State v. Korum
| Decision Date | 17 August 2006 |
| Docket Number | No. 75491-8.,75491-8. |
| Citation | 141 P.3d 13,157 Wn.2d 614 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Jacob Melvin KORUM, Respondent. |
Mr. Paul Douglas Weisser, AG Criminal Justice Division, Ms. Pamela Beth Loginsky, Washington Assoc of Prosecuting Atty, Olympia, for Petitioner/Appellant.
Mr. Montell E. Hester, Mr. Wayne Clark Fricke, Attorney at Law, Tacoma, Ms. Suzanne Lee Elliott, Attorney at Law, Seattle, for Appellee/Respondent.
¶ 1 After Jacob Melvin Korum withdrew his guilty plea, the prosecuting attorney charged Korum with additional counts as promised during the plea bargaining process. The Court of Appeals dismissed the added charges for prosecutorial vindictiveness and dismissed Korum's kidnapping charges as incidental to his robbery charges. We reverse the Court of Appeals and hold that Korum failed to prove that a presumption of prosecutorial vindictiveness arose in this case. We affirm the Court of Appeals dismissal of Korum's kidnapping charges because the State failed to properly raise the issue in this court. Thus, we reverse the Court of Appeals in part, affirm in part, and remand for resentencing consistent with this opinion.
¶ 2 Korum and four other men, Michael Bybee, Ethan Durden, Brian Mellick, and Zachary Phillips, carried out a series of home invasions during the summer of 1997, selecting drug dealers as the victims because they would be unlikely to report the crimes. The men planned to invade the homes late at night and to bind any persons they found inside to facilitate their crimes. During the fourth and final home invasion, which occurred at the Beaty/Molina home, Korum served as the driver and communicated with the others inside by walkie-talkie. The police responded to a neighbor's 911 call and arrested Mellick, Durden, and Bybee. Korum and Phillips escaped but were later arrested. Mellick offered the police information about the other home invasions in exchange for a reduced sentence, and implicated Korum in the invasions of three other homes.
¶ 3 The prosecuting attorney charged Korum with 16 counts of burglary, robbery, kidnapping, and assault in relation to the Beaty/Molina home invasion. In June 1998, the State and Korum entered into plea negotiations. In exchange for Korum's guilty plea and the consequent resolution of the case, the State promised several things — two of which are pertinent to this appeal. First, the State promised to amend Korum's original 16 count information to reduce the substantive charges to allow for 15 years within the standard range plus a 5 year deadly weapon enhancement. Second, the State promised not to file additional charges for Korum's involvement in the other home invasions that it was investigating concurrently with the plea negotiations.
¶ 4 On July 31, 1998, in exchange for the State's promises, Korum pleaded guilty to one count of first degree kidnapping while armed with a deadly weapon and one count of second degree possession of a firearm.1 Korum's father was present when the trial court entered Korum's guilty plea, and he heard his son admit to being the driver during the Beaty/Molina home invasions. At sentencing, Korum apologized to the Beaty family. As promised, the State recommended a sentence of 132 months, which consisted of 72 months for the kidnapping count, a 60 month firearm enhancement to run consecutively to the kidnapping sentence, and a concurrent 12 month sentence for the firearm possession count. The sentencing court imposed a total sentence of 135 months of confinement, followed by two years of community placement.
¶ 5 After pleading guilty, Korum later successfully withdrew his plea agreement when he realized that he had not been advised of a mandatory two year community placement and decided to proceed to trial. As indicated, the prosecutor filed an amended information containing 32 counts in total, consisting of the original 16 counts, the firearm possession count from the plea agreement, and 15 additional counts related to the other three home invasions. A jury convicted Korum on 30 counts, which consisted of 29 counts of burglary, robbery, kidnapping, and assault, each while armed with a deadly weapon, plus the firearm possession count. The jury acquitted Korum of one count of attempted robbery and one count of attempted burglary that duplicated other counts.
