IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 77669-0-I

Petitioner/Appellant, DIVISION ONE V. UNPUBLISHED OPINION DAVID BRUCE COE,

Respondent. FILED: June 10, 2019 CHUN, J.

—Ajury convicted David Coe ofdriving underthe influence. On RALJ appeal, the superior court reversed and dismissed Coes conviction based
on a nonconstitutional violation of his speedytrial rights. Forthe reasons discussed below, we reverse the superior court and reinstate Coe’s conviction. BACKGROUND On November25, 2015, the State charged Coe with driving underthe influence (DUI) in King County District Court. Coe was arraigned the same day. The court set bail and took Coe into custody. At a pretrial review hearing on December 7, 2015, the trial court setthe case fortrial to begin on January4, 2016. Coe did not note any pretrial CrRLJ 3.6 motions. The parties agreed to address the State’s CrRLJ 3.5 motion on the day oftrial.No. 77669-0-1/2

At an administrative hearing on December23, 2015, the court determined that Coe’s 60-dayspeedytrial period was setto expire on January25, 2016.1 The parties also discussed ongoing discovery and scheduling matters. The court ruled that although the Statewas not ready, the trial would remain setfor January4, 2016. The parties appeared fortrial on January4, 2016. Counsel for Coe, Justin Wolfe, announced that he was readyto proceed. Coe’s counsel also notified the courtthat he might not be able to complete trial due to an upcomingjob transfer. The court reconfirmed January 25, 2016 as the speedytrial expiration date. The courtthen asked defense counsel whether he had received all requested discovery. Defense counsel asserted that he was missing two items of requested discovery, including the audio ofa 911 call and the audio ofa warrant call. Defense counsel also stated that he was bringing a motion to suppress evidence orto dismiss the case. The court stated that a motions hearing could be held on January 14, 2016, but defense counsel was not available on that day. The State asked the courtwhether itwas continuing the case, and ifso, why. The court expressed
concern thatthe case had not been assigned to a courtroom that could have heard motions priorto trial. The State pointed outthatthe only motion noted was under CrRLJ 3.5 and asked to proceed on that matteror, in the alternative, to continue the matter until the motions hearing. The State also asserted that

1 The 60-day period expired on January24, 2016. Because this datefell on a Sunday, the court ruled that speedytrial would expire on the next court day.

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defense counsel’s trial brief raised several issues “that are actually pretrial motions thatwould need to be heard and potentially even require testimony.” The court responded “[t]hat’s why I’m going to do a motion [hearing].” The State again asked the court’s reasoning forcontinuing the case. The court responded: Because, no fault ofthe defense.
And forsome reason, itgot put on some trackthat didn’t address the motion. Okay. So it gotsetfortoday. I know I don’tdismiss anything until comes speedy and people start getting substantially prejudiced, I guess. We don’t know that yet. This is my trial week. This is my trial week. I have atrial readyto go. So that’s why no, we put it on a motion so that I can hearthese motions.
Another reason why I do it until January 14th is because, then, State, you’re on full notice on all this stuff, so when itcomestothe 14th you can’tsay, well, I didn’t know, and you’ve had twoweeks until January 14th approximately, to go getwhateveryou’re going to get and bring whatever person you need to bring forthose motions. The State expressed concern that defense counsel had not brought his motion to suppress earlier. Defense counsel responded that he had notfiled his motion priorto trial because he had not yet received all the evidence when the
case was set atthe December7, 2015 pretrial hearing. After reviewing the outstanding issues with the parties, the court reiterated that “[i]twas more an administration ofthe case that created us having to do a motions calendar” and that neither partywas to blame. The State argued that Coe’s motions should be waived because he failed to note them on the pretrial calendar, or in the alternative, to continue the case to the new hearing date so both parties could prepare. The court ruled that Coe could bring the motions because the fault lay with the administration ofthe case ratherthan with defense counsel.
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Discussion then turned to the nature and substance ofthe motions. Defense counsel asserted that all were motions in limine with the exception of the CrRLJ 8.3(b) motion to dismiss. The State disagreed on the ground that all ofthe motions would require testimony. The court spontaneously ruled thattrial had commenced “because we started motions in limine.” The parties agreed that trial had commenced and that speedytrial was a “non-issue.” The court proceeded to set a date forthe motions hearing. The two earliest options were January 14 or February26, 2016. Defense counsel requested the soonest possible date. The court reasoned that February26 was more realistic in light of the parties’ caseloads and the complexity ofthe issues. The court also noted thatthe laterdate would provide “ample time and opportunity in case there’s a substitution ofcounsel.” Afterdefense counsel indicated that he was unable to articulate prejudice stemming from the laterdate, the court setthe motion hearing for February26. The State then asked the courtto rule on one motion in limine: And before we continue, if we could just belt and suspenders, on appeal, this case. So I wantto make surethatwhen we have commenced the trial, that we are doing that appropriately. Is the Court willing to rule on just one motion in limine so that we can make sure that when an appellate court looks at this, that we won’t have erroneously continued this trial after commencing speedy

