                                                                        FILED
                                                                    OCTOBER 31, 2017
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34514-9-111
                      Respondent,             )
                                              )
       V.                                     )
                                              )
JUSTIN ALLEN DUNLAP,                          )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       SIDDOWAY, J. -     Justin Dunlap appeals his conviction for violation of a protective

order, arguing that his rule-based speedy trial right was violated and the conviction

should be dismissed with prejudice. In a pro se statement of additional grounds, he

contends that his sentence exceeds the statutory maximum and that his trial lawyer

provided ineffective assistance by failing to request an exceptional mitigated sentence

under RCW 9.94A.535(1)(a) on the basis that the victim, Mr. Dunlap's wife, was a

willing participant in the violation.

       Mr. Dunlap's rights under CrR 3.3 were not violated. But the State concedes that

Mr. Dunlap's sentence exceeds the statutory maximum and agrees to remand for a full

resentencing at which Mr. Dunlap's lawyer will have the opportunity to request an
No. 34514-9-111
State v. Dunlap


exceptional sentence. We affirm the conviction, accept the State's concession on the

sentence-related issues, and remand.

                    FACTS AND PROCEDURAL BACKGROUND

       Justin Dunlap has been in and out of jail over the years and as an ex-felon, could

not legally reside in the federally-subsidized Ellensburg apartment where his wife lived

with their son. Despite that, and despite a protection order that prohibited him from

contacting his wife, Mr. Dunlap has returned to Ellensburg and lived with his wife when

not in custody. He has kept his personal belongings there and he had a key to the

apartment.

       In March 2016, after leaving Ellensburg for court matters on the west side of the

state, Mr. Dunlap hitchhiked home, arriving on March 15. Upon entering the apartment,

he proceeded to the bedroom, where he saw a man, penis exposed, standing over Mr.

Dunlap's sleeping wife and child. Later explaining that he "instinctively" acted to

"protect [his] family," Mr. Dunlap opened a nearby closet and grabbed a crowbar.

Report of Proceedings (RP) at 231. His wife awakened and, crying and apologizing,

pushed her husband out into the hallway. But the visitor, who turned out to be a guest

and coworker of Ms. Dunlap, charged Mr. Dunlap. A fight ensued that ended with Mr.

Dunlap unconscious and Ms. Dunlap demanding that her guest leave.

      The guest left, but called police. By the time police arrived at the apartment, Mr.

Dunlap was gone.

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No. 34514-9-111
State v. Dunlap


       Mr. Dunlap was charged with one count of first degree burglary (domestic

violence), one count of second degree assault on the male guest, one count of fourth

degree assault (domestic violence) for pushing Ms. Dunlap against the wall, and one

count of third degree malicious mischief (domestic violence) for damage to a picture

knocked off the wall and to a door and kitchen drawer he damaged before leaving the

apartment.

       On Monday, May 16, 2016, the day before Mr. Dunlap's scheduled trial, his

lawyer told the court she learned the prior Friday that the State would be moving to

amend the information to add one count of tampering with a witness and one count of




                                                                                              I
violation of a protection order (domestic violence), and she was not ready for trial of the

new charges. The new charges were based on a call Mr. Dunlap made to his mother-in-

law from jail a week earlier, allegedly trying to influence his wife's trial testimony. The

State contended that the recorded call captured Ms. Dunlap yelling to him from the

background that she loved him, further proving the unlawful contact. Mr. Dunlap's

lawyer told the court she was ready to proceed with trial on the original charges but

needed a continuance to interview witnesses if the charges were amended.

       Despite a long colloquy about the work that remained to be done to defend against

the new charges and how the charges substantially increased Mr. Dunlap's potential

sentence, Mr. Dunlap told the court he wanted to proceed to trial as scheduled. Over Mr.

Dunlap's objection, and knowing it would delay trial beyond the time provided by CrR

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No. 34514-9-111
State v. Dunlap


3.3(b), the court granted a one-week continuance. It explained to Mr. Dunlap that his

constitutional right to a speedy trial was not implicated, only a court rule-based right that

it had to balance against his adequate representation. It pointed out that "a one week

delay is not a very big imposition" when balanced against the two-and-a-half-year

increase in his potential sentence. RP at 55.

       The jury found Mr. Dunlap guilty of violating a protection order but acquitted him

of the witness tampering and fourth-degree assault charges. It deadlocked on the charges

of first degree burglary and second degree assault. The trial court declared a mistrial on

those charges.

       At sentencing, Mr. Dunlap's lawyer told the court that both Ms. and Mr. Dunlap

were asking the court to vacate the protection order. The trial court read a letter from Ms.

Dunlap in which she asked for leniency for her husband, stating that he had "drastically

c[ome a long] way for the good" (although "ha[ving] a ways to go"), that she was trying

to keep her family together, and that her son was "truly the only victim in this matter."

Clerk's Papers at 267-68.

