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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
STATE OF WASHINGTON, Appellant, v. CORY LAMONT THOMAS, Respondent. UNPUBLISHED OPINION No. 39811-7-II

Johanson, J. -- The State appeals a trial court order dismissing Cory Lamont Thomas's1 case with prejudice because the CrR 3.3 time-for-trial deadline had expired. We hold that

Thomas's time-for-trial deadline had not expired when the trial court dismissed his case. We reverse and remand. FACTS In April 2008, we issued a mandate, having reversed Cory Lamont Thomas's convictions. State v. Thomas, 142 Wn. App. 589, 174 P.3d 1264, review denied, 164 Wn.2d 1026 (2008). Thomas appeared in superior court for the first time on April 25, 2008, and he was in custody at

1

Documents in the record are inconsistent insofar as some spell Mr. Thomas's first name "Cory" and others "Corey." In this opinion, we use "Cory" based on Mr. Thomas's spelling of his name on a pro se motion filed below and our prior usage in a related case. State v. Thomas, 142 Wn. App. 589, 174 P.3d 1264, review denied, 164 Wn.2d 1026 (2008).

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this time. The trial court set bail and scheduled trial for May 29. Thomas was released from jail by either May 22 or August 18, 2008.2 By agreement of the parties, the trial court granted three continuances, on May 22, August 18, and October 16, 2008. On February 3, 2009, the trial court granted the State's continuance motion because the prosecutor had a conflicting trial. On April 22, 2009, the trial court granted another continuance, requested by both parties and the court, because Thomas's counsel was in another trial and a new deputy prosecuting attorney was assigned to the case. The trial court noted on the continuance order that Thomas "object[ed]" to the continuance. Clerk's Papers (CP) at 66. The trial court set a new trial date of June 15, 2009. Starting on June 15, 2009, the trial court granted six more continuances over Thomas's objections, resulting in a scheduled trial date of August 20. All of these continuances listed at least two reasons for the continuances. All of the continuance orders, except for the last one, entered on August 13, referenced the unavailability of courtrooms. On August 18, Thomas filed a motion to dismiss for violating his CrR 3.3 time-for-trial rights. He argued that the trial court abused its discretion in granting continuances, over his objections, based on courtroom unavailability. The trial court had not made a record about the availability of other courtrooms or judges pro tempore when it granted the most recent series of continuances. On August 20, the trial court granted a continuance solely because of courtroom

2

A May 22 continuance order has a notation "NIC," which presumably means "not in custody." Clerk's Papers (CP) at 28. There is no transcript of the May 22 proceedings, but based on statements at the August 18, 2008 hearing, Thomas was out of custody at the latest by August 18. 2

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unavailability. The trial court failed to develop a record about the availability of other courtrooms or judges pro tempore. The trial court set Thomas's trial, and consideration of his motion to dismiss, for August 24. The morning of August 24, the trial court continued the case to the afternoon solely because no courtrooms were available. Thomas's trial started that afternoon with a consideration of several pretrial motions, including Thomas's motion to dismiss. Thomas's counsel adopted Thomas's pro se motion to dismiss for a violation of the time-for-trial rule. The trial court agreed to hear argument on the motion the next day, to allow the State time to prepare because it had not received a copy of the motion. Thomas argued that the trial court erred by granting all the continuances since June 15, 2009, because the trial court had not established a record of each superior court department's unavailability and whether a judge pro tempore could reasonably be used. The trial court ultimately agreed with Thomas. The trial court found that, when granting a continuance due to court congestion, the post-2003 version of CrR 3.3, like prior versions of the rule, required a detailed record of how many courtrooms were in use at the time of each continuance and the availability of judges pro tempore to hear criminal cases in unoccupied courtrooms. The trial court found that the prior judges had not made a record detailing how many courtrooms were in use at the time of each continuance and whether a visiting judge was available. The trial court found that Thomas's "time for trial expired on July 8, 2009, based on the failure of the court to make a record as to courtroom and visiting judge availability, and therefore all subsequent good cause continuances are rendered meaningless." CP at 121. The trial court granted Thomas's motion to dismiss with prejudice. The State appeals. 3