¶ 6 At sentencing, the State recommended that the court impose consecutive sentences and consecutive firearm enhancements on the kidnapping counts under former RCW 9.94A.400(1)(b) (1996), recodified as RCW 9.94A.589, resulting in a standard sentence range of 608 to 810 months, plus 600 months of firearm sentence enhancements, for a total sentence range of 1,208 to 1,410 months. The State also recommended that the court impose exceptional sentences of 1,200 months on each of the 4 counts of burglary in the first degree and on the 2 counts of robbery in the first degree, to run concurrently with the sentences imposed on the other counts. The sentencing court imposed a sentence of 608 months plus firearm enhancements of 600 months, resulting in a total sentence of 1,208 months.
¶ 7 Korum appealed his convictions and sentence on numerous grounds. In a partially published opinion, the Court of Appeals dismissed Korum's kidnapping charges, counts 2, 3, 8-12, 18, 19, and 25, as incidental to the robberies. State v. Korum, 120 Wash. App. 686, 719, 86 P.3d 166 (2004). The court also dismissed the charges added after Korum withdrew his guilty plea, counts 17, 20-22, 24, and 26-32, on the basis of prosecutorial vindictiveness. Id. at 719-20, 86 P.3d 166. The Court of Appeals also remanded for resentencing with directions to the trial court to consider whether it should dismiss any of the remaining charges as a deterrent to prosecutorial vindictiveness under CrR 8.3(b). Id. at 720, 86 P.3d 166. The State petitioned for review, and Korum submitted a conditional cross-petition for review challenging his convictions and sentence on other grounds. We granted both petitions for review. State v. Korum, 152 Wash.2d 1021, 101 P.3d 108 (2004).
A. Whether this court should review the Court of Appeals reversal of Korum's kidnapping convictions.
B. Whether the prosecuting attorney's decision to add charges after Korum withdrew his guilty plea constituted prosecutorial vindictiveness.
C. Whether the trial court should dismiss additional charges under CrR 8.3 in order to deter prosecutorial vindictiveness.
D. Whether Korum's sentence should be reversed on any other grounds.
E. Whether Korum's underlying convictions should be reversed.
A. The State failed to properly appeal the Court of Appeals reversal of Korum's kidnapping convictions
¶ 8 The Court of Appeals dismissed Korum's kidnapping charges, counts 2, 3, 8-12, 18, 19, and 25, because the kidnappings were incidental to the robberies as a matter of law. Korum, 120 Wash.App. at 707, 86 P.3d 166. The State's petition for review sets out three issues, the second of which is whether a court may "intervene in a prosecutor's selection of charges merely because some of the charges may merge at sentencing or the court believes that the possible punishment for all the alleged offenses will result in an extremely long sentence[.]"2 State of Wash.'s Pet. for Review (Pet. for Review) at 1. The State argues on this issue under the heading "A Court's Ability to Review a Prosecutor's Charging Decision is Extremely Limited." Pet. for Review at 12 (emphasis omitted). The State did not otherwise list the issue of whether the kidnapping charges merged in the statement of issues presented for review section of its petition for review.
¶ 9 In its supplemental brief, the State argues that the kidnapping charges should be reinstated because they were not incidental to the robberies or, alternatively, that if the charges do merge, the sentences should be imposed on the kidnapping counts rather than the robbery counts. Korum moves to strike the portions of the State's supplemental brief that address the merger of the kidnapping charges, arguing that the State did not properly raise the issue of whether the kidnapping charges were properly dismissed in its petition for review.
¶ 10 RAP 13.7(b) provides that "the Supreme Court will review only the questions raised in ... the petition for review and the answer, unless the Supreme Court orders otherwise ...." See Denaxas v. Sandstone Court of Bellevue, L.L.C., 148 Wash.2d 654, 671, 63 P.3d 125 (2003) (). We note that the State did "raise" the merger issue in the argument section of its petition for review. Pet. for Review at 16 .
¶ 11 However, as noted above, the State did not list the issue of whether the kidnapping charges merged in its concise statement of issues presented for review. RAP 13.4(c)(5) directs petitioners to include "[a] concise statement of the issues presented for review." See State v. Collins, 121 Wash.2d 168, 178-79, 847 P.2d 919 (1993) (); Clam Shacks of Am., Inc. v. Skagit County, 109 Wash.2d 91, 98, 743 P.2d 265 (1987) (...
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