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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
| Docket Number: |
30499-0 |
| Title of Case: |
State of Washington v. Johnathon Michael Laine |
| File Date: |
04/24/2012 |
SOURCE OF APPEAL
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| Appeal from Clallam Superior Court |
| Docket No: | 10-1-00013-4 |
| Judgment or order under review |
| Date filed: | 08/26/2010 |
| Judge signing: | Honorable George Lamont Wood |
JUDGES
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| Authored by | Dennis J. Sweeney |
| Concurring: | Kevin M. Korsmo |
| Laurel H. Siddoway |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Jennifer J Sweigert |
| | Nielsen Broman & Koch PLLC |
| | 1908 E Madison St |
| | Seattle, WA, 98122-2842 |
Counsel for Respondent(s) |
| | Brian Patrick Wendt |
| | Clallam County Prosecuting Attorney's Of |
| | 223 E 4th St Ste 11 |
| | Port Angeles, WA, 98362-3015 |
FILED
APRIL 24, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 30499-0-III
)
Respondent, )
) Division Three
v. )
)
JOHNATHON MICHAEL LAINE, ) UNPUBLISHED OPINION
)
Appellant. )
)
Sweeney, J. -- This appeal follows a conviction for taking a motor vehicle without
the owner's permission. The defendant assigns error to the court's refusal to dismiss the
case for violation of his constitutional right to a speedy trial. He based his argument on a
six-month delay in bringing him to trial. Even starting with a presumption of prejudice,
we ultimately are unable to conclude that he was prejudiced by any delay in these
proceedings. He also contends that the court abused its discretion by denying him the
opportunity for treatment for his drug addiction (DOSA1) because the court
misunderstood the time available for him to participate in the prison-based program. The
1 Drug offender sentencing alternative, RCW 9.94A.660.
No. 30499-0-III
State v. Laine
record reflects a number of sound reasons for the sentencing court's refusal to impose a
DOSA sentence including Mr. Laine's failure at earlier attempts at drug treatment. We
then affirm the conviction and the sentence.
FACTS
A Clallam County jury concluded that Johnathon Laine took a motor vehicle, a
2004 Mustang, without the owner's permission; that conclusion was based on ample
evidence.
The State originally charged Mr. Laine with taking a motor vehicle without
permission, second degree theft, and making false statements to a law enforcement
officer. On January 7, 2010, Mr. Laine first appeared before a Clallam County Superior
Court judge. On January 12, he pleaded not guilty. The court set a trial date for
March 10. The time for trial period was set to expire on March 13.
On February 19, Mr. Laine moved to continue the trial date. The State did not
object. The court reset the trial date to March 22. The time for trial period was then reset
to April 21. On March 22, the parties agreed to reset the trial date due to court
congestion. The court scheduled trial for May 17. Mr. Laine did not object to the new
trial date and signed the order continuing the trial.
On March 23 or 24, Mr. Laine moved, without the assistance of counsel, to
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No. 30499-0-III
State v. Laine
dismiss the charges and argued that his right to a speedy trial had been violated. Neither
Mr. Laine nor his attorney noted the matter for hearing until May 21. On April 19, again
without the assistance of his lawyer, Mr. Laine moved to dismiss the charges against him,
and argued both speedy trial and discovery violations. The motion was noted for hearing
on May 21.
On April 29, the State moved to continue the May 17 trial date because the
arresting officer was scheduled for leave. Mr. Laine objected. The court nonetheless
found good cause and rescheduled the trial for June 1. Mr. Laine signed the order.
On May 28, Mr. Laine argued his motion to dismiss. The court noted that Mr.
Laine did not object, or object in a timely fashion, to any of the previous scheduling
orders nor could he show that his right to a fair trial was prejudiced by the delay. The
court concluded there was no violation of the time for trial rule (CrR 3.3) or Mr. Laine's
constitutional right to a speedy trial and denied his motion. Mr. Laine then moved to
continue the trial date. The court scheduled trial for June 14. The speedy trial period
was then set to expire on July 13. Mr. Laine signed the order.
On June 14, the court notified the parties that the trial date had to be reset due to
court congestion. Clallam County had only three judges, two of whom were on vacation
and so only one judge was available to handle the criminal and civil calendars. The court
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No. 30499-0-III
State v. Laine
reset the trial date for June 28. Mr. Laine did not object.
On June 15, Mr. Laine moved to continue the trial date. Mr. Laine said he was
willing to accept a date that was two weeks beyond the time for trial period. The court
reset the trial date to July 19. The time for trial period moved to July 27. Mr. Laine
signed the order.
On July 19, trial started. The parties presented starkly different versions of what
happened. The jury rejected Mr. Laine's version of things (he bought the car from his
friend) and accepted the State's version (he stole the car). And the jury found Mr. Laine
guilty of taking a motor vehicle without permission but acquitted him of the second
degree theft charge.
On July 30, Mr. Laine asked that he be evaluated for a residential DOSA. The
sentencing court found that Mr. Laine was ineligible for a residential DOSA with an
offender score of 9+ points. The court noted that Mr. Laine had failed in previous drug
treatment programs. And the court denied his request for a DOSA. The court said it
might consider a prison DOSA, but that alternative would depend on Mr. Laine's
offender score.
