State v. Kiliona-Garramone

Decision Date22 November 2011
Docket Number39520–7–II.,Nos. 39514–2–II,39524–0–II,s. 39514–2–II
Citation267 P.3d 426,166 Wash.App. 16
CourtWashington Court of Appeals
PartiesSTATE of Washington, Appellant, v. Nykol KILIONA–GARRAMONE, Respondent,State of Washington, Appellant, v. James Francis Garramone, Respondent,State of Washington, Appellant, v. Paula Ferrara, Respondent.

OPINION TEXT STARTS HERE

Michael K. Dorcy, Mason County Prosecutors Office, Shelton, WA, for Appellant.

Clifford F. Cordes, Cordes Brandt PLLC, Olympia, WA, for Respondent.

HUNT, J.

[166 Wash.App. 19] ¶ 1 The State appeals the trial court's dismissal of charges against Nykol Kiliona–Garramone, James Francis Garramone, and Paula Ferrara (Defendants) for false verification of a welfare form, Count I of a multi-count information. The State argues that the trial court erred in ruling that the information's omission of the statutory word “matter” rendered it constitutionally insufficient to give Defendants notice of charges against them. Defendants counter that (1) the trial court's dismissal of the charges is not an appealable order; and (2) even if the dismissal were appealable, the information was insufficient to advise them of the charges against them and, therefore, we should affirm. We reverse and remand.

FACTS

¶ 2 From 20002004, Nykol Kiliona–Garramone, James Francis Garramone, and Paula Ferrara allegedly misrepresented Kiliona–Garramone's financial eligibility, as well as the extent of her blindness, on her disability application materials and various other documents pertaining to her public assistance eligibility. The State charged all three with false verification of a welfare form under former RCW 74.08.055 (1979) and RCW 9.94A.535(3)(d). 1 The information read:

In the County of Mason, State of Washington, during the period of March 1, 2000 through January 30, 2004, the above-named Defendant ... did commit FALSE VERIFICATION OF WELFARE FORM, a Class B felony, in that said defendant, being an applicant for or recipient of public assistance, did willfully make and subscribe any application, statement or other paper which contained or was verified by a written declaration made under the penalties of perjury and which he did not believe to be true and correct as to every material, contrary to [former] RCW 74.08.055 and against the peace and dignity of the State of Washington. Clerk's Papers (CP) (Kiliona–Garramone) at 86–87; CP (Ferrara) at 72–73; CP (Garramone) at 81–82 (emphasis added).

¶ 3 After a two-week bench trial, the State rested, and defense counsel moved to dismiss Count I, arguing for the first time that the State had filed a defective information in omitting the word “matter” from the statutorily defined crime as falsely verifying information that pertains to a “material matter.” 2 The trial court dismissed Count I without prejudice, concluding:

The Court does not find anything within the other portions of this charging Information that tells the Court what it is that needs to be “material.” And cannot by a fair construction of what's already here in the charging language, read into what needs to be “material.”V Report of Proceedings (RP) at 276 (emphasis added).3 The State appeals.

ANALYSIS
I. Mootness

¶ 4 A threshold issue is Defendants' argument that we should dismiss the State's appeal of the trial court's dismissal of Count I without prejudice as moot for lack of a “justiciable controversy” and, therefore, not appealable under RAP 2.2. Br. of Resp'ts at 8–9. We disagree and hold that the trial court's dismissal of Count I is appealable.

¶ 5 Defendants are correct, however, that, in general, the State cannot appeal dismissals without prejudice because such dismissals do not discontinue or abate the case. See State v. Taylor, 150 Wash.2d 599, 602, 80 P.3d 605 (2003). Under RAP 2.2(b)(1), however, the State may appeal from a decision “that in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty. (Emphasis added). This is such a case.

