State v. Starrish

Decision Date11 December 1975
Docket NumberNo. 43505,43505
Citation544 P.2d 1,86 Wn.2d 200
PartiesThe STATE of Washington, Appellant, v. Herbert Clinton STARRISH, Respondent.
CourtWashington Supreme Court

Christopher T. Bayley, Pros. Atty., King County, Daniel Boerner, Philip Yarnell Killien, Deputy Pros. Attys., Seattle, for appellant.

Carl T. Hultman, John Henry Browne, Seattle, for respondent.

FINLEY, Associate Justice.

This is an appeal from an order of the Superior Court of King County dismissing an habitual criminal charge based upon CrR 8.3(b).

On August 8, 1974, the defendant, Starrish, entered a plea of guilty to second degree assault while armed with a deadly weapon--a knife. The plaintiff, the State of Washington, filed a supplemental information charging Starrish with having attained the status of an habitual criminal. Starrish filed a motion to dismiss the supplemental information based upon CrR 8.3(b), alleging that this would be in the 'interests of justice.' The court granted the motion and entered an order dismissing the supplemental information, concluding that the interests of justice and the protection of the public would be served best if the court's discretion in sentencing and the Parole Board's discretion in fixing the term of imprisonment were not restricted by an habitual criminal conviction, which would require imposition of a mandatory minimum sentence. 1

Prior to having entered a plea of guilty to second degree assault in the instant case (which is equivalent to a conviction), Starrish had been convicted in the State of Washington of (1) second degree burglary in 1956, (2) robbery in 1959, and (3) robbery in 1969. 2 The sentencing proceedings were stayed pending the resolution of this appeal.

CrR 8.3(b) provides:

The court on its motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order.

Two basic issues are raised by this appeal: (1) Is an habitual criminal charge a 'criminal prosecution' within the meaning of CrR 8.3(b)? (2) May the court dismiss an habitual criminal charge on equitable grounds absent a showing of arbitrary action or governmental misconduct? The answer to the first issue is yes, and no to the second issue.

With respect to the first issue, the State contends that an habitual criminal proceeding is not a criminal prosecution because all that remains before sentencing is the factual determination that Starrish has committed the requisite number of crimes. To support this proposition the State quotes from State v. Pringle, 83 Wash.2d 188, 190, 517 P.2d 192, 194 (1973), where the court stated with reference to RCW 10.46.090, the predecessor to CrR 8.3(b):

This statute, however, relates to the dismissal of a 'criminal prosecution' and in no way authorizes a sentencing judge to modify a criminal information after the conclusion of the prosecution and after a valid plea of guilty has been entered.

From this the State reasons that an habitual criminal charge involves or creates a status and does not constitute a new crime or a criminal prosecution. As indicated above, we disagree and hold that an habitual criminal charge does constitute a 'criminal prosecution' as that term is used in CrR 8.3(b).

This court previously has held that RCW 9.92.090, 3 which provides for the habitual criminal proceeding, does not create a new crime but prescribes increased punishment for recidivists. State v. Greene, 75 Wash.2d 519, 521, 451 P.2d 926 (1969); State v. Bryant, 73 Wash.2d 168, 173, 437 P.2d 393 (1968). In Greene at 521, 451 P.2d at 928, the court commented that an habitual criminal proceedings is 'a part of the original felony case,' notwithstanding the characterization of his proceeding in State v. Kelch, 114 Wash. 601, 605, 195 P. 1023, (1921). It is not argued that the underlying felony in this case, second degree assault, does not involve a criminal prosecution. Although the habitual criminal proceeding does not create or involve a distinct substantive offense, 4 it amplifies or enhances the criminal prosecution, I.e., penalization, arising out of the underlying felony. It is innately a special type of 'criminal prosecution.' It is commenced by the filing of a supplemental information; and the accused has a right to trial by jury to determine whether there were previous convictions and whether the accused was the subject of those convictions. 5 Ultimately, the proceeding may result in increased incarceration. In fact, the Court of Appeals in State v. Alexander, 10 Wash.App. 942, 944, 521 P.2d 57 (1974), referred to this proceeding as an 'habitual criminal prosecution.'

