                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             May 22, 2018



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                  No. 49847-2-II

                                Respondent,

         v.
                                                                UNPUBLISHED OPINION
 SCOTT ANDREW MENDEZ,

                                Appellant.


       MAXA, C.J. – Scott Mendez appeals his conviction of felony violation of a no contact

order. We hold that (1) the trial court did not abuse its discretion in granting trial continuances

based on the prosecutor’s unavailability and the investigating officer’s unavailability and in

selecting the new trial dates based on judicial availability, and (2) the trial court erred in allowing

Mendez to be placed in restraints during the bench trial, but the error was harmless.

Accordingly, we affirm Mendez’s conviction.

                                               FACTS

       A no contact order was in effect that prohibited Mendez from contacting or going within

500 feet of his former girlfriend. He was arrested after an officer saw him standing a few feet

from the door to his former girlfriend’s apartment.

Multiple Continuances

       On April 13, 2016, the State charged Mendez with felony violation of a no contact order.

Mendez’s trial originally was scheduled for June 20. He remained in custody pending the trial.
No. 49847-2-II


        On June 15, the State requested a short continuance. The assigned prosecutor explained

that he had not been present when the trial date was set and that he was scheduled to be out of

state on the trial date. Defense counsel informed the court that Mendez objected to the

continuance, but counsel conceded that a continuance would not cause prejudice. Defense

counsel also stated that he needed time to discuss a new plea offer with Mendez. Defense

counsel requested a trial date of July 11, stating that was the first date he would be available for

trial. The trial court found that there was good cause for the continuance and that the

continuance would not prejudice the presentation of Mendez’s case. The court rescheduled the

trial for July 11.

        On July 6, defense counsel requested a continuance because he was scheduled to start a

trial in another county on July 11 that would last the rest of the month. Counsel stated that

Mendez was not agreeable to the continuance and wanted the case to proceed to trial as quickly

as possible. The State did not object and suggested a new trial date of August 1 or 8, and defense

counsel requested August 8 because he would be out of town on August 1. The trial court found

good cause for the continuance and rescheduled the trial for August 8.

        On July 26, the State filed a motion for a continuance based on the unavailability of the

investigating officer from August 8 through September 10. The State asserted that the

investigating officer was a material witness and that his testimony was essential to the State’s

case. Mendez objected because he already had been in custody for several months. The State

proposed a continuance until September 12, but the trial court stated that the week of September

12 was a nonjury trial week. The State then proposed a trial date of September 19.

        The trial court noted Mendez’s objection and the fact that a continuance would involve

more custody time. However, the court agreed that the officer was a material witness and found




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that it did not have sufficient information to determine that a continuance would cause prejudice.

Therefore, the court granted the continuance and rescheduled the trial for September 19.

       On August 4, Mendez, acting pro se, filed a motion to dismiss the charge against him. In

his motion, Mendez argued that the repeated continuances were a violation of his Fifth

Amendment due process rights and his Sixth Amendment right to a speedy trial. There is no

indication in the record that the trial court addressed this motion.

       On September 16, defense counsel filed a declaration stating that he was now unavailable

on September 19 because a trial in another county had been delayed until that date. He requested

a two-day continuance until September 21. The trial court noted that defense counsel had asked

for a short continuance, but stated that there were no judges available for trial on September 21.

The court found that Mendez’s defense would be prejudiced by being required to proceed to trial

without defense counsel and that a continuance was necessary due to unforeseen circumstances

outside the control of the court or the parties. The court continued the trial until September 26.

       On September 19, Mendez filed a motion to dismiss based on alleged misconduct of the

State in requesting a continuance of the August 8 trial date due to the unavailability of the

investigating officer. Mendez claimed that personnel records showed that the officer was only

on vacation from August 13 through August 26. Defense counsel withdrew this motion at trial.

Trial and Physical Restraints

       After Mendez waived his right to a jury, the bench trial commenced on September 26.

Mendez was placed in physical restraints during the trial. He had restraints on his wrists that

attached to a chain around his waist. He also had shackles on his ankles connected by a chain.

Mendez also was wearing jail clothing. The trial court noted that defendants who were in

custody typically appeared the same as Mendez for proceedings before the court.




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       Mendez requested to have one hand free during the trial to be able to write notes. The

trial court found that having one hand free would not pose a security risk and would allow

Mendez to fully participate in the trial. The court granted Mendez the free use of his right hand

and a writing implement and paper. But the court did not address whether physical restraints

were necessary at all.

       At trial, the arresting officer testified that Mendez was within 500 feet of the apartment of

the former girlfriend, and that the former girlfriend was the subject of a protective order. The

manager of the apartment complex testified that the former girlfriend lived in the apartment at

the time. And law enforcement testified that although Mendez did not actually contact his

former girlfriend, she was in the area when he was arrested.

