Opinion
No. 34362-2-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-01211-9, Russell W Hartman, J., entered December 30, 2005.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Van Deren and Penoyar, JJ.
The State appeals an order dismissing charges against Clyde Walsh. Because his incarceration for more than 70 days violated his right to a speedy trial under CrR 3.3(b)(1)(i), we affirm.
FACTS
On August 9, 2005, Alice Foley contacted the Bremerton Police Department to report that Walsh had been calling her home. She had a protective order against him that forbade him from contacting her. Police Officer Dana Clevenger responded to the call.
While Clevenger was at Foley's home, the telephone rang. Clevenger answered the phone and a man's voice said, "Is that you[,] Alice[?]" Clerk's Papers (CP) at 6. After several seconds of silence, the man again said, "Alice?" CP at 6. When Clevenger told the caller that Alice was not there, the caller hung up. Foley then played Clevenger a message that Walsh had left on her answering machine that morning. Clevenger concluded from the voice that it was the same man who had just called.
The police arrested Walsh at his home later that evening. The State charged him the next day with felony stalking and violating a civil protection order, with both charges carrying domestic violence enhancements. The State also moved for a competency evaluation because Walsh had previously been found incompetent to stand trial. The trial court granted the order and ordered Walsh held without bail until the evaluation.
About two weeks later, the trial court appointed Walsh a new attorney when his former attorney withdrew. The discovery materials indicated that a competency evaluation was pending. During a September 8, 2005 status conference, Walsh's attorney told the trial court that he had not received any information from Western State Hospital. He still had not received any acknowledgment from the hospital on October 11.
On October 19, at the request of Walsh's attorney, the deputy prosecuting attorney contacted the hospital and learned that the staff there did not have any information about Walsh. The deputy prosecutor stated that she did not believe the State had sent the paperwork because there were no copies in the file. Both the State and Walsh subsequently forwarded the paperwork to the hospital. The hospital completed the referral on October 28, and anticipated that the evaluation would be
complete in six to eight weeks.
Walsh moved to dismiss the charges under CrR 8.3, arguing that the State's delay in notifying the hospital of the pending evaluation deprived him of his right to a speedy trial. Alternatively, Walsh suggested that the trial court order him released from custody pending the evaluation.
The State conceded that it had negligently failed to submit the paperwork to the hospital. But the State contested whether dismissal was an appropriate remedy.
At a hearing on the motion, the trial court noted that Walsh would probably be incarcerated for six to seven months by the time of trial, about the same amount of time he would have to serve if convicted. The trial court expressed concern that by standing on his right to contest the charges, Walsh would end up serving as much time as he would receive if convicted.
Ultimately, the trial court granted the motion and dismissed the charges with prejudice. In support of its order, the trial court concluded that the State committed misconduct that deprived Walsh of his right to a speedy trial and further concluded that there was no available remedy other than dismissal. The State appeals.
ANALYSIS
The State argues that the trial court abused its discretion in dismissing the charges against Walsh because the delay did not deprive him of his right to a speedy trial under the Criminal Rules or under the constitution. It also contends that even if the delay prejudiced him, a single instance of prosecutorial negligence does not justify dismissal under CrR 8.3(b).
We review the dismissal of prosecution under CrR 8.3(b) for an abuse of discretion, which occurs when the trial court bases its decision on unreasonable or untenable grounds or reasons. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). Dismissal under CrR 8.3(b) requires the defendant to show both governmental misconduct and prejudice affecting his or her right to a fair trial. State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003).
In determining whether the government has committed misconduct, it is sufficient to show simple mismanagement; the misconduct "`need not be of an evil or dishonest nature.'" State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997) (quoting State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993)). At the same time, dismissal is an extraordinary remedy to which courts resort only in cases of egregious mismanagement or misconduct. Wilson, 149 Wn.2d at 9.
"Governmental misconduct must somehow impact the defendant's own rights before it rises to the level of outrageousness that will justify dismissing a prosecution." Rundquist, 79 Wn. App. at 797. Loss of the right to a speedy trial is sufficiently prejudicial to warrant dismissal. Michielli, 132 Wn.2d at 240.
The State argues that dismissal is only justified under CrR 8.3(b) when there are numerous incidents of prosecutorial mismanagement or egregious prosecutorial misconduct, which did not occur in this case. This argument lacks merit. It is well established that simple prosecutorial mismanagement is sufficient to justify dismissal if it prejudices the defendant. See Wilson, 149 Wn.2d at 9; Michielli, 132 Wn.2d at 239. When the State negligently incarcerates a defendant beyond the time permitted for trial, the mismanagement is sufficiently egregious to warrant dismissal.
Here, the State conceded that it had an obligation to inform Western State Hospital of the court's order and failed to do so. The trial court entered findings of fact and conclusions of law stating that the State was responsible for contacting the hospital and that its failure to do so constituted mismanagement. Because the State does not challenge the findings, we consider them verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
The trial court's findings adequately support its conclusion that the State mismanaged the case. Thus, dismissal under CrR 8.3(b) is appropriate if the mismanagement prejudiced Walsh's right to a fair trial. Michielli, 132 Wn.2d at 239.