¶ 6 Because the charged crimes here allegedly occurred between 2000 and 2004, the applicable statute of limitations would have expired in 2007. See RCW 9A.04.080(1)(h). The two-week bench trial concluded in May 2009, two years after the statute of limitations expired; thus, after the trial court denied the State's motion to amend and dismissed the information, the State could not re-file the information 4 and bring Count I to trial. And, the trial court's 2009 dismissal of Count I without prejudice effectively finally determined these charges, rendering its dismissal of Count I against Defendants appealable under RAP 2.2(b)(1). See Taylor, 150 Wash.2d at 602, 80 P.3d 605. Having resolved the mootness issue, we now address the State's substantive arguments.

II. Sufficiency of Information

¶ 7 The State argues that the information's omission of the single word “matter” did not prevent Defendants from having sufficient notice of the crime charged in Count I—false verification of a welfare form. The State further argues that, under the liberal standard, omission of the word “matter” from the information neither precluded the otherwise sufficient information from apprising Defendants of the charges against them nor prejudiced them.

¶ 8 Defendants respond that omission of the term “matter” rendered Count I of the information insufficient to advise them properly of the charged crime, false verification of a welfare form. Beyond their bald assertion, however, Defendants do not explain how omission of the word “matter” constituted insufficient notice to them of the charged crime or how this omission in any way hindered their abilities to defend against the charge or caused any other sort of prejudice. We find the State's argument persuasive.

A. Standard of Review

¶ 9 Under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, a charging document must include all essential elements of a crime to inform a defendant of the charges against him and to allow preparation for the defense. State v. Phillips, 98 Wash.App. 936, 939, 991 P.2d 1195 (2000) (citing State v. Kjorsvik, 117 Wash.2d 93, 101–02, 812 P.2d 86 (1991)). A charging document is constitutionally sufficient if the information states each statutory element of the crime, even if it is vague as to some other matter significant to the defense. State v. Holt, 104 Wash.2d 315, 320, 704 P.2d 1189 (1985). To determine the essential elements of the charged crime, we look first to the statutory language. State v. Tinker, 155 Wash.2d 219, 221, 118 P.3d 885 (2005). In so doing, we read all the words of the statute together, and we construe the statute to avoid an absurd result. State v. Engel, 166 Wash.2d 572, 578, 210 P.3d 1007 (2009); Young v. Estate of Snell, 134 Wash.2d 267, 282, 948 P.2d 1291 (1997); State v. Day, 96 Wash.2d 646, 648, 638 P.2d 546 (1981); State v. Chester, 82 Wash.App. 422, 427, 918 P.2d 514 (1996).

¶ 10 When a defendant challenges the sufficiency of a charging document, our standard of review depends on the timing of the challenge. State v. Ralph, 85 Wash.App. 82, 84, 930 P.2d 1235 (1997). If a defendant challenges the sufficiency of the information “at or before trial,” we construe the information strictly. Phillips, 98 Wash.App. at 940, 991 P.2d 1195 (quoting State v. Vangerpen, 125 Wash.2d 782, 788, 888 P.2d 1177 (1995)). Under this strict construction standard, if a defendant challenges the sufficiency of the information before the State rests and the information omits an essential element of the crime, the court must dismiss the case “without prejudice to the State's ability to re-file the charges.” 5 Phillips, 98 Wash.App. at 940, 991 P.2d 1195 (quoting Ralph, 85 Wash.App. at 86, 930 P.2d 1235). If, however, a defendant moves to dismiss an allegedly insufficient charging document after a point when the State can no longer amend the information, such as when the State has rested its case,6 we construe the information liberally in favor of validity.7 Phillips, 98 Wash.App. at 942–43, 991 P.2d 1195.

[166 Wash.App. 24] ¶ 11 Because Defendants did not object to the information's sufficiency until after the State had rested its case, we apply the liberal standard set forth in Kjorsvik and construe the information in favor of its validity.8 See Phillips, 98 Wash.App. at 942–43, 991 P.2d 1195. Under this liberal standard of review, the trial court must decide whether (1) the necessary facts appear in any form, or by fair construction are found, in the charging document; and if so, (2) whether the defendant can show that he or she was nonetheless actually prejudiced by the inartful or vague language that he alleges caused a lack of notice. Phillips, 98 Wash.App. at 940, 991 P.2d 1195 (citing Kjorsvik, 117 Wash.2d at 105–06, 812 P.2d 86). This standard of review requires “at least some language in the information giving notice of the allegedly missing elements”; and, if the language giving notice is present, we then are required to determine whether the “inartful” or “vague” wording actually prejudiced the defendant. Kjorsvik, 117 Wash.2d at 106, 812 P.2d 86.

