State v. Ashue

• Decision Date: 25 March 2008
• Docket Number: No. 25970-6-III.,25970-6-III.
• Citation: 145 Wn. App. 492,188 P.3d 522
• Parties: STATE of Washington, Respondent, v. Debra Ann ASHUE, Appellant.
• Court: Washington Court of Appeals

188 P.3d 522

145 Wn. App. 492

STATE of Washington, Respondent, v. Debra Ann ASHUE, Appellant.

No. 25970-6-III.

Court of Appeals of Washington, Division 3.

March 25, 2008.

Publication Ordered July 22, 2008.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant.

Kenneth L. Ramm Jr., Yakima, WA, for Respondent.

KULIK, J.

¶ 1 Debra Ann Ashue appeals her conviction for residential burglary. After she was arraigned, Ms. Ashue entered into a pretrial diversion agreement with the State. On appeal, she contends: (1) the diverson program was unauthorized by the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW; (2) the waiver of constitutional rights was not knowingly, intelligently, and voluntarily made; and (3) she received ineffective assistance of counsel. A statutory diversion was not available to Ms. Ashue because she committed a felony. We hold that the nonstatutory diversion program did not violate the SRA, that Ms. Ashue's waiver was valid, and that she did not establish ineffective assistance of counsel. We affirm.

FACTS

¶ 2 On February 8, 2006, Debra Ann Ashue was charged with residential burglary, a class B felony. Ms. Ashue was arraigned the same day.

¶ 3 A pretrial hearing was held on April 28, 2006. At the hearing, Ms. Ashue entered into a diversion agreement with the State.¹ Under the terms of the agreement, the prosecutor agreed to dismiss the charges pending against Ms. Ashue upon her successful completion of the Yakima County "Friendship" Diversion Program. Clerk's Papers (CP) at 49. In exchange for her participation, Ms. Ashue waived certain constitutional rights, including her right to a speedy trial, the right to contest the validity of her arrest and any search and seizure, the right to a hearing to determine the voluntariness and the admissibility of statements she made, and the right to a jury trial. Ms. Ashue also stipulated to the admissibility of the police reports. By signing the agreement, she acknowledged that if she was terminated from the diversion program, a judge would decide her guilt at a stipulated bench trial, based solely on the police reports.

¶ 4 Ultimately, Ms. Ashue failed to comply with the terms and conditions of the diversion program. A bench warrant was issued for her arrest. A stipulated bench trial was scheduled for August 21, 2006. Prior to trial, the prosecutor allowed the defense to re-enter Ms. Ashue in the diversion program. An order of continuance was entered for the bench trial. A second bench warrant was issued when Ms. Ashue failed to appear for a hearing on September 26, 2006.

¶ 5 Ms. Ashue was apprehended. She filed a motion to rescind the diversion agreement. In support of the motion, Ms. Ashue alleged she received ineffective assistance of counsel because defense counsel did not take the case to trial as she requested, forced her to agree to a continuance as a result of his scheduling conflict, did not follow through on his promises, and neglected to return her telephone calls. Ms. Ashue further alleged that she was not provided with an opportunity to discuss the requirements of the diversion program or the consequences of signing the agreement.

¶ 6 Ms. Ashue maintains that she was coerced into signing the agreement. When the agreement was presented to her, she had already been in jail for a significant period of time, and defense counsel had done nothing to prepare for trial. As a result, she felt that she had no choice but to sign the agreement.

¶ 7 Ms. Ashue's motion to rescind was denied. The trial court entered an order finding that Ms. Ashue knowingly, intelligently, and voluntarily agreed to, and entered into, the stipulation and waiver agreement. That same day, at a stipulated bench trial, the court convicted Ms. Ashue of residential burglary. A judgment and sentence was entered in which the court imposed a sentence of 183 days. This appeal followed.

ANALYSIS

¶ 8 Ms. Ashue contends that the diversion procedures used by the prosecuting attorney do not comply with "pre-prosecution diversion" requirements of the SRA. Appellant's Br. at 1. She asserts that the diversion program was a felony deferred prosecution program prohibited by the SRA. Resolution of this issue requires this court to distinguish between deferred prosecution programs (also called post-charging diversion), plea agreements, and pretrial diversion agreements.

¶ 9 Deferred Prosecution Programs. Deferred prosecution programs are governed by statute. Chapter 10.05 RCW. A deferred prosecution is a statutorily-created "sentencing alternative of preconviction probation, to be added to the traditional choices of imprisonment fine, and postconviction probation." State ex rel. Schillberg v. Cascade Dist. Court, 94 Wash.2d 772, 779, 621 P.2d 115 (1980).

