Court of Appeals Division I 

State of Washington
Opinion Information Sheet


Docket Number: 60094-0
Title of Case: State Of Washington, Respondent V. Lenny Ray Pruitt, Appellant
File Date: 07/14/2008


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
Docket No: 04-1-12413-8
Judgment or order under review
Date filed: 05/11/2007
Judge signing: Honorable J Wesley Saint Clair


JUDGES
------
Authored by Ronald Cox
Concurring: Anne Ellington
Ann Schindler


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Oliver Ross Davis
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Barbara A. Mack
King County Prosecutor's Office
516 3rd Ave
Seattle, WA, 98104-2385





IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 60094-0-I
) (Consolidated with No. 60095-8-I)
Respondent, )
) DIVISION ONE
v. )
)
LENNY RAY PRUITT, ) PUBLISHED
)
Appellant. ) FILED: July 14, 2008
)
)

Cox, J. -- An accused has a constitutional right "'to be present in his own

person whenever his presence has a relation, reasonably substantial, to the

[fullness] of his opportunity to defend against the charge,'" even in situations

where the defendant is not actually confronting witnesses or evidence against
him.1 This right is not unlimited, for example, "when presence would be useless,

or the benefit but a shadow."2 But an accused "is guaranteed the right to be

present at any stage of the criminal proceeding that is critical to its outcome if
his presence would contribute to the fairness of the procedure."3 A violation of a

1 Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667, 96 L. Ed.
2d 631 (1987) (quoting Snyder v. Commonwealth of Massachusetts, 291 U.S.
97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934)); see also People v. Stroud, 208
Ill. 2d 398, 804 N.E. 2d 510 (2004) (holding that acceptance of a guilty plea via
closed-circuit television violated the constitutional right to be present during a
critical stage of the criminal proceeding).

2 Id.

3 Id.

No. 60094-0-I (Consolidated with No. 60095-8-I)/2

constitutional right is harmless beyond a reasonable doubt where the "untainted"
evidence is so overwhelming that it necessarily leads to a finding of guilt.4

Here, Lenny Pruitt was not present during a bench trial in drug court to

determine his guilt on a charge of second degree possession of stolen property,

a stolen access device. The State has failed in its burden to prove beyond a

reasonable doubt that this constitutional error was harmless. We reverse.

The facts are not complicated. In May 2003, police responded to a report

of a burglary and discovered Pruitt at the rear of the building where the crime

allegedly occurred. Based on the items in his possession at the time, the police

arrested him on suspicion of burglary and possession of stolen property. The

State charged him with second degree burglary based on these events.

In April 2005, the State amended the second degree burglary charge to

the sole charge of second degree possession of stolen property under RCW

9A.56.160(1)(c), the alternative based on a stolen access device. The record

indicates that this amendment was conditioned on Pruitt's acceptance into drug

court based on a Drug Diversion Court Waiver and Agreement dated June 2005.

In December 2005, police responded to a report of shoplifting at a

drugstore. When police arrived at the scene, Pruitt had been apprehended by a

loss prevention officer. In a search incident to arrest, the police discovered two

bindles of heroin on him. Based on these events, the State charged him with

4 State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985); In re Pers.
Restraint of Benn, 134 Wn.2d 868, 921, 952 P.2d 116 (1998) (violation of the
right to be present is subject to the harmless error analysis) (citing Rice v.
Wood, 77 F.3d 1138, 1142 (9th Cir. 1996) (en banc)).

2

No. 60094-0-I (Consolidated with No. 60095-8-I)/3

violation of the Uniform Controlled Substances Act (VUCSA). Pruitt

subsequently executed another Drug Diversion Court Waiver and Agreement

dated April 2006.

The two drug diversion agreements required Pruitt to enter into a drug

court diversion program. In exchange for entering the program, he was to obtain

an eventual dismissal with prejudice of the charges against him if he complied
with the program's requirements.5 He also agreed that if he failed to comply with

all requirements of the drug treatment program, he would submit to a bench trial

on the charges. Under the terms of the agreements, Pruitt waived several

important rights: his right to a jury trial, his right to call and cross-examine

witnesses, and his right to challenge the admissibility of evidence against him.

