                                                                                     FIL
                                                                              0 RT OF APPEALS
                                                                                   G' ilsio IT
                                                                             2013 SEP -4 AM 10: 21

                                                                             STATE OF V'
                                                                                       IAS111PETON

                                                                                          1




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

STATE OF WASHINGTON,                                                     No. 43415 6 II
                                                                                   - -


                                    Appellant,                     UNPUBLISHED OPINION


         V.




HELEN DEE DEE SHALE,




          BJORGEN J. —The State appeals the superior court's order dismissing a felony driving

under the influence (DUI)charge against Helen Dee Dee Shale based on a violation of her right

to a speedy trial. We reverse and remand for further proceedings.
                                                  FACTS


          On February 15, 2012, Jefferson County Sheriff's Deputy Brandon M.Przygocki arrested

Shale   on   suspicion   of DUI .   On February 16, 2012, the district court arraigned Shale on a gross




1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to a panel of judges.
      1
2
    The district court information is not in the record   on   appeal.
No. 43415 6 II
          - -



misdemeanor DUI        charge, RCW    502(
                                      46. 1.and she
                                         5
                                         6 ),                      remained in   custody. On March 16,

2012, the State asked that the court not set a trial date because the parties were discussing a plea.

The district court then set a hearing, but not trial,for April 4,2012.

        On April 4, 2012, Shale wanted to enter a guilty plea to the misdemeanor charges but the

State refused to make a plea offer based on those charges because it was investigating whether it

should instead charge a felony DUI based on her criminal history from another jurisdiction.

RCW 46. 1.The district court continued the hearing to April 11, 2012, at which time the
    502(
       6
       6 ).

court issued another week's continuance because the other jurisdiction had not responded to the

State's request for information.

        On   April 16, 2012, the    State   charged Shale   with   felony   DUI in   superior   court.   RCW


45. 1.That same day, the district court held a hearing on its misdemeanor DUI
b)(
502(
   ii).
   6)(
   6

charge, at which      time the State moved to dismiss that    charge. Shale objected to the dismissal

and stated that she was prepared to enter a guilty plea to the misdemeanor charge.

        The district court advised that the time for trial period "ikely expires today."
                                                                  l                     Report of




3
    RCW 46. 1.
        502 provides, in relevant part:
          6
            1) A person is guilty of driving while under the influence of
        intoxicating liquor, marijuana, or any drug if the person drives.a vehicle within
        this state:


                5) Except as provided in subsection (6) this section, a violation of
                                                          of
        this section is a gross misdemeanor.
                6) It is a class C felony punishable under chapter 9. RCW ... if:
                                                                    94A


                b)        The person has ever previously been convicted of:

                ii)   Vehicular assault while under the influence of intoxicating liquor
        or any drug, RCW 46. 1.
                         b).
                         522(    1)(
                                 6

                                                     2
No. 43415 6 II
          - -



Proceedings ( RP) Apr. 16, 2012) at
                  (                       32.   The State took the position that Shale "ha[ ]an
                                                                                          s

excluded period, as they set it over for about a month."RP (Apr. 16, 2012) at 32. The district

court concluded that it could not "
                                  force a plea upon the State," it granted the State's motion
                                                              and

to dismiss. It did not rule on the time for trial issue under. rR 3. , but added, I don't know
                                                             C     3              "

whether you're going to have any time to try her in superior court, or not." (Apr. 16, 2012)at
                                                                           RP

33.


         On April 27, 2012, when the parties appeared in superior court, Shale raised the time for

trial issue. She filed a motion to dismiss, arguing that the 60 day time for trial period under CrR
                                                                -

b)(had
3. ( elapsed. The State argued that the " lock"stopped on April 4. RP (Apr.27, 2012)
 1)
 3                                      c

at 2 3. Shale countered that CrR 3. (
     -                           f) the trial period from running only when there
                                  3 stopped

was a written agreement and when the trial court "
                                                 continue[d] trial date to a specified date,"
                                                           the

neither of which applied in her case. CrR 3. ( RP (Apr.27, 2012)at 3 6.
                                          f)( (
                                           1),
                                           3 2);                     -

         The State asked the trial court to continue the case beyond the time for trial under




4
    CrR 3. ( (2)
        f)( provide:
           1)
           3 and
                1) Written Agreement. Upon written agreement of the parties, which
        must be signed by the defendant or all defendants, the court may continue the trial
        date to a specified date.
                2) Motion by the Court or a Party. 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. The bringing of such motion by or on behalf of any
        party waives that party's objection to the requested delay.