The State contests the trial court's conclusion that the 70-day incarceration deprived Walsh of his right to a speedy trial. It points to CrR 3.3(e)(1), which excludes competency proceedings from the time for trial. Because the trial court issued an order for a competency evaluation, the State argues that CrR 3.3(e)(1) tolls the speedy trial period. Walsh responds that CrR 3.3(e)(1) only tolls the time for trial when competency proceedings are actually initiated following entry of the order. We agree with Walsh.
An incarcerated defendant is entitled to be brought to trial within 60 days of arraignment. CrR 3.3(b)(1), (c)(1). But the statute excludes certain periods in computing the time for trial, particularly "[a]ll proceedings relating to the competency of a defendant to stand trial on the pending charge, beginning on the date when the competency examination is ordered and terminating when the court enters a written order finding the defendant to be competent." CrR 3.3(e)(1). This case requires us to decide whether this rule applies when the State obtains an order for a competency evaluation, but it fails to notify the hospital of the order as required to initiate the evaluation proceedings.
We interpret the rule using ordinary principles of construction to give effect to the rule's clear meaning. State v. W.W., 76 Wn. App. 754, 757, 887 P.2d 914 (1995). "`A court rule must be construed so that no word, clause or sentence is superfluous, void or insignificant. The language must be given its plain meaning according to English grammar usage. When the language of a rule is clear, a court cannot construe it contrary to its plain statement.'" W.W., 76 Wn. App. at 757-58 (quoting State v. Raper, 47 Wn. App. 530, 536, 736 P.2d 680 (1987)).
Applying these principles to CrR 3.3(e)(1), Walsh's interpretation prevails. The first clause of the rule, exempting all proceedings related to a defendant's competency, presumes that competency proceedings actually occur. Incarcerating the defendant while his case languishes due to State mismanagement is not a proceeding relating to his competence to stand trial. If the State obtains an order for a competency evaluation but fails to take the steps necessary to initiate the evaluation, it may not toll the resulting period of incarceration under CrR 3.3(e)(1).
This reading of the rule is borne out by the language and purpose of CrR 3.3(e)(1), as well as the purpose of the Criminal Rules. Despite the trial court's order for a competency evaluation, the State did not initiate the evaluation for over 70 days, after the time for trial had passed. The broadly drafted tolling provision accounts for variation and unpredictability in the evaluation process, but it does not justify inordinate delay in pursuing the case. State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004) (the parties cannot prepare for trial until the defendant is found competent and the evaluation process can be unpredictable); State v. Cox, 106 Wn. App. 487, 492, 24 P.3d 1088 (2001) (evaluations can involve a protracted length of time and require review in the trial court before a final determination of competency can be entered).
A contrary interpretation also runs afoul of CrR 1.2, which directs us to construe the rules to secure "simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay." We thus interpret CrR 3.3(e)(1) to impose a duty on the State to diligently initiate the evaluation so that defendants are not incarcerated indefinitely for no good cause.
Last, this interpretation is consistent with our previous decision in Cox where we construed former CrR 3.3(g)(1) (1995) and held that competency proceedings commence with an oral or written motion for a competency evaluation, thereupon tolling the time for trial. 106 Wn. App. at 491. But determining when competency proceedings begin presupposes that competency proceedings occur. When the State, through mismanagement or misconduct, fails to initiate the evaluation despite obtaining an order, no proceedings occur and CrR 3.3(e)(1) does not apply.
This version of the rule exempted "[a]ll proceedings relating to the competency of a defendant to stand trial, terminating when the court enters a written order finding the defendant to be competent," without specifying at what point competency proceedings begin to toll the time for trial.
Because CrR 3.3(e)(1) does not toll the period of Walsh's incarceration, the State's failure to bring him to trial within 60 days of arraignment deprived him of a speedy trial contrary to CrR 3.3(b)(1)(i). The trial court therefore did not abuse its discretion in dismissing the charges under CrR 8.3(b).
Because Walsh establishes a violation of the speedy trial rights set forth in the Criminal Rules, we do not consider the State's argument that he must demonstrate a constitutional violation.
The State also contends that the trial court erred in failing to consider lesser alternatives than dismissal. But the record demonstrates that the trial court did consider releasing Walsh pending the competency evaluation. The State opposed this remedy due to concerns about releasing a potentially incompetent individual into the community. The trial court also considered amending the evaluation order to expedite the process. But when the trial court ruled on the motion to dismiss, it concluded, "There is no remedy that the Court can craft to give Mr. Walsh back these 70 days." Report of Proceedings (Dec. 30, 2005) at 7.
It is clear from the record that the trial court considered several alternative remedies and concluded they were insufficient. It was not an abuse of discretion to conclude that dismissal was the only appropriate remedy for the speedy trial violation.
Affirmed.
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 pursuant to RCW 2.06.040, it is
so ordered.
We concur: Van Deren, J., Penoyar, J.