State of Washington v. Bradley Kenneth Denton

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NOTICE: SLIP OPINION (not the court’s final written decision)

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

SIDDOWAY, C.J. — Beginning shortly after the adoption of CrR 3.3 and continuing

through iterations of the rule thereafter, published decisions have held that court

congestion and routine backlogs at the Washington State Patrol (WSP) Crime Laboratory

do not justify continuing a defendant’s time for trial beyond the period provided by the

rule. Unique circumstances have been held to support such continuances when supported

by a detailed explanation of the congestion, efforts made to get around it, and a projection

of the delay. *2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Over Bradley Denton’s objections, the trial court granted two continuances that

extended his trial date four and a half months beyond the time-for-trial period provided

by CrR 3.3. It did so on the basis of the prosecutor’s representation that a nine-month

turnaround by the crime lab was to be expected and was a “best case scenario,” and his

argument that the shorter time frame contemplated by CrR 3.3 is merely “aspirational.”

The CrR 3.3 time limits are not merely aspirational. Presented with a record in

which the sole basis for the two continuances was routine crime lab delay, we are left

with no choice but to reverse Mr. Denton’s convictions and direct the superior court to

dismiss the charges with prejudice. We deplore this outcome given the violent nature of

Mr. Denton’s crimes, but it is the strict remedy that drafters of the rule perceived as

needed to ensure that criminal cases will be promptly prepared for trial and heard.

FACTS AND PROCEDURAL BACKGROUND

Felicia Denton divorced the defendant, Bradley Denton, in 2012. The couple later

reconciled but Mr. Denton resumed using drugs—in particular, methamphetamine—and

Felicia1 ended the relationship for good after about a year. When Mr. Denton persisted in

contacting her, Felicia obtained an order for protection against him in April 2018.

That fall, Felicia, who had moved to Tumwater, returned to Yakima for a family

gathering. Mr. Denton was aware she was in town. On the morning after the family

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gathering, October 7, 2018, Mr. Denton arrived uninvited at the home where Ms. Denton

and other family members were staying. The Dentons’ two children and Felicia’s sister

were in the living room; Felicia’s sister was sleeping, but the children were awake.

Felicia’s brother and family lived in the basement and might have been present when Mr.

Denton arrived.

After being let in, Mr. Denton went directly to the room where Felicia had been

sleeping, entered, and locked the door behind him. He angrily questioned her about who

she had been with and where she had been the prior evening and then became violent. He

slapped her several times and then started choking her. Felicia later testified at Mr.

Denton’s trial that as he was doing this, “He—kept telling me that I was going to listen to

everything that he said, I was going to do everything that he said.” 1 Report of

Proceeding (RP) at 436.2 She testified that frightened, she “kept saying, ‘Okay.’” 1 RP

at 439. Mr. Denton told her that she and their children “were not going back to

Tumwater, we were going to stay here, we were going to be a family.” 1 RP at 437.

Mr. Denton then took off his clothing and pulled off the pants Felicia was wearing,

at which point Felicia claims she was crying uncontrollably. As she told him to stop and

not to hurt her, he got on top of her and raped her. Felicia did not call out for help or

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fight him, other than to grab his arm when he was choking her. She ended that resistance

when he told her to “not fucking touch him.” 1 RP at 443-44.

Immediately after Mr. Denton left, Felicia drove back to Tumwater with her

children, despite having had plans to spend the afternoon with family in Yakima. She

reported the assault to the Tumwater Police Department on October 9. An officer took a

recorded statement, arranged for Felicia to undergo a sexual assault examination, picked

up the clothing Felicia had been wearing when assaulted, and then referred the matter to

the Yakima Police Department.

About a week later, Mr. Denton, who had been arrested for unrelated reasons and

was incarcerated in the Yakima County Jail, placed a phone call to Felicia. She did not

accept the first call, but after speaking with a Yakima police detective, she accepted three

calls from Mr. Denton on October 17 and a fourth call on October 19.

