State v. Drum

143 Wash. App. 608
CourtCourt of Appeals of Washington
DecidedMarch 25, 2008
DocketNos. 35947-2-II; 34377-1-II
StatusPublished
Cited by4 cases

This text of 143 Wash. App. 608 (State v. Drum) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Drum, 143 Wash. App. 608 (Wash. Ct. App. 2008).

Opinion

¶1 Patrick B. Drum appeals his conviction of residential burglary, arguing that the findings of fact [610]*610and evidence were insufficient to support his conviction and that the drug court contract he entered into and then terminated violated his right to due process. He raises additional issues in his statement of additional grounds and in the personal restraint petition consolidated with his appeal. Finding no error, we affirm his conviction and deny his personal restraint petition.

Armstrong, J.

[610]*610FACTS

¶2 On the afternoon of September 28, 2004, Drum entered a Port Townsend residence. When the homeowner saw him, she called 911 and fled to a neighbor’s house. The neighbor saw Drum come out of the residence and start toward the back door of another home before the police arrived and arrested him.

¶3 At his preliminary court appearance, Drum stated that he did not intend to commit a crime but was highly intoxicated when he entered the residence. At his arraignment, Drum asked the court to either dismiss or reduce the residential burglary charge because there was no evidence he intended to commit a crime within the residence, but the court found probable cause to support the charge. Defense counsel later informed the court that while there was a significant question whether Drum intended to commit a crime within the home, Drum wanted to go through drug court and get treatment. On October 29, 2004, Drum filed a drug court contract, which included the following provisions:

16. That it is the Judge’s decision to determine when the defendant has earned the ability to graduate from the Program and to determine when termination from the Program will occur.
17. That if the defendant chooses to leave the Program within the first two weeks after signing the Drug Court Contract, withdrawal will be allowed, this contract will be declared null and void, and the defendant will assume prosecution under the pending charge(s) as if this contract had never [611]*611been agreed to. The defendant agrees that this ability to withdraw from the terms of this contract will cease after the period of two weeks following the effective date of this contract and thereafter the defendant shall remain in the Program until graduation unless his/her participation is terminated by the Court. The defendant further agrees that the ability to withdraw from the terms of this contract will cease within the first two weeks, if he/she has committed a willful violation of this contract for which, in the judgment of the Court, he/she may be terminated from the program.
19. If the defendant is terminated from the Program, the defendant agrees and stipulates that the Court will determine the issue of guilt on the pending charge(s) solely upon the enforcement/investigative agency reports or declarations, witness statements, field test results, lab test results, or other expert testing or examinations such as fingerprint or handwriting comparisons, which constitutes the basis for the prosecution of the pending charge(s). The defendant further agrees and stipulates that the facts presented by such reports, declarations, statements and/or expert examinations are sufficient for the Court to find the defendant guilty of the pending charge(s).
20. Defendant waives the right to challenge the legality of any investigative or custodial detention, or the legality of any search or seizure, or the sufficiency of Miranda warnings or voluntariness of any statement made, pertaining to any evidence which forms part of the basis for the prosecution of the pending charge(s).
Defendant acknowledges an understanding of, and agrees to waive the following rights:
1. The right to a speedy trial;
2. The right to a public trial by an impartial jury in the county where the crime is alleged to have been committed;
3. The right to hear and question any witness testifying against the defendant;
[612]*6124. The right at trial to have witnesses testify for the defense, and for such witnesses to be made to appear at no expense to the defendant; and
5. The right to testify at trial.

Clerk’s Papers (CP) at 21-24.

¶4 Drum signed his name below an additional paragraph stating, “My attorney has explained to me, and we have fully discussed all of the above paragraphs. I understand them all and wish to enter into this Drug Court Contract. I have no further questions to ask the Judge.” CP at 24.

f5 Before accepting the contract, the trial court discussed it with Drum:

THE COURT: . . . I’ve got here a Drug Court Contract, Mr. Drum. Did you review that thoroughly with [defense counsel]?
MR. DRUM: Yes, I did.
THE COURT: Do you understand what you’re getting into?
MR. DRUM: Yes, I do.
THE COURT: This is not an easy way to get out of a felony conviction. It requires a lot of effort on your part, and you’ll be under the scrutiny of the court for the next at least two years, do you understand that?
MR. DRUM: Yes, I do.
THE COURT: And that jail time will be imposed if you violate the conditions of your agreement with the court, and sometimes you end up getting more jail time in Drug Court than you would by pleading guilty, just because you can’t stay straight, you know that?
MR. DRUM: Yes, I do.

Report of Proceedings (RP) at 31-32.

¶6 Forty-two days later, on December 10, 2004, Drum asked to be released from the drug court contract, explaining only, “I think it’s a good program, but I just don’t think it’s for me.” RP at 36. When the trial court asked defense counsel whether he had talked to Drum about his decision, Drum interjected that he was not going to change his mind.

[613]*613¶7 After initially setting Drum’s case on the jury trial track, the court realized its error and set the matter for a bench trial. Over the State’s objection, the court invited argument at the trial, and defense counsel asserted that Drum was guilty of first degree criminal trespass at most because his extreme intoxication negated the inference that he entered the residence with the intent to commit a crime against persons or property therein.

¶8 The trial court did not find that the police report adequately set forth the elements of intoxication. While the report said the arresting officer “ ‘immediately smelled the strong odor of what appeared to be spray paint’ ” emanating from Drum, there was “not much discussion about Mr. Drum being intoxicated. Although we believe that he probably was under the influence of having huffed spray paint.” RP at 69. The court then stated that it would infer Drum’s intent to commit a crime by his entry into the residence because there was no other reason for him to be there. After Drum acknowledged that it was too late for him to explain that he was in the residence because he wanted to use the telephone, the court replied that there was no such explanation in the police report.

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Related

State Of Washington v. Pablo Lara Bellon
Court of Appeals of Washington, 2020
In re Pers. Restraint of Keldy Adalid Granados
Court of Appeals of Washington, 2018
State v. Waldenberg
174 Wash. App. 163 (Court of Appeals of Washington, 2013)
State v. Drum
225 P.3d 237 (Washington Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
143 Wash. App. 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-drum-washctapp-2008.