State v. Matthews
| Decision Date | 08 January 2013 |
| Docket Number | No. 41189-0-II,41189-0-II |
| Parties | STATE OF WASHINGTON, Respondent, v. BRIAN DAVID MATTHEWS, Appellant. |
| Court | Washington Court of Appeals |
Quinn-Brintnall, P.J. — A jury found Brian David Matthews guilty of first degree assault of a child with aggravating factors. Matthews appeals, arguing that (1) the trial court lacked subject matter and personal jurisdiction; (2) the trial court violated the timely trial rule, CrR 3.3; (3) the trial court failed to properly arraign him on the State's third amended information; (4) the trial court erred by denying his motion to dismiss count 1; and (5) the trial court erred in allowing him to proceed pro se. Matthews also argues that the trial court erred in imposing an exceptional sentence because there was insufficient evidence to support the aggravating factors. We affirm Matthews's conviction but remand for resentencing because the State improperly charged Matthews with abuse of trust as an aggravating factor.
On August 4, 1998, Tracey Sears left her home in Tacoma, Washington at approximately 9:30 pm to work as a nurse's aide. Before leaving, she put her 13-month-old daughter, A.E., to bed in a crib in the living room. Matthews, Sears's then live-in boyfriend, babysat A.E. while Sears worked overnight.
At some point during the evening, Matthews "noticed" A.E. had what looked like "dead skin" on her back, lips, face, nose, and knee. 2 Report of Proceedings (RP) at 84. Matthews called Sears at 1 am to tell her that A.E. had been sunburned while they were out swimming earlier that day. Sears told Matthews to give A.E. a cool bath. When Sears returned home the following morning, she immediately took A.E. to the Madigan Army Medical Center Emergency Room for treatment.
On August 5, at 9:30 am, Detective John Jimenez of the Pierce County Sheriff's Department was dispatched to Madigan. At Madigan, Jimenez learned that A.E. had been "severely injured." 2 RP at 59. A.E. had burns on her face, head, mouth, nose, right thigh, right knee, back, abdomen, and chest. A.E. also had bruises on her forehead, left ear, back of her head, legs, and feet. In addition, A.E. had old burn scars resembling cigarette burns on the soles of her feet. A.E.'s doctors determined the burns were nonaccidental and had occurred 12 to 72 hours before her hospitalization. The resulting burn scars are permanent and disfiguring.
Matthews told the police that he thought it was possible A.E. got to an iced tea maker. The iced tea maker was on the floor and was accessible to A.E. After executing a search warrant in Sears's residence, police collected an iced tea maker, steam iron, hair dryer, and curling iron.
On December 21, 1998, the State charged Matthews with first degree assault of a child (domestic violence). RCW 9A.36.011(1)(c), .120(1)(a). On April 19, 1999, the State filed an amended information, adding one count of second degree assault of a child. On June 7, as part of a plea agreement, the State filed another amended information charging Matthews with one count of first degree assault of a child and one count of third degree assault of a child. Matthews then pleaded guilty to the charges under an agreement that the State could ask for a 250-month exceptional sentence and Matthews could ask for the low end of the standard range (162 months).1
On June 23, Matthews requested to withdraw his guilty plea and the trial court denied the motion. The sentencing court followed the State's recommendation and sentenced Matthews to 250 months confinement. Matthews appealed, and we affirmed in an unpublished March 8, 2002 opinion. Matthews filed several subsequent personal restraint petitions (PRP).2 On February 7, 2008, we granted one of Matthews's PRPs and entered an order allowing him to withdraw his guilty plea.
On March 21, prior to his first court appearance following our order, Matthews filed several motions in superior court: a motion challenging the trial court's jurisdiction, a motion to proceed pro se, and a motion to reduce bail. On April 4, Matthews appeared for a scheduling hearing. On April 8, Matthews filed a speedy trial demand. On April 25, the trial court grantedMatthews's motion to proceed pro se, but appointed Matt Renda as standby counsel. On May 2, the trial court denied Matthews's motion to reduce bail.
On May 13, the State filed an amended information charging Matthews with three counts of first degree assault of a child with aggravating factors. RCW 9A.36.011(1)(a), 120(1)(a); RCW 9.94A.535(3)(a), (b), (n) (q);3 former RCW 10.99.020 (1997). The trial court arraigned Matthews the same day.
