State Of Washington v. Jesse Wescott

• Court: Court of Appeals of Washington
• Decided: May 29, 2013
• Docket: 43128-9
• Status: Unpublished

Opinion

LED COURTOF APPEALS J 1) r 1VISIn- _ 2013 MAY 2 AM 9= 30 IN THE COURT OF APPEALS OF THE STATE OF WASHIIW TON To DIVISION II BY

STATE OF WASHINGTON, No. 43128 9 II - -

Respondent, UNPUBLISHED OPINION

V.

JESSE ALDEN WESCOTT,

BJORGEN, J. — Jesse Wescott appeals his conviction for bail jumping, arguing that the

trial judge erred in not disqualifying himself from trial on the bail jumping charge. We affirm. On June 2, 2011, the State charged Wescott with failure to register as a sex offender. On

October 25, 2011, Wescott and his attorney were present for an omnibus hearing. The judge set

the hearing over until November 2,2011 for a review hearing, stating:

JUDGE LEWIS: Okay. Be back then, November 2nd, at 8:0 and 3 with a proposal for when the matter might be tried. Defendant and Defense Counsel confer.)

MR. DUNKERLY: That will be this courtroom, Your Honor? At 8:0 3 in the morning? JUDGE LEWIS: Yeah. MR. DUNKERLY: Yes. JUDGE LEWIS: Special setting. MR. DUNKERLY: All right. (To the Defendant.) So, it will be here, this courtroom, at 8:0 on the 2nd. Yes, you'll get a copy. 3

Report of Proceedings (Oct.25, 2011) at 6 7. -

1 A commissioner of this court initially considered Wescott's appeal as a motion on the merits under RAP 18. 4 and then transferred it to 1 a panel of judges. No. 43128 9 II - -

The judge signed a memorandum of disposition ordering Wescott to return to court on

November 2, 2011, at 8:0 a. . Wescott, his attorney, and the deputy prosecuting attorney. all 3 m

signed the memorandum order.

Wescott did not appear at the November 2, 2011 hearing, and the court authorized a

warrant for his arrest. Wescott did appear before the trial court on November 3, 2011, at which

time the State amended its information to add a charge of bail jumping. Wescott waived his right

to a jury trial on both charges. Trial commenced before Judge Lewis on February 10, 2012. He

found Wescott not guilty of failure to,register,but guilty of bail jumping.

Wescott argues for the first time on appeal that Judge Lewis should have disqualified

himself from presiding over the trial because he had ordered Wescott to appear on November 2.

He contends that Judge Lewis should have disqualified himself under Canon 2.1 of the Code of 1

Judicial Conduct (CJC), which directs judges to "disqualify [themselves] in a[y] proceeding in n

which [the judge's] impartiality might reasonably be questioned."Br. of Appellant at 7 (quoting

CJC CANON 2.1). 1

He also contends that Judge Lewis should have disqualified himself under the appearance

of fairness doctrine, which requires that "` reasonably prudent and disinterested observer would a

conclude that all parties obtained a fair, impartial, and neutral hearing. "' State v. Bilal, 77 Wn.

App. 720, 722, 893 P. d 674, review denied, 127 Wn. d 1013 ( 1995) quoting State v. 2 2 (

Ladenburg, 67 Wn. App. 749, 754 55,840 P. d 228 (1992)). - 2

We normally review a judge's decision whether or not to disqualify himself or herself for

an abuse of discretion. State v. Perala, 132 Wn. App. 98, 111, 130 P. d 852, review denied, 158 3

Wn. d 1018 (2006). Wescott, however, never asked Judge Lewis to exercise his discretion to 2

2 No. 43128 9 II - -

disqualify himself. Thus, we do not review whether Judge Lewis abused his discretion in this

matter. Instead, we review this issue de novo.

Before reaching the merits, though, we must determine whether Westcott may raise these

claims for the first time on appeal. In State v. Morgensen, 148 Wn. App. 81, 90 91, 197 P. d - 3

715 (2008), review denied, 166 Wn. d 1007 (2009), held that claims of bias or violations of 2 we

the appearance of fairness doctrine cannot be raised for the first time on appeal. Westcott was

present at the October 25 hearing at which Judge Lewis made the order which Westcott claims violated the CJC. Westcott was also present at the hearings and trial which he now claims

violated the appearance of fairness doctrine. Westcott cannot keep silent when an alleged error occurs and wait until appeal to raise it. Under Morgensen and RAP 2. ( a), cannot raise 5 Westcott

these claims for the first time on appeal.

We affirm Wescott's conviction.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but. will be filed for public record in accordance with RCW 040 2.6.it is so ordered. 0

We concur: fRB; G, , J.

W. 1 U EREN, J.

V J. A. . C 7trANSON, 3