State v. Hahn

• Decision Date: 18 October 1996
• Docket Number: 18789-2-II,Nos. 18788-4-I,s. 18788-4-I
• Citation: 924 P.2d 392,83 Wn.App. 825
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Appellant, v. Beverly J. HAHN, Respondent. The STATE of Washington, Appellant, v. Terik C. SMITH, Respondent. Division 2

Page 825

83 Wn.App. 825

924 P.2d 392

The STATE of Washington, Appellant, v. Beverly J. HAHN, Respondent.

The STATE of Washington, Appellant, v. Terik C. SMITH, Respondent.

Nos. 18788-4-II, 18789-2-II.

Court of Appeals of Washington,

Division 2.

Oct. 18, 1996.

Terik C. Smith, Longview, pro se

Christopher Thomas Mahre, Cowlitz County Deputy Prosecuting Attorney, Kelso, for petitioner.

John A. Hays (Court-appointed), Longview, for respondent Hahn.

HOUGHTON, Acting Chief Judge.

Beverly Hahn and Terik Smith were charged on separate occasions with driving while intoxicated (DWI). Both were granted deferred prosecutions. ¹ Following their second DWI arrests, they withdrew their

deferred prosecution petitions and pleaded guilty to the first DWI charges. The district court then granted their petitions for deferred prosecution on their second DWI charges and the State appealed. The superior court concluded that because Hahn and Smith voluntarily withdrew from the deferred prosecution program, RCW 10.05.010 did not preclude eligibility for deferred prosecution on the subsequent charges. We granted discretionary review and the cases were consolidated for purposes of appeal. We reverse and remand for further proceedings.

FACTS

Smith was arrested on December 13, 1991, in Longview for DWI, RCW 46.61.502. Smith petitioned for and received deferred prosecution for the DWI charge on March 6, 1992, in Longview Municipal Court. On October 10, 1992, Smith was cited for DWI in Cowlitz County. Smith withdrew from the deferred prosecution program on February 17, 1993, and was found guilty of the December 1991 charge. On May 7, 1993, Smith requested deferred prosecution on the second DWI charge. The Cowlitz County District Court entered an order for deferred prosecution on May 14, 1993.

Hahn was charged with DWI in Longview Municipal Court on December 18, 1991. Her petition for a deferred prosecution was granted by the Longview Municipal Court on March 27, 1992. On December 13, 1992, Hahn was cited for DWI in Cowlitz County District Court. She "removed herself" from the deferred prosecution program on May 21, 1993, and was found guilty and sentenced on the first charge. ² On November 19, 1993, the district court granted Hahn's petition for deferred prosecution on the second DWI charge.

The district court in both cases found that there had been no previous deferred prosecution programs within The State appealed both cases to the superior court, arguing that Smith and Hahn had previously petitioned for and were granted deferred prosecutions on earlier DWI charges within the last five years. Both cases were joined for purposes of appeal.

                the past five years.  The district court ordered Smith and Hahn to abstain from alcohol and non-prescription mind-altering drugs for two years and to fulfill the conditions of their respective treatment plans. 3  The court further ordered that upon notice of a conviction of a similar offense during the two-year period, it would remove the case from the deferred prosecution file and enter judgment pursuant to RCW 10.050.020
                

In its oral ruling, the superior court distinguished between termination due to non-compliance with the program and voluntary withdrawal from the program:

There are two ways that it can be, by statute, terminated by the Prosecution. One is if you don't comply with the treatment, and one is if you are convicted of another offense....

....

[T]here's nothing in the law that says you cannot voluntarily withdraw your petition for a deferred prosecution of any kind; and if you do, it's a nullity. It's destroyed the deferred prosecution.

Now, if the State would have moved to dismiss based upon not following through with the treatment program or because of another conviction ... that would have been a complete deferred prosecution program because it went through to its statutory conclusion.

It may be a loophole; but as far as I'm concerned, they can voluntarily withdraw; and once they do, they didn't receive any benefit from it whatsoever. So they're entitled to request to the judge, and he should exercise discretion.

