Washington: No Right to Be Present or to Counsel in Non-Discretionary Resentencing Hearing
Washington: No Right to Be Present or to Counsel in Non-Discretionary Resentencing Hearing
On June 2, 2014, Division One of the Washington State Court of Appeals dismissed an appeal by a prisoner who argued his right to counsel and his right to be present were violated during a resentencing hearing following a successful appeal. The 3-0 decision held that because there was no "exercise of discretion" by the trial court on remand the defendant, Donnie Durrett, had no such rights.
Initially, Durrett was convicted of failure to register as a sex offender. He was sentenced to 43 months in prison plus a term of community custody of 36-48 months. Durrett appealed, arguing that his term of incarceration and community custody combined to exceed the statutory maximum for his offense — 60 months. Durrett won that appeal and was resentenced. Unhappy with his new sentence because it did not state a specific term of community custody, Durrett again appealed. Durrett prevailed once more, and the appeals court ordered the trial court to enter a term of community custody "consistent with RCW 9.94 A. 701(9)."
On the second remand, the trial court complied with the Court of Appeals directive, and gave Durrett a 43- month prison term and 17 months community custody, totaling 60 months. However, the court did not hold a hearing at which Durrett was present nor was he represented by counsel.
Durrett appealed a third time on those bases. Rejecting the third appeal, Division One held that since the trial court merely complied with the appellate court directive to enter a term of community custody consistent with statute, it exercised no discretion and therefore Durrett had no right to counsel or to be present.
See: State of Washington v. Durrett, No. 69925-5-1 (Wash. Ct. App. 2014).
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Related legal case
State of Washington v. Durrett
| Year | 2014 |
|---|---|
| Cite | No. 69925-5-1 (Wash. Ct. App. 2014) |
| Level | State Court of Appeals |
| Conclusion | Bench Verdict |