Pruitt failed to comply with the drug treatment requirements and

voluntarily terminated from the program. On May 4, 2007, the drug court

ordered Pruitt terminated from the treatment program. On that same date, the

court orally found him guilty of second degree possession of stolen property

"whose value was greater than $250.00 yet less than $1,500.00." The drug

court did not enter written findings or conclusions on that date. However, it

entered a judgment and sentence stating that Pruitt was guilty of violating "RCW

9A.56.160(1)(c)," which criminalizes possession of a stolen access device.
This appeal followed.6

5 See generally State v. Colquitt, 133 Wn. App. 789, 794-96, 137 P.3d
892 (2006).

6 We deny Pruitt's Motion to Strike Brief of Respondent in its Entirety, but

3

No. 60094-0-I (Consolidated with No. 60095-8-I)/4

SUFFICIENCY OF THE EVIDENCE

In his opening brief on appeal, Pruitt challenged the sufficiency of the

evidence to support his conviction of second degree possession of stolen

property worth between $250 and $1,500, as orally stated by the drug court

judge following the bench trial. We accept the State's concession of error that

the evidence is insufficient to support the conviction on this basis.

In a criminal case, evidence is sufficient if, viewed in the light most

favorable to the State, any rational trier of fact could find each element of the
crime proved beyond a reasonable doubt.7 To convict for possession of stolen

property, the State must prove actual or constructive possession of the property

that has been stolen and actual or constructive knowledge that the property was
stolen.8 A person is guilty of second degree possession of stolen property if he

or she possesses stolen property that exceeds $250 in value but does not
exceed $1,500 in value.9

The State properly concedes in its Brief of Respondent that the evidence

is insufficient to convict Pruitt of possessing property worth between $250 and

$1,500. There is no evidence in the record to support this May 4, 2007

grant his alternative motion to consider his arguments in the motion as his Reply
Brief.

7 State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

8 State v. Plank, 46 Wn. App. 728, 731, 731 P.2d 1170 (1987); RCW
9A.56.140(1).

9 RCW 9A.56.160(1)(a).

4

No. 60094-0-I (Consolidated with No. 60095-8-I)/5

conviction.

ADJUDICATION OF GUILT ON ALTERNATE MEANS

In his opening brief, Pruitt also assigned error to the trial court's failure to

enter written findings of fact and conclusions of law, as required by CrR 6.1(d),

at the time of the May 4, 2007 conviction. In response to this argument and the

challenge to the sufficiency of evidence that we previously discussed in this

opinion, the State took several actions to which Pruitt objects.

Without notice to either Pruitt or his appellate counsel of record, the State

returned to the drug court and sought a conviction for the charge of second

degree possession of stolen property, a stolen access device. Pruitt was not

present at that trial to determine guilt. Nevertheless, the drug court reviewed the

proffered evidence and found Pruitt guilty of possession of stolen property in the

form of a stolen access device (credit card number). Thereafter, over the

objections of Pruitt's counsel at that trial, the court entered written findings and
conclusions based on finding Pruitt guilty of that charge.10

The State then filed its Brief of Respondent in this appeal. This brief

ignores Pruitt's challenge in his opening brief to the sufficiency of evidence to

support the May 4, 2007 conviction for possession of stolen property valued

between $250 and $1,500. Rather, this brief characterizes the drug court's

10 Clerk's Papers at 49-51, attached as Appendix B to Brief of
Respondent.

5

No. 60094-0-I (Consolidated with No. 60095-8-I)/6

original adjudication as "an error in [the court's] verbal conclusions of law,"

remedied by the court's subsequent adjudication for possession of a stolen

access device. This brief also notes that findings and conclusions supporting

the second adjudication were entered by the drug court in January 2008.

Pruitt moved to strike the Brief of Respondent in its entirety. Having

denied his motion to strike the State's brief in its entirety, we now consider his

arguments in the motion as his Reply Brief.

Notice

Pruitt correctly objects to the lack of notice to his appellate counsel of

record of the drug court bench trial at which he was convicted of possession of a

stolen access device.

Basic due process and the governing criminal rules require notice of court
proceedings to counsel of record.11 Here, trial counsel for Pruitt withdrew and

appellate counsel of record was later appointed to represent him in this appeal.

Notwithstanding these actions, the State failed to notify appellate counsel of the

bench trial on the alternate means, which occurred after this appeal was filed.

