SUPERIOR COURT OF WASHINGTON

COUNTY OF PIERCE

COMES NOW APPELLANT, Paul W. Hiatt, appearing as noted of record, pro per, in forma pauperis, and moves the Court for an order arresting and relieving judgment of the District Court, ordering the District Court to reverse and vacate all judgment of the District Court and dismiss all charges with prejudice, for the following good and sufficient cause of law mandating reversal:

I, Paul Hiatt, hereby certify subject to the penalty of perjury under the laws of nature and of nature’s God, and all laws of the de jure State of Washington in harmony therewith, that the following is my true statement, to the best of my ability to research and understand the law:

On April 25, 2006, after the jury delivered a verdict, I was improperly arrested in open court in violation of due process and other rights protected under the state and federal Constitutions, in violation of procedural law, and in violation of statutory law, on alleged contempt charges, 3 in 5 of which have now been reversed, and the remaining two being currently on appeal to the higher courts until reversed as the law clearly requires.

Due that unlawful and untimely arrest and imprisonment, the bail for a misdemeanor having been set ex parte at $100,000 cash no bond, Appellant having been denied access to basic writing implements and paper for a period of time upon request to the Pierce County Jail, and having been denied the right to counsel, (and DAC later having been unresponsive to attempts at contact for more than one month), having been denied timely hearing on Habeas Corpus by the Superior Court, and due the District Court’s failure and refusal to afford mandatory due process in the opportunity to complete the trial and post-trial procedure in accordance with due process rights of Appellant, inclusive of but not limited to: the right to notice of the right of appeal, notice of the right to counsel for purposes of appeal (right of appeal specifically denied, see RP), the right to speak in mitigation of contempt prior to arrest, (hearing); the right to entry of findings of fact and conclusions of law on the contempt prior to any arrest, (refused upon timely application 4/25/06, see transcript); the right to file in open court and present for ruling appropriate post-trial pleadings inclusive of but not limited to for Arrest of Judgment, Stay of Enforcement, Notice of Appeal, (which Appellant was prepared to do, but denied opportunity by untimely "summary arrest"); the record and facts of record will show Appellant’s right to bring any motion for Arrest of Judgment was unlawfully extinguished by ultra-vires acts of the District Court under color of law and authority herein described.

After his release on bail reduced by the Superior Court for abuse of discretion by the District Court some 60 days later, and at the time of the next District Court hearing in August 2006 called in the attempt to return Appellant to jail by that court sua sponte, ex parte, ex post facto, having unlawfully imposed yet a second $100,000 bail for the same misdemeanor, (in the face of, contrary to, and in a direct attempt to thwart the Superior Court order of release), all defendants having now been denied the right to bring on hearing of motions in the Pierce County District Courts by local rule-making – timely objection made by motion for due process violations of record; and after that time, including Sentencing October 18, 2006 on the misdemeanor conviction, Appellant was denied all hearing on his Motion For Arrest of Judgment of record, on the grounds, (the prosecutor arguing and the court concurring), that the right was to bring said motion was extinguished because the motion was untimely. The record of Sentencing October 18, 2006 for the alleged misdemeanor conviction will also show that Appellant’s Motion For Stay of Judgment was denied absent hearing, over timely objection for proofs requiring stay and dismissal with prejudice timely before that court.

DATED June 12, in the Year of Our LORD Jesus Christ 2007, and subscribed below.

1. VIOLATIONS OF LAW AND RIGHTS OF APPELLANT IN DENIAL OF HEARING

IN THE DISTRICT COURT.

Appellant was "summarily" arrested in denial of the fundamental constitutional due process right of hearing, as codified at:

RCW 7.21.050(1), "The person committing the contempt of court shall be given an opportunity to speak in mitigation of the contempt unless compelling circumstances demand otherwise."

The facts of record before this Court in RP 4/25/06, Sentencing And Arrest Upon Verdict - Appellant’s Exhibit 78, show clearly that no compelling circumstances whatever existed, as the District Court waited until much later, (but not the lawful end of proceedings as required by law), to impose sanctions, and the record shows that absolutely no "..purpose of preserving order in the court and protecting the authority and dignity of the court" could possibly have been at issue at the time of that sentencing and arrest. The record before this Court further shows that no compliance with the above statutory and due process requirement was ever intended, but only implemented long after the fact of arrest and imprisonment in a clumsy ex post facto attempt to fix the record, due only Appellant’s unsuccessful attempts to be heard on Habeas Corpus having documented those abuses, see RP 5/8/06 - Appellant’s Exhibit 79.

