State v. Marino

• Court: Washington Supreme Court
• Writing for the Court: DIMMICK; WILLIAM H. WILLIAMS, C.J., ROSELLINI, UTTER, BRACHTENBACH, DOLLIVER, DORE and PEARSON, JJ., and CUNNINGHAM
• Citation: State v. Marino, 674 P.2d 171, 100 Wn.2d 719 (Wash. 1984)
• Decision Date: 05 January 1984
• Docket Number: No. 49838-5
• Parties: STATE of Washington, Respondent, v. Mark W. MARINO, Appellant.

Page 719

100 Wn.2d 719

674 P.2d 171

STATE of Washington, Respondent, v. Mark W. MARINO, Appellant.

No. 49838-5.

Supreme Court of Washington En Banc.

Jan. 5, 1984.

Washington Appellate Defender, Julie Kesler, Seattle, for appellant.

Norman K. Maleng, Snohomish County Prosecutor, Asa Glazer, Seth Dawson, Deputy Pros. Atty., Everett, for respondent.

DIMMICK, Justice.

Appellant was convicted of second degree assault in a jury trial which followed termination of his pretrial diversion agreement. His appeal of the conviction raises two issues. The first concerns the due process requirements necessary for the termination of a pretrial diversion agreement. Specifically, when the trial court approves termination of a diversion arrangement after an evidentiary hearing which establishes violation of the agreement and a reasonable basis for the prosecutor's decision to terminate, is the accused denied due process when the trial court does not make an independent finding that the violation of the agreement warranted termination? We find no denial of due process under these circumstances. Appellant also asserts that the state failed, at trial on the underlying charge, to prove venue. We find this contention without merit. Accordingly, the conviction below is affirmed.

In December 1979, appellant was charged with second degree assault of his fiancee's 4-year-old daughter which arose from an incident wherein the child had been hospitalized for treatment. Her attending physician reported the suspected case of child abuse to the Snohomish County authorities. Soon thereafter, appellant and the child's mother voluntarily sought parenting skills counseling. Since appellant was in a counseling program, the county prosecutor recommended a diversion arrangement. The pretrial diversion agreement entered into on August 8, 1980, required appellant to waive certain constitutional rights, including the right to a speedy trial. It contained his statement admitting the assault. Under the terms of the agreement, prosecution was to be stayed for 3 years if appellant successfully completed several therapy programs and otherwise complied with the terms of the agreement. On June 22, 1981, the prosecutor notified appellant that because of noncompliance with the agreement, prosecution was being recommenced.

A complete evidentiary hearing on appellant's motion to set aside the diversion termination was held, with witnesses including appellant, fully examined. Appellant's motion was denied, the trial court finding from the evidence that there were reasonable grounds for the prosecutor's action. The record, however, contains no formal factual findings or statement of the evidentiary grounds for the decision.

A jury trial was subsequently held and appellant was found guilty of the assault charge. The appeal to the Court of Appeals, Division One, was certified to this court.

I

Appellant's due process contention necessitates inquiry into the proper role of the court in terminating pretrial diversion arrangements between prosecutors and defendants entered into after formal charges have been instituted against an accused. It requires reconciliation of a conflict between prosecutorial discretion and judicial control of the criminal justice system.

Prosecutorial discretion in the charging process has historically provided a basis for informal diversion from the criminal justice system. See generally, National College of District Attorneys, Discretionary Authority of the Prosecutor, 48-60 (J. Douglass ed. 1977). Diversion that results from a prosecutor's discretion to refuse to file charges seems relatively immune from judicial review. A. Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea 9-24 (1981); F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime, 154-172 (1970). Recently, however, post-charging discretion to dismiss charges or suspend prosecution to allow alternative rehabilitation has been receiving closer scrutiny by the courts. See, e.g., State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977); Gifford,Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U.Ill.L.Rev. 37. Increasingly, state legislatures are imposing statutory requirements for pretrial diversion programs. Comment, An Analysis of State Pretrial Diversion Statutes, 15 Colum.J.L. & Soc.Probs. 1 (1979).

