State v. Tracer
| Decision Date | 16 February 2012 |
| Docket Number | No. 84452–6.,84452–6. |
| Citation | 272 P.3d 199,173 Wash.2d 708 |
| Parties | STATE of Washington, Respondent, v. Richard Charles TRACER, Petitioner. |
| Court | Washington Supreme Court |
OPINION TEXT STARTS HERE
Thomas E. Weaver, Jr., Attorney at Law, Bremerton, WA, for Petitioner.
Pamela Beth Loginsky, WAPA, Olympia, WA, for Respondent.
Noah Harrison, Harrison Law Inc., PS, Port Townsend, WA, amicus counsel for Noah Harrison, Real Party in Interest.FAIRHURST, J.
[173 Wash.2d 712] ¶ 1 This case requires us to resolve four issues that arose after a special deputy prosecuting attorney failed to attend a pretrial hearing and a superior court judge appointed a local defense attorney to take her place. The State appealed the resulting judgment and sentence and the trial court's refusal to vacate its appointment. Division Two of the Court of Appeals found the appointment improper and vacated the defendant's guilty plea. We now affirm in part and reverse in part and remand for further proceedings.
¶ 2 On May 25, 2007, Richard Charles Tracer was driving a car while intoxicated. Tracer got into an accident and another person was injured. 1 Tracer was arrested and charged with vehicular assault. He spent the next five days in jail.
¶ 3 Tracer is the son of a Jefferson County sheriff's office employee, and the sheriff's office has a close working relationship with the prosecuting attorney's office. To avoid the appearance of impropriety, elected Jefferson County Prosecuting Attorney Juelanne Dalzell appointed Andrea Vingo as special deputy prosecuting attorney to handle Tracer's case.
¶ 4 During the next 11 months, Tracer was scheduled for nine pretrial hearings. The record does not fully document Vingo's attendance at these hearings, but it appears to have been sporadic.2 On May 8, 2008, Vingo and Tracer reached some sort of agreement to amend Tracer's charge to driving while under the influence (DUI), but the finality of the agreement is in dispute. Vingo says she had “no problem with such an amendment in principle, but that there were formalities to be observed.” Clerk's Papers (CP) at 134. Tracer's counsel asserts that the agreement was “a firm deal.” CP at 145.
¶ 5 Tracer appeared for a pretrial hearing on May 9, 2008, but Vingo again failed to appear.3 Ted DeBray, a Jefferson County deputy prosecuting attorney present in the court on another matter, asked the court to continue Tracer's hearing for another week. In response, Tracer's counsel informed the court that an agreement had been reached to amend Tracer's charge to DUI. Counsel also informed the court that time was of the essence because Tracer had received a job offer contingent on the resolution of his case.
¶ 6 Presiding Judge Craddock Verser agreed that Tracer's case should be resolved. After DeBray declined to substitute for Vingo because of the appearance of impropriety, Judge Verser verbally contemplated appointing Noah Harrison, a local defense attorney present in court for an unrelated matter, as special deputy prosecuting attorney to represent the State. Harrison responded, “It's a conflict.” CP at 90. Tracer's counsel attempted to reach Vingo by phone, but there was no answer. Judge Verser appointed Harrison as a special deputy prosecuting attorney. The court recessed for Harrison to review Tracer's case file.
¶ 7 Approximately two-and-one-half hours later, Harrison informed the court that changing Tracer's plea to DUI appeared to be appropriate. Judge Verser accepted Harrison's oral motion to amend the charge from vehicular assault to DUI and accepted Tracer's guilty plea. CP at 96. Judge Verser sentenced Tracer to 365 days in jail, 360 days suspended, with credit for 5 days of time served. Tracer was also assessed with fines and costs of roughly $3,800. Harrison did not request, and the court did not impose, restitution or crime victim compensation as required by law.
¶ 8 Upon learning of Tracer's plea agreement, Dalzell filed a motion for reconsideration and a motion to vacate the judgment and sentence. The superior court denied the State's motions, and the State timely appealed.
¶ 9 Division Two of the Court of Appeals reversed and remanded on several grounds. Among other things, the Court of Appeals held that (1) the State was permitted to appeal; (2) the trial court was authorized to appoint a special prosecuting attorney, but Harrison was not qualified to serve in that position because of a conflict of interest; (3) Harrison did not act as a de facto public official; and (4) remand for a trial on Tracer's original assault charge would not violate the double jeopardy clause. State v. Tracer, 155 Wash.App. 171, 176, 229 P.3d 847 (2010). We granted Tracer's petition for review. State v. Tracer, 169 Wash.2d 1010, 236 P.3d 205 (2010). We affirm the Court of Appeals on these issues, and we remand for further proceedings in the superior court. We reverse the Court of Appeals' holding that the case must be remanded to a different trial judge.