Appellant’s constitutional and due process rights, with the statutory requirements pre-requisite to any arrest or imprisonment for contempt, were directly violated in the failure and refusal of the District Court to provide the required findings of fact and conclusions and conclusions of law:

RCW 7.21.050(1), "The order of contempt shall recite the facts, state the sanctions imposed, and be signed by the judge and entered on the record."

Templeton v. Hurtado, 92 Wash App. 847, 956 P. 2d 1131, (1998) [Mandating reversal]

The District Court violated protected God-given and constitutional rights and due process rights of Appellant in further direct violation of the controlling statute, by sentencing and having Appellant arrested for contempt sanctions at a time not provided for by law, in direct violation of the controlling statute:

RCW 7.21.050(1), "The judge shall impose the sanctions immediately after the contempt of court or at the end of the proceeding..."

Having elected not to impose the sanctions immediately after the contempt of court allegedly occurred, the court was bound by statute to sentence at the end of the proceeding, but instead disrupted and prematurely, arbitrarily terminated the proceedings in imposition of sanctions. The RP provided shows that by the means of untimely summary imposition of contempt sentencing and arrest absent due process, the District Court thereby extinguished, by it’s later ruling that any such motion was untimely, Appellant’s due process and procedural right to move for Arrest of Judgment, (see Motion in Exhibit to incorporated pleadings), by holding Petitioner incarcerated and without any means or ability to time file said motion on any of the convictions imposed, until the time opportunity in which to do so had expired.

The District Court, at that sentencing, also denied and deprived Appellant of the absolute constitutional right to counsel, by failure or refusal to advise Appellant of that right for purpose of appeal of the sentence, prior to incarceration, and knowing Appellant was unrepresented, therefore under a legal disability, same said as incapable of mounting any timely defense, upon any arrest. It is a matter of record that no mandatory Record Of Advice Of Right To Appeal form was offered or signed upon that arrest, which form includes the advisement of the right to counsel. The RP excerpt 4/25/06 submitted as Exhibit 78 shows that the District Court stated very directly, at page three and line seven, "Mr. Hiatt, you have no right of appeal from my findings of contempt or from my sentence." This is reversible error, with regard to the denial of due process rights with the result of extinguishing the right to have a Motion For Arrest Of Judgment heard under CrRLJ 7.4 as a distinct and separate remedy from the Motion For Relief under rule 7.8., and is manifest abuse of discretion in arrest absent due process, as well as prejudicial to the defense in the entire course of proceedings from that point.

"If the state should deprive a person the benefit of counsel, it would not be due process of law."

Powell v. Alabama, 287 U. S. 45, 70.

Smith v. Crouse, 378 U.S. 584, 12 L. Ed. 2d 1039, 84 S. Ct. 1929 (1964), holding Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963) (right to counsel on appeal) retroactive.

The District Court also thereby denied hearing and timely opportunity for hearing or for filing of other proper post-trial issues and pleadings prepared for that date by Appellant. This does not comport with due process, as above, and is manifest abuse of discretion, reversible error, and evidence of bias and prejudice.

A fortiori, Appellant has also been denied due process in speedy and adequate remedy in the due course of law to this date, by the trial court ruling the right to bring Arrest of Judgment was extinguished by that court’s own violations of law, same said as taking advantage of its own wrongs, see Bloom’s Maxims.

Ryan v. Commission on Judicial Performance, (1988) 45 Cal. 3d 518, 533
Before sending a person to jail for contempt or imposing a fine, judges are required to provide due process of law, including strict adherence to the procedural requirements contained in the Code of Civil Procedure. Ignorance of these procedures is not a mitigating but an aggravating factor.

"The law goes farther than requiring an impartial judge; it also requires that the

judge appear to be impartial."

The record is clear, (RP – Exhibit 78), and many witnesses will attest, that absolutely zero opportunity to speak to pre-sentencing and post-trial issues after the verdict was entered was afforded Appellant. Appellant was obviously rebuked in a threatening manner for attempting to respectfully request findings and conclusions, and then forcibly and immediately placed under arrest, at the command of the court.