       The trial court found Mendez guilty of felony violation of a no contact order. Mendez

appeals his conviction.

                                            ANALYSIS

A.     TIME FOR TRIAL VIOLATION

       Mendez argues that the trial court violated CrR 3.3 – the time for trial rule – by granting

multiple continuances over his objections. He claims that the trial court erred by granting

continuances based on the prosecutor’s unavailability, the investigating officer’s unavailability,

and judicial unavailability. We disagree.

       1.   CrR 3.3 Provisions

       CrR 3.3 governs a defendant’s right to be brought to trial in a timely manner. CrR

3.3(b)(1) and (c)(1) provide that a defendant who is detained in jail must be brought to trial

within 60 days of arraignment. The purpose of this rule is to protect a defendant’s constitutional

right to a speedy trial. State v. Kenyon, 167 Wn.2d 130, 136, 216 P.3d 1024 (2009). A charge




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not brought to trial within the time limits of CrR 3.3 generally must be dismissed with prejudice.

CrR 3.3(h).

       CrR 3.3(e) provides that certain time periods are excluded in computing the time for trial.

These excludable time periods include continuances the court grants under CrR 3.3(f) and

“[u]navoidable or unforeseen circumstances affecting the time for trial beyond the control of the

court or of the parties.” CrR 3.3(e)(3); CrR 3.3(e)(8). Under CrR 3.3(f), the trial court may

continue the trial date on motion of the court or a party “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.” CrR 3.3(f)(2). In granting a motion for a continuance, “[t]he court must state on the

record or in writing the reasons for the continuance.” CrR 3.3(f)(2).

       We review an alleged violation of the time for trial rule de novo. Kenyon, 167 Wn.2d at

135. However, we review the trial court’s decision to grant a continuance under CrR 3.3(f)(2)

for an abuse of discretion. See id. In addition, once a continuance is properly granted the trial

court has discretion in selecting the new trial date. See State v. Flinn, 154 Wn.2d 193, 200-01,

110 P.3d 748 (2005). A court abuses its discretion if its decision is manifestly unreasonable,

based on untenable grounds, or based on untenable reasons. Kenyon, 167 Wn.2d at 135.

       2.     Prosecutor Unavailability

       Mendez argues that the court abused its discretion by granting a continuance from June

20, 2016 to July 11 because the assigned prosecutor was unavailable on the original trial date.

We disagree.

       Under CrR 3.3(f), “[s]cheduling conflicts may be considered in granting continuances.”

Flinn, 154 Wn.2d at 200. Specifically, “[a] prosecutor’s reasonably scheduled vacation is a valid

basis for granting a continuance” under CrR 3.2(f). State v. Heredia-Juarez, 119 Wn. App. 150,




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153, 79 P.3d 987 (2003). The State has some responsibility to consider reassigning the

vacationing prosecutor’s case to a new prosecutor. Id. at 154. However, “there is not a per se

requirement of reassignment when a prosecutor becomes unavailable.” Id. at 155.

       In Heredia-Juarez, the court stated that the trial court should consider all relevant factors

in deciding whether to grant a continuance. Id. at 155. The court identified several factors that

could be considered in deciding to grant a continuance for a prosecutor’s previously scheduled

vacation: (1) whether the conflict was created by a previous continuance that the defendant had

requested; (2) the complexity of the case; (3) the need for the prosecutor to build rapport with the

victims, particularly in cases involving serious crimes; and (4) as with all continuances, whether

the defendant would be substantially prejudiced by a delay. Id. at 155-56.

       Mendez argues that based on the factors discussed in Heredia-Juarez, the State had an

obligation under the circumstances to assign the case to a different prosecutor in order to protect

his time for trial rights. He emphasizes that although the State had been aware of the trial date

for several weeks, it did not move for a continuance until five days before trial. And Mendez

notes that the case was simple and straightforward and there was no need for the prosecutor to

establish rapport with victims or witnesses.

       The record is unclear whether the prosecutor acted unreasonably in not moving for a

continuance until five days before the scheduled trial date. It is unknown when the prosecutor

knew about the trial date and when he knew he would be out of state during the week of trial. In

addition, there may be circumstances where it is reasonable to delay moving for a continuance

because of other considerations.




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       Further, there was no indication that a continuance would prejudice Mendez’s

presentation of the case. Defense counsel also stated that he needed time to discuss a plea offer

with Mendez. And the delay was only three weeks.

       Given the trial court’s broad discretion in addressing continuances and the absence of any

prejudice, we hold that the trial court did not abuse its discretion in granting a continuance based

on the prosecutor’s unavailability.

