Kennewick murder case in limbo, awaiting appeals court hearing

The case of a Kennewick man accused of killing his estranged wife’s boyfriend will have been on hold for more than a year before it gets in front of an appellate court.

Matthew H. de Vore is appealing a Benton County Superior Court judge’s decision to take back his guilty plea, which allowed prosecutors to move forward with an enhanced murder charge.

The earliest the case will be scheduled before the state Court of Appeals in Spokane is March 2016.

The actual date will not be set until after attorneys for both sides submit their briefs, and then it depends on the court’s availability to hear arguments.

Defense lawyer Scott Johnson requested the stay Jan. 21 — just two months after de Vore was locked up for the stabbing death of Thomas R. Christian Sr.

De Vore last appeared in court March 24 when Johnson argued that Judge Cameron Mitchell had “no authority whatsoever” to take back the second-degree murder plea, when it was knowingly, intelligently and voluntarily made with a factual basis for the charge.

Mitchell’s decision to reverse his own ruling enabled Prosecutor Andy Miller to amend the charge to first-degree murder.

Miller has said Mitchell ultimately got it right because it was not “a fully executed guilty plea” since de Vore did not acknowledge intent to kill. Intent is a required element to second-degree murder.

But Commissioner Monica Wasson with the Court of Appeals found Mitchell’s decision “constituted probable error,” and granted a discretionary review by her colleagues.

Wasson also said that the decision “substantially altered the status quo, in that Mr. de Vore is now subject to a first-degree murder charge instead of a sentence on a second-degree murder conviction.”

That was April 15, and Johnson and co-counsel Alexandria Sheridan filed their written argument for the Court of Appeals on Aug. 20.

The prosecutor’s response brief is due Oct. 20, then Johnson has 30 more days to reply.

The appellate court’s January docket already is set, so de Vore’s case won’t get before the court until later, according to a spokeswoman with the Court of Appeals.

An online calendar through the Administrative Office of the Courts shows the judges only hold hearings with oral arguments up to five days out of the month, and currently have dockets scheduled for seven months in 2016. There are no hearings currently set for February, which makes March the next possible date.

“It’s a strange circumstance because the Court of Appeals rarely grants these motions, so it does put the defendant in an awkward spot,” Johnson told the Herald of the long delay. “But obviously he wants the court to take full consideration of the issue.”

Johnson said he tries to visit regularly with his client, who remains held in the Benton County jail on $250,000 bail.

“He’s in limbo, so I think that there is a lot of uncertainty,” Johnson said. “He’d like to know: Will the court enforce his plea, or will we end up having to go to trial? And so I think that kind of uncertainty is difficult.”

De Vore, 41, is accused of stabbing Christian once in the chest with an 8-inch kitchen knife as the victim sat in the lobby of Kennewick’s Biomat USA.

Prosecutors say de Vore went into the business after Christian on Nov. 24, 2014.

Christian, 45, died in front of more than a dozen people.

The grandfather had recently moved to the Tri-Cities to reconnect with de Vore’s estranged wife. Christian and Brenda de Vore dated in high school and talked about moving to Tennessee together.

Brenda and Matthew de Vore at the time were divorcing after an 18-year marriage. The divorce was finalized March 10, according to online court documents.

Mathew de Vore tried to plead guilty at his first court hearing after prosecutors charged him with second-degree murder. After Johnson handed the judge his client’s plea statement, Miller announced that he was amending the charge to premeditated first-degree murder.

Both murder charges have included the aggravating circumstance that Christian’s death had a destructive and foreseeable impact on others.

The question became: At what time is a plea officially entered?

Mitchell initially decided that once the defense told the court that de Vore wanted to plead guilty, prosecutors could not amend the charge.

Miller objected to the judge’s opinion and said there would be no justice for Christian’s family because de Vore wasn’t forthcoming with the details of the crime and his intent.

A week later, Mitchell said his ruling was incorrect and that prosecutors could amend the charge despite de Vore’s attempt.

Johnson responded that Mitchell had no legal ground, and his client’s rights would be violated because the earlier admission of guilt tainted a potential jury pool and destroyed de Vore’s right to remain silent.

This story was originally published October 18, 2015 at 8:36 PM with the headline "Kennewick murder case in limbo, awaiting appeals court hearing."