1. CONSTITUTIONAL DUE PROCESS AND ESSENTIAL ELEMENTS VIOLATIONS IN COMPLAINT

AND FATAL DEFICIENCIES

Appellant objected timely to the amendment at trial as highly prejudicial and unlawful. The subject amendment is substantive, changing element(s) charged under Count One, illegal wetlands activity, after all state’s witnesses had testified. There are four major constitutional violations of Appellant’s due process rights resulting from the trial amendment, all of which require reversal and dismissal with prejudice of the charge and conviction, as follows:

The subject substantive amendment was at no time written, signed, served or filed pursuant to:

CrRLJ 2.1(a)(1-4) requirements for any valid complaint underlying the subsequent alleged "conviction." This amendment therefore constitutes an essential elements rule constitutional violation of my rights, requiring reversal and dismissal with prejudice pursuant to:

State v. Carr, 604 P. 2d 436, (1982).

Further, Appellant was at no time re-arraigned as required by law upon said substantive amendment, constituting further denial of due process rights, nor has any plea ever been entered to the substantively amended charge Appellant was allegedly convicted of, nor is any probable cause affidavit whatever extant underlying said amendment, the prior Third Amended Complaint, or the Second Amended Corrected Complaint. As such, the necessary facts do not appear in any form, nor can they be found in the (non-existent) charging document(s); and the record of trial, with the following record of alleged amendment, conclusively prove the extreme prejudice to the defense of the proceedings complained of and resultant facts of law, see Exhibit Two hereto, CP Complaints of record, ten pages.

Trust Fund Services v. Glasscar, Inc., 19 Wn App 736 (1978) A motion, unless made during a hearing or trial must be in writing. A party is not allowed to avoid the writing requirement by merely waiting until the hearing or trial to make the desired motion. Only motions arising incidentally to issues being heard at the hearing or trial are allowed to be made orally. The motion must state with particularity the grounds for the motion and must set forth the relief or order requested. (Emphasis added.)

State v. Kenney, 23 Wn App. 220 (1979) The court’s authority to permit an amendment assumes that a specific motion to amend has been made by the prosecution. The court has no power to amend sua sponte.

CSW Art. I ss22; CrRLJ 2.4(f); State v. Pelky, 109 Wn. 2d. 484,490(1987) The court rule permitting amendment must operate within the confines of a defendant’s constitutional right.

The record proves no lawful motion to amend was before the court upon the subject alleged amendment at trial, and the amendment further does not comport with due process due the hard evidence of pre-planned prosecutorial legal ambush, and the subject final Amendment was not committed to writing and therefore does not exist as a matter of law, therefore the amendment further violates the due process rights of Appellant, mandating reversal as set forth above, see RP 4/21/06 excerpt Trial Amendment Of Complaint – Exhibit 75, attached.

Please note carefully that the court in ruling did not strike the words, "To wit:" as intended by the prosecution and objected to by Appellant, and distinctly did not add the additional elements not previously charged from the statutory language as intended by the prosecution and timely objected to by Appellant, as directly contradictory of the court’s prior ruling in direct answer to Appellant’s insistence on knowing the specific elements charged, see RP 7/7/05 – Exhibit 66, and following excerpts:

TRANSCRIPT EXCERPTS OF RULING DEFINING ELEMENTS CHARGED ON July 7, 2005:

Judge Kenworthy: "Both of the counts allege the activity occurred over a period of time, as you indicated, about a year and a half, I guess that’s close enough, the 5^th day of September 2003 to the 14^th day of January 2005. That activity, of the nature described in both one and two were ongoing throughout that period of time, and, of course, Mr. Hiatt, the burden of proving each element of the criminal charge is entirely upon the prosecution – you don’t have the burden of proof or to disprove anything. The state, when they make a charge, has to be able to convince a jury beyond a reasonable doubt, that each element of any given charge exists, and that the jury believes, beyond a reasonable doubt, that the state has met that burden of proof." (Emph. added)

And only after extensive repeated insistent requests to have the court rule on definition of the elements charged, or to provide a Bill of Particulars, the court ruled as follows:

Mr. Hiatt - "Well, the elements charged, your honor, A or B whatever, that’s past "to wit"?