On October 26, Mr. Denton was charged with assault in violation of a protection

order, second degree rape, and two counts of misdemeanor violation of a protection

order—one count for October 17, and one for October 19. All were charged as domestic

violence offenses. Mr. Denton was arraigned on November 7, 2018, with trial set for

December 31.

December 27, 2018—Omnibus hearing and first continuance

The omnibus hearing had been set for December 20, 2018, but was continued to

December 27 because Mr. Denton’s court-appointed lawyer was in the hospital. His *5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

lawyer remained unable to attend on the 27th, so Mr. Denton was represented by stand-in

counsel.

At the December 27 hearing, the prosecutor asked that trial be continued,

explaining that “the state is waiting on additional follow-up, including the results of a

sexual assault nursing examination report along with the laboratory examination on

clothing, which is—DNA,[3] some other supplemental discovery out of Harrison County

is what we’re waiting on right now.” 1 RP at 6. He represented that items had been sent

to the crime lab at around the time of the November 7 arraignment. He asked that an

omnibus hearing be set for January 23, “at which point . . . we’ll have a better idea of

where we are with respect to the follow-up discovery, with a trial date about a month out

on 2/25.” 1 RP at 7.

Stand-in counsel was unable to address any prejudice to Mr. Denton from a

continuance, stating, “I know nothing about the case, your Honor.” 1 RP at 8. When Mr.

Denton was addressed directly, he said he was contesting the continuance and did not

want to waive his speedy trial right. After hearing from the parties, the trial court granted

the continuance over Mr. Denton’s objection.

The prosecutor had expressed concern about the health problems affecting Mr.

Denton’s court-appointed lawyer, so the court set a status conference for the following

week to hear more about the lawyer’s condition.

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January 3, 2019—Status conference and disqualification of counsel

On January 3, 2019, the court heard a motion filed by appointed counsel (who was

absent) asking to be disqualified for health reasons. Mr. Denton was represented by

stand-in counsel. The following exchange occurred:

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2 RP at 10.

Asked to respond, the prosecutor told the court:

2 RP at 10-11.

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When the trial court asked if there was a proposed scheduling order, defense

counsel said one had been prepared, but reminded the court, “[O]bviously this is

contested.” 2 RP at 12. Addressing Mr. Denton, the court said:

2 RP at 12-13.

July 26, 2019 readiness hearing and further continuance

By the readiness hearing on July 26, DNA results had been delivered. Mr.

Denton’s lawyer told the court it did not appear the case would settle, “we have some

more work to do to prepare for trial,” and that he and the prosecutor were asking that the

trial be continued to November 4. 2 RP at 16. He added, “Mr. Denton is opposed.” Id.

Invited by the court to address the request, Mr. Denton said he was “[a]bsolutely” *11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

opposed to continuing the trial. 2 RP at 18. The court granted a 98-day continuance to

November 4.

The lawyers were not available for trial on the November 4 date and a continuance

to January 6 was requested, this time with Mr. Denton’s agreement. All but one of the

Yakima County judges had recused from the case and on January 3 the court relied on the

30-day buffer period to set the trial for January 21, 2020, before the one available

judge—a trial date that was 15 months after Mr. Denton’s arraignment.5

The jury found Mr. Denton guilty of all charges.

Based on an offender score of 8, the court sentenced Mr. Denton to concurrent

sentences of 230 months to life for the second degree rape, 60 months for the assault in

violation of the protection order, and 364 days on each of the misdemeanor violation of a

protection order counts. It imposed lifetime community custody upon his release from

total confinement. Mr. Denton appeals.

ANALYSIS

Mr. Denton makes five assignments of error but one proves dispositive: his rule-

based challenge to the 15-month delay between his arraignment and trial.

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“The purpose underlying CrR 3.3 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) (citing State

v. Mack, 89 Wn.2d 788, 791-92, 576 P.2d 44 (1978); State v. Cummings, 87 Wn.2d 612,

615, 555 P.2d 835 (1976)). “‘[P]ast experience has shown that unless a strict rule is

applied, the right to a speedy trial as well as the integrity of the judicial process, cannot

be effectively preserved.’” Id. (alteration in original) (quoting State v. Striker, 87 Wn.2d

870, 877, 557 P.2d 847 (1976)). As our Supreme Court recently emphasized in State v.