       3.   Witness Unavailability

       Mendez argues that the trial court abused its discretion by granting a continuance from

August 8 to September 19 because of the investigating officer’s unavailability. We disagree.

       The unavailability of a material witness may be a proper basis for continuing a trial under

CrR 3.3(f) if (1) the witness is unavailable for a valid reason, (2) the witness will become

available in a reasonable time, and (3) there is no substantial prejudice to the defendant. State v.

Jones, 117 Wn. App. 721, 729, 72 P.3d 1110 (2003). A law enforcement officer’s previously

scheduled vacation is a valid reason for the officer’s unavailability. State v. Grilley, 67 Wn.

App. 795, 799, 840 P.2d 903 (1992).

       Here, the investigating officer was unavailable for a previously scheduled vacation. The

prosecutor told the trial court that the officer would become available in five weeks, which is not

a completely unreasonable time. And although Mendez objected to the continuance, the trial

court did not have sufficient information to find that the continuance would be prejudicial to the

presentation of his defense.

       Mendez argues that according to personnel records, the officer was only on vacation from

August 13 through August 26. He claims that the officer may have been able to testify before

leaving for vacation if the trial started on August 8 and would have been available before




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No. 49847-2-II


September 10, the date the State represented that he would return from vacation. However, these

allegations are nothing more than speculation and are not supported by the record. Further, at

trial Mendez withdrew his motion based on similar allegations.

        Accordingly, we hold that the trial court did not abuse its discretion by granting a

continuance based on the witness’s unavailability.

        4.   Judicial Unavailability

        Mendez argues that the trial court abused its discretion by scheduling the trial for

September 19 rather than September 12 and for September 26 rather than September 21 because

of judicial unavailability. We disagree.

        Court unavailability or court congestion generally does not constitute good cause for a

continuance under CrR 3.3. Kenyon, 167 Wn.2d at 137. However, a trial court can grant a

continuance based on court congestion if the court makes a record of “the unavailability of

judges and courtrooms and of the availability of judges pro tempore.” Id. As Mendez points out,

the trial court made no such record here.

        However, here the trial court did not grant either challenged continuance based on court

or judicial unavailability. The court granted a continuance of the August 8 trial date because of

witness unavailability and of the September 19 trial date because of defense counsel’s

unavailability.

        After the court granted the continuances, judicial availability was a factor in selecting the

new trial date. But once a continuance is granted for good cause, we do not “second-guess the

trial judge’s discretion in placing the trial on the court’s calendar.” Flinn, 154 Wn.2d at 201.

        Accordingly, we hold that the trial court did not abuse its discretion by considering

judicial availability in selecting the rescheduled trial dates.




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No. 49847-2-II


B.     PLACING PHYSICAL RESTRAINTS ON DEFENDANT

       Mendez argues that the trial court violated his constitutional right to a fair trial by

allowing him to be placed in physical restraints during trial.1 We hold that the trial court erred in

allowing Mendez to be placed in restraints, but that the error was harmless.

       1.    Legal Principles

       Defendants in criminal cases have the right to appear at trial “ ‘free from all bonds or

shackles, except in extraordinary circumstances.’ ” State v. Caver, 195 Wn. App. 774, 780, 381

P.3d 191 (2016), review denied, 187 Wn.2d 1013 (2017) (quoting State v. Finch, 137 Wn.2d

792, 842, 975 P.2d 967 (1999)). This right to appear without restraints is designed to preserve a

defendant’s right to a fair trial under the Sixth and Fourteenth Amendments to the United States

Constitution and article I, section 22 of the Washington Constitution. Caver, 195 Wn. App. at

780. Appearing at trial in restraints may unfairly prejudice the jury, thereby infringing on the

defendant’s presumption of innocence. Id.

       Washington courts have “universally held that restraints should ‘be used only when

necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to

prevent an escape.’ ” Finch, 137 Wn.2d at 846 (quoting State v. Hartzog, 96 Wn.2d 383, 398,

635 P.2d 694 (1981)). Even if there are security concerns, the court must “balance the need for a

secure courtroom with the defendant’s presumption of innocence, the defendant’s ability to assist

counsel, the right to testify on one’s own behalf, and the dignity of the judicial process.” State v.




1
  Mendez also argues that forcing him to wear jail clothing during trial violated his constitutional
rights, but does not provide any analysis or authority on this issue. In general, the analysis is
similar for physical restraints and jail clothing. State v. Caver, 195 Wn. App. 774, 780, 381 P.3d
191 (2016).



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Walker, 185 Wn. App. 790, 796, 344 P.3d 227 (2015). And the trial court should authorize the

use of physical restraints only as a last resort. Finch, 137 Wn.2d at 850.

