Opinion
No. 57528-1-II
03-05-2024
STATE of Washington, Respondent, v. Jacob Gabriel DIMAS, Appellant.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant. Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, Lauren Ruth Boyd, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
Appeal from Clark Superior Court, Docket No: 21-1-00220-6, Honorable Emily A. Sheldrick, Judge.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant.
Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, Lauren Ruth Boyd, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
PART PUBLISHED OPINION
Maxa, P.J.
¶1 Jacob Dimas appeals his 2022 conviction of first degree rape, arising from a sexual assault that the victim reported to the Vancouver police department in 2003.
¶2 Dimas appeared at all pretrial hearings from a booth at the jail, while his defense counsel either was present in court or appeared remotely over Zoom. Dimas argues that appearing remotely from a jail booth at court proceedings violated his constitutional right to confer privately with counsel.
¶3 However, Dimas did not object to this arrangement at any time in the trial court. As a result, he cannot raise this issue for the first time on appeal unless he can establish manifest error affecting a constitutional right under RAP 2.5(a)(3). We conclude that although Dimas asserts a constitutional right, he cannot show manifest error. Therefore, we decline to consider his right to counsel claim. In the unpublished portion of this opinion, we address the remainder of Dimas’s claims.
¶4 Accordingly, we affirm Dimas’s conviction but, as discussed in the unpublished portion of the opinion, we remand for the trial court to strike the community custody conditions prohibiting contact with minors arid entering areas where children congregate, community custody supervision fees, and the $500 crime victim penalty assessment (VPA).
FACTS
¶5 In September 2003, GA reported to the Vancouver police department that she had been sexually assaulted at knife point. She went to the hospital for a sexual assault exam. A state crime lab technician examined GA’s sexual assault kit and located a single sperm. But he stated that it was unlikely that the small amount of sperm could be used to obtain a DNA profile.
¶6 The case was dormant until 2016, when GA’s sexual assault kit was sent to the Washington State Patrol (WSP) crime lab. A low level of semen was detected. A DNA profile was developed, and in April 2020 it was determined that the profile matched Dimas’s DNA. Dimas’s DNA was available because he had been required to provide a DNA sample after being convicted of offenses in 2003.
¶7 In February 2021 the State charged Dimas with first degree rape while armed with a deadly weapon.
Pretrial Hearings
¶8 Dimas appeared remotely via Zoom from a jail booth for his bail, arraignment, and various other pretrial hearings. Whenever Dimas appeared remotely, defense counsel appeared from a different location than him. Dimas did not object to appearing remotely at any of the hearings. However, the trial court never set any ground rules for how Dimas and defense counsel could confidentially communicate during the hearings where Dimas appeared remotely.
¶9 At Dimas’s bail hearing, the trial court addressed his first degree rape charge and an unrelated fugitive warrant. At the beginning of the hearing, Dimas expressed confusion about the fugitive warrant. The court placed Dimas in a breakout room to talk to his attorney. When they came out of the breakout room, Dimas’s attorney stated that they were ready to proceed on both the first degree rape charge and the fugitive warrant. The court appointed defense counsel and set Dimas’s bail at $300,000.
¶10 At Dimas’s arraignment hearing, he entered a not guilty plea, and the trial court scheduled the trial for October 4, 2021, which was within the 60 day time to trial deadline.
¶11 At the September 2021 pretrial hearing, the State submitted a discovery request – instead of a search warrant – for a cheek DNA swab from Dimas. Defense counsel did not object to the State’s DNA discovery request. The trial court entered an order for obtaining DNA from Dimas. Defense counsel also requested a continuance for trial so he could have additional time to interview witnesses. But defense counsel clarified to the trial court that Dimas was not willing to waive his right to a speedy trial. The court found good cause under CrR 3.3 to go outside the time to trial deadline and permitted a continuance. The court scheduled the trial for December 6.
¶12 At the December 2021 pretrial hearing, defense counsel requested another trial continuance. Defense counsel told the trial court that he was unable to see Dimas at the jail unless Dimas had a negative COVID test, due to a new rule by the jail. Defense counsel also noted that he was having a difficult time getting ahold of witnesses and that he still had not been able to interview GA. Defense counsel clarified to the trial court that Dimas was not willing to waive his right to a speedy trial. But the court found grounds for a continuance and at the next pretrial hearing scheduled the trial for February 14, 2022. ¶13 At the February 2022 pretrial hearing, the trial court heard and denied Dimas’s motion to dismiss for preaccusatorial delay. The court also ruled on a number of motions in limine, including the denial of Dimas’s request to impeach GA with her crimes of dishonesty that were more than 10 years old.
