Opinion
No. 33064-4-II, Consolidated with: No. 34092-5-II
Filed: October 31, 2006 UNPUBLISHED OPINION
Appeal from Kitsap Superior Court. Docket No: 04-1-01922-1. Judgment or order under review. Date filed: 03/01/2005. Judge signing: Honorable Sally F Olsen.
Counsel for Appellant(s), Catherine E. Glinski, Attorney at Law, Po Box 761, Manchester, WA, 98353-0761.
Counsel for Petitioner(s), Bryant O'keith Williams (Appearing Pro Se), #703228, Mcneil Island Corr Cntr, PO Box 881000, Steilacoom, WA, 98388.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA, 98366-4681.
Russell Duane Hauge, Kitsap County Prosecutors Office, Msc 35, 614 Division St, Port Orchard, WA, 98366-4681.
We have consolidated Bryant O'Keith Williams's personal restraint petition with this appeal, in which Williams appeals his convictions for first degree trafficking in stolen property and second degree possession of stolen property. The State originally charged Williams with one count of second degree trafficking in stolen property and one count of forgery. On the day of the bench trial, the State moved to amend the information. Williams and his counsel objected, but the trial court accepted the amended information, which, among other things, replaced one count of forgery with one count of second degree possession of stolen property. The trial court immediately gave Williams the option of: (1) choosing a continuance, and waiving his right to a speedy trial; or (2) choosing to go to trial. Williams chose to go to trial. The trial court then found him guilty and sentenced him to an exceptional sentence. Because the trial court's ruling compelled Williams to choose between his right to effective representation and his right to a speedy trial, we reverse and remand for entry of an order to vacate the judgment and dismiss the charges with prejudice. And because of our decision, we do not address the issues raised in his personal restraint petition.
On October 1, 2004, Donna Markwick reported that her table saw and string trimmer/mower had been stolen. About a month later, police officers located the table saw at Robert Garza's house and located the string trimmer/mower at Stacy Fontana's house. Both Garza and Fontana indicated that they had obtained the tools from Williams.
The police officers also located a miter saw that apparently belonged to Markwick.
On December 13, 2004, based on this and other information, the State charged Williams with one count of second degree trafficking in stolen property; "to wit: he did sell, transfer, distribute, dispense, or otherwise dispose of a stolen table saw and/or a Craftsman compound mitre saw." Clerk's Papers (CP) at 1. The State also charged Williams with one count of forgery.
One day before Williams's scheduled trial, the State notified Williams's counsel that it intended to amend the information. The State sought to: (1) replace the one count of second degree trafficking in stolen property with one count of first degree trafficking in stolen property; (2) eliminate the one count of forgery; and (3) add one count of second degree possession of stolen property. Without any excluded periods, the latest date the State could have brought Williams to trial without violating his right to a speedy trial under CrR 3.3(b)(1) was March 4, 2005.
With regard to this new count, the State noted that "the mower is really the — the particular stolen property the State will be focusing on." RP at 7-8.
At a bench trial on March 1, 2005, when the State moved to amend the information, Williams's counsel objected, "To my recollection, the defense did not receive notice of the additional count. I was advised of the trafficking in stolen property in the first degree, however." Report of Proceedings (RP) at 2-3. The State admitted that it never informed Williams of the second degree possession of stolen property charge, but the State argued that this failure did not prejudice Williams:
The possession of stolen property in the second degree is nothing new. It is based on the same facts that are contained in the police reports. There's really no prejudice to the State swapping forgery, which is an unrelated charge based on a forged check, to possession of stolen property in the second degree, which is based on the stolen property at issue here. So I don't believe there's any prejudice.
RP at 3-4.
On the other hand, Williams's counsel argued that the amendment prejudiced him as it denied him the opportunity to adequately prepare a defense to the new charge. The trial court then asked, "How much time do you feel you need in order to prepare given the new charge?" RP at 9. Williams's counsel replied, "Well, at this point Mr. Williams'[s] position is to go to trial now. I don't think the circumstances have changed now that we're here." RP at 9.