On May 30, the State filed a second amended information, charging Matthews with one count of first degree assault of a child with a deadly weapon or, alternatively, by reckless act, and one count of second degree assault of child. RCW 9A.36.011(c), .120(1)(a), (b), .130(1)(a); RCW 9.94A.535(a), (b), (n), (q); former RCW 10.99.020. The trial court rearraigned Matthews the same day; he pleaded not guilty to both charges.
The State moved to add deliberate cruelty, particular vulnerability, and abuse of trust aggravating factors as charged in the original 1999 information. Matthews stated he had no questions regarding the factors, saying, "I'm familiar with what they are." RP (May 30, 2008) at 11. Matthews conceded that the State could charge the aggravating factors, but argued that he would not have moved to withdraw his guilty plea if he had known they would be charged again. The State clarified that if Matthews had not withdrawn his guilty plea and demanded only resentencing in 2005, the State would not have sought aggravating factors. But because Matthews had withdrawn his plea, and the State put him on notice in 1999 of the aggravating factors, it was seeking an exceptional sentence. The trial court granted the State's motion to add aggravating factors.
On June 16, Matthews filed a motion for specific performance to enforce the original 1999 plea agreement, arguing that he had not yet formally withdrawn his plea. On July 17, the trial court entered a written order finding that Matthews had withdrawn his guilty plea on April 4, his first court appearance following our grant of his PRP. The trial court heard Matthews's motion for reconsideration on August 7. The trial court denied Matthews's motion for specific performance of the plea agreement, stating, "Mr. Matthews has never, until July of [2008], indicated anything other than a desire to withdraw his guilty plea." RP (Aug. 7, 2008) at 58. Based on its finding that Matthews had withdrawn his guilty plea, the trial court vacated Matthews's prior judgment and sentence.
On August 15, Matthews appealed the trial court's order denying his motion for reconsideration. We stayed Matthews's trial on November 19, pending his interlocutory appeal. On January 4, 2010, we dismissed Matthews's appeal based on his own motion to dismiss. On January 20, the trial court set Matthews's bail and trial setting hearings for January 29.
On February 12, the trial court granted the State's motion to continue the trial until May; Matthews noted an objection because "this case is extremely old" but he agreed to the continuance. RP (Feb. 12, 2010) at 24. As to bail, Matthews argued that $1 million was excessive. Although not in the record, it appears the trial court denied Matthews's request to reduce bail.4
A jury trial was held from June 28 to July 8.5 On June 29, after the jury was empaneled, the State filed a third amended information. The third amended information removed domestic violence allegations and an egregious lack of remorse aggravating factor. The third amended information also corrected RCW citations to reflect those controlling in 1998. Former RCW 9.94A.390(2)(c)(iv) (1997), .390(2)(b) (1997), .390(2)(a) (1997); RCW 9A.36.011(1)(c), .021(1)(a), .120(1)(a), .130(1)(a).
Matthews objected, arguing he was unprepared to address "language from 1998" and requested "[f]our or five days" to prepare. 2 RP at 47-48. The trial court recessed for a few minutes to permit Matthews to confer with standby counsel Renda. When the trial court reconvened, Matthews restated his original objection but said he had read and understood the contents of the third amended information. The trial court then gave Matthews a formal reading of the charges.
During trial, at Matthews's insistence, Detective Sergeant Berg opined that she believed A.E. had been burned with a steam iron. Berg explained that the shape of the iron matched the burn marks on A.E. Dr. Heimbach testified that A.E.'s burns were caused by something "hot" and "flat," "with kind of a point." 6 RP at 590, 593. Heimbach opined a steam iron caused A.E.'s burns because her scars had "little holes" consistent with steam holes from an iron. 6 RP at 593.
On July 7, the State rested its case in chief and Matthews moved to dismiss based on theState's failure to present a prima facie case. The trial court granted his motion to dismiss the second degree assault of a child charge but denied the motion to dismiss the first degree assault of a child charge. Matthews then objected to the trial court's failure to arraign him on the third amended information. Matthews initially pleaded not guilty to the first degree assault of a child charge. But after consulting with Renda, Matthews withdrew his objection and declined to enter any plea. Matthews objected to the trial court entering a plea of not guilty on his behalf.
Clerk's Papers (CP) at 141. The jury answered yes to...
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