Judge Kenworthy - "Looking at count one, "to wit: did clear brush vegetation and trees, did grade and trench and did install, or attempt to install approximately 300 to 400 feet of pipe in a wetland, without obtaining the requisite permits or approval, contrary to"... county codes A, B. and C. That seems, pretty particular to me, ah, count two, "to wit: did clear over 6,000 square feet of the property without obtaining the requisite permits, contrary to Pierce County codes... X Y Z and so I think the particulars have been met by what you see between these two counts, and the affidavit of probable cause. (Aside to Mr. Rose omitted.)

So Mr. Hiatt, as to what does or doesn’t filter through, down to the jury, these counts, past "to wit", it does get pretty particular, I’m not going to direct any any additional bill of particulars be filed, obviously if there’s continuing discovery, Mr. Rose comes across any documents, photographs or material of that nature that he hasn’t already shared with you, he has a continuing obligation to do so..

[ End transcript excerpt, court goes to discovery and witness issues, emphasis added].

Therefore, the alleged trial amendment of the criminal complaint elements of Count I upon which the alleged conviction is based, would read as follows, (see attached Count I, Third Amended Criminal Complaint, at Exhibit Two, all Complaints of record), had it ever been set to writing as required by law, and therefore found to actually exist:

"To wit: did clear brush, vegetation and trees, did grade and trench, without obtaining the requisite permits or approval, contrary to..."

Yet whether or not this alleged trial amendment was in force, the court then deliberately proceeded to instruct the jury according to the intended and requested prosecutorial scheme above noted, by adding elements of the alleged crime never charged in the "to wit" actual elements as defined by the court, in any charging document or the subject amendment.

The subject alleged amendment was then used to directly misrepresent the elements of the charge to the jury in order to obtain a conviction. The "to convict" jury instructions subsequently given the jury by the court not only accurately reflect the intent of the prosecutorial scheme presented at trial absent notice to the defense, with the proposed jury instructions timely objected to for not stating the charges in the prior written complaint or elements identified by prior standing ruling of the court which Appellant relied upon in good faith to prepare a defense; but state very different elements of the crime than those in either the prior written Third Amended Complaint of record (see Exhibit Three, one page, "To Convict" instruction on Count I, attached), or of the subject alleged oral final amendment at trial.

Further, due the fact the alleged trial amendment does not exist as a matter of law, having not been committed to writing, signed, and filed of record as required by CrRLJ 2.1(a)(1-4) requirements for any valid complaint to exist; even if the Third Amended Complaint were lawful, (and it is not), the Complaint then violates the Statute of Limitations directly on yet another count, for inclusion of the matter allegedly deleted. The error is manifold, and all of that error mandates reversal.

This constitutes manifest prejudicial reversible error in direct constitutional violation of Rights Of The Accused, CSW Art. I ss 22, in the right to demand the nature and cause of the accusation, and while the error complained of here includes the deliberate unauthorized addition in "to convict" instructions of elements not included in any complaint, (as opposed to their absence in any version of the Complaint pursuant to the Court’s prior ruling on "elements", see above), constitutes (at minimum) further essential elements violation again mandating reversal and dismissal pursuant to the following seminal authorities binding upon this Court:

State v. Leach, 53 Wn. App. 322, 766 P.2d 1116 (1989), Auburn v. Brooke, 119 Wn.2d 623, 836 P.2d 212, (1992), State v. Emmanuel, 42 Wn.2d 799, 259 P.2d 845 (1953).

The prejudicial "To Convict" instruction listing the alleged "elements" added at trial therefore prejudicially directly contradicts and violates the above ruling of the District Court as to elements charged, and goes on to also directly contradict the preceding language of the same instruction and further deliberately confuse the jury, by stating that the elements listed are really only alternative sub-elements, and that "..only one need be proved." (Emphasis added, see Instruction, Exhibit 3, attached.)

Further, the prosecution and District Court quite literally modified and altered the language of the subject code in a further jury instruction, over timely objection, in the ultimately successful attempt to obtain a conviction by any and all means necessary, very deliberately further confusing and misinforming the jury by deleting the word "regulated" from the charged Code, as the specific descriptor pronoun to "wetlands", in further constitutional deprivation by fraud in law.

