State v. Cronin, s. 63651-6

• Citation: 130 Wn.2d 392,923 P.2d 694
• Decision Date: 26 September 1996
• Docket Number: 63724-5,Nos. 63651-6,s. 63651-6
• Parties: The STATE of Washington, Respondent, v. Timothy D. CRONIN, Appellant. The STATE of Washington, Respondent, v. Michael K. ROBERTS, Appellant.
• Court: United States State Supreme Court of Washington

Page 392

130 Wn.2d 392

923 P.2d 694

The STATE of Washington, Respondent, v. Timothy D. CRONIN, Appellant.

The STATE of Washington, Respondent, v. Michael K. ROBERTS, Appellant.

Nos. 63651-6, 63724-5.

Supreme Court of Washington,

En Banc.

Argued June 26, 1996.

Decided Sept. 26, 1996.

Peter T. Connick, Seattle, Steinborn & Associates, Nicholas C. Holt, Seattle, Sharon Blackford, Seattle, for other parties.

Todd M. Gruenhagen, Gregory L. Girard, Seattle, for appellant Timothy D. Cronin.

Norm Maleng, King County Prosecutor, Brenda K. Pahmeier, Deputy, Seattle, for respondent.

Society of counsel representing accused persons Terry Mulligan, Kern Clevin, Dave Wieck, Seattle, for appellant Michael K. Roberts.

ALEXANDER, Justice.

The issue before us is whether the King County Superior Court correctly determined that a notice of special sentencing was properly "served" on attorneys for both Michael Roberts and Timothy Cronin when a copy of the notice was delivered to the office of the attorneys for each defendant. Consistent with our recent decision in State v. Clark, 129 Wash.2d 805, 920 P.2d 187 (1996), we conclude that the trial court did not err in holding that the notices were properly served. We, therefore, affirm the trial court.

On May 17, 1994, Timothy Cronin and Michael Roberts were together charged in King County Superior Court with aggravated first degree murder. Soon after charges were filed, Gregory Girard and Todd Gruenhagen of Associated Counsel for the Accused (ACA) were appointed to represent Cronin, and Terry Mulligan, Kern Clevin, and Dave Wieck of the Society of Counsel Representing Accused Persons (SCRAP) were appointed to represent Roberts. Both defendants were arraigned on November 2, 1994.

On November 28, 1994, pursuant to a stipulation for an extension of time for filing and serving a notice for special sentencing proceedings to determine whether the death penalty should be imposed, the trial court entered orders giving the State until January 17, 1995 to file such a notice against Cronin and Roberts. On January 13, 1995, King County Prosecutor Norm Maleng signed and caused to be filed a notice indicating that the death penalty would be sought for both Cronin and Roberts.

On that same day, the senior deputy prosecutor assigned to the case engaged the services of Pacific Northwest Process to serve a copy of the notice on the attorneys for each defendant. Ken Butera, a process server employed by Pacific Northwest Process, delivered a notice on that date to the office of ACA, as well as to the office of SCRAP. Butera indicated in an affidavit that when he told the receptionist at ACA that he had "documents" for attorneys Girard and Gruenhagen, "[t]he receptionist accepted the notice of special sentencing proceeding and stamped the messenger form and an extra copy with the ACA stamp confirming the receipt of the document." Clerk's Papers at 23-24. Attorney Girard concedes that on that same date he received a copy of the notice in his office mailbox and that it bore a stamp indicating that it had been received by ACA on that date. Butera also indicated in another affidavit that when he told the receptionist at SCRAP that he had "documents" for attorneys Mulligan, Cleven, and Wieck, "[t]he receptionist accepted the notice of special sentencing proceeding and stamped the messenger form and an extra copy with the SCRAP stamp confirming the receipt of the document." Clerk's Papers at 28-29.

On July 20, 1995, the trial court entered an order severing the defendants for trial. On October 26, 1995, Cronin's counsel moved to strike the notice of special sentencing proceeding. On November 3, 1995, counsel for Roberts made a similar motion.

