Notice to Criminal Practitioners

Information for Criminal Practitioners

 

Hearing Appearance Information

  • First Appearance, Criminal, and Readiness dockets will be held using a hybrid method. This allows for in person or Zoom appearances on these dockets. 

  • Out of Custody Change of Plea defendants must be present for sentencing in order to sign their judgment and sentence and be fingerprinted (required in adult and juvenile felony cases; see RCW 10.64.110) even if the charge is a misdemeanor or gross misdemeanor. These rules apply to juvenile disposition hearings as well. Attorneys and other participants may appear over Zoom. 

  • In custody change of plea and sentencings will primarily be conducted via Zoom.

    • The assigned department may approve special set sentencing hearings on a case by case basis if unusual circumstances are present. (Seriousness of offense, high degree of community interest, extensive victim impact evidence, substantial sentencing arguments, etc.)

    • If a special set sentencing is approved, a shackling decision must be made by the Judge presiding over the hearing.

    • The Sheriff’s Department needs three (3) days notice prior to the hearing to prepare and serve a shackling motion. See generally, State v. Jackson, 195 Wash.2d 841 (2020); State v. Lundstrom, 6 Wash.App. 388 (2018).

      • The process for a special set sentencing is outlined below

        1. Special set COP and sentencing (with judge’s permission) cited before a judge at least 3 days prior to the date and time for the hearing.

        2. Judicial assistant notifies the jail of the hearing.

        3. Jail decides if it wants to keep the defendant shackled, if so it notifies defense counsel, prepares a shackling motion; defense prepares input. Jail files its shackling motion, defense files its input (if any), both provide copies to the assigned COP judge. All this occurs two days prior to the COP docket.

        4. Judge makes shackling decision, signs and files order, decision communicated to jail, prosecutor, defense counsel. This occurs one day prior to the COP docket.

        5. Day of COP and sentencing: defendant brought over from the jail; COP and sentencing occurs.  

 

Hearings Requiring Defendant's Physical Presence

Defendant’s physical presence is required for the following hearings:

  • CrR 3.5/CrR 3.6 

  • RCW 98.44.130

  • Contested Competency

  • Out of Custody Change of Plea and Sentencing (Including cases reduced to misdemeanor only charges)

  • Supervised Release Violations

  • Criminal Trials.

 

Use of Break Out Rooms

Break out rooms should only be used when absolutely necessary to speak with a client during a hearing. They are not a substitute for speaking to a defendant prior to a hearing. Break out room use substantially increases the length of dockets, forcing attorneys to wait for long periods to have their matters heard.

 

Interpreters Involvement in Change of Plea and Sentencing Hearings

After a non-English speaking defendant has been sentenced, the interpreter should review the judgment and sentence with the defendant and sign the attestation on the J&S. If the interpreter is at a remote location and unable to sign the J&S, the interpreter should sign an affidavit indicating they have read the J&S to the defendant and file it with the clerk’s office as soon as is convenient after the sentencing. The verbiage on the form is the same as is found on the J&S. The form is available through the court’s interpretation office.

 

Cut off Time for Add-ons

The cut off time for add-ons to any criminal docket is noon the day prior to the docket.

 

Speedy Trial Waivers - Court Approved Form

Speedy trial waivers need to be signed by defendants prior to or at the hearing where the defendant is in person and they will be moving for a continuance.  Please use the court approved form

Written speedy trial waivers are one of the ways a criminal defendant’s commencement date can be reset. CrR 3.3(c)(2)(i).

Written speedy trial waivers need to be completed and filed at or before a motion for continuance will be heard. If the waiver is filed before the hearing, it must be filed far enough in advance so that it will appear in the electronic court file at the time of the hearing. If this cannot be done the original or a duplicate of the speedy trial waiver must be provided to the court before or at the hearing. E-mailing a copy to the court during the hearing is not acceptable.

Defense counsel should not send speedy trial waivers to the PA’s office or the assigned DPA and expect either to get a copy of the waiver to the court prior to a hearing. This is the responsibility of defendant and his or her attorney. Additionally, attorneys should not e-mail speedy trial waivers to the judicial assistants prior to the hearings. Judicial assistants are not available to review e-mails and print off large numbers of speedy trial waivers right before or during a docket, especially before the readiness dockets.

 

Agreed Continuance Procedure

Parties are to follow the below criteria and can make use of the following procedure for agreed continuances off docket.

Agreed Continuance Criteria: 
  1. Case no older than 1 year since filing

  2. Length of Continuance is no longer than 90 days

  3. Cases can only contain class b and c felonies; No class A

  4. Trial date must be agreed and the parties must have chosen a future trial date from the assigned departments available dates

  5. Defendant must sign a speedy trial waiver, a copy must be attached to the motion

  6. Parties must prepare and sign a scheduling order

Agreed Continuance Procedure: 
  1. Defense and DPA are to ensure the case meets the above criteria and to work out the agreed dates for trial and readiness hearing and calculation of elapsed days based on the assigned departments available trial dates. 