The record also shows that the State failed to notify Pruitt of the hearing.

The State concedes, as it must, that it erred in failing to notify Pruitt's

appellate counsel before seeking relief from the drug court while this appeal was

pending. Without citation to authority, the State contends, "However, the State

11 See CrR 3.1 (Right to and Assignment of Lawyer); CrR 3.3(d) (Trial
Settings and Notice); CrR 8.4 (Service, Filing, and Signing of Papers).

6

No. 60094-0-I (Consolidated with No. 60095-8-I)/7

did notify trial counsel, who was familiar with the case, aware of the issue, and

present at the hearing." This excuse is unacceptable.

First, the record is unclear whether counsel for Pruitt at the May 2007

trial, who had withdrawn just after filing this appeal, was notified. Counsel who

appeared at the trial on the possession of an access device was not the same
counsel who represented Pruitt in the May 2007 trial.12 Thus, it is unclear to this

court whether counsel at the second trial was fully familiar with all relevant

issues in this case.

Second, assuming that the State did notify Pruitt's former counsel of the

bench trial in drug court on the access device charge, that does not excuse its

failure to notify his appellate counsel, the only counsel of record at the time of

the second trial.

We discuss later in this opinion the effect of the State's failure to notify

appellate counsel of record.

Authority of Trial Court During Appeal

Pruitt next objects to the entry of findings and conclusions in the second

trial without this court first having given its permission for such a proceeding.

We agree with his assessment of the governing rule.

RAP 7.2 provides that once an appellate court has accepted review of a

12 See Report of Proceedings (May 4, 2007) at 2 (showing Holly Johnson
as the defense counsel of record); Clerk's Papers at 51, attached as Appendix B
to Brief of Respondent (showing Dana Brown "for Holly Johnson" as the attorney
for Pruitt); Transcript of Hearing at 1, attached as Appendix C to Brief of
Respondent (Dana Brown represented Pruitt at the second adjudication).

7

No. 60094-0-I (Consolidated with No. 60095-8-I)/8

case, the trial court only has authority to act in the matter as provided by the
rule.13 This court accepted review of this case on the filing of the notice of

appeal in June 2007. Thus, the trial court only had authority to act in limited

ways after that time.

RAP 7.2(e) allows the trial court to hear post-judgment motions authorized

by the criminal rules and actions to modify decisions. But the rule requires the

moving party to seek the appellate court's permission prior to the formal entry of

a trial court decision if that decision "will change a decision then being reviewed

by the appellate court."

Here, the transcript of the second trial shows that the State did not

disclose to the drug court that the pending appeal required this court's

permission before findings and conclusions were entered. It is beyond

legitimate dispute that the new bench trial changed a decision then being

reviewed by this court. Moreover, the State has never sought this court's

permission to authorize the trial court to enter the findings and conclusions that

are now at issue in this case. We need not speculate on how this court would

have ruled had the State made such a motion to this court.

Without citing any authority, the State argues that the failure to enter

written findings was a clerical error that the trial court was entitled to remedy

without the State seeking this court's permission under RAP 7.2(e). We reject

13 RAP 7.2(a) ("After review is accepted by the appellate court, the trial
court has authority to act in a case only to the extent provided in this rule . . . .").

8

No. 60094-0-I (Consolidated with No. 60095-8-I)/9

this characterization.

This court has held that the failure to enter written findings and

conclusions is a clerical error that may be corrected under RAP 7.2(e) after an
appeal is filed.14 However, there is far more here than mere clerical error. The

more accurate characterization is that the State, upon Pruitt's challenge on

appeal to the sufficiency of evidence to support the drug court's oral ruling of

guilt in the first trial, sought adjudication of guilt on a separate ground in a

second trial. Here, the entry of written findings following the second trial

drastically altered the issues on appeal. It effectively rendered moot both

assignments of error in Pruitt's opening brief. The State's actions also raised

additional procedural and substantive issues on appeal.

We note that an appellant may show prejudice by untimely filed findings

and conclusions. Reversal is warranted if the defendant can show actual
prejudice from the lack of findings or remand for entry of findings.15 The

defendant may show prejudice by establishing that the belated findings were
tailored to meet the issues raised in the appellant's opening brief.16 The burden

of proving any such prejudice is on the defendant.17

14 State v. Vailencour, 81 Wn. App. 372, 378, 914 P.2d 767 (1996); In re
Marriage of Stern, 68 Wn. App. 922, 927-28, 846 P.2d 1387 (1993).

