State v. Pleasant
| Decision Date | 05 March 2019 |
| Docket Number | 49790-5-II,48950-3-II |
| Parties | STATE OF WASHINGTON, Respondent, v. THOMAS LOEL PLEASANT, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Thomas Pleasant appeals his conviction and sentence of life confinement without the possibility of early release imposed following his guilty plea in 2016 on first degree robbery and second degree assault charges arising out of a 2008 incident. Pleasant was sentenced as a persistent offender under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570 based on his current convictions, a 1989 first degree robbery conviction, and a 1986 Colorado conviction for second degree assault.
We hold that (1) we will not consider whether the trial court violated due process or CrR 4.1 by not promptly arraigning Pleasant because the record does not show that Pleasant objected at his arraignment; (2) as the State concedes, the trial court lacked authority to enter the second degree assault conviction (but not the first degree robbery conviction) because the amended information was filed after the statute of limitations had run, and on remand Pleasant may choose to expressly waive the statute of limitations and accept the benefit of his plea bargain or have the trial court vacate his convictions and risk being recharged with any charges for which the statute of limitations has not run (3) the trial court erred by not determining on the record whether Pleasant's Colorado second degree assault conviction was comparable to a most serious offense in Washington; and (4) the trial court did not violate Pleasant's right to counsel by not appointing appellate counsel for several weeks after he filed his notice of appeal because appellate counsel eventually was appointed.
Accordingly we remand for Pleasant to decide whether he will waive the statute of limitations and be resentenced consistent with this opinion or have the trial court strike his convictions.
On September 9, 2008, the State charged Pleasant with first degree rape and first degree robbery in connection with an attack on an employee at a Subway store in Chehalis. While in custody on charges relating to a similar robbery in Longview Pleasant confessed to robbing the Subway but denied sexually assaulting the victim.
Lewis County Superior Court issued an arrest warrant for Pleasant regarding the Chehalis incident. However, Pleasant apparently was not arrested or arraigned at that time because he remained in custody in Cowlitz County. In October, Pleasant was convicted in Cowlitz County and sentenced as a persistent offender to life confinement without the possibility of early release and was transferred to prison.
In 2014, Pleasant was still in prison when he filed a motion to quash the Lewis County warrant. He made another request to quash the warrant in September 2015. In December, the trial court granted the State's motion to have Pleasant transferred to Lewis County for a court appearance.
Pleasant made his first appearance in Lewis County Superior Court on February 26, 2016. The State arraigned Pleasant on March 3, at which time he pleaded not guilty. On March 22, the State filed an amended information charging Pleasant with first degree robbery and second degree assault, but not with first degree rape. Pleasant changed his plea to guilty. On the document recording Pleasant's plea, Pleasant initialed a statement waiving his right to a speedy trial.
Pleasant's plea statement stated, "I robbed a Subway employee of cash from the store, at the time I pointed a firearm at her during the robbery." Clerk's Papers at 49.
At the sentencing hearing, Pleasant stipulated to his criminal history. His stipulation included multiple convictions of first degree robbery in Washington as well as a 1986 conviction of second degree assault and a 1987 second degree burglary conviction, both in Colorado. The State presented certified copies of the informations and judgments for Pleasant's prior convictions, including the Colorado convictions. However, the trial court did not conduct any comparability analysis to determine if the Colorado second degree assault conviction was comparable to a most serious offense in Washington or enter any written findings of fact or conclusions of law on the issue of comparability. Instead, the court stated that defense counsel did not dispute that Pleasant's Colorado conviction was comparable to a most serious offense in Washington and that Pleasant qualified as a persistent offender.
The court stated that it would not inquire into Pleasant's ability to pay legal financial obligations (LFOs) because he already was serving a life sentence. Accordingly, the court did not enter an order of indigency. However, the court imposed both mandatory LFOs and discretionary attorney fees.
