State v. Parra

• Decision Date: 21 October 1993
• Docket Number: No. 59909-2,59909-2
• Citation: 859 P.2d 1231,122 Wn.2d 590
• Parties: STATE of Washington, Petitioner, v. Frederick PARRA, Respondent. En Banc
• Court: Washington Supreme Court

Page 590

122 Wn.2d 590

859 P.2d 1231

STATE of Washington, Petitioner, v. Frederick PARRA, Respondent.

No. 59909-2.

Supreme Court of Washington,

En Banc.

Oct. 21, 1993.

Reconsideration Denied Dec. 22, 1993.

David S. McEachran, Whatcom County Prosecutor and Mr. David M. Grant, Deputy County Prosecutor, Bellingham, for petitioner.

Frederick Parra, pro se and Washington Appellate Defender Ass'n, Helen A. Anderson and Constance Marie Krontz, Seattle, for respondent.

MADSEN, Justice.

We granted review of an unpublished Court of Appeals decision reversing defendant Frederick Parra's conviction for third degree rape of a child. We reverse and hold that the trial court correctly denied the affidavit of prejudice in this case since it was filed after the judge had exercised his discretion within the meaning of RCW 4.12.050.

Facts

On April 29, 1991, Parra was charged with having sexual intercourse with a 14-year-old girl. On May 16, 1991, the parties appeared before Superior Court Judge Byron Swedberg and presented an "Omnibus Application and Order". The document was a 5-page, preprinted form which listed 23 potential defense motions and 20 potential state motions. These options were presented in a check-off box format. The parties noted "yes" or "no" next to each motion listed, indicating whether the motion was being pursued. The form was then presented to the court. Neither the State, nor Parra, objected to any of the other parties' motions. After reviewing the omnibus order, Judge Swedberg said: "Very well. Your respective motions will be granted." A similar notation was made on the order. Report of Proceedings, at 3.

After Judge Swedberg had signed the omnibus order, Parra requested release on his own personal recognizance. At the time, Parra was serving his sentence on a prior conviction and was already scheduled for release on June 24, 1991. The State was not prepared to argue the motion and Judge Swedberg scheduled a hearing for Parra's request for May 23, 1991. The court then set Parra's trial for June 20, 1991, in Department One; Judge Swedberg sits in Department Two. On May 21, 1991, Judge Charles Snyder signed the written order designating the trial date.

On May 23, 1991, Judge Swedberg denied Parra's motion for release. The following discourse ensued:

THE COURT: In trying to make some sense out of the criminal record that was handed up, I tried to find what the chronology was. The first page has two arrests in 1986, three in 1988, it continues on to the second page with three more in 1988, one in 1990 and I don't know what it says beyond that. Seven in a year is more than bimonthly.

The bail that's set is $5,000, ... which seems to me to be a reasonable amount particularly in view of the circumstance that Mr. Parra is finishing whatever sentence he has. When is he scheduled to be released?

THE DEFENDANT: On June 24th.

THE COURT: This trial will occur before you're released anyway, Mr. Parra. The motion for release will be denied.

Report of Proceedings (Feb. 19, 1993), at 6.

On June 19, 1991, the State moved to continue the trial date. At that hearing Judge Moynihan granted the motion to continue the trial date and released Parra on his own recognizance under certain conditions.

On June 26, 1991, Judge Snyder set Parra's trial for July 22, 1991. The order did not specify which judge would hear the trial. Parra signed a speedy trial waiver on July 16, 1991, which extended his trial date to October 1, 1991.

About 45 minutes before trial on the morning of October 1, 1991, Parra learned that Judge Swedberg would preside at his trial. Parra immediately filed a written affidavit of prejudice. Parra alleged that Judge Swedberg was prejudiced because he had previously denied Parra's motion for release. Judge Swedberg recalled the denial, which he deemed a discretionary decision:

I also indicated that I had denied a release for personal recognizance which I viewed as being an exercise of discretion and an affidavit of prejudice thereafter not being timely.... [I] was less interested at this point as to timeliness and more interested in the impact on the trial calendar....

Report of Proceedings (Feb. 3, 1992), at 2.

The judge denied the affidavit of prejudice as untimely due to the prior discretionary ruling in denying Parra's motion for release and stated further:

THE COURT: I don't remember either the case or Mr. Parra. And my purpose in making those comments is simply to indicate that I recognize that Mr. Parra has a right to file an affidavit of prejudice ... I really don't remember him and don't feel any personal animosity nor do I have any negative feelings toward him so I'm not going to recuse myself as a discretionary matter.

Report of Proceedings, at 8.

