Appeal from Benton Superior Court. Docket No: 09-1-00744-0. Judge signing: Honorable Carrie L Runge. Judgment or order under review. Date filed: 02/26/2013.
Marie J. Trombley, for appellant.
Andrew K. Miller, Prosecuting Attorney, and Julie E. Long, Deputy, for respondent.
Authored by Stephen M. Brown. Concurring: George B. Fearing, Kevin M. Korsmo.
Stephen M. Brown, A.C.J.
[187 Wn.App. 138] [¶1] -- Michael L. Shemesh appeals his convictions for three counts of first degree rape of a child, two counts of second degree possession of depictions of a minor engaged in sexually explicit conduct, and one count of [187 Wn.App. 139] first degree child molestation. The sentencing court orally imposed an aggravated exceptional sentence based on the jury's finding the crimes were committed as part of ongoing sexual abuse of the victim and Mr. Shemesh abused a position of trust. First, Mr. Shemesh contends his state and federal constitutional speedy trial rights were violated because over three years elapsed before his trial. Second, he contends the court erred by imposing an aggravated exceptional sentence without written findings of fact and conclusions of law. We reject his speedy trial contention and affirm, but, under recent authority, we remand for the trial court to enter necessary written findings and conclusions.
[¶2] On August 14, 2009, the State charged Mr. Shemesh with three counts of first degree rape of a child, two counts of second degree possession of depictions of a minor engaged in sexually explicit conduct, and first degree child molestation based on alleged 2001 and 2006 events. The rape charges and molestation charge included special aggravating allegations of an ongoing pattern of abuse and violation of a position of trust. Mr. Shemesh was arraigned on August 12, 2009. Tonya Meehan-Corsi was appointed as defense counsel. Trial was set for September 28, 2009.
[¶3] On September 16, 2009, the court granted the State's request for a mental health evaluation to determine Mr. Shemesh's competency and sanity. The matter was stayed pending a competency determination. The State's expert opined Mr. Shemesh was competent to stand trial; an order of competency was entered on November 25, 2009. The court then set trial for January 25, 2010.
[¶4] On January 13, 2010, a stipulation for continuance/waiver of time for trial (CrR 3.3) and order of continuance was entered, setting a new trial date for February 1, 2010. The court inquired whether Mr. Shemesh was waiving his right to a speedy trial, and Mr. Shemesh responded affirmatively.
[187 Wn.App. 140] [¶5] On February 3, 2010, Mr. Shemesh requested new counsel, alleging mismanagement
of the case. The court denied the motion, finding Ms. Meehan-Corsi reviewed police evidence, conducted victim interviews, and discovered several critical facts. Trial was then continued to March 1, 2010.
[¶6] Another continuance was requested in mid-February, at which time the court inquired whether Mr. Shemesh was waiving speedy trial and he again responded affirmatively. ...