These challenged jury instructions are also errors of constitutional magnitude mandating reversal.

[3] Criminal Law - Evidence - Presumptions - Inferences -Instructions - Validity - Due Process. With respect to the giving of an instruction on a presumption or an inference, due process prohibits (1) the use of a mandatory presumption instruction on any element of the charged crime, (2) the shifting of the State's burden of proving each element of the crime beyond a reasonable doubt, and (3) the judge from inviting the jury to find an element of the crime arbitrarily or irrationally.

State v. Mayes, 20 Wn. App. 184, 579 P.2d 999 (1978). 2] Criminal Law - Appeal and Error - Review - Change in Common Law - Instructions. A conviction is invalid if it was obtained under an instruction which is held to be unconstitutional during the pendency of an appeal.

3. LACK OF IN REM AND IN PERSONAM JURISDICTION OF THE DISTRICT COURT AB INITIO

BECAUSE ALL CHARGES VIOLATE THE STATUTE OF LIMITATIONS

The subject amendment, with all prior written versions of the complaint or information, violate the statute of limitations, therefore fail to charge a crime, deprive the court of jurisdiction ab initio, and create an absolute bar to the instant prosecution. See RP 2/3/06 – Readiness/Motion Hearing – Exhibit 71, for argument, authorities, and denial of Appellant’s Brief And Memorandum Of Law In Opposition To County’s Third Amendment Of Complaint, and Counter-Motion To Dismiss With Prejudice – CP Exhibit. The following seminal and controlling authorities mandating reversal, dismissal with prejudice, and arrest of judgment are more fully set forth below:

The record will show that these issues have been properly before the court for an extended time pre-trial, with that the prosecution has never once been required to make any refutation whatever of law.

[1] Indictment and Information - Timeliness – Amendment - Relation Back. An information that is not timely filed is not subject to amendment. Even if the amended version of the information would have been timely when the original faulty information was filed, there is nothing to which the amendment may "relate back."

It is not subject to amendment and must be dismissed. State v. Bates, 52 Wn.2d 207, 324 P.2d 810 (1958); State ex rel. Clark v. Hogan, 49 Wn.2d 457, 303 P.2d 290 (1956)

[3] Indictment and Information - Timeliness - Amendment. An indictment or information which charges a crime after the expiration of the statute of limitation is void and not subject to amendment.

[2] Criminal Law - Limitation of Actions - Crime Committed Over Period of Time - Portion Beyond Limitation Period - Effect. When an information charges that a crime occurred between two dates, a portion of which period lies outside the statutory limitation period, and the jury returns a general verdict of guilty, the charge must be dismissed.

Further, pursuant to CrRLJ 7.4(a)(2), the complaint does not charge a crime:

An indictment or information which indicates that the offense is barred by the statute of limitation fails to state a public offense. People v. Hawkins, 34 Ill. App. 3d 566, 340 N.E.2d 223 (1975).

RCW 9A.04.080(1)(i) No misdemeanor may be prosecuted more than one year after its commission.

[2] Limitation of Actions - Criminal Statutes of Limitation - Nature. A statute of limitation for a criminal offense creates an absolute bar to prosecution.

4. CrRLJ 7.4(a)(1) THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION

The subject District Court Judgment issued wholly absent jurisdiction. The Constitution Of The State Of Washington (hereinafter CSW) Article IV Judiciary at Section 6 deprives the District Court of jurisdiction to adjudicate this case in controversy at law where the title and possession of real property is at issue. The District Court was given timely notice of this fact of law by Motion To Remove Cause to Superior Court of record CP, Exhibit 2 to Brief of Appellant, denied all hearing, RP 4/12/06 – Exhibit 72, and failed or refused to transfer the action to the proper constitutional venue.

LAW:

CSW Article 1 Section 29 Constitution Mandatory

The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise.

CSW Article IV Section 6 Jurisdiction Of Superior Courts (In pertinent part)

The superior court shall have original jurisdiction in all cases at law which involve the title or possession of real property,

At Law. According to law; by, for, or in law; particularly in distinction from that which is done according to equity. Black’s Law Dictionary.