  2. Defense counsel will prepare the speedy trial waiver and scheduling order forms to present to the defendant.

  3. Defendant will be advised by defense counsel of the waiver of speedy trial form with new commencement date and advised of the dates in the new scheduling order. Defendant and defense counsel will sign the forms.

  4. Defense counsel will send the signed forms to the DPA for DPA’s signature.

  5. DPA will review and sign the forms, print them, and get them to the assigned department for the judge’s signature. This must be done no later than 4:30 pm on the Friday afternoon the week prior to the week the case is set for a readiness hearing.

  6. Judge confirms the forms have been signed by the parties, decides whether to grant the motion. If the motion is granted the judge signs the forms and has them filed. If the judge denies the motion he or she notes the decision on the forms and has them filed. The parties are notified of the court’s decision by e-mail.

  7. Defense counsel will advise the defendant that the forms have been filed and provide copies to the defendant.

CrR 7.8 Procedures for Motions Based on State v. Blake (As of April 14, 2021)

  1. Defense attorney/Pro se defendant files CrR 7.8 motion with the clerk’s office, provides copies to Superior Court and the clerk’s office.

    1. Defense attorney copies Aaron Bartlett/Ashley Smith on motion/email when they believe the granting of the motion will result in the release of their client within the next two months. If the defense attorney wants the motion prioritized, he or she should attach the defendant's associated judgment and sentence and other relevant documents.

  2. Court receives motion; forwarded to assigned Judge (this is the department that entered the judgment and sentence or its successor department if the department is no longer in the criminal/civil rotation).

  3. Appeals Unit will review the CrR 7.8 motion

  4. If PA’s office agrees to the requested relief, they will notify the Court and defense counsel.

    1. If agreed relief is vacation of a conviction, the PA will prepare an agreed order vacating the conviction.

    2. If agreed relief is re-sentencing, the PA will notify defense and the court; then within the PA’s office the matter will be sent back to the appropriate trial team and assigned to a particular DPA to handle the resentencing. The DPA will work with the defense and the court to schedule a time for re-sentencing.

      1. If it is a pro se motion, the PA will ask the Court/Indigent Defense to appoint a defense attorney.

      2. At a time that is decided by the Court, the PA will cite the matter in for a remote resentencing using Zoom. the PA will coordinate with DOC and the clerk’s office. Alternatively, the PA will file a motion and order to transport the defendant from prison to Clark County jail.

      3. The PA will work with the assigned Judge’s JA and defense counsel to find a time for the re-sentencing (either as a special set as circumstances call for, or on a COP docket. As volume increases the court may establish resentencing dockets. 

      4. Re-sentencing will occur. The order vacating the original sentence will be entered at this time.

  5. If the PA’s office disagrees with the requested relief, it will file a written response outlining our position.

    1. The PA’s office will file it's response and send copies to defendant/defense and the Court.

    2. Judge reviews the State’s response and determines if a hearing is necessary pursuant to CrR 7.8 or if the motion should be transferred to the COA as a PRP.

      1. Appropriate order entered (either transferring it or setting a show cause hearing).

      2. If hearing was ordered:

        1. PA’s office works with the Court and defense to set a time for the hearing

        2. PA’s office then files a motion and order to transport the defendant from prison (if Defendant is in prison).

        3. Hearing held (once hearing is held the Court may decide on the merits instead of transferring to the COA).

          1. Relief denied

            1. Order entered

            2. Order to transport Defendant  back to prison entered.

          2. Relief granted

            1. Order entered

            2. Re-sentencing hearing set (if relief requested was a resentencing hearing).

              1. Re-sentencing held.

 

Blake Re-Sentencing Hearings (6/04/21)

Recently there has been some confusion concerning resentencing hearings necessitated by State v. Blake

For in person re-sentencings:

Once the State and the defense have agreed that resentencing is appropriate, the parties will find an available date on a COP docket at least two weeks away and will cite the matter on that docket. Please note that re-sentencings need to be cited before the judge that did the original sentencing or his or her successor (as an example, in front of Department 6 for cases sentenced by Judge Johnson).

  1. The State will prepare a motion and order to transport and have it signed by a judge.

  2. If the defendant appears on a first appearance docket after arriving in the jail, he or she will be set over to the previously arranged COP docket. The resentencing will not be done on the first appearance or criminal docket.

For remote re-sentencings:

  1. A state-level workgroup is meeting to develop a set of uniform procedures to be used for remote re-sentencings. As of today, the workgroup has not published any recommended procedures.

  2. If the parties are able to arrange for a remote resentencing, they must cite the matter onto one of the COP dockets.

  3. The parties must ensure that each participant (defense, PA, clerk, DOC, judge, judicial assistant) knows exactly what his or her role is and who is responsible for each step in the resentencing process.

  4. The parties must inform the court what time the matter is set to be heard and have all required paperwork prepared and to the assigned judge before the beginning of the hearing.