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
LAWRENCE-BERREY CHIEF JUDGE.
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.
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
on February 26, 2019, this court issued its unpublished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.
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.
Fort's motion for reconsideration is granted;
This court's February 26, 2019 unpublished opinion is
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;
Prior to the hearing, the trial court shall appoint counsel
for Mr. Fort so he is represented at the hearing;
Fort and both trial counsel shall appear at the hearing; and
procedures set forth in the attached prior order shall be
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