State v. Pringle, supra, is distinguishable. Therein the defendant entered a plea of guilty to robbery while armed with a deadly weapon which would result in a mandatory minimum sentence. At the sentencing hearing the judge, after being informed that the defendant had no prior felonies and had committed only two rather innocuous misdemeanors, decided to delete the deadly weapon language in the finding portion of the judgment and sentence, thus obviating the need to impose the mandatory minimum sentence provided by RCW 9.95.040(1). 6 In Pringle the State argued and we agreed that the sentencing judge acted without authority under RCW 10.46.090 in deleting the deadly weapon language. The court reasoned that the judge had acted without jurisdiction in relying on the statute as the source of authority to strike the language 'where the prosecution had been terminated, and a voluntary plea of guilty had been entered by the defendant.' 7 In the instant case the criminal prosecution has not ended. The defendant has a right to a trial by jury on the charge in the supplemental information filed by the prosecutor. The prosecution of the charge will continue until the jury has reached its verdict, at which time nothing remains to be done but the imposition of sentence.

The State further relies on State v. Persinger, 62 Wash.2d 362, 382 P.2d 497 (1963). In Persinger we reasoned that RCW 10.46.010, which provided for a right to speedy trial, 8 was designed to protect persons charged with Crimes and did not apply to an habitual criminal proceeding because such a proceeding is not a crime. Persinger does not conflict with the conclusion we reach in the instant case. The supplemental information is not filed to prosecute a distinct crime; it is simply a supplemental proceeding initiated as a result of the original felony. Even though the right to speedy trial is not applicable to an habitual criminal charge, the proceeding remains a 'criminal prosecution' as that term is used in CrR 8.3(b).

The State finally contends that dismissal of the habitual criminal allegation separately and apart from the underlying assault charge is not authorized by CrR 8.3(b). We disagree. In State v. Sonneland, 80 Wash.2d 343, 347, 494 P.2d 469, 471 (1972), the court emphasized that RCW 10.46.090 is designed to 'protect accused persons from arbitrary . . . actions of some prosecutors.' To adopt the State's argument would be to defeat the very purpose for which the rule exists and would inappropriately restrict the function of CrR 8.3(b). Accordingly, the court does have the authority to dismiss an habitual criminal charge independently of other criminal allegations If done for the purposes within the ambit of the authority vested in the trial court Under CrR 8.3(b).

We now treat the second issue which is whether an habitual criminal charge may be dismissed on equitable grounds absent a showing of arbitrary action or governmental misconduct. The State's basic position is that CrR 8.3(b) is designed to protect against arbitrary action or governmental misconduct and not to grant courts the authority to substitute their judgment for that of the prosecutor. We agree.

Starrish contends that since this issue was not raised at the trial level, it may not be considered on appeal. This argument lacks merit as the record is replete with argument presented to the trial judge indicating that he did not have the authority under the rule to dismiss the charge Absent a showing of arbitrary action or governmental misconduct.

Starrish claims that since the court's written reasons for dismissal were supported by substantial evidence, the court is precluded from overturning the factual findings on appeal. The issue is not one of fact, but involves a conclusion of law. The trial court erred as a matter of law in its conclusion that the habitual criminal charge should be dismissed. There is no evidence in the record of governmental misconduct or arbitrary action of the type historically regarded by this court as sufficient to support a dismissal of a criminal charge. 9 Our case law clearly requires a showing of governmental misconduct or arbitrary action by the trial judge or prosecutor in order to dismiss an habitual criminal charge under CrR 8.3(b). Starrish's arguments to the contrary are without merit.

Starrish finally argues that even if a showing of misconduct is required this prerequisite was met because of the failure of the Department of Social and Health Services to treat his alcoholic problem while he was subject to its control as required by RCW 72.08.101. 10 This statute requires the director of institutions to establish programs for convicted persons to correct or rehabilitate 'undesirable behavior problems.' The failure of the director of institutions to establish programs to correct Starrish's penchant to consume alcohol does not constitute the type of governmental misconduct sufficient to bring into play the authority to dismiss criminal charges under the provisions of CrR 8.3(b). This provision requires the exercise of judicial discretion limited as indicated herein, relative to the dismissal of criminal charges. 11 It operates on the periphery between the expectations of the public relative to the protection of its interests and certain individual rights...

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