State v. Tarabochia, 72918-2.

• Decision Date: 21 August 2003
• Docket Number: No. 72918-2.,72918-2.
• Citation: 74 P.3d 642,150 Wash.2d 59
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. David D. TARABOCHIA, Petitioner.

74 P.3d 642

150 Wash.2d 59

STATE of Washington, Respondent, v. David D. TARABOCHIA, Petitioner.

No. 72918-2.

Supreme Court of Washington, En Banc.

Argued June 24, 2003.

Decided August 21, 2003.

Law Offices of Monte E. Hester, Wayne Fricke, Tacoma, for Petitioner.

Fred A. Johnson, Wahkiakum County Prosecutor, Cathlamet, for Respondent.

BRIDGE, J.

In one-judge Wahkiakum County, David Tarabochia pleaded guilty to two counts of first degree child molestation, one count of second degree child molestation, and one count of sexual exploitation of a minor. Division Two of the Court of Appeals affirmed his convictions finding that the trial court did not err by rejecting Tarabochia's affidavit of prejudice and that Tarabochia did not receive ineffective assistance of counsel. We affirm.

I

On May 31, 2000, the State filed an information charging Tarabochia with child molestation and child exploitation.¹ Tarabochia was summoned to appear before the Wahkiakum County Superior Court on June 5, 2000. He did not appear, but on request of his counsel, John Hays, the trial court continued the arraignment to June 12, 2000.

Tarabochia appeared in court with his attorney on June 12, 2000, and entered pleas of not guilty to each of the six counts.² The court set conditions of release, which included the requirement that Tarabochia post bond in the amount of $100,000. Because of the requirement of posting bond, Hays returned Tarabochia's retainer.³ The trial court then appointed Hays as Tarabochia's public counsel and Hays accepted. The court proceeded to set July 17, 2000 as the omnibus hearing date and August 16, 2000 as the trial date. Tarabochia agreed to waive his right to a speedy trial.

Five weeks later, on July 19, 2000, Tarabochia filed an affidavit of prejudice against the trial judge, the Honorable Joel Penoyer. The State responded with a motion to strike the affidavit as untimely, asserting that since Wahkiakum County has only one superior court judge, the filing of an affidavit of prejudice must take place on the date that the case is called to be set for trial.⁴ At the hearing on the motion to strike, Tarabochia argued that while he had limited personal knowledge of the court system and the trial judge, some time after the June 12 hearing, his family told him that he would be unable to receive a fair trial in front of Judge Penoyer. The trial court rejected Tarabochia's affidavit of prejudice as untimely, stating that the trial date was set on the morning of June 12 and that Tarabochia had the rest of the day to file an affidavit of prejudice.⁵

Tarabochia next appeared before the court on October 9, 2000.⁶ At this hearing, Tarabochia pleaded guilty to an amended information charging him with two counts of first degree child molestation, one count of second degree child molestation, and one count of sexual exploitation of a minor. Also at this hearing, Tarabochia requested a 30-day continuance so that he could complete a psychosexual evaluation prior to sentencing and continue to work as a commercial fisherman until the season ended. The court agreed not to sign the plea papers until October 16, 2000, allowed Tarabochia one-week to report for confinement, and granted Tarabochia work release, over the State's objection.⁷

At Tarabochia's sentencing on December 4, 2000, the victim testified and asked the court to impose a Special Sexual Offender Sentencing Alternative (SSOSA), since the victim felt her father would benefit from treatment rather than incarceration. The State sought a sentence of 144 months, which is at the higher end of the standard sentencing range. The State argued that SSOSA was inappropriate because Tarabochia had failed to follow jail rules and he could not be trusted to follow through with the SSOSA treatment. The trial court imposed a sentence of 126 months of incarceration finding that the SSOSA six-month program was inadequate in the circumstances.

Tarabochia appealed his convictions to Division Two of the Court of Appeals. He argued that the trial court erred by rejecting his affidavit of prejudice and that he received ineffective assistance of counsel. The Court of Appeals affirmed his convictions in an unpublished opinion.⁸ Tarabochia filed a petition for review with this court, which we accepted. State v. Tarabochia, 149 Wash.2d 1001, 70 P.3d 964 (2003).