Thereafter, the trial court concluded, "I don't believe a remedy to be dismissal. I believe the remedy is continuance and we're setting forth on the record you are not requesting that at this time. I'm going to accept the amended information and go to trial on the first amended information." RP at 9-10.
When the State rested its case, Williams's counsel moved to dismiss "[b]ecause of the late nature of the first amended information and because it is unspecific." RP at 102. "[Williams] is at a loss to essentially cross-examine on any further grounds or decide how he wanted to proceed at this point after the State rested." RP at 102. The trial court denied the motion, in part stating, "I offered you the opportunity to continue the matter and you indicated that you did not want to take that opportunity. So I don't believe there is sufficient grounds to renew, basically, the same motion this afternoon." RP at 108.
Williams rested without presenting any evidence. The trial court found Williams guilty on both counts. At sentencing, the trial court agreed with the State that an exceptional sentence was warranted. Finding that the multiple offense policy of the Sentencing Reform Act (SRA) resulted in a sentence that was clearly too lenient, the trial court imposed an exceptional sentence above the standard range. Williams appealed. Williams also filed a personal restraint petition.
Amendment of Information
Williams argues that the trial court impermissibly forced him to choose between his right to effective representation and his right to a speedy trial when it allowed the State to amend the information on the day of trial. We agree with Williams and hold that the proper remedy was for the trial court to dismiss the charges with prejudice.
Normally, a trial court may permit the State to amend the information at any time before the verdict, unless the amendment prejudices the defendant's substantial rights. CrR 2.1(d). Where the amendment prejudices the defendant's substantial rights, the trial court may consider dismissing the charges with prejudice. CrR 8.3(b); See State v. Michielli, 132 Wn.2d 229, 244, 937 P.2d 587 (1997).
Under CrR 8.3(b), "The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial." The purpose of this rule is to see that a defendant is fairly treated. State v. Whitney, 96 Wn.2d 578, 580, 637 P.2d 956 (1981) (citing State v. Satterlee, 58 Wn.2d 92, 361 P.2d 168 (1961)). Nevertheless, dismissal of charges is an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993) (quotations and citations omitted). We review a trial court's power to dismiss charges under the manifest abuse of discretion standard. Michielli, 132 Wn.2d at 240. "Discretion is abused when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." Blackwell, 120 Wn.2d at 830.
A defendant must show two things before a trial court may dismiss the charges under CrR 8.3(b). First, he must show arbitrary action or governmental misconduct. Michielli, 132 Wn.2d at 239 (citations omitted). Governmental misconduct, however, "need not be of an evil or dishonest nature; simple mismanagement is sufficient." Blackwell, 120 Wn.2d at 831. And, absent a showing of arbitrary action or governmental misconduct, a trial court cannot dismiss charges under CrR 8.3(b). Michielli, 132 Wn.2d at 240. As our Supreme Court stated, "We repeat and emphasize that CrR 8.3(b) `is designed to protect against arbitrary action or governmental misconduct and not to grant courts the authority to substitute their judgment for that of the prosecutor.'" State v. Cantrell, 111 Wn.2d 385, 390, 758 P.2d 1 (1988) (quoting State v. Starrish, 86 Wn.2d 200, 205, 544 P.2d 1 (1975)).
Second, a defendant must show prejudice affecting his right to a fair trial. Michielli, 132 Wn.2d at 240 (citing State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293 (1996)). A defendant's right to a fair trial may be impermissibly prejudiced when he has to choose either his right to a speedy trial or his right to be represented by counsel who has had sufficient opportunity to adequately prepare a material part of his defense. State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). Furthermore, a defendant must establish "by a preponderance of the evidence that interjection of new facts into the case when the State has not acted with due diligence [compelled] him to choose between prejudicing either of these rights." Price, 94 Wn.2d at 814.