State ex rel. Malmo v. Case, 25 Wn.2d 118, 169 P.2d 623 (1946)

[1]..The superior court, being of general jurisdiction and having been established as the trial

court of the state, was by Const. Art. IV, SS 6, and Rem. Rev. Stat., SS 15, clothed with original jurisdiction in all cases in which exclusive jurisdiction shall not have been by law vested in some other court.

The essential elements of the constitutional guaranty of due process, in its procedural aspect, are notice and an opportunity to be heard or defend before a competent tribunal in an orderly proceeding adapted to the nature of the case.

In re Hendrickson, 12 Wn.2d 600, 606, 123 P.2d 322 (1942) [emphasis added].

"A competent court is one having proper jurisdiction over the person or property at issue."

Steven H. Gifis Law Dictionary, [emphasis in original].

It is a matter of record in this Court that plaintiff has clouded, slandered and encumbered the title to the subject private land by instrument filed of record entitled Notice of Non-Compliance, seeks possessory deed instruments of record to some undefined portion or portions of the property absent compensation, and has repeatedly seized and thereby taken constructive possession of the subject real property by unauthorized administrative orders since October 2003 (See CP Evidentiary Exhibit One),absent required and timely requested hearing(s), and by successive ultra vires interlocutory orders since April 2005 of the District Court issued absent jurisdiction or required due process; and plaintiff presently seeks and intends to vandalize, destroy and irreparably damage the subject property by deliberate deception of the Court by use of a contrived and fraudulent Report, (See CP, Memorandum and Motion To Strike Report For Fraud In Law, Exhibit 1 to Brief of Appellant, for proofs in law and fact).

Everett v. Slade, (1973), 515P.2d. 1295

"Due process requires that before a person is deprived of a significant property right, even when the deprivation is temporary and non-final, he must be afforded an opportunity for a hearing at a meaningful time and in a meaningful manner, i.e., a hearing appropriate to the nature of the case at a time when the deprivation can still be prevented."

The proofs of law set forth here are conclusive that hearing in the District Court was completely inappropriate to the nature of the case, and therefore the designed deprivation should be prevented by arrest of or relief from judgment and dismissal with prejudice.

The subject judgment, orders, and ultra-vires deed instrument serve the plaintiff’s aim to further encumber, dispute, destroy, and to take absent required compensation, undetermined portions of the subject property, deed rights of record, protected rights of quiet use and enjoyment, economic liberties, and to nullify said title covenants of record (exempt as a matter of law – P.C.C. 18A.05.030(I), by employing the rubric of ultra-vires ex post facto "wetlands" claims under color of law and authority. It is therefore not arguable that title and possession of the Accused real private property is indeed at issue. The District Court also had timely pre-trial notice and therefore obligation to transfer or dismiss on these grounds.

Bad faith is defined as "actual or constructive fraud" or a "neglect or refusal to fulfill some duty . . . not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." Black's Law Dictionary 127 (5th ed. 1979).

