                                                                                                F1L ED
                                                                                        COURT OF A"PPALS
                                                                                                   `

                                                                                      2013 CEP 17 AN 8: 42
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                        DIVISION II

STATE OF WASHINGTON                                               No. 44005 9 II
                                                                            - -


                              Respondent,

       VIM




JOSEPH JAMES MARTIN, JR.,                                   UNPUBLISHED OPINION




       JOHANSON, A. .
                 J.
                  C           Joseph James Martin, Jr. appeals his jury trial convictions for first
                                —


degree rape, first degree burglary, second degree assault, violation of a court order, and unlawful
imprisonment. Martin claims the trial court erred when it ( )continued Martin's case past the
                                                          1
time for trial,violating CrR 3. ;2)
                              3 ( admitted evidence of Martin's prior crimes; and (3)imposed

community custody conditions unrelated to the charged crime. Because the trial court violated
Martin's CrR 3. time for trial right, we accept the State's concession, reverse Martin's
              3

convictions, and dismiss his charges with prejudice.
                                            1.
                                                 FACTS


        The State charged Martin with first degree rape, first degree burglary, second degree
assault, violation of a court order, and unlawful imprisonment, with all charges alleging domestic
violence.. While awaiting trial, Martin was in custody. The trial court initially set Martin's trial

date for February 28, 2012, but over the next two months, without any objection, it granted four
continuances.
No. 44005 9 II
          - -




       On April 24, though the parties were ready for trial, the trial court continued the trial to

May   15 because   no   judges   were   available.' Martin objected, arguing that the May 15 date

extended beyond the CrR 3. time for trial window. The trial court clarified, Judge Roof is in a
                         3                                                   "
long trial. Judge Dalton is in a long trial. Courtrooms are taken up.... are no judges
                                                                     There
available for trial."
                    Verbatim Report of Proceedings (VRP)Apr.24, 2012)at 3.
                                                        (

       Then, on May 15, Martin stated he was again ready for trial, and the trial court continued

the matter to May 22, announcing, " do not have either a trial judge or a trial courtroom
                                  I

available."VRP (May 15, 2012)at 2. Martin again objected.and stated that based on the court's

prior rulings,the time for trial would expire May 24.

       On May 22,while Martin again noted his readiness for trial,the court again continued the

case to May 29, asserting, I talked to the court scheduler today. There is not a courtroom nor a
                           "

judge available to try this matter."VRP (May 22, 2012) at 2. Martin objected, saying the May

29 date would go beyond the CrR 3. time for trial.
                                 3

       On May 29, the court again continued the case, noting, "[ here is only one judge
                                                              T]

available and one courtroom available to take a matter out for trial for two days, and I previously

filled that slot this morning with State vs. Bollinger."VRP (May 29, 2012) at 2. Martin again

objected and the trial court set the trial for June 26; the trial began on that date. At trial,the jury

found Martin guilty on all counts.




  Kitsap County has eight superior court judges and one court commissioner.

                                                    2
No. 44005 9 II
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                                           ANALYSIS


                                          TIME FOR TRIAL


       Martin argues that the trial court violated his CrR 3. time for trial right. Br. of Appellant
                                                            3

at 5.he State concedes the error. We accept the State's concession.
    T

       We review alleged violations of CrR 3. de novo. State v. Kenyon, 167 Wn. d 130, 135,
                                            3                                 2

216 P. d 1024 (2009);
     3              State v. Lackey, 153 Wn. App. 791, 798, 23 P. d 1215, review denied,
                                                          2     3

153 Wn. d 1034 (2010).The decision to grant or deny a motion for a continuance rests within
      2
the sound discretion of the trial court and we will not disturb the trial court's decision unless the

appellant clearly shows the trial court's decision was manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons. State v. Flinn, 154 Wn. d 193, 199, 110 P. d 748
                                                                   2                  3

2005).

       A trial court must set a trial date within 60 days of the defendant's arraignment if the

defendant is in   custody. CrR 3. (
                               i).
                               b)( But, a trial court may grant continuances for good
                                1)(
                                3

cause, and those continuances are excluded in computing the time for trial. See CrR 3. (
                                                                                    e)(
                                                                                     3).
                                                                                     3

For example, if a court grants a continuance for "[
                                                 u] navoidable or unforeseen circumstances

affecting the time for trial beyond the control of the court or of the parties," time is excluded
                                                                               that

from the time for trial. CrR 3. (
                             e)( When a trial court grants a continuance that excludes a
                              8).
                              3

period of time under CrR 3. ( time for trial extends to at least " 0 days after the end of that
                         e),
                          3 the                                  3
excluded period."CrR 3. ( the defendant's trial does not begin within the limits of CrR
                     b)( If
                      5).
                      3
3. and the defendant objects timely, then the court must dismiss the charge with prejudice. CrR
 3

d)(h).(
3. (
 3),
 3




                                                  3
No. 44005 9 II
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       Court congestion is not a valid reason to continue a case beyond the time for trial. Flinn,
                                                                                                              i

154 Wn. d at 200; Kenyon, 167 Wn. d at 139. If court congestion is the primary reason for a
      2                         2

continuance, the court must record details of the congestion, such as how many courtrooms
             "

were actually in use at the time of the continuance and the availability of visiting judges to hear

criminal cases in unoccupied courtrooms." Flinn, 154 Wn. d at 200. In Kenyon, the trial court
                                                       2

ruled that "the unavailability of a judge to preside over Kenyon's case was an unavoidable

circumstance because it was already presiding over another case and the other judge was on

vacation." 167     Wn. d at 137. The Supreme Court held that the trial court violated Kenyon's
                     2

CrR 3. time for trial right by failing to document "the availability of pro tempore judges and
     3

unoccupied courtrooms."Kenyon, 167 Wn. d at 139.
                                     2

       Here, like Kenyon, the trial court improperly continued Martin's trial beyond the time for
trial when it cited courtroom congestion as the reason for the continuance without documenting
                                                                      and   unoccupied     courtrooms.   On
sufficient details about the    availability of pro tempore judges

April 24, when Martin objected to the continuance, the court only identified two unavailable
Kitsap County judges out of the eight superior court judges; and, the trial court just generally
stated that courtrooms were unavailable. The trial court's rationale falls short of the Kenyon and

Flinn requirements. Similarly, the trial court's explained reasons for continuing the trial on May
15, May 22, and May 29 also fall short because the trial court failed to document available pro

tempore judges or make an inventory of courtrooms. Because the trial court did not document
good cause to continue the trial on April 24, May 15, May 22, or May 29, Martin's time for trial
                             the trial court violated his CrR 3. time for trial
                                                               3                  right.   CrR   b)(
                                                                                                 3. (
                                                                                                  5).
                                                                                                  3
expired   on   May 24, and
No. 44005 9 II
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       We accept the State's concession.           Like the Supreme Court in Kenyon, we reverse

Martin's              trial convictions and dismiss the   charges against   Martin with   prejudice.   See
               jury

Kenyon, 167 Wn. d at 139.
              2

       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.it is so ordered.
 0




                                                                       Johanson, A. .
                                                                                 Y.
                                                                                  C
We concur:                                                J
           i




                         Pe    o   r,J.


                                   J.
                          lH




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