                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          May 16, 2017
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 47589-8-II

                                Respondent,

          v.

    DANIEL LEE ROUSE,                                         UNPUBLISHED OPINION

                                Appellant.

         WORSWICK, J. — Daniel Lee Rouse appeals his sentence for felony violation of a no-

contact order. Rouse argues the sentencing court imposed an unauthorized sentence by

miscalculating his offender score. The State concedes error. In his statement of additional

grounds (SAG), Rouse claims the superior court violated his due process rights by (1) entering

an order of conviction when the superior court did not have jurisdiction to do so and (2) denying

his timely arraignment, time for trial, and speedy trial rights. We hold that the sentencing court

imposed an unauthorized sentence on Rouse by miscalculating his offender score but that it did

not otherwise err. Accordingly, we affirm Rouse’s conviction but vacate his sentence and

remand for resentencing.

                                              FACTS

         On September 19, 2014, the State filed a felony complaint in district court charging

Rouse with one count of felony violation of a protection order.1 Soon after, the district court

made a probable cause determination on the felony charge.



1
    RCW 26.50.110(5).
No. 47589-8-II


         On October 16, 27 days after the felony complaint was filed in district court, the State

filed an information in superior court charging Rouse with one count of felony violation of a

court order with a special allegation of domestic violence.2 Rouse was arraigned on the

information in superior court four days later, on October 20, and the district court dismissed the

felony complaint. On October 20, the superior court set Rouse’s trial for December 15. The

superior court noted that Rouse was “on a 60-day trial clock, which end[ed] on December 19th.”

Verbatim Report of Proceedings (VRP) (Oct. 20, 2014) at 4. Rouse’s counsel objected to the

trial date, stating: “[M]y client is noting an objection to the speedy trial calculation on this with

regard to the 30 days he spent in custody while in [the Kitsap County Felony Early Plea Unit].”

VRP (Oct. 20, 2014) at 4.

         Rouse represents, and the State does not deny, that Rouse was confined in jail while

awaiting trial. Rouse’s trial began on December 16. At trial, Rouse stipulated that he had two

prior convictions in municipal court for violation of a no-contact order.3 Following presentation

of the evidence, the jury found Rouse guilty of felony violation of a protection order.

         At sentencing, the State noted that Rouse’s criminal history included two violations of

municipal domestic violence no-contact orders. The State calculated that Rouse had an offender

score of 8 by counting the two prior violations of a no-contact order as 2 points each. The




2
    RCW 26.50.110(5).
3
  Rouse’s two prior convictions were for violating provisions of a no-contact order issued under
chapter 10.99 RCW and, therefore, are qualifying convictions for felony violation of a protection
order under RCW 26.50.110(5).
                                                   2
No. 47589-8-II


sentencing court accepted the State’s offender score calculation and sentenced Rouse to 60

months of incarceration, the statutory maximum for an offender score of 8. Rouse appeals.

                                            ANALYSIS

       Rouse argues, and the State concedes, that the sentencing court imposed an unlawful

sentence by miscalculating Rouse’s offender score. Specifically, Rouse contends the sentencing

court miscalculated his offender score by counting each of his prior misdemeanor domestic

violence convictions as 2 points instead of 1. We accept the State’s concession and remand for

resentencing.

       A sentencing court acts without authority when it imposes a sentence based on a

miscalculated offender score. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d

618 (2002). We review de novo a sentencing court’s offender score calculation. State v.

Moeurn, 170 Wn.2d 169, 172, 240 P.3d 1158 (2010). A miscalculated offender score is

remedied by resentencing using the correct offender score. State v. Ross, 152 Wn.2d 220, 229,

95 P.3d 1225 (2004).

       RCW 9.94A.525(21)(c) provides that where a present conviction is for a felony domestic

violence offense where domestic violence is pleaded and proven, a sentencing court is to

“[c]ount one point for each adult prior conviction for a repetitive domestic violence offense as

defined in RCW 9.94A.030.” RCW 9.94A.030’s definition of a “repetitive domestic violence

offense” includes a “[d]omestic violence violation of a protection order . . . that is not a felony

offense.” Former RCW 9.94A.030(41)(a)(iii) (2012).

       Rouse’s present conviction is for a felony violation of a no-contact order. Rouse’s

criminal history includes two 2014 violations of a municipal domestic violence no-contact order.

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No. 47589-8-II


The sentencing court calculated Rouse’s offender score as 8, counting Rouse’s two prior

violations of a no-contact order as 2 points each. Based on an offender score of 8, the sentencing

court sentenced Rouse to 60 months of incarceration.

       Under former RCW 9.94A.030(42)(a)(iii), Rouse’s two adult prior convictions for

municipal violations of a no-contact order are repetitive domestic violence offenses. Because

Rouse is presently convicted of a felony domestic violence offense, his prior convictions for

repetitive domestic violence offenses count as 1 point each. RCW 9.94A.525(21)(c). Therefore,

the sentencing court miscalculated Rouse’s offender score and acted without authority in

imposing its sentence. We accept the State’s concession, vacate the sentence, and remand for

resentencing.