¶ 12 The first prong of the test—liberal construction of the charging document's language—focuses on the face of the charging document. The second, or “prejudice,” prong of the test, however, may look beyond the face of the charging document. Kjorsvik, 117 Wash.2d at 106, 812 P.2d 86.

B. First Prong of Kjorsvik Test: Adequacy of Charging Language

¶ 13 In applying the first prong of the Kjorsvik test, we look to the charging document as a whole to determine if the necessary elements of the charged crime can be fairly implied by the language it contains. Kjorsvik, 117 Wash.2d at 109, 812 P.2d 86.

1. Essential elements of false verification of a welfare form

¶ 14 Applying the first prong of the liberal Kjorsvik test, we hold that the information unequivocally charged Defendants with false verification of a welfare form. Former RCW...

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15 cases
  • State v. Sullivan, 33142–3–III
    • United States
    • Washington Court of Appeals
    • October 13, 2016
    ...nonbinding dicta. Id. at 942, 991 P.2d 1195. Citing Phillips, Division Two has reaffirmed this approach. See State v. Kiliona–Garramone , 166 Wash.App. 16, 23, 267 P.3d 426 (2011).¶17 Division Three has never expressly considered this specific issue, but it has implicitly adopted Division T......
  • State v. Ross
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    • Washington Court of Appeals
    • March 20, 2018
    ...essential elements of the crime, we look to the statutory language and construe the statute so as to avoid an absurd result. Kiliona-Garramone, 166 Wn.App. at 22. Factual Specificity Ross argues that the information failed to include "specific facts" supporting the allegations against him. ......
  • State v. Ross
    • United States
    • Washington Court of Appeals
    • March 20, 2018
    ...requirements serve to inform the defendant of the charges against him and allow him to prepare a defense. State v. Kiliona-Garramone, 166 Wn. App. 16, 22, 267 P.3d 426 (2011). "A charging document is constitutionally sufficient if the information states each statutory element of the crime, ......
  • State v. Hecht
    • United States
    • Washington Court of Appeals
    • January 29, 2018
    ...expiration of the statute of limitations effectively finally determines the charges and allows for appeal. State v. Kiliona-Garramone, 166 Wash.App. 16, 21, 267 P.3d 426, 430 (2011). Once the statute of limitations has run, the State can appeal motions to dismiss without prejudice. See Kili......
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2 books & journal articles
  • § 4.3 Superior Court Decisions that May Be Appealed
    • United States
    • Washington State Bar Association Washington Appellate Practice Deskbook (WSBA) Chapter 4 Appeal and Discretionary Review
    • Invalid date
    ...Id. at 715 (quoting State v. Tracer, 155 Wn. App. 171, 181, 229 P.3d 847 (2010)). In State v. Kiliona-Garramone, 166 Wn. App. 16, 21, 267 P.3d 426 (2011), review denied, 174 Wn.2d 1014 (2012), the Court of Appeals held that the state may appeal from a dismissal of a charge without prejudice......
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    • Washington State Bar Association Washington Appellate Practice Deskbook (WSBA) Table of Cases
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    ...108 Wn.2d 1024 (1987): 11.7(11) State v. Kilgore, 167 Wn.2d 28, 216 P.3d 393 (2009): 11.9(1) State v. Kiliona-Garramone, 166 Wn. App. 16, 267 P.3d 426 (2011), review denied, 174 Wn.2d 1014 (2012): 4.3(14)(a) State v. Kincaid, 103 Wn.2d 304, 692 P.2d 823 (1985): 11.7(2)(a)(v) State v. King, ......

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