—orafter commencing the trial?
Can wejust rule on one ofthem, such as exclusion ofwitnesses?

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Afterdefense counsel indicated that he had no problem with the State’s request, the Court granted the parties’ joint motion to exclude witnesses. The courtthen recessed until February26, 2016. At a scheduled status hearing on January 14, 2016, defense counsel indicated that anotherattorneyfrom his office would be taking over Coe’s representation. The parties agreed to move the motions date to February25, 2016 and to starttrial testimony on March 7, 2016. On February25, 2016, Coe’s counsel announced that he and his office
were moving to withdraw due to an irreconcilable conflict of interest. Coe’s new counsel, Dua Abudiab, objected to any continuances and asked the courtforthe soonest possible motions hearing. The parties appeared for motions on March 22, 2016. Counsel for Coe filed a motion to dismiss for ineffective assistance ofcounsel and violation of speedytrial rights under CrRLJ 3.3. The court initially denied the motion without comment. The courtthen proceeded to rule on defense counsel’s other motions without hearing testimony. The State then requested time to file a briefon defense counsel’s motion to dismiss “U]ustto make sure there’s something on the record.” The court set a motion hearing forApril 5, 2016 and trial forApril 18, 2018. The case proceeded to trial on April 18, 2016. Thejuryfound Coe guilty of DUI. Coe sought review in superior court. The RALJ court reversed and dismissed Coe’s conviction on the following grounds:

5No. 77669-0-f/6 The delay in this case (3 months) was undue though not attributable to any actions by the Prosecutor’s Office. Pursuant to State v. Andrews, [66 Wn. App. 804, 832 P.2d 1373 (1992)], the court finds that Respondent’s speedytrial rightwas violated. OP 1109. This court subsequentlygranted the State’s motion fordiscretionary review. ANALYSIS The State argues the superiorcourt erred in dismissing Coe’s conviction based on violation of his CrRLJ 3.3 speedytrial rights.2 “RALJ 9.1 governed the superior court’s review ofthe district court’s decision, and governs this court’s reviewas well.” Statev. Frank, ll2Wn. App. 515,520,49 P.3d 954 (2002). We reviewthe district court’s decision forerrors of law and the findings offactfor substantial evidence. Frank, 112 Wn. App. at 520 (citing RALJ 9.1(a), (b)). CrRLJ 3.3 governs the time fortrial in criminal cases in courts of limited jurisdiction. A defendant detained injail must be broughtto trial within 60 days of arraignment. CrRLJ 3.3(b)(1)(i). When the time fortrial rule is violated, the remedy is dismissal with prejudice. CrRLJ 3.3(h). Because Coewas in custodyfollowing his November25, 2015 arrest and arraignment, the State had 60 days to commence trial. CrRLJ 3.3(b)(2)(i). Underthis rule, Coe’s speedytrial expiration date was January 25, 2016. The State argues thattrial properly commenced on January4, 2016—well within the

2The parties agree thatthe constitutional right to a speedytrial is not at issue here. 6No. 77669-0-117