Walker, __Wn.2d ___, 513 P.3d 111, ¶14 (2022), CrR 3.3(a)(1) places the burden of

ensuring a trial in accordance with the rule on the court.

CrR 3.3(b)(1) requires a defendant who is detained in jail to be brought to trial

within 60 days of the “commencement date” specified in the rule. Mr. Denton was

detained in jail, so the 60-day limit applies.

The initial “commencement date” is the date of arraignment. CrR 3.3(c)(1).

Some events can result in its being reset; one such event is the disqualification of counsel,

in which case the date of disqualification becomes the new commencement date.

CrR 3.3(c)(vii). The parties agree that the disqualification of Mr. Denton’s original

lawyer for health reasons caused the commencement date for purposes of the rule to be

reset to January 3, 2019. *13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Certain periods are excluded in computing the time for trial. CrR 3.3(e). As

relevant to this appeal, excluded periods include continuances granted by the court

pursuant to CrR 3.3(f). CrR 3.3(e)(3). CrR 3.3(f)(2) authorizes the court to grant a

continuance on the motion of the court or a party when a continuance “is required in the

administration of justice and the defendant will not be prejudiced in the presentation of

his or her defense.” The bringing of such a motion “by or on behalf” of a defendant

waives the defendant’s objection to the requested delay. Id. It is uncontested that while

Mr. Denton personally contested the trial continuance ordered on July 26, 2019, it was

based on a motion brought by his lawyer. Mr. Denton does not rely on the continuance

granted on July 26 or any continuance thereafter as causing a time-for-trial violation;

rather, he contends that the time-for-trial deadline expired without a lawful basis for

continuances before July 26, entitling him to dismissal. State v. Saunders, 153 Wn. App.

209, 220, 220 P.3d 1238 (2009) (“[O]nce the 60 or 90 day time for trial expires without a

stated lawful basis for further continuances, the rule requires dismissal and the trial court

loses authority to try the case.”).

“A charge not brought to trial within the time limit determined under [CrR 3.3]

shall be dismissed with prejudice.” CrR 3.3(h). The rule-based time for trial right differs

from the constitutional speedy trial right in that the rule terminates litigation

automatically upon a violation without regard to prejudice—unlike analysis under the

federal and state constitutions, which is based primarily on the presence of prejudice. *14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

State v. Rohatsch, 23 Wn. App. 734, 736, 599 P.2d 13 (1979) (citing State ex rel. Moore

v. Houser, 91 Wn.2d 269, 588 P.2d 219 (1978)).

At issue is the 204-day delay between the reset January 3, 2019 commencement

date and defense counsel’s motion for a continuance on July 26, 2019, and whether the

trial court abused its discretion in granting continuances over Mr. Denton’s objection as

“required in the administration of justice.”

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

Wn.2d at 135. The decision to grant or deny a continuance rests in the trial court’s sound

discretion and we will not disturb it on appeal unless there is a clear showing it is

manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Id.

Misapplying the law constitutes an abuse of discretion. State v. Agustin, 1 Wn. App. 2d

911, 916, 407 P.3d 1155 (2018) (citing State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255

(2001)).

Many published decisions under evolving versions of CrR 3.3 have held that

congestion or backlog in the courts or the state crime lab are rarely a rule-authorized

basis for delaying trial. In the exceptional case where they are, it has been based on a

detailed showing of the nature of the congestion or backlog, the steps the prosecution has

taken to get around the congestion or backlog, and a reasonable time frame within which

the case can be brought to trial. Mr. Denton invokes this case law on appeal, and *15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

particularly the substantially similar facts of the Washington Supreme Court’s 1989

decision in State v. Wake, 56 Wn. App. 472, 783 P.2d 1131.