                         STATEMENT OF ADDITIONAL GROUNDS

       In his SAG, Rouse claims the superior court violated his due process rights by (1)

entering an order of conviction when it did not have jurisdiction to do so and (2) denying his

timely arraignment, time for trial, and speedy trial rights. We determine that Rouse’s due

process claims lack merit.

                                         I. JURISDICTION

       Rouse claims the superior court did not have jurisdiction over him. Specifically, Rouse

argues that the superior court never obtained jurisdiction over him because the district court

failed to bind him over to superior court after conducting a preliminary hearing. This claim has

no merit.

       RCW 3.66.060 governs the district court’s criminal jurisdiction and grants district and

superior courts concurrent jurisdiction. State v. Stock, 44 Wn. App. 467, 474, 722 P.2d 1330

                                                 4
No. 47589-8-II


(1986). RCW 3.66.060 provides that the district court “shall have jurisdiction . . . to sit as a

committing magistrate . . . in cases provided by law.” Accordingly, district courts have

jurisdiction to issue rulings or process in felony cases. State v. Bliss, 191 Wn. App. 903, 913-14,

365 P.3d 764 (2015). The district court’s exercise of its concurrent jurisdiction “does not

deprive the superior court[ ] of any power.” Stock, 44 Wn. App. at 474.

       At oral argument, Rouse and the State represented that the district court did not conduct a

preliminary hearing. Instead, the district court made a probable cause determination on Rouse’s

felony charge, and an information was later filed in superior court. Accordingly, Rouse’s claim

has no merit. Moreover, the district court had concurrent jurisdiction with the superior court

when it made its probable cause determination, and the superior court retained its jurisdiction.4

             II. TIMELY ARRAIGNMENT, TIME FOR TRIAL, AND SPEEDY TRIAL RIGHTS

       Rouse also claims the superior court violated his due process rights in (a) violating his

right to timely arraignment by failing to arraign him within 14 days of the date the information

was filed in superior court and (b) violating his time for trial and speedy trial rights by failing to

bring him to trial within 60 days of his arraignment while he was confined in jail. The State

argues Rouse waived his time for trial rights. We hold Rouse did not waive his time for trial

rights argument, but that Rouse’s remaining claims lack merit.




4
  Because the superior court retained its jurisdiction over Rouse’s felony charge, the Criminal
Rules for Courts of Limited Jurisdiction did not prevent the superior court from asserting
jurisdiction over Rouse’s case. RCW 3.66.060.


                                                   5
No. 47589-8-II


A.     Timely Arraignment

       Rouse claims the superior court violated his due process rights by failing to arraign him

within 14 days of the date the information was filed in superior court.5 This claim lacks merit.

       Under CrR 4.1(a)(1), a defendant detained in jail must be arraigned in superior court no

later than 14 days after the date the information was filed in superior court. Here, the

information was filed in superior court on October 16, 2014. Rouse was arraigned in superior

court on October 20. Because Rouse was arraigned four days after the date the information was

filed, the superior court did not violate his right to timely arraignment. Thus, Rouse’s claim

lacks merit.

B.     Time for Trial

       As an initial matter, the State contends that Rouse waived his time for trial rights because

he failed to timely object to the trial setting. We disagree.6

       1. Timely Objection

       A defendant waives his time for trial rights under the court rules if he does not timely

object to the violation. State v. Chavez-Romero, 170 Wn. App. 568, 581, 285 P.3d 195 (2012).

CrR 3.3(d)(3) requires that a criminal defendant “who objects to the date set [for trial] upon the

ground that it is not within the time limits prescribed by this rule must, within 10 days . . . move



5
  In his reply to the State’s supplemental brief, Rouse also contends the district court violated his
right to timely arraignment because he was not arraigned within 14 days after the date his felony
complaint was filed in district court, as provided in CrRLJ 4.1(a)(1). The district court dismissed
Rouse’s felony charge. Accordingly, Rouse’s claim lacks merit.
6
 The State does not argue that Rouse waived his time for trial rights because he failed to file a
written motion objecting to the trial date.


                                                  6
No. 47589-8-II


that the court set a trial within those time limits.” Accordingly, the defendant must object to the

trial date in writing within 10 days of his notice of the trial date. Chavez-Romero, 170 Wn. App.

at 581.

          The superior court set Rouse’s trial date on October 20, 2014. On October 20, Rouse’s

counsel stated: “[M]y client is noting an objection to the speedy trial calculation on this with

regard to the 30 days he spent in custody while in [the Kitsap County Felony Early Plea Unit].”

VRP (Oct. 20, 2014) at 4. Accordingly, Rouse objected within 10 days of the date set for trial.

Thus, Rouse timely objected to the trial setting.

