State v. Luna

292 P.3d 795, 172 Wash. App. 881
CourtCourt of Appeals of Washington
DecidedJanuary 17, 2013
DocketNo. 30123-1-III
StatusPublished

This text of 292 P.3d 795 (State v. Luna) 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. Luna, 292 P.3d 795, 172 Wash. App. 881 (Wash. Ct. App. 2013).

Opinion

Sweeney, J.

¶1 — In State v. Schultz, our Supreme Court held that a sentencing court could continue a pretrial no-contact order and that it was not necessary to issue a new order following a conviction and sentence. 146 Wn.2d [883]*883540, 48 P.3d 301 (2002). Here the municipal court warned the defendant in open court that the pretrial no-contact order would remain in effect following his conviction. And the court then checked a box marked “NCO” on the judgment and sentence. The court also denied a later motion by the defendant to lift that no-contact order. The defendant violated the no-contact order but now claims that he was denied the notice required by due process of law. The superior court agreed with him and dismissed. We disagree, reverse the order of dismissal, and remand.

FACTS

¶2 The Spokane County Municipal Court issued a pretrial no-contact order on August 17, 2010; it prohibited Jesse Luna from having contact with his wife, Sayde L. Luna. The order set out the specifics of the no-contact prohibitions and the consequences of violating it. Mr. Luna contacted his wife and assaulted her. He then pleaded guilty to fourth degree assault and violation of the no-contact order on October 12, 2010. The court sentenced Mr. Luna and explained in some detail in open court that the no-contact order would remain in effect following his conviction and the imposition of sentence. The court then entered a judgment and sentence on a preprinted form. The order had a box entitled “NCO” and the court marked the box with an “X.” Right next to that box is a blank to name the person with whom Mr. Luna is to have no contact. It is blank. There is also a blank for that person’s date of birth.

¶3 Mr. Luna did not complain about the judgment and sentence form. Mr. Luna later moved to have the no-contact order lifted. The municipal court judge denied his motion and told Mr. Luna that “the order is going to stay in place.” Report of Proceedings (Dec. 15, 2010) at 5.

¶4 Mr. Luna again contacted and assaulted Ms. Luna at her home on December 19, 2010. The State charged Mr. Luna in superior court with violating the municipal court domestic violence protection order.

[884]*884¶5 Mr. Luna moved to dismiss the charge and argued that the pretrial order entered on August 17, 2010, expired once the matter was resolved in October 2010 and that the municipal court failed to enter and serve a separate postconviction no-contact order as required by statute. The State responded that the court complied with the statutory requirements and properly extended the pretrial no-contact order at sentencing.

¶6 The superior court concluded that the postconviction no-contact order was invalid, granted Mr. Luna’s motion, and dismissed the charge.

¶7 The State appeals.

DISCUSSION

¶8 The question before the court is not whether the municipal court had authority to extend the pretrial no-contact order following Mr. Luna’s conviction and sentencing. That question has been answered. Schultz, 146 Wn.2d 540. Clearly, the court can continue the pretrial no-contact order. The question before us is whether the simple check next to the box on the judgment and sentence marked “NCO” was sufficient to extend the pretrial no-contact order after conviction and sentencing. The State says the notation on the judgment and sentence, when taken with the municipal court’s warnings in open court that the order was still in effect and the court’s later rejection of Mr. Luna’s efforts to have the no-contact order lifted, more than satisfied any notice requirement. Mr. Luna responds that simply checking a box labeled “NCO,” without more, is not adequate notice of what he was prohibited from doing.

¶9 There is no dispute over the facts essential to our decision. Whether the court’s notation on the judgment and sentence is adequate when considered with the court’s oral warnings in open court is a question of law that we will review de novo. Schultz, 146 Wn.2d at 544.

¶10 The relevant statutory language for these no-contact orders is:

[885]*885At the time of arraignment the court shall determine whether a no-contact order shall be issued or extended. The no-contact order shall terminate if the defendant is acquitted or the charges are dismissed.

Former RCW 10.99.040(3) (2010).

When a defendant is found guilty of a crime and a condition of the sentence restricts the defendant’s ability to have contact with the victim, such condition shall be recorded and a written certified copy of that order shall be provided to the victim.

RCW 10.99.050(1).

¶11 Schultz is binding precedent here. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). There our Supreme Court addressed the requirements of RCW 10.99.050 and held that where a pretrial domestic violence no-contact order is followed by a conviction, the order does not automatically expire and indeed may be extended as a sentencing condition:

We therefore conclude that, where the trial court determines at sentencing that a defendant’s contact with the victim is to be restricted, RCW 10.99.050(1) may be satisfied either by entry of a new no-contact order or by the court’s affirmative indication on the judgment and sentence that the previously entered no-contact order is to remain in effect.

Schultz, 146 Wn.2d at 547.

¶12 In Schultz, the trial court checked a box on the judgment and sentence that stated, “[N]o-contact order .. . to remain in effect.” Id. And this effectively extended the pretrial no-contact order and satisfied the requirements of RCW 10.99.050(1). Schultz, 146 Wn.2d at 548-49. Similarly, here the municipal court simply checked a box entitled “NCO.” Clerk’s Papers at 11. Mr. Luna says this is not sufficient. But it is not the municipal court’s notation on the judgment and sentence that provided Mr. Luna with the specifics of what he could not do. Those details (protected party, locations, duration) are provided for and in some detail in the original pretrial no-contact order.

[886]*886¶13 Mr. Luna argues that the “judgment and sentence form clearly contemplates that if a post conviction no-contact order is part of the sentence, the person the defendant is restricted from contacting must be named.” Br. of Resp’t at 10. But that person is named — in the original no-contact order. All the court was required to do was give Mr. Luna notice that the no-contact order was still in effect. And it did that both by telling him so in open court and then noting on the judgment and sentence that a no-contact order was in effect. Mr. Luna expressed no confusion in court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Felipe Sadin
509 F.2d 1252 (Second Circuit, 1975)
State v. Hopper
822 P.2d 775 (Washington Supreme Court, 1992)
State v. Thomas
610 P.2d 937 (Court of Appeals of Washington, 1980)
State v. Baker
745 P.2d 1335 (Court of Appeals of Washington, 1987)
State v. Campbell
888 P.2d 1185 (Washington Supreme Court, 1995)
State v. Kjorsvik
812 P.2d 86 (Washington Supreme Court, 1991)
State v. Gore
681 P.2d 227 (Washington Supreme Court, 1984)
State v. Schultz
48 P.3d 301 (Washington Supreme Court, 2002)
State v. Clark
880 P.2d 562 (Court of Appeals of Washington, 1994)
State v. Schultz
146 Wash. 2d 540 (Washington Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
292 P.3d 795, 172 Wash. App. 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-luna-washctapp-2013.