We will address Wake, but we begin with State v. Mack, 89 Wn.2d at 793, in

which the Washington Supreme Court held that docket congestion was not good cause

for scheduling a criminal trial beyond the 60-day time for trial required by JCrR 3.08,

whose interpretation it held should be consistent with its superior court counterpart,

former CrR 3.3 (1976). The court quoted with approval observations of the task force

that promulgated CrR 3.3 that a criminal defendant “‘can be prejudiced by delay,

whatever the source,’” “‘delays are contrary to the public interest in the prompt

disposition of criminal cases,’” and, particularly germane, “‘if congestion excuses the

long delays, there is lacking sufficient inducement for the state to remedy congestion.’”

Id. (quoting CRIMINAL RULES TASK FORCE, WASHINGTON PROPOSED RULES OF CRIMINAL

PROCEDURE 32 (1971)). Rejecting the State’s argument that pro tempore judges had not

been used because of reasonable concern for the cost, the court stated, “If this concern

were to ‘justify’ extended trial settings, the state or other governmental authority

involved would have no inducement to remedy the problem by providing financial relief,

authorizing additional judgeships, or by providing additional facilities.” Id. at 795.

The decision in Mack was followed by this court in State v. Kokot, 42 Wn. App.

733, 713 P.2d 1121 (1986). Kokot executed one waiver of speedy trial for an assault

originally charged on June 16, 1983, on the basis of which his trial was set for trial on *16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

October 19, 1983. When the parties appeared for trial on the continued date, however,

they were told that even giving preference to criminal cases, all courts would likely be in

use for two weeks. When that timing led to conflicts for the State, the presiding judge

continued Kokot’s trial to November 14. Kokot’s motion to dismiss based on a violation

of former CrR 3.3 (1980) was denied.

This court reversed, observing that “[t]his state has always been strict in its

application of the speedy trial provisions of CrR 3.3.” Id. at 737 (citing Striker, 87

Wn.2d at 877). Focusing on “the primary reason why this challenged continuance was

granted”—courtroom unavailability, or “in reality court congestion, which was

condemned in State v. Mack,” this court held

Id. at 736-37.

A few years later, this court applied the reasoning of Mack and Kokot in holding

that the trial court abused its discretion in granting a continuance because of congestion at

the state crime lab. The congestion had prevented the State’s drug expert from being

available within the time-for-trial period. Wake, 56 Wn. App. at 473. The trial court

explained in granting the continuance that it understood the crime lab to have a

“substantial problem,” with few analysts responsible for large geographical areas. Id. at *17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

474 & n.2. Given its personal knowledge of increasing drug crime, the trial court had

explained, “‘these kinds of witness problems are going to, going to occur.’” Id.

This court reversed, explaining:

Id. at 475; cf. State v. Woods, 143 Wn.2d 561, 583, 23 P.3d 1046 (2001) (citing Wake, 56

Wn. App. at 475, in stating, where a delay in producing results of DNA testing was

alleged to amount to mismanagement, “[I]t is clear that conduct of employees of the

crime laboratory, which is lacking in due diligence, constitutes actions on the part of the

State.”).

The court in Wake also criticized the poor record that had been presented in

support of the continuance. The expert witness had not even been subpoenaed; the court

observed that had that occurred, it would ensure a reliable record of the reason for his

absence and provide the defense an opportunity to argue the merits of unavailability. Id.

at 476. This court reversed Wake’s controlled substance convictions and dismissed the

charges. Id.; cf. State v. Osborne, 18 Wn. App. 318, 569 P.2d 1176 (1977) (continuance

was granted to allow for completion of delayed crime lab work where State presented an

affidavit of the State’s chief criminalist that described reasons for the delay, efforts made *18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

to complete the work, and stated the work could be completed within less than three

weeks following the scheduled trial date).