       The trial court must hold a hearing and make a determination on the record that restraints

are necessary during trial to ensure the decorum and security of the courtroom. Walker, 185 Wn.

App. at 800. The Supreme Court has identified several factors that the trial court should consider

when deciding whether a defendant should be restrained during trial:

       [T]he seriousness of the present charge against the defendant; defendant's
       temperament and character; his age and physical attributes; his past record; past
       escapes or attempted escapes, and evidence of a present plan to escape; threats to
       harm others or cause a disturbance; self-destructive tendencies; the risk of mob
       violence or of attempted revenge by others; the possibility of rescue by other
       offenders still at large; the size and mood of the audience; the nature and physical
       security of the courtroom; and the adequacy and availability of alternative
       remedies.

State v. Hutchinson, 135 Wn.2d 863, 887–88, 959 P.2d 1061 (1998) (quoting Hartzog, 96 Wn.2d

at 400).

       However, in Finch the court emphasized that the existence of one of more of these factors

does not necessarily mean that the defendant should be restrained absent compelling

circumstances that require restraints for courtroom security. 137 Wn.2d at 850. “The trial court

must base its decision to physically restrain a defendant on evidence which indicates that the

defendant poses an imminent risk of escape, that the defendant intends to injure someone in the

courtroom, or that the defendant cannot behave in an orderly manner while in the courtroom.”

Id.

       The trial court has discretion in determining whether a defendant should be restrained.

Caver, 195 Wn. App. at 780. However, that discretion must be founded upon a factual basis set

forth in the record. Walker, 185 Wn. App. at 800. A broad general policy of imposing physical

restraints upon defendants because they may be “potentially dangerous” is a failure to exercise



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discretion. Finch, 137 Wn.2d at 846. In addition, the trial court may abuse its discretion if it

orders the defendant restrained during trial based solely on a policy of the prison officials.

Walker, 185 Wn. App. at 796-97.

        2.   Harmless Error

        A defendant may have a constitutional right to appear without physical restraints in

certain proceedings before the court even though a jury is not present. See Walker, 185 Wn.

App. at 797-802 (discussing the right but declining to hold that it applied at a sentencing

hearing). But allowing a defendant to appear in physical restraints in a nonjury setting requires a

lesser showing of necessity. Id. at 799.

        We do not decide whether a defendant has the right to appear without restraints in a

bench trial because the State concedes that the trial court erred in failing to make a record

regarding the factors supporting placement of restraints, and the parties do not address this issue.

Instead, we focus on harmless error.

        A claim of unconstitutional physical restraints is subject to a harmless error analysis.

State v. Clark, 143 Wn.2d 731, 775, 24 P.3d 1006 (2001). Under this analysis, the State bears

the burden of showing the error was harmless beyond a reasonable doubt or that the evidence of

guilt is so overwhelming that a jury could reach no rational conclusion other than guilt. Id. at

775-76. The question is whether the restraints “had a substantial or injurious effect or influence”

on the verdict. Hutchinson, 135 Wn.2d at 888.

        In a jury trial, improperly restraining a defendant is harmless error if the jury cannot see

the restraints. Id. The question here is whether improperly placing a defendant in restraints

during a bench trial, where the restraints are visible to the trial court, is harmless.




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       Only one Washington case has addressed whether improper restraints on a defendant

during a bench trial constitutes harmless error. In State v. E.J.Y., Division One of this court

found harmless error. 113 Wn. App. 940, 952, 55 P.3d 673 (2002). The court stated:

       [Improper placement of restraints] does not require reversal unless it is shown that
       the use of restraints substantially affected the trial court’s fact finding. No such
       showing has been made. This was a proceeding without a jury, which greatly
       reduces the likelihood of prejudice. We conclude that the error was harmless.

Id. (emphasis added).

       Here, there is no indication that Mendez’s appearance at trial in physical restraints

substantially affected the trial court’s verdict. The trial court certainly knew that Mendez was in

custody. And the court noted that Mendez’s appearance was similar to the way defendants

normally appeared in proceedings before the court. In-custody defendants routinely appear in

restraints in a variety of court proceedings. There is no reason to believe that the trial court was

influenced in any way by the presence of the restraints.

       In addition, the evidence against Mendez was compelling. The State presented testimony

from the arresting officer that Mendez was within 500 feet of the apartment of the subject of a

protective order. And the State presented evidence that the subject of the order lived in the

apartment at the time.

       Accordingly, even if the trial court erred in allowing Mendez to appear in physical

restraints, the error was harmless.

                                          CONCLUSION

       We affirm Mendez’s conviction of felony violation of a no contact order.




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        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.



                                                      MAXA, C.J.


 We concur:



 LEE, J.



 MELNICK, J.




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