60-daywindow—when the court addressed the parties’ motion to exclude witnesses. We agree. A defendant is broughtto trial” for purposes of CrR 3.3 when thejudge calls the case and hears preliminary motions. State v. Carson, 128 Wn.2d 805, 820, 912 P.2d 1016 (1996). In Andrews, the trial court heard and decided preliminary motions within the CrR 3.3 speedytrial period butwas not readyto immediately proceed to the remainderofthe trial before that period elapsed. 66 Wn. App. at 809. Defendants argued that calling the case and entertaining a preliminary motion to exclude witnesses is merely pro forma and therefore insufficientto toll the running ofthe speedytrial period. This court disagreed and held that “nothing more need be done to complywith CrR 3.3 than thatthe case be called and the court entertain a preliminary motion.” Andrews, 66 Wn. App. at 810. The court acknowledged, however, that, Had the State taken advantage ofthe rule tojustify an undue delay ofthe remainder ofthe trial, a different case might be presented. In none of these cases, however, was it the design of the State that resulted in the trial not proceeding immediately after the first preliminary motion. Andrews, 66 Wn. App. at 811. It is clearthat Coe’s trial commenced on January 4, 2016 when the trial court granted the parties’ motion to exclude witnesses. Coe nevertheless argues thatthe trial courtviolated his CrRLJ 3.3 speedytrial rights because the length in time between the commencement of Coe’s trial and its completion constituted an “undue delay” pursuantto Andrews. We do notfind Coe’s arguments persuasive.

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Coe first argues thatthe trial court ruled on the boilerplate motion to exclude witnesses notto begin the trial in any substantive way, but ratherto justify a delay in the trial. Butthe Andrews court expressly rejected this argument: [Limiting the rule] to certain kinds of motions will put the trial and appellate courts in the position of having to decide what kinds of motions are “substantive” or “important” and which are “pro forma.” This will onlycomplicatethe application ofthe rule and make it more difficultto administer in afairand consistent manner. In the absence ofany prejudicetothe defendant oraviolation of[their] constitutional rightto a speedytrial, there is no reason to draw such a distinction. 66 Wn. App. at 811. We reject Coe’s narrow construction ofAndrews, and decline to considerwhetherthe motion was sufficiently substantive to applythe rule. Coe next contends thatthere were no unforeseen circumstances tojustify the delay. He asserts that both parties were readyfortrial on January 4, 2016, and the subsequent delay resulted entirelyfrom thejudge’s unfounded desire to have motions heard on a separate calendar. The record does not support Coe’s argument. When the January 4 hearing commenced, issues immediately arose regarding missing discovery and defense counsel’s motions. Most notably, the parties disagreed as to whether defense counsel’s motions were motions in limine that could be heard immediately, orwhetherthe State should be given an opportunityto respond and offertestimony. The trial court acknowledged thatthe need to set a motions calendar ultimately resulted from court scheduling issues and was notthe fault of the State ordefense counsel. The court denied the State’s requestto waive

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Coe’s motions as untimely, but indicated that itwould recess the trial so as to provide the State an opportunityto respond. We conclude thatthe court’s decision to address these matters by ruling on the parties’ motion to exclude witnesses and recessing the trial to a laterdate to hearthe remaining motions, with the consent of both parties, wasjustified underthe circumstances. As the Andrews court explained, The nature of the trial process is such that trial courts must be allowed to retain some degree of flexibility and discretion in managing the cases assigned to them.

. . . Neither [the state nor federal] system could function, especially when cases are preassigned to a judge, if the trial court had no ability to manage cases and set priorities, so long as its procedures do not prejudice or interfere with a constitutional right of a party. The right to a trial does not mean that the defendant has a right to all the court’s time every day for as many consecutive days as it takes to complete the trial. 66 Wn. App. at 812. Here, Coe’s constitutional rights are not at stake, and he has not articulated prejudice arising from the delay. Norwas the delay attributable to the State. We also agreewith the State that completion of Coe’strial was delayed for legitimate reasons. Most notably, on February25, 2016, defense counsel withdrew due to an irreconcilable conflict of interest. Under CrRLJ 3.3(c)(2)(vii), disqualification ofcounsel triggers a new commencement date, starting on the date ofdisqualification. And on March 22, 2016, Coe’s new counsel brought a motion to dismiss for ineffective assistance ofcounsel withoutfirst providing itto the State. The trial court acknowledged thatthe State needed time to respond to the motion with briefing. Coe argues thatthese events are immaterial because

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they all occurred afterspeedytrial expired on January 25, 2016 without any party requesting a continuance. However, as discussed above, trial commenced on January 4, 2016, thereby eliminating the speedytrial issue and rendering a continuance unnecessary. In sum, we reverse the superior court order granting Coe’s motion to dismiss his case forviolation of CrRLJ 3.3 speedytrial rights, and remand to the superiorcourtforfurther proceedings consistentwith this opinion. Reversed. 

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WE CONCUR:

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