                                                   3
No. 43415 6 II
          - -



CrR 3. ( superior court later issued a written order dismissing the felony DUI charge. It
    g).
     3 The

ruled that CrR 3. ( not apply because "[t] excluded period rule refers only to
               f)(
                2)
                3 did                    he

continuance of the ` trial date'.   This court does not have a record of any trial date being

continued in District Court, only the `PTR' pretrial] hearing was continued." Clerk's Papers at
                                            [

W!]


         The superior court denied the State's motion to reconsider. The State appeals.

                                            ANALYSIS


         The State argues that the superior court "erroneously combined the time periods for the

dismissed" misdemeanor district court DUI charge and the superior court felony DUI charge.

Br. of Appellant at 4. The State's opening brief cites no cases and only one rule, CrR 3. (
                                                                                       b).
                                                                                        3

The State does not argue that the superior court erred in denying a continuance beyond the time

for trial period under CrR 3. ( presents no argument that the district court's continuance
                           g),
                            3 and

tolled that period. The State focuses exclusively on the date it filed the felony DUI charges in

superior court. Shale responds that time spent in custody under the misdemeanor DUI charge is
within the 60 day time for trial calculation because the two DUI
              -                                                        charges   were   related. In its


reply, the State argues that the two charges were unrelated.




5
    CrR 3. (
        g)
         3 provides, in part:
        The court may continue the case beyond the limits specified in section (b)on
         motion of the court or a party made within five days after the time for trial has
         expired. Such a continuance may be granted only once in the case upon a finding
         on the record or in writing that the defendant will not be substantially prejudiced
         in the presentation of his or her defense. The period of delay shall be for no more
         than 14 , days for a defendant detained in jail, or 28 days for a defendant not
         detained in jail,from the date that the continuance is granted.

                                                  0
No. 43415 6 II
          - -



       We review   a   trial court's   application   of CrR 3. de
                                                             3      novo.   State   v.   Tolles, _ Wn. App. _,

301 P. d
     3     60, 62 (Div. II May 14, 2013). " ailure to strictly comply with CrR 3. requires
                                          F                                     3

dismissal, whether     or   not   the defendant      can    show   prejudice." Tolles, 301 P. d at 62.
                                                                                            3

Unchallenged findings of fact on a CrR 3. motion to dismiss are verities on appeal. Tolles, 301
                                        3

P.
 3dat62.


1.     Related Charges

       CrR   33( )( " The computation of the allowable time for trial of a pending
             5)a states:

charge shall apply equally to all related charges."Related charge"is defined as "a charge based
                                                   "

on the same conduct as the pending charge that is ultimately file[ ] the superior court."CrR
                                                                 d in

ii).
a)( Where multiple charges stem from the same criminal conduct, the time for trial
3. (
 3)(
 3                      "

period begins on the date the defendant was held to answer on the first of these charges."State

v. Kindsvogel, 149 Wn. d 477,482, 585 P. d 66 (2003)citing State v. Peterson, 90 Wn. d 423,
                     2                 2             (                             2

431, 585 P. d 66 (1978)); also State v. Harris, 130 Wn.2d 35, 44, 921 P. d 1052 (1996).
          2            see                                             2
The purpose of this time for trial rule and definition is to stop "prosecutors from harassing a

defendant by bringing successive charges over a long span of time even though all charges stem

from the same criminal episode." State v. Lee, 132 Wn. d 498, 503, 939 P. d 1223 (1997).
                                                     2                  2

Here, both the misdemeanor and felony charges were based on Shale's DUI on February 15;

thus, it is the " ame conduct."CrR 3. (
                s                  ii).
                                   a)(
                                    3)(
                                    3



6
  Prior to the amendment of the speedy trial rules in 2003, we looked to the American Bar
Association's ABA)speedy trial standards for guidance. See, e. .,
                  (                                               g Kindsvogel, 149 Wn. d at
                                                                                       2
482;Harris, 130 Wn. d at 42. The ABA defined " elated offenses"as "based upon the same
                    2                             r
conduct, upon a single criminal episode, or upon a common plan."
                                                               Kindsvogel, 149 Wn. d at
                                                                                  2
482. CrR 3. (
           ii)
           a)(incorporates the " ame conduct"portion of the ABA definition;thus, we
                3)(
                3                      s
find pre -amendment cases instructive.