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ANALYSIS The State argues that the trial court erred in concluding that Thomas's time for trial expired when it granted Thomas's motion to dismiss. Although we recognize that CrR 3.3 is a cumbersome rule to apply in practice, after careful application of the rule, we agree that Thomas's time-for-trial expiration date had not passed when the trial court dismissed his case. I. Standard of Review We review a trial court's decision on a motion to dismiss for an abuse of discretion. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997). An abuse of discretion occurs when the court's decision is manifestly unreasonable or based on untenable grounds or for untenable reasons; this standard is also violated when a trial court applies the wrong legal standard. State v. Dixon, 159 Wn.2d 65, 76, 147 P.3d 991 (2006) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)); State v. Hudson, 150 Wn. App. 646, 652, 208 P.3d 1236 (2009). We review de novo whether a trial court incorrectly applied a court rule to a particular set of facts, because this is a question of law. State v. Kindsvogel, 149 Wn.2d 477, 480, 69 P.3d 870 (2003); State v. Thomas, 146 Wn. App. 568, 571, 191 P.3d 913 (2008), review denied, 165 Wn.2d 1046 (2009); see also State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209 (2008) ("We review the application of the [time-for-]trial rules de novo."), aff'd, 166 Wn.2d 881, 214 P.3d 907 (2009). "Thus, to determine whether the trial court committed an error of law, which is included in the abuse of discretion standard, we review the alleged error of law itself de novo." State v. Lamb, No. 39849-4-II, 2011 WL 4036096, at *5 n.7 (Wash. Ct. App. Sept. 13, 2011). A trial court must bring a defendant to trial within 60 days if he is in custody or 90 days if he is out of custody. CrR 3.3(b)(1)(i), (2)(i). If the defendant is released from jail before the 604

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day time line has expired, the limit shall be extended to 90 days. CrR 3.3(b)(3). Certain periods are excluded from the 60- or 90-day period, such as continuances granted under CrR 3.3(f). CrR(e)(3). If a period is excluded, the allowable time for trial shall not be less than 30 days after the end of the excluded period. CrR 3.3(b)(5). Following appellate review, the commencement date for calculating the time for trial is the first date the defendant appears in court after the superior court clerk received the appellate court's mandate. CrR 3.3(c)(2)(iv). Under CrR 3.3, once the time-for-trial date expires without a stated lawful basis for further continuances, the rule requires dismissal, and the trial court loses authority to try the case. State v. Saunders, 153 Wn. App. 209, 220, 220 P.3d 1238 (2009) (citing CrR 3.3(b), (f)(2), (g), and (h)). But if the time-for-trial period never expires, the trial court has no authority under CrR 3.3 to dismiss the case with prejudice. CrR 3.3(h). II. Proper Time-For-Trial Calculation Here, Thomas's time-for-trial period had not expired when the trial court dismissed the case with prejudice. We outline the full calculation to elucidate the intricacies of CrR 3.3. Thomas first appeared in court after we issued a mandate in his direct appeal on April 25, 2008, and he was in custody. Because he was in custody, his trial must have occurred within 60 days, thus by June 24, 2008. CrR 3.3(b)(1)(i), (c)(2)(iv). When the trial court set his trial date for May 29, 2008, 26 days remained until Thomas's time-for-trial expiration date of June 24.3 On May 22, 2008, one week before his trial date, by the parties' agreement, the trial court continued the case until August 18, 2008. At this time Thomas was out of custody, so the trial

3

The time was not 30 days because there had not yet been an excluded period. CrR 3.3(b)(5). 5

