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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

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

STATE OF WASHINGTON,                        )       No. 67348-3-I
                                            )
              Respondent,                   )
                                            )
              v.                            )
                                            ) 
B.M., d.o.b. 5/26/92,                       )       UNPUBLISHED OPINION
                                            )
              Appellant.                    )       FILED: June 4, 2012
                                            )

       Ellington, J.  --  Juvenile appellant B.M. appeals his conviction for second degree 

robbery.  He alleges he was prejudiced by the State's unreasonable delay in bringing 

the charges against another juvenile charged in the same incident, that his attorney 

was ineffective in failing to renew a motion to dismiss after witness memories proved 

frail at trial, and that the delay violated due process.  His arguments have no merit and 

we affirm.

                                       BACKGROUND

       Khamtanh Pholwapee's purse was stolen from her on August 17, 2010.  

Witnesses at the scene led police to three juveniles.  On August 20, 2011, the State 

charged B.M. in juvenile court with robbery in the second degree.

       On February 11, 2011, the State charged A.H. in the same incident.  The cases 

were consolidated.  Trial was set for April 25, 2011.
       On April 22, A.H. moved to dismiss under LJuCR 7.14(b) and CrR 8.3(b),1 

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arguing that the five-plus months between the incident and the filing of the information 

established a prime facie case of unreasonable delay and that he was prejudiced 

thereby.  B.M. orally joined in A.H.'s motion, arguing that in the months since the 
incident, the memories of the witnesses had "faded."2

       The court agreed there was "a prima facie case of unreasonable delay" as to 
A.H., but found insufficient prejudice to justify dismissal.3 The court reasoned that 

issues regarding the sufficiency of the evidence would go to whether the State 

established proof beyond a reasonable doubt.

       Trial was held and the witnesses testified.  Counsel for B.M. did not renew the 
motion to dismiss.  The court found B.M. guilty as charged.4

                                        DISCUSSION

      B.M.'s chief contention is that the witnesses' memories were shown at trial to 

have faded during the eight months between the incident and trial, and defense 

counsel's failure to renew the motion to dismiss on this basis was therefore ineffective 

assistance.  He also argues denial of the pretrial motion to dismiss violated his due 

process rights under the United States Constitution.

                              Ineffective Assistance of Counsel

       To sustain a claim of ineffective assistance of counsel, an appellant must show 

that counsel's representation fell below an objective standard of reasonableness, and a 

       1 Despite the reference to CrR 8.3(b) in the motion, A.H. made no separate 
argument under that rule in his briefing.

       2 Report of Proceedings (RP) (Apr. 25, 2011) at 7.

       3 Id. at 8.

       4 The court found A.H. not guilty.

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reasonable probability that, but for counsel's errors, the result of the proceeding would 
have been different.5 We engage in a strong presumption that counsel's representation 

was effective.6

       A.H.'s motion, in which B.M. joined, was based upon LJuCR 7.14(b),which 

provides:

              To Dismiss for Delay in Referral of Offense. The Court may 
       dismiss an information if it is established that there has been an 
       unreasonable delay in referral of the offense by the police to the 
       prosecutor and respondent has been prejudiced.  For purposes of this 
       rule, a delay of more than two weeks from the date of completion of the 
       police investigation of the offense to the time of receipt of the referral by 
       the prosecutor shall be deemed prima facie evidence of an unreasonable 
       delay.  Upon a prima facie showing of unreasonable delay the Court shall 
       then determine whether or not dismissal or other appropriate sanction will 
       be imposed.  Among those factors otherwise considered the Court shall 
       consider the following:  (1) the length of the delay; (2) the reason for the 
       delay; (3) the impact of the delay on the ability to defend against the 
       charge; and (4) the seriousness of the alleged offense.  Unreasonable 
       delay shall constitute an affirmative defense which must be raised by 
       motion not less than one week before trial.  Such motion may be 
       considered by affidavit.[7]

       The rule plainly addresses only delay by law enforcement in referring a criminal 

case to the prosecutor.  Although there was prima facie evidence of such delay in the 
charging of A.H.,8 charges were filed against B.M. just three days after the robbery.  

There was never a basis for dismissal of the charges against B.M. under LJuCR 7.14(b).  

B.M. fails to establish ineffective assistance of counsel.

       5 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citations 
omitted).

       6 Id. at 335 (citations omitted).

       7 (Emphasis added.)

       8 Charges against A.H. were filed well after the two-week period, establishing 
prima facie evidence of delay under the rule

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                                         Due Process

       B.M. next argues the court's denial of his motion to dismiss violated his due 
process rights under the United States Constitution.9 B.M. did not make this argument 

below, but issues of constitutional magnitude may be addressed for the first time on 
appeal.10 This argument also invokes CrR 8.3(b).11

       B.M. contends the State's unreasonable delay in filing charges against A.H. 

resulted in unreasonable and prejudicial delay of his own case.  He cites no authority, 

however, for the assertion of preaccusatorial delay analysis in favor of a defendant 

other than the one against whom charges were delayed.  

       We need not resolve whether such an analysis is appropriate, however, because  

B.M. can point to nothing in the record supporting his contention that the delay in filing 

charges against A.H. caused a delay in his own case.  Rather, the record shows the 

numerous continuances in his B.M.'s case were granted either at his request or by 

agreement, and contains no reference to the charges against A.H.:

       (1)  September 20, 2010:  B.M. waived the time for case setting, which 
            was continued to September 23, 2010 due to an emergency closure 
            of the court;

       9 Dismissal for delay in bringing criminal charges is rooted in due process.  See
United States v. Lavasco, 431 U.S. 783, 789, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977); 
State v. Calderon, 102 Wn.2d 348, 352, 684 P.2d 1293 (1984).

       10 RAP 2.5.

       11 See State v. Lidge, 111 Wn.2d 845, 848, 765 P.2d 1292 (1989); State v. 
Oppelt, 172 Wn.2d 285, 296-98, 257 P.3d 653 (2011) (preaccusatorial delay analysis 
under CrR 8.3(b) is substantially the same as the due process balancing test ). 
CrR 8.3(b) provides:  "The court, in the furtherance of justice, after notice and hearing, 
may dismiss any criminal prosecution due to arbitrary action or governmental 
misconduct when there has been prejudice to the rights of the accused which materially 
affect the accused's right to a fair trial. The court shall set forth its reasons in a written 
order."  B.M makes no separate argument under CrR 8.3 and we do not further address 
it.

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       (2)  September 21, 2010:  B.M. waived the time for case setting, which 
            was continued to October 13, 2010;

       (3)  October 13, 2010:  B.M. again waived the time for case setting, which 
            was continued to October 27, 2010.  The State agreed to this as the 
            last continuance;

       (4)  October 27, 2010:  B.M. again waived the time for trial and continued 
            case setting to November 10, 2010.  The State again agreed to this 
            as the last continuance;

       (5)  November 12, 2010:  B.M. set the case for fact-finding on January 6, 
            2011;

       (6)  December 14, 2010:  The parties agreed to a continuance to 
            February 3, 2011;

       (7)  January 25, 2011:  The State requested a continuance due to the 
            unavailability of a witness.  B.M. agreed to a new trial date of 
            March 10, 2011;

       (8)  March 2, 2011:  B.M. requested a continuance because he was 
            assigned a new defense attorney.  Trial was set for April 19, 2011;

       (9) April 12, 2011:  The parties agreed to a continuance to April 25, 2011.

B.M. fails to demonstrate any connection between his trial date and the delay in filing 

charges against A.H.  Any due process argument necessarily fails.

       Affirmed.

WE CONCUR:

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