15 State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).

16 Id. at 624-25; State v. Pray, 96 Wn. App. 25, 30-31, 980 P.2d 240
(1999).

17 Head, 136 Wn.2d at 625.

9

No. 60094-0-I (Consolidated with No. 60095-8-I)/10

We discuss later in this opinion how the State's unauthorized actions

affected Pruitt.

DOUBLE JEOPARDY

Pruitt next argues that the drug court placed him in double jeopardy when

it convicted him in the second bench trial on the alternative ground of

possessing a stolen access device under RCW 9A.56.160(1)(c). Because he

was never implicitly acquitted of this crime, we disagree.

The state and federal constitutions provide that no person shall be twice
put in jeopardy for the same offense.18 Double jeopardy bars a retrial if: (1)

jeopardy attached, (2) jeopardy terminated, and (3) the defendant is again in
jeopardy for the same offense.19 In a bench trial, jeopardy attaches when the

court begins to hear evidence.20 Jeopardy terminates with a verdict of

acquittal.21 An implicit acquittal also terminates jeopardy.22 After jeopardy

terminates, a defendant cannot be prosecuted for the same offense.23

In State v. Collins, the supreme court clarified the rule that for purposes of
double jeopardy, the trial judge's oral ruling is not final.24 Rather, a trial court's

18 U.S. Const. amend. V; Wash. Const. art. I, ยง 9.

19 State v. Corrado, 81 Wn. App. 640, 645, 915 P.2d 1121 (1996).

20 State v. Chiles, 53 Wn. App. 452, 454, 767 P.2d 597 (1989).

21 Corrado, 81 Wn. App. at 646.

22 State v. Hescock, 98 Wn. App. 600, 603, 989 P.2d 1251 (1999).

23 Corrado, 81 Wn. App. at 646.

10

No. 60094-0-I (Consolidated with No. 60095-8-I)/11

oral ruling is:

no more than an expression of its informal opinion at the time it is
rendered. It has no final or binding effect unless formally
incorporated into the findings, conclusions, and judgment.[25]

Following this rule, the supreme court in Collins concluded that the trial court's

oral ruling dismissing the assault charge in that case was not final and did not

constitute an acquittal for double jeopardy purposes when the trial court later
reversed itself and reinstated the charge.26 The court concluded that the jury's

later guilty verdict on the assault charge was final and did not violate double
jeopardy.27

Here also, the drug court's oral ruling that Pruitt was guilty of violating

subsection 1(a) -- based on the value of stolen property being within the statutory

range -- was not an implicit acquittal of RCW 9A.56.160(1)(c) -- based on the

stolen access device. The oral ruling on the former basis was never "formally

incorporated into the findings, conclusions, and judgment." In fact, the trial court

did not enter any written findings or conclusions at that time. And the May 2007

judgment and sentence did not include any reference to RCW 9A.56.160(1)(a),

the means based on the value of stolen property. Instead, it referred to RCW

24 112 Wn.2d 303, 308, 771 P.2d 350 (1989) (overruling In re Dowling, 98
Wn.2d 542, 656 P.2d 497 (1983)).

25 Id. at 306 (quoting State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d
324 (1966)).

26 Id. at 308.

27 Id. at 309.

11

No. 60094-0-I (Consolidated with No. 60095-8-I)/12

9A.56.160(1)(c), the means based on a stolen access device.

In light of Collins, we conclude that the drug court did not acquit Pruitt of

violating RCW 9A.56.160(1)(c). Absent an acquittal of possessing a stolen

access device, there was no double jeopardy violation when the drug court

entered its findings and conclusions on the stolen access device charge in
January 2008.28

Pruitt relies on State v. Hescock29 for the contrary position. That case

does not require reversal here.