Affidavit of Prejudice

Standard of Review

The interpretation of a statute is a question of law, which is reviewed de novo by this court. Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wash.2d 637, 645, 62 P.3d 462 (2003). "If the statute's meaning is plain on its face, we must give effect to that plain meaning as an expression of legislative intent." Id. An unambiguous statute should not be subjected to judicial construction. Fraternal Order of Eagles, Tenino Aerie v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 239, 59 P.3d 655 (2002).

Interpretation of RCW 4.12.050

Tarabochia claims that the Court of Appeals erred in affirming the trial court's rejection of his affidavit of prejudice. Under RCW 4.12.040, every party has the right to a change of judge as long as the requirements of RCW 4.12.050 are satisfied. Marine Power & Equip. Co. v. Indus. Indem. Co., 102 Wash.2d 457, 459, 687 P.2d 202 (1984). RCW 4.12.050 provides in pertinent part:

Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: PROVIDED, That such motion and affidavit 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 ... and in any event, in counties where there is but one resident judge, such motion and affidavit shall be filed not later than the day on which the case is called to be set for trial[.]

(Emphasis added.)⁹

The italicized portion of RCW 4.12.050 cited above is known as the one-judge county rule. The purpose of the one-judge county rule is to assure the trial court sufficient time to arrange for a visiting judge while avoiding speedy-trial problems. State v. Cockrell, 102 Wash.2d 561, 566, 689 P.2d 32 (1984); State v. Norman, 24 Wash.App. 811, 813, 603 P.2d 1280 (1979). Underlying this requirement of filing an affidavit of prejudice on or before the date the case is called to be set for trial is the fact that in a one-judge county the defendant is aware of the judge who will hear his case—the only judge in the county. State v. Waters, 93 Wash.App. 969, 974-75, 971 P.2d 538 (1999).

Although it is undisputed that Wahkiakum County is a one-judge county and the statute clearly mandates a timeliness requirement in one-judge counties, Tarabochia argues that the statute should be construed liberally and cites Norman for support. The Court of Appeals found that Norman is inapplicable to Tarabochia's case because it is factually distinct.

In Norman, the issue before the Court of Appeals was whether the trial judge erred in refusing to honor an affidavit of prejudice that was filed in a one-judge county after the date the case was called to be set for trial. The defendant's trial was called for setting the same day he was arraigned and the same day that counsel was appointed for him. Norman, 24 Wash.App. at 812,603 P.2d 1280. The defendant was arraigned by a court commissioner and mistakenly assumed that the commissioner would also preside over his trial. Id. Three weeks later, after discovering his trial would be presided over by the same judge whom he had appeared before in another matter, the defendant filed an affidavit of prejudice. Id. at 812-13, 603 P.2d 1280. The defendant's affidavit was filed two weeks before his trial was to begin. Id. The trial court rejected the affidavit of prejudice as untimely, but the Norman court reversed finding that the purpose of the timeliness requirement in a one-judge county is to "assure the court sufficient time to arrange for a visiting judge to preside over a defendant's trial." Id. at 813, 603 P.2d 1280. That purpose had been served. The Norman court opined that a "careful reading" of RCW 4.12.050 suggests that the legislature did not foresee that a defendant's arraignment and trial setting in a criminal case would occur at the same hearing:

The statute states that the defendant shall file an affidavit of prejudice "before [the judge has] made any ruling whatsoever in the case ...[.]" But the statute further provides that the "arraignment of the accused... shall not be construed as a ruling ... within the meaning of this proviso...[.]" Hence, we conclude that the legislature believed that some time would elapse between the arraignment and the trial setting.

24 Wash.App. at 813, 603 P.2d 1280.¹⁰ Following this interpretation, the Norman court held that the defendant should have been given time to consult with his attorney and therefore be given leeway to file his affidavit of prejudice after the date the case was called to be set for trial.

Arguably, the Norman opinion provides support for the argument that RCW 4.12.050 is not to be applied literally in all instances. Although the defendant in Norman filed his affidavit of prejudice outside the time limit of the trial setting date, the Norman court found that the filing was timely because there was ample time to allow the court to arrange for a visiting judge and the speedy trial right of the defendant had been waived. Id. at 814, 603 P.2d 1280. Norman excuses strict compliance with the statutory provisions if there is enough time to arrange for a new trial judge and the speedy trial rule is not compromised. In such circumstances, according to Norman, an affidavit of prejudice in a one-judge...