       The trial court vacated the protection order, sentenced Mr. Dunlap to 60 months'

incarceration, and imposed 12 months' community custody. Mr. Dunlap appeals.




                                                4
    No. 34514-9-111
    State v. Dunlap

l                                           ANALYSIS

           The continuance granted by the trial court resulted in Mr. Dunlap's trial beginning

    64 days after he was arraigned, during which he remained in custody. CrR 3 .3(b)(1)

    generally requires the State to bring a defendant detained in jail to trial within 60 days of

    his or her arraignment. Mr. Dunlap concedes that the trial court has the discretion to

    continue the trial date when a continuance is requested before the time for trial has

    expired, 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). 1 He argues, however,

    that when the State seeks to amend charges inexcusably late, compelling the defense to

    seek a continuance, courts should refuse to exclude the continuance delay in calculating

    the time to trial under CrR 3.3(b). Br. of Appellant at 6-7 (citing State v. Price, 94 Wn.2d

    810,814,620 P.2d 994 (1980)). A trial court's grant of a motion for continuance is




           1
             In objecting to the continuance requested by his trial lawyer, Mr. Dunlap
    personally asserted a constitutional right, but he assigns error on appeal to a violation of
    only his rule-based speedy trial right. "The threshold for a constitutional violation is
    much higher than that for a violation of the superior court rules." State v. Fladebo, 113
    Wn.2d 388, 393, 779 P.2d 707 (1989). The fact-specific analysis of whether
    constitutional speedy trial rights are violated begins with a determination of whether the
    amount of delay is presumptively prejudicial. State v. Iniguez, 167 Wn.2d 273, 290-91,
    217 P.3d 768 (2009). While our Supreme Court has eschewed any "formulaic
    presumption of prejudice upon the passing of a certain period of time," id. at 292, we
    found no reported Washington decision that has found a delay of less than eight months
    to be presumptively prejudicial.



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No. 34514-9-111
State v. Dunlap


reviewed for manifest abuse of discretion. State v. Brown, 40 Wn. App. 91, 94-95, 697

P.2d 583 (1985).

       In Price, our Supreme Court held that

       if the State inexcusably fails to act with due diligence, and material facts
       are thereby not disclosed to defendant until shortly before a crucial stage
       in the litigation process, it is possible either a defendant's right to a speedy
       trial, or his right to be represented by counsel who has had sufficient
       opportunity to adequately prepare a material part of his defense, may be
       impermissibly prejudiced. Such unexcused conduct by the State cannot
       force a defendant to choose between these rights.

94 Wn.2d at 814. It held that the appellant had not shown an inexcusable failure of the

State to act with due diligence in that case.

       Mr. Dunlap likens his case to State v. Ralph Vernon G., 90 Wn. App. 16, 950 P.2d

971 ( 1998), in which an inexcusable failure to act with diligence was shown, and charges

were dismissed with prejudice on appeal. There, the State waited until the day before

trial to move for leave to add new charges of sexual abuse and additional victims despite

being aware of the underlying facts for a month. Id. at 18.

       In this case, the phone call that was the basis for new charges against Mr. Dunlap

took place on a Monday and the State gave notice to the defense four days later, on

Friday, of its intention to seek to amend. The inexcusable failure to act with due

diligence required by Price is not shown. Moreover, as the State points out, the trial

began within the five day cure period the superior court may grant upon motion even

after the time for trial has expired. See CrR 3 .3(g) (providing a single opportunity to cure

                                                6
No. 34514-9-III
State v. Dunlap


what would otherwise be a violation of the rule). The trial court did not abuse its

discretion.

                     STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds for review (SAG), Mr. Dunlap raises

two. We requested a response to the SAG from the State.

       Mr. Dunlap first contends the trial court erred when it imposed a sentence that

exceeded the 5-year statutory maximum by imposing 60 months' incarceration plus 12

months' community custody. Violation of a protection order is a class C felony. RCW

26.50.110(4). The maximum sentence for a class C felony in Washington is 60 months.

RCW 9A.20.02l(c). The State concedes the error and asks that we remand the case for

resentencing. See RCW 9.94A.701(9) (requiring reduction of the term of community

custody when the combination of confinement and community custody exceeds the

maximum).

       The second ground raised by Mr. Dunlap is that his trial lawyer provided

ineffective assistance by failing to request an exceptional sentence on the basis ofRCW

9.94A.535(1)(a), which identifies as a mitigating factor that the victim (here, Ms.

Dunlap) was a willing participant in the incident. The State, having agreed to remand for

a full resentencing, responds that Mr. Dunlap will be free to request an exceptional

mitigated sentence. We agree.




                                             7
I
I   No. 34514-9-111
    State v. Dunlap


           We affirm Mr. Dunlap's conviction and remand for resentencing.

           A majority of the panel has determined this opinion will not be printed in the

    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.


                                                        [}J~/w ~ I
                                                        doway.J.
                                                                                       6-
    WE CONCUR:




     .1~ t<f·
    Fearing, C.J.<f




    Pennell, J.




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