A jury convicted Parra on October 3, 1991, as charged, and the court sentenced him to 5 years in prison. The Court of Appeals reversed and remanded holding that Parra's affidavit of prejudice should have been honored because no disqualifying prior discretionary ruling was made. The Court of Appeals ruled that the denial of personal recognizance release was nondiscretionary and akin to the fixing of bail. The court also held that, although the trial judge had granted motions made in the case at an earlier omnibus hearing, the motions were in the nature of stipulations and therefore the judge did not exercise his discretion within the meaning of RCW 4.12.050.

This court accepted review 120 Wash.2d 1024, 847 P.2d 480, to determine whether there is a time limit on filing affidavits of prejudice and whether or not Judge Swedberg exercised discretion within the meaning of RCW 4.12.050 when he ruled on the motions raised in this form omnibus application and order.

The State does not dispute whether the denial of Parra's release motion constituted a discretionary act under RCW 4.12.050.050. That issue, therefore, is not before us.

Analysis

The State argues that the defendant's affidavit of prejudice was untimely because it was filed only 45 minutes before trial. In addition, the State argues that the omnibus application and order is inherently discretionary and that it precluded any subsequent affidavits of prejudice. Parra asserts that under RCW 4.12.040 and RCW 4.12.050, an affidavit is timely so long as it is filed before a discretionary ruling is made, regardless of the proximity to the trial date. Parra also contends that by signing an Omnibus Application and Order, a judge does not exercise discretion such as to preclude a subsequent affidavit of prejudice.

We hold that an affidavit of prejudice is timely so long as it is filed before a discretionary ruling, regardless of the proximity to the time of trial. We reverse, however, because we find that the trial court's rulings on the omnibus order in this case did constitute a discretionary act. While neither party objected to the granting of the other's motions, we do not agree with the Court of Appeals that the parties were presenting a stipulated order for the judge's signature. Rather, by bringing their respective issues before the judge in the form of motions, the parties were submitting those matters to the court for resolution.

Timeliness: Proximity to Trial

RCW 4.12.040 sets forth a mandatory nondiscretionary rule granting parties the right to a change of judge upon the timely filing of an affidavit of prejudice. RCW 4.12.050 provides that an affidavit is timely so long as it is "filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, ... and before the judge presiding has made any order or ruling involving discretion ...".

The State argues that Parra's affidavit was not timely because it was filed so near the time of trial. The State cites State v. Hansen, 42 Wash.App. 755, 714 P.2d 309, aff'd, 107 Wash.2d 331, 728 P.2d 593 (1986), for this proposition. The State's reliance on Hansen is misplaced.

In Hansen, the defendant filed an affidavit of prejudice minutes before jury selection was scheduled to begin. Defense counsel admitted that its sole purpose in filing an affidavit was to obtain a continuance in order to gain "ample opportunity to prepare briefs" and to "drop back and have an omnibus" hearing which had been missed. Hansen, 107 Wash.2d at 333, 728 P.2d 593. The trial judge offered to change places with another judge to accommodate the defendant's affidavit, but the defendant refused. The judge then denied the affidavit.

The Court of Appeals held that RCW 4.12.050 is a mandatory nondiscretionary statute that must be honored "unless [it] would lead to an absurd result." Hansen, 42 Wash.App. at 758, 714 P.2d 309 (citing Marine Power & Equip. Co. v. Department of Transp., 102 Wash.2d 457, 465, 687 P.2d 202 (1984)). The Court of Appeals agreed, however, with the trial court and denied the defendant's affidavit as untimely because using an affidavit of prejudice to obtain a continuance would result in a "flagrant abuse of legislative intent." Hansen, 42 Wash.App. at 760, 714 P.2d 309.

This court accepted review of Hansen and chose not to reach the "abuse of legislative intent" issue. This court emphasized the fact that Washington courts had long stressed the mandatory, nondiscretionary nature of affidavits of prejudice. Hansen, 107 Wash.2d at 333, 728 P.2d 593. It noted that "absent a showing of extraordinary circumstances" a party meeting the requirements of RCW 4.12.050 is entitled to a change of judge. Hansen, 107 Wash.2d at 333, 728 P.2d 593 (citing Marine Power, 102 Wash.2d at 465, 687 P.2d 202). The court specifically declined to address the question of whether the results of the case were extraordinary enough to justify departure from the statute. Instead, the court held that the "petitioner waived his right to a change of judge when he rejected Judge Buckley's offer to trade places with Judge Kristianson." Hansen, 107 Wash.2d at 334, 728 P.2d 593.

Hansen is distinguishable from the instant case on...