                                                                     FiLtD
                                                             COURT OF APPEAL? CiV I
                                                              STATE OF WASHINGTON

                                                              2013 APR 22 AH 8: 16




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 68041-2-1
                     Respondent,
                                                   DIVISION ONE
              v.



TONY REM,                                          UNPUBLISHED OPINION

                     Appellant.                    FILED: April 22, 2013


       Becker, J. — Tony Rem contends his convictions should be dismissed

because his trial did not commence within the speedy trial time period allowed by

CrR 3.3. Atrial judge decided several pretrial motions within the time required

but then recessed, with trial resuming before another judge five months later.

Rem contends the recess was merely an effort by the State to avoid the

requirements of the rule. But Rem did not object to any of several recesses, and

the record shows accommodations for both sides' scheduling conflicts. We affirm

because Rem failed to preserve an objection under CrR 3.3 and does not raise a

manifest error affecting a constitutional right.

       Early on the morning of June 17, 2010, Karla Diocales called 911 to report

that her boyfriend, Tony Rem, had beaten her and taken off with her car. On

June 23, 2010, the State charged Rem with assault in the second degree -
68041-2-1/2


domestic violence and unlawful possession of a firearm. After his arrest, Rem

made calls to Diocales from jail in violation of a no-contact order. The State later

amended the information to add charges for theft of a motor vehicle, tampering

with a witness, and domestic violence misdemeanor violations of a court order.

      Trial was scheduled to begin on September 1, 2010, before Superior Court

Judge Jean Rietschel. At that time, the trial court noted the expiration date of

Rem's original speedy trial period as September 4, 2010.1
      The record shows extensive discussion between the parties and Judge

Rietschel on September 1 about scheduling issues. The prosecutor estimated

that presenting the State's case against Rem would take three to four days. The

prosecutor expected to begin a murder trial on September 14 but thought there

might be enough time to complete Rem's trial by then. Defense counsel said he

was not available at all on September 8.

       Judge Rietschel accepted the suggestion that the court move forward with

the pretrial issues "and then see where we are in terms of timeliness and then

make the call as to whether we could finish the trial in the amount of time we

have available."

       Judge Rietschel heard and decided several pretrial motions on September

1 and 2. On September 2, the trial was recessed by agreed order "until October

4, 2010," or until the prosecutor finished her murder trial.

       The supplemental clerk's papers reveal a series of extensions of trial from

October 4, 2010, until January 27, 2011 for various reasons, including

      1On appeal, the State asserts the actual expiration date was September
7, 2010. The difference does not impact the analysis of the issue in this case.
68041-2-1/3


unavailability of counsel because of other trials, witness unavailability, medical

leave, and vacation of counsel. During the pendency of the trial, Rem was also

being held on pending robbery charges in an unrelated matter.

      The parties convened for trial before Superior Court Judge Joan DuBuque

on January 27, 2011. Defense counsel made an objection to proceeding before

Judge DuBuque rather than Judge Rietschel "because we had commenced trial

with Judge Rietschel." Pressed by the court for legal authority as to why the trial

had to continue with Judge Rietschel, who was at this time unavailable, defense

counsel had none to offer. "I don't have any objection to Your Honor taking the

case except for the fact that it's been several months that we have been in a

state of recess." The court elected to continue with the trial. Rem made no

further reference to any objection to proceeding before Judge Dubuque. Rem

made no objection based on speedy trial or CrR 3.3.

       On February 9, 2011, the jury convicted Rem of assault, witness

tampering, and the no-contact order violations. The jury acquitted him of

unlawful possession of a firearm and theft of a motor vehicle.

        On appeal, Rem argues his trial did not actually start on September 1,

2010, when Judge Rietschel ruled on the pretrial motions, but rather started on

January 27, 2011, beyond the time limits of CrR 3.3. According to Rem,
because the prosecutor had an upcoming murder trial and would not have time

for Rem's trial, "the State urged the court to engage in the charade of beginning

trial in September, only to indefinitely recess the matter."
68041-2-1/4


       "As a general matter, commencement of a trial satisfies the purpose of a

rule to secure a speedy trial." State v. Andrews, 66 Wn. App. 804, 810, 832 P.2d

1373 (1992), review denied. 120 Wn.2d 1022 (1993). "The hearing and

disposition of preliminary motions by the trial judge after a case is assigned or

called for trial is considered a customary and practical phase of the trial."

Andrews, 66 Wn. App. at 810. Andrews involved three consolidated cases

wherein trial judges heard and decided preliminary motions within the speedy

trial period, but the court was not ready to proceed with the remainder of the trials

before that period had elapsed. Defendants argued that calling a case and

entertaining a preliminary motion should not be enough to toll the running of the

speedy trial period provided by rule. This court disagreed but stated, "Had the

State taken advantage of the rule to justify an undue delay of the remainder of

the 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. Rem contends

that in his case, it was the design of the State to get the trial started, and then

indefinitely recessed, in order to avoid the requirements of CrR 3.3.

       Review of this issue is barred by RAP 2.5(a). The issue is not

constitutional, and Rem's objection did not preserve an issue under CrR 3.3. In

any event, the record does not support the argument. The extensions were

necessitated by scheduling issues on both sides. Rem fails to show that any of

the reasons for these extensions were the result of intentional manipulation by

the State or were otherwise legally inappropriate.
68041-2-1/5


      Affirmed.




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WE CONCUR:




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