          2. Time for Trial Rights

          The application of a court rule to a particular set of facts is a question of law we review

de novo. State v. Conwell, 141 Wn.2d 901, 906, 10 P.3d 1056 (2000). When a defendant is

detained in jail at the time a felony complaint is filed in district court, an information must be

filed in superior court within 30 days of the date the felony complaint was filed. CrRLJ

3.2.1(g)(2).

          CrR 3.3 provides criminal defendants with a nonconstitutional right to a timely trial in

superior court. State v. Ollivier, 178 Wn.2d 813, 823, 312 P.3d 1 (2013). CrR 3.3(b)(1)(i) states

that “[a] defendant who is detained in jail shall be brought to trial within . . . 60 days after the

commencement date specified in the rule.” The commencement date is defined as the date of

arraignment in superior court. CrR 3.3(c)(1). “No case shall be dismissed for time-to-trial

reasons except as expressly required by this rule, a statute, or the state or federal constitution.”

CrR 3.3(h).




                                                    7
No. 47589-8-II


       Here, the State filed an information in superior court on October 16. Rouse was

arraigned on the information in superior court on October 20, and his trial began on December

16.

       Because Rouse was arraigned in superior court on October 20, the commencement date

for Rouse’s time for trial rights was October 20. CrR 3.3(c)(1). Rouse’s trial began on

December 16—57 days after he was arraigned on the information in superior court. Because

Rouse was detained in jail and was brought to trial within 60 days after he was arraigned in

superior court, the superior court did not violate his CrR 3.3 time for trial rights. Therefore, his

claim has no merit.

C.     Constitutional Speedy Trial Rights

       Rouse also claims that the superior court violated his constitutional speedy trial rights by

bringing him to trial within 90 days of his arraignment in district court instead of 60 days.

Specifically, Rouse argues that his speedy trial rights were violated because the court rules

permitted him to be brought to trial 30 days later than criminal defendants initially charged in

superior court who are also detained in jail. To the extent Rouse claims this violates his

constitutional speedy trial rights, his claim is without merit.

       We review de novo constitutional speedy trial claims. State v. Iniguez, 167 Wn.2d 273,

280, 217 P.3d 768 (2009). Both the federal and Washington state constitutions guarantee a

criminal defendant the right to a speedy trial. U.S. CONST. amend. VI; CONST. art. I, § 22. For

us to determine a speedy trial claim, the defendant must first show that the length of delay in

bringing him to trial crossed the line from ordinary to presumptively prejudicial. Iniguez, 167

Wn.2d at 283. Once the defendant shows that the trial court’s delay was presumptively

                                                  8
No. 47589-8-II


prejudicial, we examine the nature of the court’s delay to determine whether a constitutional

violation occurred. 167 Wn.2d at 283.

       The threshold for a constitutional speedy trial violation is higher than for a violation of

the court rules. State v. Smith, 165 Wn. App. 296, 324, 266 P.3d 250 (2011). While the court

rules are founded upon the constitutional right to a speedy trial, they are not of constitutional

magnitude. Ollivier, 178 Wn.2d at 823. Moreover, there is “no constitutional basis for holding

that the speedy trial right can be quantified into a specified number of days or months.” Barker

v. Wingo, 407 U.S. 514, 523, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

       When a defendant is detained in jail at the time a felony complaint is filed in district

court, an information must be filed in superior court within 30 days of the date the felony

complaint was filed. CrRLJ 3.2.1(g)(2). Then, the superior court must arraign the defendant

within 14 days of the date the information was filed in superior court. CrR 4.1(a)(1). Finally,

the defendant must be brought to trial in superior court within 60 days of his arraignment in

superior court. CrR 3.3(b)(1)(i).

       Rouse was initially charged in district court on September 19, 2014. Rouse was detained

in jail while awaiting trial. An information was filed in superior court on October 16—27 days

after the felony complaint was filed in district court. Rouse was arraigned on October 20, and

his trial began on December 16.

       An information was filed in superior court within 30 days of the date the felony

complaint was filed in district court, and the superior court brought Rouse to trial within 60 days

of the date the information was filed in superior court. As a result, the superior court did not

violate the court rules, and the threshold for constitutional violations is higher than for rule-based

                                                  9
No. 47589-8-II


time for trial violations. While Rouse was not brought to trial within 60 days of the date he was

initially charged by felony complaint in district court, “[t]rial within 60 days is not a

constitutional mandate.” State v. Carson, 128 Wn.2d 805, 821, 912 P.2d 1016 (1996).

Accordingly, Rouse cannot show that the 27-day delay between filing a felony complaint in

district court and filing an information in superior court was presumptively prejudicial.

Therefore, Rouse fails to show his constitutional right to a speedy trial was violated, and his

claim fails.

        We affirm Rouse’s conviction but vacate his sentence and remand for resentencing.

        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

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Maxa, A.C.J.




 Sutton, J.




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