At a joint hearing on their motions, Cronin and Roberts both claimed that their attorneys had not been properly served with the notice of special sentencing as required by RCW 10.95.040. In addition, Roberts's attorney, Nicholas Holt, ¹ in making an offer of proof, stated that SCRAP's receptionist was on vacation on January 13, 1995. He suggested that the notice delivered to SCRAP's office might, therefore, have been "self-stamped" by the process server. Verbatim Report of Proceedings (Nov. 17, 1995) at 20. He conceded, however, that the notice was discovered at SCRAP's office on that date and was brought to the attention of one of Roberts's then attorneys, Kevin Cleven. The trial court denied the motions, concluding that the attorneys for Roberts and Cronin had both been properly served with the notice.

The defendants each sought discretionary review at Division One of the Court of Appeals of the trial court's decision. That court certified both cases to this court. We accepted review and consolidated the cases for hearing.

Cronin and Roberts each contend that the trial court erred when it denied their motions to strike the notice of special sentencing proceedings for what they claimed was improper service of the notices. RCW 10.95.040 governs the filing and service of such notices. It provides, in pertinent part, as follows:

The notice of special sentencing proceeding shall be filed and served on the defendant or the defendant's attorney within thirty days after the defendant's arraignment upon the charge of aggravated first degree murder unless the court, for good cause shown, extends or reopens the period for filing and service of the notice.

RCW 10.95.040(2). If the notice "is not filed and served as provided in this section, the prosecuting attorney may not request the death penalty." RCW 10.95.040(3). Because the notice was timely filed, but not served on either defendant, the sole issue before us is whether the notices were served on the attorneys for Cronin and Roberts by a method of service sufficient under RCW 10.95.040.

Cronin and Roberts both contend that in order to effect service on their attorneys under RCW 10.95.040, the prosecutor must obtain personal "hand-to-hand" service of the notice on the attorney it is seeking to serve. They urge upon us the notion that serving a notice of special sentencing proceeding is to be accomplished in the same manner as serving process to initiate a civil lawsuit. They point to the statute governing service of process in civil litigation, which provides that a summons must be served "personally, or by leaving a copy ... at the house of his usual abode with some person of suitable age and discretion then resident therein." RCW 4.28.080(15).

The State, on the other hand, contends that attorneys may be served with the notice in the manner set forth in CR 5, a rule governing service in civil cases of pleadings and other papers, including notices, following service of the original complaint. That rule should have application here, they argue, because serving a notice of special sentencing proceeding is more akin to serving a notice in a civil case than it is to serving a summons to commence a civil suit.

The notice of special sentencing proceeding is a unique document. Although RCW 10.95.040(2) provides that it is to be "served," the manner in which that service is to be accomplished is not set forth in that statute or any other. Faced with this ambiguity in the statute, our next resort is to the criminal rules for superior court. Unfortunately, those rules give us no direction regarding the manner in which service of the notice is to be obtained. The only criminal rule that, arguably, bears on the issue is CrR 8.4, which provides that "CR 5 shall govern service and filing of written motions (except those heard ex parte) in criminal causes." That rule is consistent with the general proposition that when the criminal rules are silent, "civil rules can be instructive." State v. Gonzalez, 110 Wash.2d 738, 744, 757 P.2d 925 (1988).

Significantly, CR 5, the civil rule referred to in CrR 8.4, indicates that when "service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court." CR 5(b)(1). The rule goes on to say that service on an attorney may be effected by "leaving it at his [the attorney's] office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein." CR 5(b)(1).

In view of the fact that the statute requiring service of the notice of special sentencing proceeding is silent as to the manner of service, as are the criminal rules, we believe that it is appropriate to look to CR 5 for direction as to the manner of service of such a notice. We reach this conclusion because, like the trial court, we find ourselves in agreement with the State that serving a notice in criminal proceedings is more analogous to serving a notice in a civil case than it is to serving process in order to invoke the jurisdiction of the court in such a case. Significantly, our decision is consistent with our very recent ruling in State v. Clark, 129 Wash.2d at ----, 920 P.2d at 191 (1996) where we said that "CR 5 provides the best guidance to the interpretation of RCW 10.95.090, as it pertains specifically to service of notices on counsel after commencement of an action." ²

Having concluded that it is appropriate to look to CR 5 to interpret the meaning of the term "served," we quickly add that there is some merit to the arguments set forth by Cronin and Roberts that a notice as significant as a notice of special sentencing...