On August 26, the court proceeded to sentencing. The standard range sentence
was 22 to 29 months. Mr. Laine requested a prison DOSA to address his drug addiction.
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No. 30499-0-III
State v. Laine
The court and Mr. Laine acknowledged his previous failed attempts to treat the addiction.
And the court noted the time he had spent in jail and denied his request for a prison
DOSA:
The most I could give [Mr. Laine] is 12 [months] under the prison based
DOSA and then he's only on supervision for another 3 or 4 months
according to that scheme because you take half the standard range, you split
it. So it's really not going to accomplish -- you know, if we were early in
the process here, you know, that might be a consideration. But it's not
going to work here. So it's really not in my -- well, I guess it's in my ability
to do but I don't think it's the proper thing to do here.
Report of Proceedings (RP) (Aug. 26, 2010) at 21. The court sentenced Mr. Laine to 26
months in prison.
DISCUSSION
Speedy Trial Time
Mr. Laine contends that the multiple continuances violated his constitutional right
to a speedy trial. We review the assignment of error de novo. State v. Iniguez, 167
Wn.2d 273, 280, 217 P.3d 768 (2009).
The United States Constitution and the Washington State Constitution both
provide criminal defendants the right to a speedy public trial. U.S. Const. amend. VI;
Const. art. I, § 22 (amend. 10). The Sixth Amendment speedy trial right attaches when a
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No. 30499-0-III
State v. Laine
charge is filed or an arrest is made that holds one to answer to a criminal charge,
whichever occurs first. State v. Corrado, 94 Wn. App. 228, 232, 972 P.2d 515 (1999).
The constitutional right to a speedy trial is violated at the expiration of a reasonable time.
State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997).
The length of the delay can trigger a presumption of prejudice. Iniguez, 167
Wn.2d at 283. Whether it does or not turns on the actual duration of the delay, the
complexity of the charges, and the reliance on eyewitness testimony. Id. at 292. A delay
of eight months or longer is generally considered presumptively prejudicial, while a delay
of less than five months is insufficiently prejudicial to trigger further constitutional
inquiry. Gregory P.N. Joseph, Speedy Trial Rights in Application, 48 Fordham L. Rev.
611, 623 n.71 (1980). There is some disagreement on delays of six to seven months but
the majority of courts conclude that such delays are "presumptively prejudicial." Id.
After the presumption is triggered, we then balance four factors to decide whether
a delay in bringing a defendant to trial violated his constitutional right to the prompt
adjudication of the charges: (1) the length of delay, (2) the reason for delay, (3) the
defendant's assertion of his right, and (4) prejudice to the defendant. Iniguez, 167 Wn.2d
at 283 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972)).
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No. 30499-0-III
State v. Laine
Here, the State arrested and charged Mr. Laine in early January 2010. A little over
six months then passed between the arrest and the beginning of trial. Six months is not
unreasonable when considered in isolation. But, Mr. Laine spent those six months in jail
and the charges and necessary proof were not complex. The State's case also relied on a
number of eyewitnesses. See Iniguez, 167 Wn.2d at 292. And, while it is a close call, we
will start with a presumption that the six-month delay here was prejudicial. See id.;
Joseph, supra, at 623 n.71. The State, then, must overcome that presumption. See
generally Iniguez, 167 Wn.2d at 283, 295.
(1) Length of delay. This factor focuses on "'the extent to which the delay
stretches beyond the bare minimum needed to trigger'" the four-step analysis. Id. at 293
(quoting Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520
(1992)). A longer pretrial delay requires that we look closer into the circumstances
surrounding the delay. Id. Whether or not the six-month lapse between Mr. Laine's
arrest and his trial should trigger the presumption of prejudice, as we have noted, is a
close call. It is certainly at or very near the bare minimum needed to trigger this four-step
analysis based on the circumstances of this case. We would not weigh this factor against
the State.
(2) Reason for delay. Here, we consider responsibility for the delay. Id. at 294.
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No. 30499-0-III
State v. Laine
"If the defendant asks for the delay or agrees to the delay, then the defendant is deemed
to have waived his speedy trial rights as long as the waiver is knowing and voluntary."
Id. at 284. Mr. Laine requested multiple continuances to prepare for trial. Clerk's Papers
(CP) at 155, 197, 200, 220, 247; RP (June 15, 2010) at 2-3. He also agreed to, and
signed, the continuances requested by the State or the court. CP at 156, 199, 205, 209.
Nothing is this record indicates that those waivers were anything other than knowing and
voluntary.
The State's single request for a continuance was prompted by the arresting
officer's scheduled leave. See id. ("[A] missing witness[ ] may justify a reasonable
delay."). The courts' two continuances due to court congestion do, however, weigh
against the State. See id. ("[D]elay . . . due to overcrowded courts . . . will still be
weighed against the State, though to a lesser extent.").