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court should have added an additional 30 days to his time-for-trial expiration date. CrR 3.3(b)(3) (if defendant is released from jail before the 60-day time limit expired, the limit shall be extended to 90 days). Therefore, 56 days remained until Thomas's time-for-trial expiration date, which, when correctly calculated, became October 13, 2008.4 Thomas's time-for-trial expiration date remained at 56 days after the agreed to or unchallenged continuances granted on August 18, 2008, October 16, 2008, and February 3, 2009. The next granted continuance, on April 22, 2009,5 set the trial date to June 15, 2009, putting the new expiration date (56 days later) at August 10, 2009. On June 15, 2009, the trial court continued the case for one day because no courtrooms were available. On June 16, 2009, the trial court again continued the case for one day because no courtrooms were available. Thomas signed both orders under objection.6 In neither instance did the trial court make a record about the availability of courtrooms and pro tempore judges as

4

The trial court erroneously listed the time-for-trial period expiration as 30 days. Had Thomas remained in custody, 30 days would have been correct under CrR 3.3(b)(5) (allowable time-fortrial following an excluded period shall not be less than 30 days). Because Thomas had been released from custody on these charges, the period was increased from 26 days to 56 days. CrR 3.3(b)(3). All subsequent continuance orders listing the time-for-trial period as 30 days are incorrect for this reason.
5

Although Thomas objected to this continuance, the trial court granted the continuance under CrR 3.3(f)(2) because defense counsel was in another trial and a new prosecutor had been assigned. Importantly, both the State and defense requested the continuance. The bringing of a CrR 3.3(f)(2) motion "by or on behalf of any party waives that party's objection to the requested delay." CrR 3.3(f)(2). Accordingly, any objection by Thomas, regardless of its propriety, was waived because his defense counsel requested the continuance under CrR 3.3(f)(2).
6

The trial court granted this continuance for administrative necessity, so Thomas's counsel's acquiescence did not waive his objection. Defense counsel can only waive objections to continuances granted under CrR 3.3(f)(2) when counsel files the motion requesting the continuance. See CrR 3.3(f)(2). 6

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required by Kenyon.7 Because these two one-day continuances were improper, Thomas's trial expiration period was reduced 2 days to 54 days, but it was still set to expire on August 10, 2009. On June 17, 2009, the trial court continued Thomas's trial date to June 29, 2009, because no courtrooms were available and one of the State's witnesses was unavailable in the coming week. The trial court granted this continuance under CrR 3.3(f)(2), defense counsel objected to the calculation of the remaining time-for-trial period, and Thomas himself objected to continuing his case due to courtroom unavailability. We do not need to decide the propriety of the June 17 continuance, the validity of Thomas's objection, or whether the continuance qualifies as an excluded period for purposes of time-for-trial calculations because of subsequent facts in this case. Assuming without deciding that the June 17 continuance was improperly granted, 13 days expired, and thus 41 days remained as of June 29 until Thomas's time-for-trial expiration date. On June 29, 2009, the trial court again entered a continuance changing the trial date to July 6, 2009. The trial court granted the motion, noting it was an agreement by the parties, under CrR 3.3(f)(1), but indicated the reasons for the continuance were a lack of courtroom availability and some upcoming defense counsel medical needs. Thomas signed the order but listed an objection that the previous courtroom availability issues prejudiced him because they caused the current need for continuances. Even though the continuance order indicates that defense counsel requested the continuance, there is no waiver provision in CrR 3.3(f)(1) as exists in CrR 3.3(f)(2).