In a later written order, the superior court denied both appeals and affirmed the district court's orders deferring prosecution. The superior court found that a defendant could be removed from the deferred prosecution program if he or she does not comply with the treatment program or is convicted of a new offense. It also found that if a defendant withdraws a deferred prosecution petition and a finding of guilt is entered, the "State is placed in exactly the same position it would have been in had the defendant not entered into a deferred prosecution program. The defendant received no benefit from the deferred prosecution."

The court further found that if a defendant withdraws and a finding of guilt is entered, the defendant is eligible to petition for a deferred prosecution of the subsequent offense, and that the court has discretion whether or not to grant the petition. The court concluded that "RCW 10.05 does not preclude a defendant charged with Driving While Intoxicated from being placed on more than one deferred prosecution program in a five year period if the person had withdrawn the previous deferred prosecution petition(s)."

ANALYSIS

The State contends that according to principles of statutory construction, RCW 10.05 limits eligibility for a deferred prosecution to one time in a five-year period. It also asserts that the superior court's decision is contrary to the Legislature's intent. It further asserts that because the statute makes no provision for a voluntary withdrawal from a deferred prosecution program, a voluntary removal from the program should not be treated any differently from termination from the program due to non-compliance or a subsequent conviction.

RCW 10.05.010 sets forth the eligibility requirements for a deferred prosecution:

In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program.

....

A person charged with a traffic infraction misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once in any five-year period.

An appellate court reviews issues regarding statutory construction de novo. State v. Kuhn, 74 Wash.App. 787, 790, 875 P.2d 1225 (1994), review denied, 127 Wash.2d 1017, 904 P.2d 299 (1995). The court's duty is to ascertain and give effect to the intent and purpose of the Legislature. State v. Williams, 62 Wash.App. 336, 338, 813 P.2d 1293, review denied, 117 Wash.2d 1027, 820 P.2d 511 (1991). In doing so, the court should avoid unlikely, absurd, or strained results. State v. Stannard, 109 Wash.2d 29, 36, 742 P.2d 1244 (1987).

Here, the superior court determined that a defendant who has been granted a previous deferred prosecution is eligible for a deferred prosecution on a later charge in any five-year period if the defendant has not completed a treatment program. The superior court reasoned that voluntary withdrawal nullifies the original order as if the defendant never sought deferred prosecution. Thus, the issue becomes whether RCW 10.05.010 limits an individual to one opportunity for a deferred prosecution in a five-year period.

Hahn and Smith argue that under the rule of lenity, the superior court's interpretation should apply. Although a statute is ambiguous if it is susceptible to two or more reasonable interpretations, a statute is not ambiguous merely because different interpretations are conceivable. State v. Sunich, 76 Wash.App. 202, 206, 884 P.2d 1 (1994). Hahn and Smith fail to show why the language of RCW 10.05.010 is ambiguous. Without a threshold showing of ambiguity, the court derives a statute's meaning from its language alone. Geschwind v. Flanagan, 121 Wash.2d 833, 840, 854 P.2d 1061 (1993). Where the statute is clear, courts may not engage in statutory construction or consider the rule of lenity. State v. Bolar, 129 Wash.2d 361, 366, 917 P.2d 125 (1996).

Undefined statutory terms are given their usual and ordinary meaning and courts may not read into a statute a meaning that is not there. Nationwide Ins. v. Williams, 71 Wash.App. 336, 342, 858 P.2d 516 (1993), review denied, 123 Wash.2d 1022, 875 P.2d 635 (1994). When a term is not defined in the statute, courts may look to the ordinary dictionary meaning. Sunich, 76 Wash.App. at 206, 884 P.2d 1. "Program" is defined as "a plan of procedure; a schedule or system under which action may be taken toward a desired goal." Webster's Third New International Dictionary 1812 (1969). Applying this definition, "deferred prosecution program" as used in RCW 10.05. would mean the petition for deferred prosecution, the order granting deferred prosecution, and the approved treatment plan.

RCW 10.05.010 clearly states that a "person shall not be eligible for a deferred prosecution program more than once in any five-year period." If a defendant fails to comply with the conditions of a treatment plan, the court, upon notice and a hearing, must either order the defendant to continue on the treatment plan or remove the defendant from deferred prosecution and enter judgment. RCW 10.05.090. If a defendant is convicted of a similar offense while in a deferred prosecution program, the court shall enter judgment pursuant to RCW 10.05.020. RCW 10.05.100. In...