(3) Assertion of right. We also consider the extent to which the defendant
asserted his speedy trial right. See id. ("[D]efendant is more likely to complain the more
serious the deprivation is."). We consider Mr. Laine's assertion of his right to a speedy
trial in the light of his overall conduct. Id. Here, the trial court granted several
continuances, and Mr. Laine signed those orders without objection. Mr. Laine did file
two pro se motions to dismiss on speedy trial grounds but did not ask for a hearing until
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No. 30499-0-III
State v. Laine
May. After the court eventually denied the motions to dismiss, Mr. Laine requested at
least two more continuances. He did assert his right to a speedy trial.
(4) Prejudice. We consider this factor in light of the interests the right to a speedy
trial was designed to protect: (1) oppressive pretrial incarceration, (2) excessive anxiety
and worry over the pending charges, and (3) impairment of an accused's ability to present
a defense. Id. at 295. The burden is on the State to show that the defendant suffered no
serious prejudice beyond that associated with the typical and unavoidable delay. See
generally Iniguez, 167 Wn.2d at 283, 295. A defendant, however, makes a stronger case
for a speedy trial violation if he can affirmatively demonstrate prejudice. Id. at 295.
Here, the State emphasizes Mr. Laine's acquiescence to the pretrial delay and the
fact that he requested and agreed to several continuances even after he filed the two pro
se motions to dismiss violations of his right to a speedy trial. See Barker, 407 U.S. at 534-
36 (presumption of prejudice extenuated by defendant's acquiescence in the delay). The
State argues there is nothing in the record to show oppressive pretrial incarceration or
anxiety and worry over the pending charges. The State further notes that if there was any
prejudice from the delay, it was to the State; two of its witnesses struggled to reconcile
their testimony with the statements they gave police.
Mr. Laine does not show any oppressive pretrial incarceration or that he had
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No. 30499-0-III
State v. Laine
anxiety and worry. Indeed, he is no stranger to the system or incarceration. He also does
not demonstrate any prejudice to his ability to present his defense or challenge the State's
case. Mr. Laine's essential complaint here is that he probably would have received a
prison DOSA, but for the delay. His contention is based on the sentencing court's
suggestion: "[I]f we were early in the process here, you know, that might be a
consideration." RP (Aug. 26, 2010) at 21. The inquiry here focuses on his ability to
defend himself not the opportunity to rehabilitate himself. Iniguez, 167 Wn.2d at 295.
And, more importantly, the sentencing court was concerned about whether Mr. Laine
would succeed in any program given his track record. This sentencing decision fell
within the court's discretion and there is no prejudice. This factor does not weigh against
the State.
The court did not, then, violate Mr. Laine's constitutional right to a speedy trial.
The court sentenced Mr. Laine within the standard range and so, generally, that
would mean he has no right to appeal his sentence. State v. White, 123 Wn. App. 106,
113, 97 P.3d 34 (2004) (quoting State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986
(2003)). We will, however, review claims of legal or procedural error including claims
that the sentencing court abused its discretion. State v. Mail, 121 Wn.2d 707, 713, 854
P.2d 1042 (1993).
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No. 30499-0-III
State v. Laine
Mr. Laine contends that the court abused its discretion by denying his request for a
DOSA. Mr. Laine believes the court's miscalculation or misunderstanding of the
remaining time for confinement and supervision resulted in a decision based on untenable
grounds.
The sentencing court has discretion to impose a DOSA sentence if the offender
meets certain requirements and if the court determines that such a sentence is appropriate.
RCW 9.94A.660(2); State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519 (1998). A
DOSA provides drug offenders with the opportunity for "treatment-oriented sentences."
Conners, 90 Wn. App. at 53.
Mr. Laine requested a prison-based DOSA. RCW 9.94A.660. His standard
sentencing range was 22 to 29 months. Mr. Laine would have been required to spend
12.75 months in confinement to qualify for treatment. RCW 9.94A.662(1)(a). The
sentencing court noted the time as 12 months, instead of 12.75. But that observation does
not make a difference here. The court was concerned with how much treatment Mr.
Laine would receive after being credited with approximately eight months of time already
served. And, more significantly, the court did not believe Mr. Laine was a good
candidate for a DOSA sentence because he had failed other attempts. These are tenable
grounds for the court to deny the request for a DOSA.
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No. 30499-0-III
State v. Laine
Ineffective Assistance of Counsel
Finally, Mr. Laine contends that his lawyer was not effective because the lawyer
failed to argue that Mr. Laine would be under community supervision for more than 12
months after his release from confinement and, thus, available for a DOSA.
We have already addressed this challenge. The court was concerned Mr. Laine
would not receive treatment in a state correctional facility for the fully prescribed time
(12.75 months). This is a valid concern that counsel most likely recognized. And the
court noted that Mr. Laine was not a good candidate for a DOSA. There is, then, no
prejudice by anything Mr. Laine's lawyer did or did not do on this issue. Clearly, the
court's decision would have been the same.
We affirm the conviction and the sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_______________________________
Sweeney, J.
WE CONCUR:
______________________________ _______________________________
Korsmo, C.J. Siddoway, J.
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