Here, the State filed the initial information, attached with the probable cause statement, on December 13, 2004. This probable cause statement described the entire circumstances of Williams's alleged crimes. The State then sought to amend the information on March 1, 2005. The State admitted that these amendments were based entirely on Williams's acts as described in the probable cause statement:
They are the same facts, your Honor. They are based on the same facts, the same exact stolen property. I don't understand how a defense could be compromised when they are the same exact property at issue. One is unlawful possession of stolen property, the other is trafficking in that same stolen property, so I don't see how any defense has been prejudiced based on this new charge when it's the same facts.
RP at 5. Despite this candid admission, the State delayed more than two months before amending the charges on the day of Williams's scheduled trial. At the very least, these facts suggest simple governmental mismanagement; at the very worst, they suggest less than honorable motives. See Michielli, 132 Wn.2d at 243-44.
Regardless of this governmental misconduct, the State argues that the record does not show that Williams was forced to choose between going to trial unprepared or waiving his right to a speedy trial. Essentially, the State's argument is that Williams may not claim prejudice as a result of the late amendment because: (1) Williams's counsel did not demonstrate that she would be unable to adequately prepare for trial; (2) three days remained on the speedy trial calendar; and (3) Williams specifically declined a continuance.
The State also claims that its delay was not accompanied by an interjection of new facts. This argument is disingenuous. Whereas the initial information referred only to a "table saw and/or a Craftsman compound mitre saw," the amended information referred to "stolen property." CP at 1, 12-13. At trial, the State admitted, "I think the State will prove that . . . the mower is really the — the particular stolen property the State will be focusing on." RP at 7-8. Clearly, the interjection of the mower is a new fact.
We reject the State's argument. Here, Williams's counsel had prepared to defend a second degree trafficking in stolen property charge and a forgery charge; she was unprepared to defend the second degree possession of stolen property charge. She explained to the trial court that she had just been informed of the State's intent to amend the information the day before trial.
The State argues that Williams's counsel "failed to indicate . . . what further preparation [she] could have conducted." Br. of Resp't at 9. But we have concluded that a defendant is not required to explain on the record why it is impossible to defend the case within the time remaining on the speedy trial calendar. State v. Earl, 97 Wn. App. 408, 412, 984 P.2d 427 (1999). Nevertheless, Williams's counsel attempted to explain:
Arguably, possession of stolen property is easier to prove than a trafficking of stolen property, knowing that a possession of stolen property is brought forth, from the defence [sic] perspective, could be an easier charge to prove than trafficking. It puts Mr. Williams in a different position now that he's chosen to go to trial.
. . . .
So it does put him in a different position in terms of he put himself before the court for a trial on charges as they were charged previously. He didn't feel that the State had the ability to prove, that he would like to challenge. Then the State brought forward a charge that was sort of a lesser, almost, of the trafficking in stolen property.
RP at 8-9. Thus, Williams's counsel would have had to adjust her trial strategy to address the nature of the amended information. On these facts, it is simply unreasonable to assume that Williams's counsel could have prepared a new defense within the time remaining on the speedy trial calendar.
In some cases, where a late amendment is less substantive, a trial court may justifiably require a greater demonstration of prejudice. Earl, 97 Wn. App. at 414 n. 6 (citing State v. Greene, 49 Wn. App. 49, 742 P.2d 152 (1987)). This case is not one of those cases.
Here, Williams's speedy trial date was set to expire in three days. To require Williams to request a continuance under these circumstances would be to present him with a Hobson's choice: he must sacrifice either his right to a speedy trial or his right to be represented by counsel who had sufficient opportunity to prepare his defense. State v. Sherman, 59 Wn. App. 763, 769, 801 P.2d 274 (1990).
A situation where a defendant may be forced to waive his speedy trial rights is not a trivial event. Michielli, 132 Wn.2d at 245. "[Our Supreme Court], `as a matter of public policy[,] has chosen to establish speedy trial time limits by court rule and to provide that failure to comply therewith requires dismissal of the charge with prejudice.'" Michielli, 132 Wn.2d at 245 (quoting State v. Duggins, 68 Wn. App. 396, 399-400, 844 P.2d 441, aff'd, 121 Wn.2d 524 (1993)).