                                                        5
No. 43415 6 II
          - -



        The State argues that it can distinguish the two charges because the misdemeanor DUI

charge "was [based on] a single episode of driving under the influence" and the felony DUI

charge instead involved " riminal conduct that extended over several years and included several
                        c

separate convictions for alcohol -
                                 related driving offenses." Reply Br. of Appellant at 2 (citing

RCW       6 ), Although we recognize that a driver's past criminal history can
       502(
       46. 1.6)).
          1       (

increase the severity of a DUI charge from a gross misdemeanor to a class C felony, we hold that

the criminal conduct supporting both charges arose from a single criminal episode, namely,

Shale's driving while under the influence of intoxicating liquor, marijuana, or any drug" on
         "

February 15, 2012. RCW 46. 1. 6).
                       502(
                          1 5), (
                          6 ), (

        In Harris, our Supreme Court held that because the superior court had concurrent

Jurisdiction with the district court over an earlier filed driving with no valid operator's license
                                                      -

charge originally filed in district court and the same prosecuting authority appeared in both

courts, the district court time for trial period applied to a later filed superior court charge for
                                                                     -

taking a motor vehicle without permission that arose from the same traffic stop. 130 Wn. d at
                                                                                       2

42, 47; see also State v. Peterson, 90 Wn. d 423, 585 P. d 66 (1978)time for trial rule applied
                                         2             2             (

to require dismissal of superior court assault charge filed two years after the filing and dismissal

of a district court assault charge);but cf. State v. Fladebo, 113 Wn. d 388, 392, 779 P. d 707
                                                                    2                  2

1989) time for trial clock was reset in move from municipal to superior court because the
       (

different charges arose from " ifferent jurisdictions with separate prosecutorial responsibilities ").
                             d

The present circumstances resemble those of Harris, not Fladebo.              First, the prosecuting

authority was the same. Second,under RCW 2.8.the superior court has original jurisdiction
                                         010
                                          0

over all felonies and all misdemeanors not otherwise provided for by law, and under RCW


                                                  2
No. 43415 6 II
          - -



060
3.6. superior court and district court have concurrent jurisdiction over misdemeanors and
 6

gross misdemeanors. Under the case law, both charges arose from a single criminal episode.

2.     Justified Delay


       Nevertheless, our review of the record demonstrates that the State's delay in filing the

superior court charges may have been permissible due to difficulties it faced in obtaining Shale's

past criminal history from another jurisdiction. RCW 46. 1. In State v. Ross, 98 Wn.
                                                     502(
                                                        6
                                                        6 ).

App. 1, 981 P. d 888 (1999), State charged the defendant with DUI in district court and later
             2             the

charged him with possession of a controlled substance in superior court. The defendant moved
to dismiss the later filed charge under CrR 3. . Ross recognized that the State was not required
                      -                      3

to bring a charge "
                  until,in the exercise of due diligence, it had or should have had the evidence"

to support the charge. Ross, 98 Wn. App. at 6; see also Fladebo, 113 Wn. d at 394 (rejecting
                                                                       2

time for trial argument because the State had to verify substance found in defendant's car was an

illegal drug   before   filing   controlled substance. charges).   Similarly, the State could not charge

Shale with felony DUI until it verified whether she had prior DUI or related convictions. RCW

46. 1 502( ). concluded that were the State able to meet its burden of showing that "it
  6 . 6 Ross

acted in   good   faith and with due        diligence,   that is, that its   reasons   for   delay . .   were




understandable and justified," time for trial period for the controlled substance charge would
                             the

accrue from the date of the second arraignment. Ross, 98 Wn. App. at 6. Because, however, the

record on appeal in Ross did not allow us to determine whether the State acted in good faith and

with due diligence in bringing the later charge and that its reasons were understandable and


7
  Although the State does not argue from Ross, the argument in its opening brief that the delay in
filing felony charges was due to failed plea negotiations and delay in receiving conviction
records from another county is essentially a Ross claim.
                                                         7
No. 43415 6 II
          - -



justified, we remanded for the trial court to address this issue. Ross, 98 Wn. App. at 6. We do

the same here.


        In the event the trial court determines that the State's reasons for delaying charging Shale

with felony DUI until April 16, 2012 were understandable and justified and that it acted in good

faith and with due diligence, the time for trial period accrues from the date of Shale's felony DUI

arraignment. Ross, 98   Wn.App. at 6. But if the court finds that the State failed to show that its


reasons for the delayed charge were understandable and justified and that it acted in good faith

and with due diligence, the time for trial period for the felony DUI charge accrues from the date

of the original district court DUI charge. Ross, 98 Wn. App. at 6 7
                                                                  -

        Accordingly, we reverse and remand for proceedings consistent with this opinion.

        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 in accordance with RCW

040,
2.6. is so ordered.
  0 it




                                                   BJ
We   concur: ,//
