, Mr. Maling filed a motion to dismiss for violation of his right to a speedy trial. The court denied the motion. Mr. Maling waived his right to a jury trial, and the court convicted Mr. Maling as charged.
¶ 11 Washington’s speedy trial rule generally requires that a defendant held in custody be brought to trial within 60 days of arraignment. CrR 3.3(b)(1) ; State v. Chavez-Romero , 170 Wash. App. 568, 578, 285 P.3d 195 (2012). If the defendant is released from jail prior to expiration of the 60-day limit, the time for trial is extended to 90 days. CrR 3.3(b)(3). The State can move for a defendant’s release from custody in order to extend the speedy trial deadline and avoid dismissal. Chavez-Romero , 170 Wash. App. at 578-79, 285 P.3d 195. Should such motion be submitted, the defendant cannot request continued incarceration in order to force expiration of the speedy trial period. State v. Kelly , 60 Wash. App. 921, 926-27, 808 P.2d 1150 (1991).
¶ 12 Mr. Maling contends the trial court abused its discretion in ordering his release on October 31 because the State moved for release without first complying with the notice and motion requirements set by court rule. The rules referenced by Mr. Maling provide that requests for court orders must be made by written motion, unless presented during a hearing or trial. CrR 8.2 ; CR 7(b)(1). In addition, written motions must be served at least five days before the hearing at which they are to be decided. CrR 8.1 ; CR 6(d).
¶ 13 We disagree with Mr. Maling’s technical objection to the trial court’s disposition. The ultimate responsibility for enforcing Mr. Maling’s speedy trial time fell on the court, not the prosecution. CrR 3.3(a)(1). Once the State’s prosecutor learned Mr. Maling had not posted bail, he had a duty as a judicial officer to alert the court of the potential for a speedy trial violation so the court could take timely corrective action. See State v. White , 94 Wash.2d 498, 502-03, 617 P.2d 998 (1980) ;2 State v. Jenkins , 76 Wash. App. 378, 382-83, 884 P.2d 1356 (1994). Given the prosecutor only discovered Mr. Maling’s continued incarceration on the 60th day of the in-custody speedy trial period, it was appropriate for the State to alert the trial court of a potential speedy trial problem by immediately placing Mr. Maling’s case on the docket.
¶ 14 Once Mr. Maling was in court, the judge had discretion to consider oral motions, including a request for release so as to avoid a speedy trial violation. CR 7(b)(1) ; Chavez-Romero , 170 Wash. App. at 578-79, 285 P.3d 195 ; Kelly , 60 Wash. App. at 926-28, 808 P.2d 1150. As soon as the court ordered release, Mr. Maling’s time for trial period was extended by 30 days. CrR 3.3(b)(3) ; Kelly , 60 Wash. App. at 926, 808 P.2d 1150 (). Thus, although the 60-day speedy trial period was near its expiration, the period did not lapse. Mr. Maling did not suffer a speedy trial violation and his motion for dismissal was properly denied.
¶ 15 Citing State v. Ramirez , 191 Wash.2d 732, 426 P.3d 714 (2018), Mr. Maling has filed a motion to strike the $200 criminal filing fee and $100 deoxyribonucleic acid (DNA) collection fee imposed by the trial court at sentencing. Ramirez was decided after the close of briefing in this case. The decision held that the 2018 amendments3 to Washington’s legal financial obligation scheme apply prospectively to cases on direct review at the time of enactment. Of interest to Mr. Maling, the 2018 amendments prohibit imposition of a $200 criminal filing fee on defendants who are indigent at the time of sentencing as defined by RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h). Also prohibited is the assessment of a DNA database fee if the State has previously collected the defendant’s DNA as a result of a prior conviction. RCW 43.43.7541.
¶ 16 The record before the court indicates Mr. Maling’s request for relief is controlled by Ramirez .4 Specifically, Mr. Maling was indigent at the time of sentencing and Mr. Maling’s lengthy felony record indicates a DNA fee has previously been collected. Accordingly, we grant Mr. Maling his requested relief and direct the trial court to strike the $200 filing fee and $100 DNA fee from Mr. Maling’s judgment and sentence.
¶ 17 The judgment of conviction is affirmed. This matter is remanded to the trial court with instructions to strike the $200 filing fee and $100 DNA fee from Mr. Maling's judgment and sentence.
¶ 18 John Maling challenges his convictions for delivery of a controlled substance by arguing directly that the State provided insufficient notice of a motion to release him from incarceration and arguing indirectly that the State violated his rule based speedy trial rights. I agree and dissent from the majority’s ruling.
¶ 19 On December 3, 2015, the State of Washington charged John Maling with three counts of possession of a controlled substance with intent to deliver. Maling failed to appear for an August 29, 2016, pretrial hearing, and the court issued a bench warrant for Maling’s arrest.
¶ 20 On September 1, 2016, John Maling appeared in court for arraignment. The trial court required Maling to post $100,000 bail to ensure his appearance and scheduled the next hearing for October 10. The trial court noted that, because of Maling’s failure to appear on August 29, the sixty-day speedy trial period recommenced on September 1. A failure to appear for a mandatory court hearing results in a resetting of the commencement date to the date of the defendant’s next appearance. CrR 3.3(c)(2)(ii) ; State v. Chavez-Romero , 170 Wash. App. 568, 579, 285 P.3d 195 (2012). The sixty-day period...
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