7

State v. Kenyon, 167 Wn.2d 130, 136, 216 P.3d 1024 (2009). The State argues that the requirement that a trial court make a record is based on language no longer in CrR 3.3, the "good cause" requirement. Br. of Appellant at 16. But Kenyon makes clear that the requirement to make a record comes from the phrase "state on the record or in writing the reasons for the continuance." Kenyon, 167 Wn.2d at 139 (citing CrR 3.3(f)(2) (2003)). As such, the State's lengthy examination of the case law on this issue is unnecessary. 7

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But we do not need to decide the propriety of the June 29 continuance, the validity of Thomas's objection, or whether the continuance qualifies as an excluded period for purposes of time-fortrial calculations under the facts of this case. Assuming without deciding that the June 29 continuance is improper, 7 days expired, and thus 34 days remained as of July 6 until Thomas's time-for-trial expiration date. On July 6, 2009, the trial court granted another continuance under CrR 3.3(f)(2), based on the State's motion, moving Thomas's trial date to August 13, 2009.8 The trial court's reasons for this continuance were (1) a State witness's unavailability due to a family emergency and (2) a lack of court room availability. Thomas objected, noting that he believed the lack of available

courtrooms caused the trial court to improperly grant the continuance. But even though the trial court failed to create an adequate record to support courtroom unavailability as a proper ground for the continuance, the unavailability of a State witness supported the trial court's decision. State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936, review denied, 122 Wn.2d 1008 (1993). Thomas did not object to this ground for the continuance. Thus, the time between July 6 and August 13, 2009, is excluded from the time-for-trial calculation. CrR 3.3(e)(3). At the very least, Thomas's time-for-trial expiration period fell 34 days from the end of the July 6 to August 13, 2009 excluded period. Thus, Thomas's CrR 3.3 expiration date under the most generous calculation favoring him became September 16, 2009 (34 days after August 13, 2009). Thomas's trial began on August 24, 2009, and, because his time-for-trial period never expired, the trial court had no authority to dismiss his case with prejudice. CrR 3.3(h). We need

8

The trial court appears to have continued the date for several weeks to accommodate defense counsel's vacation plans at the end of July through the beginning of August. 8

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not evaluate the propriety of any continuances granted after July 6, 2009. Thomas appears to argue that once a trial court grants a continuance for a non-excluded time period, the time-for-trial period continues to count down and that no subsequent event is relevant or can qualify as an excluded period. This is incorrect. A continuance not granted in accordance with CrR 3.3(f) is simply not an excluded period. See CrR 3.3(e)(3). The language of CrR 3.3(b)(5) further undermines Thomas's argument. CrR 3.3(b)(5) requires that the time-fortrial deadline following each excluded period shall not be less than 30 days. Thus, the time-fortrial deadline could count down to a single day and as long as there is a valid excluded period going forward, the time-for-trial deadline expands again to 30 days. Finally, we note a concern about whether the State properly preserved the trial court's error in failing to apply the 90-day rule once Thomas was released from custody. Based on the record before us it does not appear that the State raised this specific error in a timely manner to the trial court for possible correction. But we would reach the same result even if we reviewed the time-for-trial calculation assuming, which we do not, that the State waived the 90-day rule application error. When the trial court granted the May 22, 2008 continuance and set the trial date on August 18, 2008, the time-for-trial expiration date would have expanded to 30 days (from 26 days) under CrR 3.3(b)(5). Similarly, all subsequent continuances up through, but not including, the June 15, 2009 continuance would have had time-for-trial expiration dates of 30 days after the excluded period. Our analysis of the June 15 and 16, 2009 continuances would remain the same and the expiration date would drop to 28 days because of the non-excluded improperly granted continuances. And, assuming without deciding that the June 17, 2009 and June 29, 2009 continuances were improper, 9

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the time-for-trial expiration date continued to count down and 8 days remained on July 6, 2009. But the July 6, 2009 continuance qualified as an excluded period and expanded the time-for-trial expiration date back to 30 days. CrR 3.3(b)(5). Under this calculation, Thomas's time-for-trial expiration date became September 12, 2009 (30 days after August 13, 2009). Thomas's trial began on August 24, 2009, and the trial court erred by granting the motion to dismiss. The trial court erred in dismissing Thomas's criminal charges. We reverse and remand for trial. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Johanson, J. We concur:

Van Deren, J. Penoyar, C.J.

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