Pleasant appealed his judgment and sentence. However, because the trial court had not entered an order of indigency, the State initially did not appoint appellate counsel for Pleasant. Pleasant filed a pro se motion for appointment of counsel, which the trial court granted four weeks after his notice of appeal.
Pleasant filed a personal restraint petition (PRP) in addition to his direct appeal.
Pleasant argues in his PRP that the State violated his right to due process and CrR 4.1 by delaying his arraignment for over seven years after initially charging him in 2008. We decline to consider Pleasant's speedy arraignment claim because he did not raise it in the trial court.
CrR 4.1(a)(1) states that a defendant who is detained in jail in the county where the charges are pending must be arraigned no later than 14 days after the State files the information or indictment in the superior court. However, if the defendant is not in custody in the county where the charges are pending, the defendant must be arraigned no later than 14 days after his or her first appearance after the State files the information or indictment. CrR 4.1(a)(2). In addition, CrR 4.1(b) expressly states that a defendant must object to a speedy arraignment violation at the arraignment, and that a defendant who fails to object as required shall lose the right to object.
Here, Pleasant has not included the report of proceedings from the arraignment hearing. Therefore, there is no record of whether he objected as required on the basis that the arraignment was untimely. And there is no indication in the subsequent record that Pleasant ever objected to the timeliness of the arraignment. We decline to consider this argument.
We also reject Pleasant's due process claim. A delay in prosecution generally does not implicate due process unless the defendant can show that the delay has caused actual prejudice. State v. McConville, 122 Wn.App. 640, 645-46, 94 P.3d 401 (2004); see also State v. Chavez, 111 Wn.2d 548, 558, 761 P.2d 607 (1998). Pleasant does not argue that the State's delay in prosecution prejudiced his defense.
Accordingly, we reject Pleasant's CrR 4.1 and due process claims.
Pleasant argues in both his appeal and his PRP that the trial court did not have authority to enter his convictions for first degree robbery and second degree assault because the statute of limitations had run when the 2016 amended information was filed. The State disagrees that the statute of limitations had run on the first degree robbery charge but concedes that the statute of limitations had run on the second degree assault charge. We hold that the statute of limitations had not run on the first degree robbery charge but had run on the second degree assault charge when the amended information was filed. Therefore, the trial court did not have authority to enter the second degree assault conviction.
Former RCW 9A.04.080 (2006) establishes the time limits for the State to commence criminal prosecutions for different classes of criminal offenses. Former RCW 9A.04.080(1)(h) states that any felony not otherwise listed in the statute cannot be prosecuted more than three years after the commission of the crime. First degree robbery, a class A felony under RCW 9A.56.200(2), is not specifically listed in former RCW 9A.04.080. Second degree assault, a class B felony under RCW 9A.36.021(2)(a), also is not specifically listed in former RCW 9A.04.080. Therefore, the statute of limitations for the State to commence a prosecution of both first degree robbery and second degree assault is three years. The State commences prosecution by filing the charges in the information. See State v. Warren, 127 Wn.App. 893, 896, 112 P.3d 1284 (2005).
The effect of the statute of limitations in former RCW 9A.04.080 is to limit the trial court's authority to enter a judgment against a criminal defendant if the State did not commence the prosecution before the statute of limitations expired. See State v. Peltier, 181 Wn.2d 290, 295-97, 332 P.3d 457 (2014). We review de novo whether the trial court entered a judgment and sentence in violation of former RCW 9A.04.080. Peltier, 181 Wn.2d at 294.
The State may amend the original charges after the statute of limitations period has run because an amendment generally relates back to the original complaint. Id. However, the State cannot use an amendment to broaden or substantially amend the charges after the statute of limitations period has run. Id.; see also State v. Eppens, 30 Wn.App. 119, 124-25, 633 P.2d 92 (1981) ().
A defendant "may expressly waive an expired statute of limitations during plea negotiations to receive the benefit of a better sentence on a...
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