5. THE DISTRICT COURT JUDGE WAS BIASED AND PREJUDICED AS A MATTER OF LAW

The RP of sentencing and arrest of Appellant on 4/25/06 shows conclusively a hostile, biased, and prejudiced court, in angry tirade replete with personal insults and attacks directly violating the CJC, denying and violating fundamental constitutional rights of Appellant, for Appellant simply having stood on those rights, having refused continual attempts by the Prosecution and District Court operating in concert to directly coerce waiver or forfeiture of those very rights from the outset; in direct retribution for Appellant having made the reasonable, lawful demand of the District Court for that Court to uphold and obey the law on his behalf for protection from ongoing abuse of process and constitutional deprivations. The changing of a $100 bail to $100,000 ex post facto after the fact of arrest on 4/25/06, (see RP page 3 line 10, and District Court Docket 4/25/06 showing that bail was on the Count I Misdemeanor Wetlands Conviction, and "Modified" Order dated 4/25/06), later ruled abuse of discretion and modified by the Superior Court on June 26^th, 2006; the unlawful stealth intervention of Judge Kenworthy on that date immediately after that hearing in the Superior Court , when Mr. Rose reported to him that Mr. Hiatt was being released, see District Court Docket, June 26, 2006, "JDK" [Judge David Kenworthy] adding a second $100,000 bail in a direct ultra-vires attempt to thwart, countermand, and supercede the Order of the Superior Court that date; the attempt of Judge Kenworthy to validate that unlawful act as a "modification" of bail, pretending the Superior Court was "unclear" at sentencing hearing August 16, 2006, which he admitted was moved up more than one month on the court’s own volition because Appellant was out of jail, see RP August 16, 2006 - Exhibit 81 - page 9 line 21 through page 12; the later complete abandonment of that unlawful act by Judge Kenworthy due his having been exposed for it, see Exhibit 82 of record, RP of 10/18/06, Sentencing; the refusal of Judge Kenworthy to hear the Motion To Recuse And Transfer For Sentencing, (RP 10/18/06 – Exhibit 82 - page 3 line 15 – page 4 line 11) with pretense or error that nothing new was presented, (see Memorandum, below), after the Superior Court having ruled abuse of discretion, (Order of Judge Larkin 6/26/06 reducing bail); the direct statement of Judge Kenworthy not once but twice that Appellant had already posted bail at Sentencing 10/18/06, (see RP - Exhibit 82 - page 10 lines 7-8, "..you’ve already posted bail", page 11 line 14, "..He’s got bail posted", then, at the behest of the prosecutor, in error, (District Court Docket 4/25/06, Order, handed up then and there to the court – the bail already posted was on Count One), reversing his own ruling and imposing a second $5,000 bail on a defendant he himself had earlier ruled was indigent; the irregularities surrounding the failure or refusal of that court to act upon the Motion and Order of Indigency filed from jail June 6, with the failure of DAC to act timely due that failure, placed squarely in the necessary context of the earlier denial of the right to counsel and right of appeal (RP 4/25/06); the pretense or error, again in direct concert with the prosecutor, that Appellant had filed none of the pleadings prerequisite to release pending appeal at Sentencing, (RP 10/18/06, pages 2,3 – Exhibit 82); the expressed intent of Judge Kenworthy to hold Appellant in jail on contempt charges, (the majority of which were reversed by the Superior Court 11/3/06 for abuse of discretion, and the remaining two counts on review) past his next sentencing date after denying the rights of appeal and counsel; together with the manifold other abuses of law and process for the prosecution documented of record, show clearly that Judge Kenworthy should not have presided at sentencing, or at trial, as reversible error in denial of due process of law, and calls the sentence imposed into question as harsh and excessive due that prejudice and bias, as the maximum sentence permitted by law, for a decidedly victimless crime, which is no crime at all, if law is honor.

Both the United States Constitution and the 6^th and 14^th Amendments and federal legislation protect the defendant’s right to an impartial trial. The Due Process Clause guarantees the defendant the right to by tried before an impartial and disinterested judicial officer. Aetna Life Ins. Co v. Lovoie, 475 U.S. 813, 105 S.Ct.1580, 89 L.Ed.2d 823(1986).

[4] We are also of the opinion that it is fundamental that a trial before a biased and prejudiced judge would constitute a denial of due process under the fourteenth amendment to the Federal constitution and Art. I, SS 3, of our state constitution.

Please see CP, Appellant’s MEMORANDUM OF LAW, AFFIDAVIT, and OFFER OF PROOFS IN SUPPORT OF: MOTION TO RECUSE AND TO TRANSFER CASE FOR SENTENCING – Exhibit 59, denied all hearing at Sentencing 10/18/06, (RP 10/18/06 page 3 line 15 – Exhibit 82), showing conclusive proofs in fact and law of bias, interest, and personal prejudice of that court, meeting the seminal test set forth for reversal:

Appellant having the right for timely inclusion in his Notice of Appeal of all decisions of the District Court, and pursuant to RCW 10.73.090 and/or RALJ 11.1 and or CrRLJ 7.8 to bring this Motion on for hearing, and the proofs being before this Court that the Pierce County Prosecutor knowingly falsely charged and prosecuted Appellant absent authorization of law, (statute of limitations, no Complaint exists), with that the District Court, being biased and prejudiced as a matter of law, knowingly tried Appellant absent jurisdiction, with that no jurisdiction whatever existed or now exists to charge Appellant with any "crime"; a fortiori, this Court lacks jurisdiction to prolong the ordeal any further upon this application for relief, and lacks jurisdiction to do anything but what the District Court was required by law and Oaths and obligations to do, but consistently failed or refused to do; which is to order the District Court to immediately reverse all judgment and dismiss all charges with prejudice, to wit:

Deschenes v. King County, 83 Wn.2d 714, 521 P.2d 1181 (1974).