In State v. Warren, 96 Wn. App. 306, 979 P.2d 915, 989 P.2d 587 (1999), this

court emphasized that if a problem of congestion is ever going to excuse delay beyond

the time-for-trial period, the trial court should require a thorough explanation of the

problem, the State’s efforts to get around it, and must consider the likelihood that the

requested delay will lead to further delays. The trial court in Warren had granted a State-

requested continuance to the last day of the time-for-trial period to accommodate a

prosecutor’s conflicting out-of-town continuing legal education program. On that final

day of the period, after waiting until 3:00 p.m. without assignment to a courtroom, the

court continued the trial for two days, using a court form that recited that no courtrooms

were available. It granted the continuance despite defense counsel’s report that he was

scheduled to begin a homicide trial in two days, and the judge in that case was unlikely to

continue the homicide trial in order to accommodate Warren. Defense counsel proved to

be correct, and Warren’s trial began more than two weeks after the end of his time-for-

trial period.

Warren, a Division Two decision, discussed Kokot, a Division Three decision, and

State v. Silva, 72 Wn. App. 80, 863 P.2d 597 (1993), a Division One case in which the

trial court “‘attempted to follow the dictates of Mack and Kokot’” by carefully making a

record of courtroom availability and offering to call in a judge pro tempore to try the case *19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

in an empty courtroom. Warren, 96 Wn. App. at 310 (quoting Silva, 72 Wn. App. at 84-

85). The Warren court arrived at its own description of what a trial court must consider

before continuing a trial beyond the time-for-trial period for reasons of court congestion:

Id. Because the trial court had not considered likely actual delay or provided any detailed

explanation of court unavailability, Warren’s conviction was reversed and the charges

against him were dismissed.

In State v. Howell, 119 Wn. App. 644, 648, 79 P.3d 451 (2003), this court

followed Wake’s holding that foreseeable administrative congestion at the state crime lab

is an insufficient basis on which to grant a continuance under the time-for-trial rule, but

found the delay in Howell’s case to be extraordinary and unforeseeable. On June 12,

2002, with Howell’s time-for-trial deadline only two days away, the trial court granted a

four-day continuance over Howell’s objection after it became apparent that test-fire

results of a gun Howell was charged with possessing unlawfully would not be available

in time for trial. The explanation for the delay provided to the court was congestion

caused by the investigation of the Green River murders, “presenting ‘a very unusual case

in the State and perhaps United States, if not the world,’ requiring the State to expend *20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

extraordinary resources.” Id. at 648. The court held that the State could not have been

expected to anticipate the crush of work generated by the murder investigation, so the

reasoning of Wake did not apply.

CrR 3.3 was completely rewritten in 2003, based on recommendations by a task

force appointed by the Washington Supreme Court. The task force did not view its

proposed amendments as changing the provision on granting motions for continuances in

any material respect. The report stated in relevant part:

WASH. COURTS TIME-FOR-TRIAL TASK FORCE, FINAL REPORT § II.B (Oct. 2002)

(Discussion of Consensus Recommendations).6

Court congestion was discussed by the report, but not to suggest that it could ever

justify a trial continuance under the rule as amended. Rather, the report identified two

proposed “[c]hanges to address court congestion”: the task force’s proposed “30-day

buffer” period and a “cure” period. Id. § I.B.1 (Summary of Consensus

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Recommendations). Both proposed extensions of the time for trial were adopted. See

CrR 3.3(b)(5), (g).7

The report also discussed the task force’s recommendation to “retain[ ] the

‘hammer’ of dismissal with prejudice,” explaining, “This strict remedy, coupled with the

proposed creation of a reporting requirement, is needed to ensure that criminal cases will

be promptly prepared for trial and heard.” Id. § II.B (Discussion of Consensus

Recommendations).

Decisions dealing with challenges to trial continuances following the 2003

amendments have continued to rely on Mack and related cases as good law. In State v.

Flinn, 154 Wn.2d 193, 200, 110 P.3d 748 (2005), the Supreme Court rejected the

appellant’s contention that a continuance beyond the time-for-trial deadline had been

granted primarily due to court congestion, but it agreed that congestion would not have

been a valid basis for a continuance:

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In Kenyon, the Supreme Court addressed whether the fact that one judge in a two-

judge county was already presiding at a criminal trial and the other was on vacation could

be distinguished from court congestion and justified as an “unforeseen circumstance[ ],”

an excluded period that had been added by the 2003 rule amendments.8 167 Wn.2d at

135.