¶ 10 Pursuant to RCW 10.05.010, a person charged with a misdemeanor or gross misdemeanor in a court of limited jurisdiction may petition the court to be considered for a deferred prosecution program. See State v. Hahn, 83 Wash.App. 825, 827-28, 924 P.2d 392 (1996). In a deferred prosecution program, the defendant's referral for treatment results in the postponement of trial and the eventual removal of records relating to the charges. State v. Glasser, 37 Wash.App. 131, 132, 678 P.2d 827 (1984) (citing chapter 10.05 RCW).

¶ 11 Significantly, the Washington legislature no longer authorizes deferred prosecutions in adult felony cases. In 1981, the legislature amended former RCW 9.95A.010 (1973), the felony deferred prosecution statute, making it inapplicable to any felony offense committed on or after July 1, 1984, the effective date of the Sentencing Reform Act. LAWS OF 1981, ch. 137, § 33. Ultimately, the former statute was repealed in 1985. LAWS OF 1985, ch. 52, § 1.

¶ 12 Here, Ms. Ashue contends that she entered into an unauthorized deferred prosecution program, as opposed to a preprosecution diversion program, because she was arraigned prior to signing the agreement. Ms. Ashue's contention that the diversion program was a postarraignment deferred prosecution program, unauthorized by the SRA, is without merit. The diversion agreement at issue was not entered into pursuant to the deferred prosecution statute, chapter 10.05 RCW. While the two programs appear similar, multiple factors distinguish deferred prosecution from pretrial diversion. Most importantly, under Washington law, deferred prosecution is limited to misdemeanors in district court. RCW 10.05.010. Further, Ms. Ashue did not file a petition with the court and her entry into the diversion program did not meet other statutory requirements for deferred prosecution. See RCW 10.05.050 (the treatment facility must provide the court with a written report and treatment plan); RCW 10.05.060 (trial court examines the treatment plan and approves or rejects the deferred prosecution petition).

¶ 13 Plea Agreements. In opposing Ms. Ashue's contention, the State argues that the parties properly entered into a pretrial diversion program as part of a valid plea agreement.

¶ 14 Prosecutors have broad discretion to charge a crime or enter into a plea bargain. State v. Michielli, 132 Wash.2d 229, 245, 937 P.2d 587 (1997). RCW 9.94A.421² specifically provides the prosecutor with the authority to amend charges against a defendant, to move for dismissal of the charges, and to recommend a particular sentence as part of a plea agreement. "Agreements to forgo seeking an exceptional sentence, to decline prosecuting all offenses, to pay restitution on uncharged crimes, and to waive the right to appeal are all permissible components of valid plea agreements." State v. Lee, 132 Wash.2d 498, 506, 939 P.2d 1223 (1997). A plea agreement is considered a binding contract when accepted by the trial court. State v. Sledge, 133 Wash.2d 828, 838-39, 947 P.2d 1199 (1997) (quoting State v. Mollichi, 132 Wash.2d 80, 90, 936 P.2d 408 (1997)).

¶ 15 Similarly, the diversion agreement was not a plea agreement, as the State argues. By statute, a plea agreement requires "the entering of a plea to a charged offense or to a lesser or related offense." RCW 9.94A.421. Here, Ms. Ashue did not enter a guilty plea in exchange for her participation in the diversion program. By the terms of the agreement, Ms. Ashue stipulated to the admissibility of statements and agreed to submit to a bench trial where the judge would determine her guilt or innocence based upon the police reports alone. Importantly, she retained the right to be presumed innocent and to have the State prove every element of the offense charged beyond a reasonable doubt.

¶ 16 Pretrial Diversion Programs. Pretrial diversion programs are nonstatutory. State v. Kessler, 75 Wash.App. 634, 636, 879 P.2d 333 (1994). "Prosecutorial discretion in the charging process has historically provided a basis for informal diversion from the criminal justice system." State v. Marino, 100 Wash.2d 719, 721, 674 P.2d 171 (1984). In contrast, "deferred prosecution entails more than the charging function and does not fall solely within prosecutorial discretion." Id. at 722, 674 P.2d 171. Case law in the area of diversion is limited, and primarily addresses the due process requirements necessary for the termination of a pretrial diversion agreement. Kessler, 75 Wash.App. at 639, 879 P.2d 333; Marino, 100 Wash.2d at 725, 674 P.2d 171.

¶ 17 Pretrial diversion programs are similar to deferred prosecution programs in that they delay the prosecution of charges pending against the defendant while he or she receives treatment or therapy. Under a diversion agreement, the State agrees to dismiss the charges if the defendant successfully performs all the terms and conditions of the agreement. In exchange, the defendant typically waives certain constitutional rights, including the right to a speedy trial, and agrees to a stipulated trial in the event he or she is terminated from the diversion program. See Kessler, 75 Wash.App. at 636, 879 P.2d 333; Marino, 100 Wash.2d...