Washington is among those states which have enacted statutes dealing with pretrial diversion or deferred prosecution programs. See RCW 9.95A; RCW 10.05. RCW 9.95A.030(4) defines deferred prosecution as

a special supervision program, for an individual, ordered for a specified period of time by the court prior to a guilty plea to, or a trial on, a felony charge, pursuant to either:

(a) A written agreement of the prosecuting attorney, defendant, and defense counsel, with concurrence by the court...

* * *

... if the defendant does not meet any of the conditions of the program at any time prior to completion of the specified period, the court may enter an order rescinding the deferred prosecution program and authorizing the prosecution to proceed.

Appellant contends that this statute vests discretion to terminate diversion agreements in the judiciary. He cites our recent decision in State ex rel. Schillberg v. Cascade Dist. Court, 94 Wash.2d 772, 621 P.2d 115 (1980), as supporting this view. There we found that the Legislature intended deferred prosecution programs to be sentencing alternatives to the traditional criminal justice system. Although Schillberg involved interpretation of RCW 10.05, it embraced the theory that deferred prosecution entails more than the charging function and does not fall solely within prosecutorial discretion. Thus, appellant argues, the termination decision is wholly an act of judicial discretion.

In opposing appellant's contention, the State urges us to find that the statute has no application because the agreement at issue was apparently not entered into pursuant to statute. ¹ The arguments the parties advanced before us, however, are not dependent on interpretation of either the statute or the instant diversion agreement.

A

The parties proceeded on the assumption that due process requires a hearing before a diversion agreement can be terminated. In fact, a hearing was held in this case with full opportunity for presentation of witnesses and cross-examination. The State does not challenge the need for this hearing or the power of the trial court to review the termination. Instead, the dispute concerns the appropriate role of the trial court at the hearing. Appellant urges us to find that because important liberty interests are at stake under such agreements, only an exercise of judicial discretion may terminate an accused's rights under the agreement. The State counters that due process is satisfied if the court merely reviews the prosecutor's discretionary decision for reasonableness.

Appellant relies primarily on State v. Lawrence, 28 Wash.App. 435, 624 P.2d 201 (1981), a probation revocation case. He asserts that the function of the trial court is to determine (1) whether the diversion agreement has been violated and (2) whether such violation warrants termination of the program and commencement of prosecution.

Lawrence holds that in probation revocation, a defendant must have the opportunity to be heard by, and present evidence to, a neutral fact finder. The court, as fact finder must determine whether the terms of probation have been violated. Lawrence, at 438, 624 P.2d 201. The rationale for this requirement is that deprivation of defendant's liberty cannot comport with due process unless based on verified facts. Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), applies Morrissey to probation revocation. Together, these cases require the fact finder to make a statement of the evidence relied on and reasons for revoking probation. Lawrence, 28 Wash.App. at 438, 624 P.2d 201. The statement facilitates appellate review and assures that the exercise of discretion involved in probation revocation is based on accurate knowledge.

Furthermore, in the case of probation revocation, the court must also determine the ultimate disposition, as part of its sentencing responsibility over probationers. The dispositional phase includes deciding whether the facts warrant revocation and reimposition of sentence. Lawrence, at 438, 624 P.2d 201.

Two factors distinguish probation revocation from pretrial diversion termination. First, the court has direct supervisory powers over a convicted person's probation, including its conditions and length. It follows, therefore, that the court must have primary control over reimposition of sentence. See United States v. Hicks, 693 F.2d 32, 34-35 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983). But under a diversion arrangement, the prosecutor establishes the conditions and supervises the program. The court's role is less direct, consisting primarily of assuring procedural regularity throughout the criminal justice process. Second, the consequences of probation revocation are more serious to a defendant than termination of deferred prosecution to an accused. Following diversion termination, the accused still has the opportunity to clear him or herself of the charges at trial.

Appellant also relies on cases involving plea bargain agreements, in which the trial court determines, as a question of fact, whether the accused has violated the terms of the bargain. In re James, 96 Wash.2d 847, 640 P.2d 18 (1982). In such cases, the burden is on the State to prove noncompliance with the agreement by a preponderance of the evidence. These cases conclude that because important constitutional rights have been waived, the accused is entitled to judicial enforcement of the terms of the agreement. United...