The trial court should not have required Williams to choose between two rights in order to accommodate the State's lack of diligence. Sherman, 59 Wn. App. at 770. Considering the State's delay in amending the charges, coupled with the fact that the delay forced Williams to waive his right to effective counsel, the trial court should have considered the mismanagement and prejudice sufficient to satisfy dismissal under CrR 8.3(b). See Michielli, 132 Wn.2d at 245. Even though the resulting prejudice to Williams's rights may not have been extreme, the State's dealing with Williams would appear unfair to any reasonable person.
The trial court should not have permitted the amendment and should have dismissed the charges on Williams's motion under CrR 8.3(b). Because the trial court failed to dismiss, we hold that the trial court abused its discretion. Because of our decision, we do not address the other issues raised by Williams, including those issues raised in his personal restraint petition. The conviction is reversed and the matter remanded to vacate the judgment and sentence and dismiss the charges with prejudice.
In his appeal, Williams argued that his exceptional sentence was invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In his statement of additional grounds, Williams argued that his waiver of jury trial was invalid. In his personal restraint petition, Williams argued that the State breached an implied duty of good faith and fair dealing during plea negotiations.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J., concur.
I respectfully dissent.
I. No Prejudice
As the majority acknowledges, the trial court has broad discretion in deciding whether to grant or to deny a motion to amend an information: CrR 2.1(d) vests the trial court with discretion to amend an information "at any time before verdict" "if substantial rights of the defendant are not prejudiced." CrR 2.1(d). To protest amendment of an information before the verdict, the defendant must demonstrate prejudice to his rights. State v. Eaton, 24 Wn. App. 143, 149, 600 P.2d 632 (1979). Williams has failed to demonstrate any prejudice resulting from the information's amendment.
In granting the State's request to amend the information, the trial court offered to continue the bench trial, asking Williams how much additional time he would need to prepare an adequate defense to the amended charge. But Williams expressly declined a continuance and the trial court's offer of additional time to prepare, stating he did not believe that "circumstances [had] changed" and he wanted to go to trial as scheduled. Report of Proceedings (RP) at 9-10.
Similarly, a trial court may dismiss charges under CrR 8.3(b) only when the defendant shows (1) governmental misconduct and (2) prejudice to a substantial right. State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). For purposes of this analysis, I begin with the majority's conclusion that the State's waiting until the day of trial to seek amendment of the information was governmental misconduct, at least, under the simple mismanagement standard in Michielli, 132 Wn.2d at 239-40. First, I disagree that the timing of this amendment was governmental misconduct. The record shows that the State amended the information on the day trial was scheduled to begin because previous attempts to re-arraign Williams on an amended information had been frustrated: Williams' re-arraignment was set over repeatedly, presumably to accommodate plea negotiations, until the morning of the trial.
Nonetheless, I also question this conclusion.
In Michielli, the prosecutor admitted having delayed the amendment of the information for tactical reasons. 132 Wn.2d at 244. Here, in contrast, the prosecutor had attempted to amend the information on several occasions before the day of the trial, but was unable to do so for reasons apparently beyond his control. Br. of Resp't at 3-4.
Second, I disagree that the amendment prejudiced any of Williams' substantial rights, the second prong of Michielli. As the majority acknowledges,
Dismissal of charges is an extraordinary remedy. It is available only when there has been prejudice to the rights of the accused which materially affected the rights of the accused to a fair trial and that prejudice cannot be remedied by granting a new trial.
State v. Baker, 78 Wn.2d 327, 332-33, 474 P.2d 254 (1970) (emphasis added). By his own admission, Williams claimed not to need additional time to modify his defense to respond effectively to the amended charges.
Because Williams has failed to demonstrate both governmental misconduct and prejudice, the majority's extraordinary remedy of dismissal is not warranted.