There, the juvenile was charged with two alternative means of committing

a crime but convicted of only one of those means. Although the trial judge

concluded in its oral ruling that Hescock was guilty of both means, the judge's

written findings and conclusions only supported conviction under one alternative

means. Division Two concluded that the trial court's failure to convict under the

second alternative means in its written findings was an implicit acquittal on that
charge.30 An implicit acquittal triggers double jeopardy the same as an actual

acquittal, preventing any further remand related to that charge.31 Thus, the court

28 See State v. Alvarez, 128 Wn.2d 1, 20, 904 P.2d 754 (1995) (no double
jeopardy violation in remand for entry of findings and conclusions in the absence
of a prior acquittal); accord State v. Souza, 60 Wn. App. 534, 541, 805 P.2d 237
(1991).

29 98 Wn. App. 600, 603, 989 P.2d 1251 (1999).

30 Id. at 609-11.

31 Id. at 608.

12

No. 60094-0-I (Consolidated with No. 60095-8-I)/13

concluded that a remand for entry of findings and conclusions on that charge
would violate double jeopardy.32

The court in Hescock recognized that a trial court's oral ruling is not
binding unless it is memorialized in written findings and conclusions.33 The court

held that the written findings and conclusions, not the court's oral ruling,
controlled.34 Here also, we conclude that the drug court's oral ruling was not

binding for double jeopardy purposes. The final judgment and sentence was

binding.
Pruitt cites Green v. United States35 for the argument that a verdict of

acquittal is final for double jeopardy purposes even if not followed by an entry of

judgment. That case, however, involved a jury trial, not a bench trial. Collins is
the rule in Washington that applies to criminal bench trials.36

PRESENCE AT TRIAL

Pruitt next argues that the trial court violated his constitutional right to be

present at a critical stage of the proceedings against him when it conducted a

second trial in his absence. We hold that the constitutional error here was not

32 Id. at 611.

33 Id. at 605-06.

34 Id. at 606.

35 355 U.S. 184, 188, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957).

36 Collins, 112 Wn.2d at 305 (overruling Dowling, 98 Wn.2d 542
(discussing the rule when the court is the trier of fact without a jury)).

13

No. 60094-0-I (Consolidated with No. 60095-8-I)/14

harmless beyond a reasonable doubt.

Under the Sixth and Fourteenth Amendments, a criminal defendant has
the right to attend all critical stages of his trial.37 "[T]his right entitles a defendant

to be present at every stage of his trial for which 'his presence has a relation,

reasonably substantial, to the [fullness] of his opportunity to defend against the
charge.'"38 This is true even in situations where the defendant is not actually

37 State v. Rice, 110 Wn.2d 577, 616, 757 P.2d 889 (1988) (citing Snyder,
291 U.S. at 105-08).

38 Id. (quoting Snyder, 291 U.S. at 105-06).

14

No. 60094-0-I (Consolidated with No. 60095-8-I)/15

confronting witnesses or evidence against him.39 This right is not unlimited, for

example, "when presence would be useless, or the benefit but a shadow."40 But

an accused "is guaranteed the right to be present at any stage of the criminal

proceeding that is critical to its outcome if his presence would contribute to the
fairness of the procedure."41 "'[T]he presence of a defendant is a condition of

due process to the extent that a fair and just hearing would be thwarted by his
absence, and to that extent only.'"42 Both the return of the verdict43 and the

presentation of evidence44 are critical stages of criminal trials.

Violation of this right is not a structural error; it is a trial error subject to
the constitutional harmless error analysis.45 A constitutional error is harmless

39 Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987)
(quoting Snyder, 291 U.S. 97 at 105-06); see also People v. Stroud, 208 Ill. 2d
398, 804 N.E. 2d 510 (2004) (holding that acceptance of a guilty plea via closed-
circuit television violated the constitutional right to be present during a critical
stage of the criminal proceeding).

40 Id.

41 Id.

42 State v. Wilson, 141 Wn. App. 597, 604, 171 P.3d 501 (2007) (quoting
Snyder, 291 U.S. at 107-08).

43 Rice, 110 Wn.2d at 617.

44 In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994)
("The core of the constitutional right to be present is the right to be present when
evidence is being presented.").

45 In re Pers. Restraint of Benn, 134 Wn.2d 868, 921, 952 P.2d 116
(1998) (citing Rice v. Wood, 77 F.3d 1138, 1142 (9th Cir. 1996) (en banc)
(noting that no circuit has held it to be a structural error)).

