### FILED OCT29,2015 In theOfficeoftheClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OFTHE STATE OFWASHINGTON DIVISION THREE


# I I 

### 1 

# 1 I STATE OFWASHINGTON, Respondent,


### v. THOMASA. SCOTT, Appellant. ) ) ) ) ) ) ) ) ) No. 32971-2-111

UNPUBLISHED OPINION BROWN, A.C.J.
­ ThomasA. Scottappeals hisfourth degree assaultconviction, contending he was denied his right to aspeedytrial. In his pro sestatement of additional groundsfor review (SAG), Mr. Scott alleges prosecutorial misconduct and requests return offees paid, ifwe agree with him. Finding no error, we affirm. FACTS The State charged Mr. Scottwith second degree assaultfor allegedly strangling his on again/off-again girlfriend. On July7,2014, Mr. Scott pleaded not guiltyand trial
was setfor September 3,2014. On September 3, the State requested a continuance dueto a scheduling conflict. Defense counsel noted the speedytrial timewas closeto expiring. The court granted the continuance, butallowed Mr. Scottto be released fromjail on his own recognizance. Trial was reschedule for October 8.No. 32971-2-111 State v. Scott
On October6, the parties attended a status hearing where defense counsel stated they were ready fortrial on October 8. Thejudge seemed surprised and noted a final review hearing had notyet been scheduled. The State indicated it had not subpoenaed several of its witnesses because it did not thinktrial was going to occuron October 8. Over Mr. Scott's objection, the court continued trial to October22. On October 20, the State asked for another continuance because the arresting officerwas on vacation. Mr. Scott objected. The court found the officerwas material to the case and granted the continuance. The court settrial for November 5. On November3, the State asked for another continuance because the girlfriend's father unexpectedly died and she was too griefstricken to testify. Mr. Scott objected and reminded the court ofthe previous continuances. Over Mr. Scott's objection, the court granted the State's continuance and set trial for November 19. On November 19, trial commenced. Ajuryfound Mr. Scott guilty offourth degree assault, a lesser included offense ofsecond degree assault. He appealed. ANALYSIS A. Speedy Trial Mr. Scott contends his conviction must be reversed and dismissed because the trial court violated his right to a speedytrial under CrR 3.3 by granting continuances requested by the prosecutor without showing good cause. We review a trial court's decision to grant a continuance under CrR 3.3 for an abuse ofdiscretion. State v. Downing, 151 Wn.2d 265, 272,87 P.3d 1169 (2004). A trial court abuses its discretion



### 2No. 32971-2-111 State 

### v. Scott
when its decision is manifestly unreasonable or exercised on untenable grounds orfor untenable reasons. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). CrR 3.3(b)(1)(i) provides that an individual held in custody pending trial must be tried within 60 days ofarraignment. Conversely, a defendant not detained must be tried within 90 days. CrR 3.3(b)(2)(i). A defendant initially detained and then released, as is the case here, must be tried within 90 days. CrR 3.3(b)(3). Certain time periods may be excluded from the computation oftime awaiting trial, including continuances granted by the trial court. CrR 3.3(e)(3). CrR 3.3(f)(2) provides
a basis by which a trial court mayvalidly continue the start oftrial, stating, "On motion of the court ora party, the court may continue the trial dateto a specified date when such continuance is required in the administration ofjustice and the defendantwill not be prejudiced in the presentation of his or herdefense." Here, trial commenced 135 days from arraignment dueto the granting of4 continuances. The firstwas dueto the prosecutor's scheduling conflict. The second
was for additional time to subpoena witnesses. Thethird was dueto the arresting officer being on vacation. And, the fourth was because the alleged victim's father had suddenly passed away and she was unable to testify. Scheduling Conflict. It is well established that a trial court does not abuse its discretion by granting a State's continuance motion based on a prosecutor's scheduling conflictfrom a differenttrial assignment. See, e.g., State v. Flinn, 154 Wn.2d 193, 200, 110 P.3d 748 (2005) ("Scheduling conflicts may be considered in granting



### 3No. 32971-2-111 State v. Scott continuances."); State v. Krause, 82 Wn. App. 688, 698, 919 P.2d 123 (1996) ("Conflicts in the prosecuting attorney's schedule may be considered 'unavoidable' circumstance justifying an extension ofthe speedy trial date under CrR 3.3."). The prosecutor in this
case had two cases going to trial atthe sametime. The other case was a more serious offense and the defendantwas incarcerated. Thetrial court granted a continuance, but released Mr. Scott on his own recognizance, a proper exercise ofdiscretion. Unpreparedfor Trial. Like scheduling conflicts, the need for trial preparation is a "valid reason[] for continuances beyond the time for trial period." Flinn, 154Wn.2d at 200. Here, dueto trial date confusion, the State did not subpoena its witnesses by the October 6 status hearing. The court did not have a final review hearing on its docket. To allowtimefor these deficienciesto be corrected and for the State to preparefortrial, the court continued the trial bytwo weeks, satisfying Flinn. UnavailabilityofWitnesses. The unavailability ofa material State witness is a valid ground for continuing a criminal trial where a valid reason exists forthe unavailability, the witness will become available within a reasonable time, and the defendant is not substantially prejudiced. State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993). Here, both the investigating officer and the alleged victim were material witnesses who had valid excuses for being unavailable (a pre-planned vacation and a death in thefamily). And, in both cases, the court continued the trial for a limited time. Accordingly, the court had a tenable basis to delaytrial. Because the trial court did not abuse its discretion in granting the State's continuances, the delaywas excluded



### 4No. 32971-2-111 State v. Scott

.from the computation oftime awaiting trial under CrR{e){3). No speedytrial violation

1 

### ! occurred. 

# I B. SAG 

# I I In his SAG, Mr. Scott contends the prosecutorfalsely told the court atthe 

## i October 6 continuance hearing that the State needed additional time to issue 

# I subpoenas. No evidence in this court's record shows this statementwas false. If Mr. 

# I Scott is aware ofevidence outside our record to support his claim, his proper remedy is 

# I to bring a personal restraint petition. State v. Turner, 167Wn. App. 871,881,275 P.3d 356 (2012). 

## t Next, Mr. Scott asks this courtto refund him $1,300 in paid fines. Since we reject his contentions and affirm his conviction, no basis exists for a refund. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:
Fearing, 

### J. Lawrence-Berrey, 

### J.

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