Kenyon rejected the trial court’s characterization of the circumstances as an

unforeseen circumstance, stating that they “amount[ ] to court congestion.” Id. at 139.

Like Flinn, it relied on Mack and Kokot as having continuing application; it also relied on

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Silva and Warren. See id. at 137. Citing Silva and Flinn, the court held that a trial court

can allow a continuance for court congestion in rare cases, where it carefully makes a

record of its available and unavailable courtrooms, and identifies and offers any available

judge pro tempore. Id. at 137-38 & n.3.

Finally, although not a time-for-trial case, the Supreme Court in State v. Salgado-

Mendoza, 189 Wn.2d 420, 403 P.3d 45 (2017), applied many of the same principles.

Salgado-Mendoza, who had been charged with driving under the influence, moved to

suppress the testimony of the State’s toxicology witness for governmental misconduct

when the identity of the witness was not disclosed until the morning of trial. Before that,

the prosecutor had disclosed the names of nine experts provided by the state crime lab,

one of whom the lab would make available for trial. The delay “resulted from perennial

staffing and resource shortages at the toxicology lab,” which the court held did not

excuse the prosecution of responsibility, since “pursuing disclosure of information the

prosecutor does not have is literally the purpose” of the relevant discovery rule.

Id. at 433-34. All members of the court concluded that Salgado-Mendoza had

demonstrated misconduct, but the five-member majority affirmed his conviction because

he failed to demonstrate actual prejudice, which (unlike CrR 3.3) the dismissal rule

required. Id. at 433-39. *24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

The dissenters believed prejudice had been shown and observed that “[i]f we allow

underfunding and congestion at the State’s toxicology lab to excuse fair trial rights, there

will be no inducement for the State to remedy the problem,” citing Wake, 56 Wn. App. at

475. Salgado-Mendoza, 189 Wn.2d at 445 (Madsen, J., dissenting). “If the State wishes

to prosecute crimes, it must put sufficient resources into that prosecution to ensure

fairness to the individuals charged. Criminal defendants should not have to bear the

burden of the State’s inadequate funding.” Id. at 446.

The problems that cases like Mack and Wake present for the current case are clear.

At the hearings continuing trial in January and May 2019, the State and the trial court

characterized the crime lab delays as expected and routine, and yet as sufficient reasons

for continuing trial beyond the March 4 time-for-trial deadline over Mr. Denton’s

objections. See 2 RP at 5, 11-12 (“Based on my experience and what I’ve been told . . .

best case scenario is somewhere around nine months”; “that’s [the] kind of time line

we’re looking at”; “there is a substantial back-up”; and “we’re held hostage by the crime

lab.”). Both the prosecutor and the trial court described the time-for-trial periods as

“aspirational guidelines.” 2 RP at 11-12. No detailed, admissible evidence of the reasons

for the back-up, efforts taken to get around it, or a reasonably short time frame within

which trial could be held was offered by the prosecutor or demanded by the court. The *25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

prosecutor’s hearsay report on May 21 of what he had been told in a conversation with a

crime lab representative the day before suggests it was only in that conversation (six

months after items were delivered to the lab for testing) that the prosecutor asked if “[we

can] make it a rush.” 2 RP at 11.

The trial court abused its discretion in granting continuances beyond CrR 3.3’s

time limits in January and May 2019.

II. DISMISSAL WITH PREJUDICE IS REQUIRED

The fact that DNA evidence may prove exculpatory, as the prosecutor and trial

court observed when the continuances to Mr. Denton’s trial were requested and granted,

is not a basis for continuing the time for trial over a defendant’s objection. The defendant

may doubt the evidence will prove exculpatory. He or she may deem an early trial more

important for other reasons. Either way, it is the defendant’s right that the rule protects.

On appeal, the State suggests that because defense counsel joined in continuance

requests beginning with the July 26, 2019 continuance, the invited error doctrine applies.