II. No Hobson's Choice Between Speedy Trial and Effective Representation
Like the defendant in Price, Williams is also "unable to shoulder" his burden to "prove by a preponderance of the evidence" that the State's late amendment of the information compelled him to choose between prejudicing his right to a speedy trial or his right to effective assistance of counsel. State v. Price, 94 Wn.2d 810, 814-15, 620 P.2d 994 (1980). Despite Williams' assertion to the contrary, a defendant must suffer actual prejudice as a result of the choice; it is insufficient if the defendant is only in the position of having to choose. Price, 94 Wn.2d at 814 (holding that the defendant must show by a preponderance of the evidence that he is being "compel[ed] . . . to choose between prejudicing either of these rights.") (Emphasis added.)
Nowhere does Williams allege that he suffered any actual prejudice. Instead, he baldly asserts that his "Hobson's Choice" was itself sufficient prejudice to warrant dismissal. Again, I disagree.
More specifically, Williams has failed to articulate how the interjection of allegedly "new facts" into the amended information prejudiced his right to effective assistance of counsel. Although technically different, the amended information involved the same basic facts as the original information. Moreover, Williams knew about one of the proposed amended charges well in advance of the State's motion, and this amended charge merely elevated the trafficking count from second to first degree based on a higher value of the stolen property.
Similarly, the other amended charge substituted possession of stolen property in place of an unrelated forgery, based entirely on Williams' acts described in the probable cause statement: The State alleged that Williams stole the mower, which was the subject of the possession charge, at the same time, from the same place, and from the same victim as the stolen saw the State had accused Williams of trafficking in. Furthermore, Williams' roommate testified that she saw him in possession of both items at around the same time and at the same place. Williams fails to explain how there was any prejudice to preparing his defense where both the saw and the mower were taken from the same victim, at the same place, at essentially the same time, and a witness later saw both items in Williams' possession at the same time and place.
Williams essentially conceded that this so-called "Hobson's Choice" did not prejudice his right to effective assistance of counsel when he expressly rejected the trial court's offer of a continuance and additional time to prepare: In spite of the amendment, Williams told the trial court he did not believe that "circumstances [had] changed," and he wanted to go to trial as scheduled. RP at 9.
Moreover, even if Williams had accepted the trial court's offer of a continuance to provide additional preparation time, Williams does not allege nor does the record show that the time remaining on the speedy trial calendar was insufficient to have afforded his attorney ample time to prepare an adequate defense to the amended charges.
The majority states that there were three days remaining in the CrR 3.3 "speedy trial" period; according to Williams' defense attorney, there were seven days remaining. Regardless of the exact number of days, my point remains the same: Nothing in the record indicates that Williams' attorney could not have prepared an adequate defense in the three to seven days remaining in the CrR 3.3 time-for-trial period, if Williams had needed extra time, which he told the court he did not need.
In Earl, the State amended the information on the day of trial, with six days remaining on the speedy trial calendar. State v. Earl, 97 Wn. App. 408, 413, 984 P.2d 427 (1999). The amendment added a second count, involving a different rape victim, who was allegedly raped at the same time as the original victim, and seven additional witnesses that defense counsel needed to interview. Earl, 97 Wn. App. at 413. In addition, the amendment required defense counsel to re-interview the original seven witnesses because counsel's previous interviews had not addressed the new victim. Id. The court found that dismissal was required because the addition of a new victim, seven new witnesses, and the need to re-interview the seven original witnesses, necessitated far more than the six days remaining on the speedy trial calendar for the defendant to prepare an adequate defense. Id. at 414.
In sharp contrast, there is no indication that Williams' attorney could not have prepared an adequate defense in the three to seven days remaining in the CrR 3.3 period because: (1) the amendment involved the same victim; (2) there were no additional witnesses; and (3) it was unnecessary for Williams' counsel to re-interview intended witnesses about the new count because it involved the same victim, property, and set of circumstances as the original trafficking count. In addition, Williams indicated that he did not need any additional time to prepare a defense. Thus, even if Williams had accepted the trial court's offer of a continuance, he has not shown that it would have violated CrR 3.3.