15

No. 60094-0-I (Consolidated with No. 60095-8-I)/16

beyond a reasonable doubt where the "untainted" evidence is so overwhelming
that it necessarily leads to a finding of guilt.46

Here, the bench trial in drug court on the charge of possession of a stolen

access device was a critical stage of proceedings against Pruitt. Although the

State contests this characterization of the proceeding, the trial court considered

the evidence against Pruitt, found him guilty of the crime for which he was

charged, and entered written findings of fact and conclusions of law

memorializing this ruling. It is beyond any rational dispute that this bench trial

was a critical stage.
The State cites State v. Corbin47 for the proposition that the entry of

written findings and conclusions is not a critical stage of the proceedings. The

State's reliance on that case is misplaced based on what occurred here. There,

the entry of findings merely memorialized the trial court's oral ruling after the CrR
3.5 hearing.48 The court held,

[P]resentation of findings and conclusions that formalize the
court's decision, announced in the defendant's presence and
based on proceedings at which he or she was present, is not a
critical stage of the proceedings.[49]

Here, the written findings and conclusions that the drug court entered in

46 State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).

47 79 Wn. App. 446, 903 P.2d 999 (1995).

48 Id. at 447-48.

49 Id. at 449-50 (emphasis added).

16

No. 60094-0-I (Consolidated with No. 60095-8-I)/17

January 2008 did not memorialize the trial court's May 2007 ruling. Rather, the

trial court found Pruitt guilty of a different charge at the second trial after

considering different evidence. In short, Corbin does not control.

The State also argues, without citation to authority, that the second bench

trial in drug court was not a critical stage, stating, "The basis for the written

conclusion of law is different (possession of a stolen credit card number, rather

than of property worth more than $250), but that relates to the prong of the
offense."50 This argument is unpersuasive, and we need not address arguments

that are unsupported by citation to authority.51

The question that we must decide is whether the State bore its burden to

show that the absence of Pruitt from his second bench trial in drug court, a

critical stage of the proceedings, is harmless beyond a reasonable doubt. We

hold that the State has failed in this burden.

The authorities are clear that a criminal defendant's right to be present

during all critical stages of his trial, including the presentation of evidence and

the rendering of the verdict, is integral to his right to a fair trial. This right is not

diminished even in situations where the defendant is not actually confronting

witnesses or evidence against him. There is nothing in this record that supports

the validity of this trial of Pruitt when he was not present, particularly in light of

50 Respondent's Reply at 3.

51 See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992).

17

No. 60094-0-I (Consolidated with No. 60095-8-I)/18

the objections of his counsel to this procedure at the time of that trial. The

procedure here was simply unfair. On this basis alone, reversal is warranted.

The State argues that Pruitt's presence at his trial on the possession of a

stolen access device would have been meaningless. While it is true that Pruitt

previously stipulated to certain matters in his diversion agreements, he never

stipulated to a trial in his absence. The State has failed in its burden to show

that Pruitt's absence from trial made no difference to the outcome in this case.

Pruitt's stipulations do nothing to mitigate the unfairness of the procedure
followed here.52

The State's failure to give notice to Pruitt's appellate counsel of record is

troublesome. Had the State given proper notice, we assume the arguments that

appellate counsel now makes to this court regarding lack of notice and lack of

authority of the trial court to act without prior authority of this court would have

been made to the drug court judge. The State has failed to show that had that

court been fully informed of the issues in this case, it would have proceeded as it

did by adjudicating Pruitt's guilt and entering findings and conclusions while this

appeal was pending.

In making this observation about lack of notice to appellate counsel of

record, we note that Pruitt's counsel at the second bench trial was presumably

unaware of these additional issues. Having objected to Pruitt's absence from

the trial, we assume that had counsel been aware of these additional issues, she

52 Nothing we say today bars retrial on the stolen access device charge,
provided Pruitt is present and due process is otherwise observed.

18

No. 60094-0-I (Consolidated with No. 60095-8-I)/19

would have raised them with the drug court. This sheds further doubt on the

State's contention that we should approve the procedure followed in this case.

In short, the State cannot show that the failure to allow Pruitt to be

present during the second bench trial was harmless beyond a reasonable doubt

in this case.

We vacate the January 2008 findings and conclusions and reverse the

judgment and sentence in cause number 04-1-12413-8 KNT.