¶14 The trial court again continued the trial date due to a COVID suspension of trials. During a colloquy with counsel, Dimas interrupted the court, stating that he had a question. The court told Dimas that "it’s probably not better to address the Court directly, but if you need a moment to confer with your attorney, I would suggest that you let him know that." Rep. of Proc. (RP) at 116. Defense counsel then requested a breakout room to talk to Dimas, which the court allowed. When they returned, defense counsel told the court that Dimas was not willing to waive his right to a speedy trial. The court found good cause to continue the trial date to April 18.
Verdict and Sentence
¶15 The jury found Dimas guilty of first degree rape with a deadly weapon sentencing enhancement.
¶16 Dimas appeared remotely from a jail booth for his sentencing hearing. Defense counsel told the trial court that Dimas wanted to be present in the courtroom for sentencing. The trial court put Dimas and defense counsel in a breakout room to discuss the issue because the jail had confirmed that it would not be able to bring Dimas in person that day. Dimas agreed to continue with sentencing remotely rather than wait until the following week when he could appear in person.
¶17 Dimas appeals his conviction and sentence.
ANALYSIS
¶18 Dimas argues that participating in court proceedings from a jail booth violated his right to privately confer with counsel at all critical stages. However, Dimas did not object to this arrangement in the trial court. We hold that Dimas cannot raise this issue for the first time on appeal because he cannot establish a manifest error under RAP 2.5(a)(3).
A. Legal Principles
[1] ¶19 A criminal defendant has the right to counsel under both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington constitution. State v. Heng, 2 Wash.3d 384, 388, 539 P.3d 13 (2023). The right to counsel attaches at the defendant’s "first preliminary appearance before a judge unless it is simply not feasible for some extraordinary reason." Id. at 391, 539 P.3d 13.
[2–5] ¶20 Failure to have counsel present at a hearing constitutes structural error requiring automatic reversal if the hearing was a critical stage of the prosecution. Id. at 392, 539 P.3d 13. However, "not all pretrial hearings are critical stages." Id. "[A] critical stage is one where a defendant’s rights were lost, defenses were waived, privileges were claimed or waived, or where the outcome of the case was otherwise substantially affected." Id. at 394, 539 P.3d 13. "[W]e consider if rights were lost in a way that demonstrably affected the outcome of the case." Id. at 394-95, 539 P.3d 13.
[6–8] ¶21 Here, Dimas was provided with counsel at all of the challenged hearings. However, the right to counsel also requires defendants to have the ability to confer meaningfully and privately with their attorneys at all critical stages of the proceedings. State v. Anderson, 19 Wash. App. 2d 556, 562, 497 P.3d 880 (2021), review denied, 199 Wash.2d 1004, 504 P.3d 832 (2022). And it is the trial court’s role to ensure that attorneys and clients have the opportunity to privately consult. Id. In assessing whether the right to confer has been violated, "reviewing courts should consider the totality of the circumstances, including whether the trial court explicitly established a process for such communications, given the variety of different circumstances that may occur." State v. Bragg, 28 Wash. App. 2d 497, 507, 536 P.3d 1176(2023).
[9, 10] ¶22 When a defendant is provided with counsel, deprivation of the right to meaningfully and privately confer with that counsel does not trigger structural error. See State v: Heddrick, 166 Wash.2d 898, 910, 215 P.3d 201 (2009) (stating that "[a] complete denial of counsel at a critical stage of the proceedings is presumptively prejudicial and calls for automatic reversal") (emphasis added). Instead, courts have applied the constitutional harmless error analysis. Bragg, 28 Wash. App. 2d at 512, 536 P.3d 1176; Anderson, 19 Wash. App. 2d at 564, 497 P.3d 880. Under this analysis, the State has the burden of proving harmlessness beyond a reasonable doubt. Anderson, 19 Wash. App. 2d at 564, 497 P.3d 880.
[11] ¶23 Although the deprivation of the right to counsel is a constitutional claim, it can be raised for the first time on appeal only if the claim is manifest, as required by RAP 2.5(a)(3). Id. at 562, 497 P.3d 880.
¶24 In Anderson, the defendant and his attorney were not physically located in the same room during a resentencing hearing because the defendant participated by video from the jail and his attorney appeared by telephone from a separate location. Id. at 561, 563, 497 P.3d 880. The trial court did not set any ground rules for how the defendant and his attorney could confidentially communicate during the hearing. Id. at 563, 497 P.3d 880. Division Three of this court held that it was not apparent how private attorney-client communication could have taken place and that it was unrealistic to expect the defendant to assume he could interrupt the trial court proceedings when he wanted to speak with his attorney. Id. Therefore, the defendant met his burden of showing that there was a manifest constitutional error. Id. However, the court held that the State met its burden of showing constitutional harmless error. Id. at 564-65, 497 P.3d 880.