In actuality, Williams did not have to make a "Hobson's choice" between effective assistance of counsel and going to trial in a timely manner. He was accorded both rights, and he chose the timing and manner in which he exercised them.
Furthermore, contrary to the majority's implication, continuance of a trial date for a few days, especially within the CrR 3.3 time-for-trial period, is not equivalent to denying the defendant's constitutional right to a speedy trial. Although founded on constitutional principles, the CrR 3.3 time-for-trial rules are not of constitutional magnitude. State v. Stimson, 41 Wn. App. 385, 388, 704 P.2d 1220 (1985). Because CrR 3.3 is not of constitutional magnitude, a violation of CrR 3.3 is not necessarily a constitutional deprivation. State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989). More importantly here, however, there has been no showing that the trial court's offered continuance would have violated CrR 3.3.
The record mentions counsel's possible conflict with another commitment if Williams' trial had been continued into the next week. But again, the record does not show that this was a critical point in Williams' choice to go forward as scheduled, which was based on his claim not to need additional time to prepare.
I agree with the trial court that the remedy, if any had been needed, for late amendment of the information was continuance of the trial date, not the "extraordinary remedy" of dismissal.
III. No Manifest Abuse of Trial Court Discretion
As the majority acknowledges, we review a trial court's denial of a defendant's motion to dismiss the charges for "manifest abuse of discretion," namely, "`when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons.'" State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993); Majority at 5 (emphasis added). This standard is not met here.
The majority cites State v. Price, 94 Wn.2d 810, 620 P.2d 994 (1980), to support its extraordinary dismissal of Williams' convictions. In my view, (1) the record does not support the majority's implication that the trial court's allowing the amendment was a "manifestly unreasonable" "abuse of discretion" that materially prejudiced Williams' rights to a fair trial, Majority at 5; and (2) Price supports the contrary result — namely, affirming the trial court's exercise of discretion, which Williams has not shown the trial court manifestly abused or caused him prejudice. In both Price and Michielli, another case on which the majority heavily relies, the appellate court found no abuse and upheld the trial court's exercise of discretion in choosing whether or not dismissal was the appropriate remedy. Michielli, 132 Wn.2d at 245 (holding that the trial court did not abuse its discretion when it dismissed the charges because there was sufficient evidence to show both governmental mismanagement and prejudice to the defendant's rights); Price, 94 Wn.2d at 813 (holding that the trial court properly denied the motion to dismiss because there was no evidence in the record to indicate governmental mismanagement).
In addition, the defendant in Michielli faced a dramatic increase in his potential punishment following the amended information. In Michielli, the State added four serious charges three business days before the defendant's scheduled trial date, which increased his potential punishment from 0-60 days to 15-20 months. Michielli, 132 Wn.2d at 233. In contrast, the sentencing range that Williams faced was identical both before and after amendment of the information.
As in Michielli and Price, we generally defer to the trial court's exercise of discretion in matters of amendment and dismissal. In my view, we should do so here. First, as I previously noted, Williams was not required to elect between going to trial as scheduled and temporarily waiving his non-constitutional CrR 3.3 time-for-trial period. Second, even if that had been the case, Williams has shown no prejudice to any substantial right. The choices the trial court offered honored both Williams' constitutional right to a speedy trial and his constitutional right to effective representation "by counsel who has had sufficient opportunity to adequately prepare a material part of his defense." Michielli, 132 Wn.2d at 240 (emphasis added). And this is so even if the amendment had necessitated additional preparation time, which Williams expressly claimed he did not need.
I would hold that Williams failed to show the trial court abused its discretion in allowing the State to amend the information on the day of trial, especially where Williams declined the trial court's offer to continue the trial's start if he needed additional time to adjust his defense in response to the amendment. I would affirm Williams' convictions and sentence and deny his personal restraint petition.