[1] Courts-Jurisdiction-In General.

In the absence of jurisdiction over a matter, a court is empowered only to order it dismissed.

The rule is well known and universally respected that a court lacking jurisdiction of any matter may do nothing other than enter an order of dismissal. 21 C.J.S.Courts SS 118 (1940).

Appellant is of record as having timely challenged the jurisdiction of this Court to proceed other than ordering dismissal with prejudice and reversal of judgment, and is of record as appearing in continuing objection in challenge to jurisdiction, having waived no right at any time:

Illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside; nor after such motion is denied, by his answering to the merits; such illegality is waived only when, without having insisted upon it, he pleads in the first instance to the merits. Harkness v. Hyde, 98 U.S. 476.

"The courts must indulge every reasonable presumption against waiver of fundamental rights."

"No sanction can be imposed absent proof of jurisdiction." Standard v. Olson, 74 S. Ct. 768

"District attorney has the burden of proving court’s jurisdiction in a criminal proceeding."

Appellant had the right to stand on his constitutional rights, and he is entitled not to be punished for exercising any federal right.

Appellant also had the right to claim the law's protections, and one of government's first duties is to provide that protection,

(Marbury v. Madison (1803) 5 U.S. 137, 163),

But government actors, instead of honoring the law in protecting Appellant from abuse of process and malicious prosecution upon his initial application for protection in petition for redress; violated his rights, persecuted him, threatened him mercilessly for refusing to waive his rights by contract, mocked him for asserting his rights, and punished him severely for attempting to defend his rights.

" The claim and exercise of a constitutional right cannot be converted into a crime."

No other speedy and adequate remedy in the due course of law is available to Appellant , and Appellant has invoked his right to speedy and adequate remedy in the due course of law timely.

(Toliver v. Olsen, 109 Wn.2d 607, 746 P.2d 809 (1987),

Therefore, this Court should grant the requested relief, because Appellant is suffering ongoing constitutional deprivation, harm and injury by this appeal process interfering with his livelihood, and the subject false conviction being used heavily in an ongoing attempt to fraudulently steal his subject real property directly instigated by the same criminal prosecutor. The abuses mount continually, and therefore Appellant applies to this Court for immediate protection from further abuse of process. The prosecutor has already misused used the rules to stall and delay hearing of what he cannot possibly refute, for an extended period of time, when everything in proofs required to throw out the case ten times over was already before the Court. How far down the slippery slope to absolute ruin and tyranny must Appellant go before some honorable person will enforce the black letter law on his behalf?!

Further, Appellant respectfully reminds the Court that this Court is bound by Oath and contract to obey, uphold, and enforce both the state and federal constitutions on his behalf, and is bound to strict performance by the seminal cases here presented from the Washington State Supreme Court and the Supreme Court Of The United States, to wit:

3.Courts - Stare Decisis - Supreme Court Decision - Effect.

The decision of the Supreme Court on an issue of state law is binding on all lower courts.

"If it is the law it will be found in our books; if it is not to be found there, it is not the law."

"Broadly speaking, purpose of due process of law is to protect individual against arbitrary action on part of state, that is, to secure citizen against any arbitrary deprivation of his rights relating to his life, liberty, or property. State v. Seattle Taxicab, 90 Wash. 416, 156 P. 837, (1916)

Fuentes v. Shevin, 407 US 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 at p. 569, wherein the Supreme Court stated;

"For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard..." Baldwin v. Hale, 68 US 223, 233, 17 L.Ed. 531, 534. See Windsor v. McVeigh, 93 US 274, 23 L.Ed. 914; Hovey v. Elliott, 167 US 409, 42 L.Ed. 215, 17 S.Ct. 841; Grannis v. Ordean, 234 US 385, 58 L.Ed. 1363, 34 S.Ct. 779. It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 US 545, 552, 14 L.Ed.2d 62, 66, 85 S.Ct. 1187.

This Court should therefore, for good cause shown, grant all requested relief immediately.

Respectfully submitted June 12, in The Year of Our LORD Jesus Christ 2007.

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Paul W. Hiatt, pro per, under protest, in forma pauperis

POB 122 Gig Harbor WA 98335