It characterizes the defense as thereby “affirmatively assent[ing] to the error, materially

contribut[ing] to it, or benefit[ing] from it.” Br. of Resp’t at 22. It cites no legal

authority for the proposition that a defendant loses his right to complain of a time-for-trial

violation by agreeing to a later postponement of trial, however. To the contrary, once the

60-day time for trial expires without a lawful basis for a continuance, the rule demands *26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

dismissal, and the trial court loses authority to try the case. Saunders, 153 Wn. App. at

220.

We recognize that just as the defense may reasonably need some time to respond

to testing results of critical forensic evidence, the State reasonably needs some time to

procure such results. But State requests for continuances must be supported by a better

record. And until and unless CrR 3.3 is amended, the time allowed the State in all but

unusual situations must bear some reasonable relation to a presumptive time for trial of

60 or 90 days. By analogy to the court congestion cases, in which the use of judges pro

tempore is required to be offered, the use of certified private laboratories might be

required if the WSP Crime Lab cannot provide a competitive turnaround time for forensic

testing.9

Because the trial court abused its discretion in treating the record made by the

State on January 29 and May 21 as requiring a continuance in the administration of

justice, dismissal is required. See CrR 3.3(h) (a charge not brought to trial within the

rule’s time limits “shall be dismissed with prejudice”). We reverse Mr. Denton’s

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convictions and remand to the trial court to dismiss the charges with prejudice under CrR

3.3(h).10

Siddoway, C.J.

WE CONCUR:

Fearing, J.

Pennell, J.

Footnotes

[3] RP at 4-5 (last alteration in original). January 29, 2019—Omnibus hearing and further continuance At an omnibus hearing on January 29, 2019, Mr. Denton’s newly appointed lawyer reported that the State had filed an amended information whose reading would be waived, and he asked that Mr. Denton’s pleas of not guilty be entered. The amended information separately charged Mr. Denton’s three phone calls on October 17 as misdemeanor violations of the protection order, bringing the total misdemeanor violations charged to four. Asked by the court if there was an omnibus order, the prosecutor said there was not. Reminding the court that evidence had been sent to the state crime lab in early November, the prosecutor explained: Based on my experience and what I’ve been told by other attorneys in my unit, generally for rape kits involving DNA analysis get back—you know, best case scenario is somewhere around nine months. Potentially (inaudible) but right now that’s—that’s kind of [the] time line we’re looking at. So, whatever the results of those tests may be could be dispositive on what type of defense [Mr. Denton] chooses to assert at trial. So, I don’t think either [defense counsel] or I would be prepared to enter an omnibus order at this stage. 2 RP at 5. He asked the court to continue trial on this basis. Defense counsel told the court, “Mr. Denton would like to get this case over with and therefore he is objecting to continuance,” and “I can certainly try this case without the DNA.” 2 RP at 6-7. The court asked if the State could try the case without the DNA, No. 37497-1-III State v. Denton and the prosecutor answered, “No.” 2 RP at 7. The court observed that if Mr. Denton defended on the basis that there was sex, but it was consensual, the DNA evidence would be cumulative, but if he contested that sex occurred, “that DNA evidence is potentially— paramount to the state’s case.” Id. Asked if Mr. Denton had settled on a defense, his lawyer answered that it was presently a general denial. The court continued trial to June 17 over Mr. Denton’s objection, explaining, Court finds that there is no prejudice to the defendant’s presentation of his defense. In fact, the evidence may well be exculpatory. The delay in this case is brought on by the state’s efforts, reasonable efforts to get DNA testing performed by the state crime lab, and that has been delayed. 2 RP at 8. May 21, 2019—Omnibus hearing and further continuance At the May 21 omnibus hearing, defense counsel informed the court: I think trial’s set for June 17th. State’s moving to postpone—the trial to July 29th and the readiness to July 3rd⎯ .... . . .⎯I believe it’s because they’re awaiting DNA test results. My client is opposed to that. This matter has been pending since October⎯ 2 RP at 9. Defense counsel said an omnibus report had been prepared, and continued: Anyway, this matter’s been pending for seven months. I think that’s ample time for the crime lab to have gotten this testing done. It appears to me the state did make a request for the testing in a timely fashion, so I can’t⎯ ....