¶25 In Bragg, the defendant participated in all pretrial hearings by video while his attorney appeared in court. 28 Wash. App. 2d at 502-03, 536 P.3d 1176. The trial court never explained how the defendant and his attorney could confidentially communicate and did not inform the defendant of his constitutional right to do so. Id. at 508, 536 P.3d 1176. Although the defendant "continually and impolitely" interrupted the trial court, Division One of this court held that it was error for the trial court to place the burden on the defendant to assert his right to confer with counsel. Id. at 511, 536 P.3d 1176.
¶26 The court focused on four critical stage pretrial hearings, including a hearing discussing a plea offer and three hearings discussing DNA evidence. Id. at 512, 536 P.3d 1176. The court held that it could not know beyond a reasonable doubt whether the outcome of the case would have differed if the defendant had availed himself of his attorney’s confidential assistance during the four critical stage hearings. Id. at 516, 536 P.3d 1176. Therefore, the court reversed the defendant’s convictions and remanded for a new trial. Id.
B. Manifest Error
[12–14] ¶127 RAP 2.5(a)(3) states that a party is allowed to raise a "manifest error affecting a constitutional right" for the first time on appeal. To determine the applicability of RAP 2.5(a)(3), we inquire whether (1) the error is truly of a constitutional magnitude, and (2) the error is manifest. State v. J.W.M., 1 Wash.3d 58, 90, 524 P.3d 596 (2023). An error is manifest if the appellant shows actual prejudice. Id. at 91, 524 P.3d 596. The appellant must make a plausible showing that the claimed error had practical and identifiable consequences at trial. Id.
[15] ¶28 The court in Anderson found a manifest constitutional error when deciding whether to consider the defendant’s right to consult with counsel claim, but did not address in any detail why the error was manifest. See 19 Wash. App. 2d at 563, 497 P.3d 880. The court in Bragg also did not address manifest error. See 28 Wash. App. 2d at 504-05, 536 P.3d 1176. Here, a review of the record shows that the trial court’s error was not manifest because Dimas cannot show that an ability to confer with defense counsel would have made any difference.
¶29 Initially, Dimas’s bail hearing and arraignment were not critical stages to which the right to counsel attached. See Heng, 2 Wash.3d at 395, 539 P.3d 13. And Dimas does not explain how consulting with defense counsel would have changed the outcome of these hearings. ¶30 At the. September 2021 hearing, defense counsel waived his right to refuse to provide a DNA sample without a warrant. However, the State already had Dimas’s DNA because of his prior convictions. And when the DNA sample from GA was tested in 2020, a match was declared with Dimas. Therefore, there was enough probable cause for a judge to issue a warrant even if defense counsel had challenged the discovery request. There is no indication that Dimas consulting with counsel would have , changed the outcome of this hearing.
¶31 At the September 2021 and December 2021 hearings, the trial court granted trial continuances despite Dimas’s refusal to waive his speedy trial right. But the trial court had legitimate reasons for granting the continuances, defense counsel informed the court of Dimas’s objections, and there is no indication that Dimas’s ability to confer with counsel would have changed the result. In addition, there is no indication that when trial occulted affected the outcome of the case.
¶32 At the February 2022 hearing, the trial court denied Dimas’s motion to dismiss for preaccusatorial delay and Dimas claims that he may have been able to provide additional information regarding this motion, but he does not identify that information. And Dimas and defense counsel were able to confer prior to the hearing. Therefore, even if Dimas had spoken with defense counsel at the hearing, he fails to show that the result would have been different. See Anderson, 19 Wash. App. 2d at 564, 497 P.3d 880.
¶33 Regarding the motion on Dimas’s request to impeach GA with her prior convictions, that motion involved only questions of law. There is no indication that Dimas could have provided any information to defense counsel relating to the legal issues addressed.
¶34 The trial court also continued the trial date to a later date at the February 2022 hearing. However, Dimas and defense counsel did speak privately in a breakout room and defense counsel made known Dimas’s objection to continuing the trial.
¶35 At Dimas’s sentencing hearing, before sentencing began Dimas and defense counsel went into a breakout room and discussed whether he wanted to be sentenced remotely from the jail booth or postpone the hearing to the following week when he could appear in person. Dimas chose to continue remotely. Dimas and defense counsel were able to confer privately prior to the hearing and Dimas was able to speak directly to the trial court.
¶36 The record does not indicate that the trial court would have made a different decision or that the verdict would have been different if Dimas had been given the opportunity to speak privately with defense counsel during the various hearings. Therefore, Dimas has not met his burden of showing manifest constitutional error.
¶37 Accordingly, we decline to consider Dimas’s unpreserved claim that his right to counsel was violated.
CONCLUSION
¶38 We affirm Dimas’s conviction but, as discussed in the unpublished portion of the opinion, we remand for the trial court to strike the community custody conditions prohibiting contact with minors and entering areas where children congregate, community custody supervision fees, and the $500 VP A
¶39 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with ROW 2.06.040, it is so ordered.
We concur:
LEE, J.
VELJACIC, J.