Opinion
No. 22760-0-III
Filed: February 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 03-1-02325-1. Judgment or order under review. Date filed: 02/09/2004. Judge signing: Hon. Susan L Hahn.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St Rm 211, Yakima, WA 98901-2639.
The court did not abuse its discretion by continuing a criminal trial for eight days past the speedy trial period to accommodate the Christmas and New Year's holidays. The last two weeks of Eddy Cerda's 60-day trial period included Christmas Day and New Year's Day, both of which fell on a Thursday. Over Mr. Cerda's objection, the court continued the trial until after the holidays. The court found that sparing the jurors the inconvenience of duty over Christmas Day and New Year's Day would avoid potential prejudice to both sides as well as averting an interruption of the week-long trial.
FACTS
Mr. Cerda was arraigned on criminal charges on October 29, 2003. He was ordered detained in custody pending trial. The 60th day and last timely trial date was December 28, 2003. The court set trial for December 22. At the omnibus hearing on December 11, the prosecutor asked the court to continue the trial to January 5, 2004, `because I think it would be a huge disservice to the defense and to the prosecution to start a trial on December 22, pick a jury — I'm expecting these cases to go about one week — and then disband the jury for a period of time. And that would happen both over Christmas and for the New Year's.' Report of Proceedings (Dec. 11, 2003) (RP) at 7-8. Mr. Cerda did not wish to waive his right to be tried by December 28.
The court granted the continuance on the record, explaining: `It just makes sense to me to take it out of the holidays, at least for the jurors that are going to be called.' RP at 8. The court again stated its reasons in the written order: `Scheduling issues with the holidays and a desire to begin trial when it will not prejudice the State or defense.' Clerk's Papers at 33.
DISCUSSION
Mr. Cerda concedes the court's broad discretion to grant a continuance. That is, we will affirm so long as there is a tenable basis for the decision. State v. Silva, 72 Wn.
App. 80, 83, 863 P.2d 597 (1993). But Mr. Cerda contends the court abused its discretion in continuing his trial past December 28. He contends that the court rules hold the judge responsible to ensure a timely trial. Mr. Cerda did not waive speedy trial and insists he was entitled to be tried within 60 days, absent some exception. Mr. Cerda contends the court was wrong in assuming that the continuance would avoid prejudice to him. He contends the delay was solely on the motion of the State over his insistence that he receive a timely trial.
Mr. Cerda contends that avoiding interruption of his trial by the holidays was not a good reason for delay. He points out that the courts are closed by statute on legal holidays, but that the statute contains an exception to allow the court to convene on holidays to instruct a jury that is in the middle of deliberations, or to hear a jury verdict. RCW 2.28.100(1), (2). Mr. Cerda contends that this holiday provision for deliberating juries clearly shows that the legislature expects that trials will occasionally extend over holidays. Therefore, he argues, there is no excuse for postponing a trial to avoid an otherwise inevitable interruption for a holiday.
Mr. Cerda likens this delay to those granted to accommodate the inability of the system to provide a timely trial, such as for courtroom unavailability and docket congestion. He correctly notes that such continuances have uniformly been reversed. See, e.g., State v. Warren, 96 Wn. App. 306, 309, 979 P.2d 915, 989 P.2d 587 (1999) (unavailability of a courtroom); State v. Silva, 72 Wn. App. 80, 83, 863 P.2d 597 (1993) (docket congestion).
He requests dismissal with prejudice.
The State responds that trial within 60 days is not a constitutional mandate. The court may grant a continuance absent a manifest abuse of discretion. Here, the court did not abuse its discretion. The judge took the trial out of the holidays for the sake of the jurors as well as to avoid prejudice to both sides.
The court applied CrR 3.3(f)(2):
On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance.
Absent a manifest abuse of discretion, we will not overturn a trial court's decision to delay trial. State v. Teems, 89 Wn. App. 385, 388, 948 P.2d 1336 (1997). The trial court abuses its discretion when it bases a decision on untenable grounds or reasons, or when the choice is simply beyond the range of choices considering both the facts and the law. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). The appellant has the burden of demonstrating abuse of discretion. State v. Sponburgh, 84 Wn.2d 203, 210, 525 P.2d 238 (1974).
Mr. Cerda does not suggest this eight-day delay prejudiced him. He did not suggest to the trial court that he would be prejudiced. When the court invited the defense to respond to the State's motion, counsel simply stated Mr. Cerda's wish to be tried within 60 days. RP at 8. Neither does Mr. Cerda contend that the court failed to make an adequate record. The only issue, then, is whether the court's reasons amount to an abuse of discretion.
We have found good cause to continue a criminal trial for scheduled vacations. State v. Selam, 97 Wn. App. 140, 143, 982 P.2d 679 (1999) (defense counsel); State v. Grilley, 67 Wn. App. 795, 799, 840 P.2d 903 (1992) (key witness); State v. Kelley, 64 Wn. App. 755, 767, 828 P.2d 1106 (1992) (prosecutor). The judge must provide a trial that is not only timely but also fair. CrR 3.3(a); Teems, 89 Wn. App. at 388. Here, the court had to choose between a few days' delay and the possibility of real prejudice to one side or the other caused by year-end holidays.
The prosecutor estimated the trial would last about a week. It was not possible to start within the 60 days without a long delay from Christmas Day on Thursday until the following Monday. New Year's Day created the same problem the following week. The judge had to choose between a timely but interrupted trial before a distracted and likely grumpy jury, or a trial commencing on the 68th day. It was within the broad discretion of the court to do what it did.
The statute cited by Mr. Cerda is distinguishable. RCW 2.28.100 permits the court to sit on legal holidays when necessary to accommodate the needs of jurors who are deliberating over the holiday in a trial that is already in progress. It does not preclude the court from anticipating the problem and granting the minimum continuance necessary to avoid imposing on the goodwill of potential jurors, and thereby forestalling possible prejudice to either party.
The State suggests that defense counsel's failure to file an affidavit and supporting memorandum in support of his CrR 3.6 suppression motion before December 30 somehow justified the court's decision. But this could have had no bearing on the court's discretionary ruling on December 11. Regardless, absent any claim of prejudice, it cannot be said that the court abused its discretion.
We affirm the judgment.
A majority of the panel has determined that 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.
SCHULTHEIS, J. and BROWN, J., concur.