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Washington v. Fort

Court of Appeals of Washington, Division 3

May 2, 2019

STATE OF WASHINGTON, Respondent,
v.
DALLIN D. FORT, Appellant.

          PANEL JUDGES LAWRENCE-BERREY, FEARING AND PENNELL

          ORDER GRANTING MOTION FOR RECONSIDERATION, WITHDRAWING OPINION FILED FEBRUARY 26, 2019, AND REMANDING FOR NEW RAP 9.10 HEARING

          ROBERT LAWRENCE-BERREY CHIEF JUDGE.

         Whereas, on October 29, 2018, we remanded this direct appeal to the trial court for it to conduct a hearing and answer three questions that would assist in completing the trial record. These questions are set forth in the attached previous order.

         Whereas, on November 8, 2018, the trial court conducted the requested hearing. At the hearing, Dallin Fort was not represented by counsel, and he remarked as much. The trial court permitted the hearing to proceed forward. It thereafter entered written findings of fact responsive to this court's questions. Mr. Fort later argued to this court he was denied his constitutional right to counsel at the November 8, 2018 hearing.

         Whereas, on February 26, 2019, this court issued its unpublished opinion in this matter. Mr. Fort moved for reconsideration and again argued he was denied his constitutional right to counsel at the November 8, 2018 hearing. At our request, the State responded to Mr. Fort's motion.

         Whereas, we determine that the November 8, 2018 hearing was not ministerial, but instead was a critical stage of the proceedings, in that the written findings from the hearing would resolve a factual issue determinative of this direct appeal. Mr. Fort therefore had a constitutional right to have counsel present at the hearing. The absence of counsel constitutes structural error, and such error is not subject to harmless error analysis.

         IT IS THEREFORE ORDERED

         (1) Mr. Fort's motion for reconsideration is granted;

         (2) This court's February 26, 2019 unpublished opinion is withdrawn;

         (3) The trial court must conduct a new hearing to clarify/supplement the record in accordance with RAP 9.10, and enter written findings as requested in the attached prior order;

         (4) Prior to the hearing, the trial court shall appoint counsel for Mr. Fort so he is represented at the hearing;

         (5) Mr. Fort and both trial counsel shall appear at the hearing; and

         (6) The procedures set forth in the attached prior order shall be followed.

         ORDER TRANSFERRING APPEAL TO SUPERIOR COURT FOR ...


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