¶ 10 A. Whether RAP 2.2(b)(1) permits the State's appeal of Tracer's judgment and sentence.
¶ 11 B. Whether RCW 36.27.030 authorizes a trial court to appoint a special deputy prosecuting attorney, and whether Harrison was qualified to serve as a special deputy prosecuting attorney.
¶ 12 C. Whether the de facto public official doctrine bars the State's challenge to Harrison's acts as special deputy prosecuting attorney.
[173 Wash.2d 715] ¶ 13 D. Whether remand of Tracer's case violates the double jeopardy clause.
¶ 14 The first issue is a threshold matter as to whether the State may appeal in this case. As long as a defendant's double jeopardy rights are not violated,4 the State may appeal “[a] decision that in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty.” RAP 2.2(b)(1).
¶ 15 Tracer asserts that his judgment and sentence is not appealable because the superior court did not discontinue his case but only discontinued prosecution of the vehicular assault charge. According to Tracer, because the actual cause number of the case continued, the plain text of RAP 2.2(b)(1) precludes the State's appeal.
¶ 16 But Tracer's attempt to distinguish between the discontinuation of a case and the discontinuation of a charge is unsupported by the plain text of the rule. RAP 2.2(b)(1) broadly permits the State to appeal superior court decisions resolving the disposition of a case and only bars the State from appealing a “judgment or verdict of not guilty.” That is not the situation here. As the Court of Appeals correctly held, “The trial court's actions discontinued prosecution of the vehicular assault charge and determined the resolution of that charge by a means other than a judgment or verdict of not guilty.” Tracer, 155 Wash.App. at 181, 229 P.3d 847. We therefore affirm the Court of Appeals on this issue and hold that RAP 2.2(b)(1) does not preclude the State's appeal of Tracer's judgment and sentence.
¶ 17 Two separate but related questions arise from the superior court's appointment of Harrison as substitute special deputy prosecuting attorney. The first question is whether the superior court was authorized to appoint a special deputy prosecuting attorney to serve in Vingo's place, and the second is whether the court's appointment of Harrison was proper under the circumstances of this case. We address these questions in turn.
¶ 18 A prosecuting attorney is a public official appointed or elected to represent the State in actions and proceedings before the courts. See generally RCW 36.16.030. A prosecuting attorney has a duty to appear for and represent his or her jurisdiction in criminal and civil proceedings in which the jurisdiction is a party. See RCW 36.27.020(3). When a prosecuting attorney is unable to perform his or her official duties, a court is empowered to appoint a replacement prosecuting attorney under RCW 36.27.030.
¶ 19 RCW 36.27.030 states, “When from illness or other cause the prosecuting attorney is temporarily unable to perform his or her duties, the court or judge may appoint some qualified person to discharge the duties of such officer in court until the disability is removed.” RCW 36.27.030 further states, “When any prosecuting attorney fails, from sickness or other cause, to attend a session of the superior court of his or her county, or is unable to perform his or her duties at such session, the court or judge may appoint some qualified person to discharge the duties of such session.” 5
[173 Wash.2d 717] ¶ 20 Because RCW 36.27.030 uses the term “ the prosecuting attorney” in its opening paragraph, the State argues that the plain text of RCW 36.27.030 does not authorize the superior court to appoint a replacement for a special deputy prosecuting attorney, but only for the elected prosecuting attorney. (Emphasis added.) The State notes that several other statutes within chapter 36.27 RCW address the duties and functions of “deputy prosecuting attorneys” and “special deputy prosecuting attorneys.” 6 Because RCW 36.27.030 does not use these more specific terms, the State concludes that the statute cannot be fairly read to allow appointment to replace all prosecuting attorneys.7
¶ 21 The State's argument fails because it ignores other, dispositive language within the statute. RCW 36.27.030 contains two paragraphs. The first paragraph permits the replacement of “ the prosecuting attorney” when he or she cannot discharge the duties of the office, and the second paragraph permits the replacement of “ any prosecuting attorney” when such attorney cannot discharge his or her official duties. RCW 36.27.030 (emphasis added). As pertaining to the...
To continue reading
Request your trial
-
Lee v. Jasman
...to a public office is a de facto officer.... As such his official acts are not subject to collateral attack.’ ” State v. Tracer, 173 Wash.2d 708, 721, 272 P.3d 199 (2012) (quoting State v. Carroll, 81 Wash.2d 95, 108, 500 P.2d 115 (1972)). The rule assumes that the officer was duly appointe......
-
Durland v. San Juan Cnty.
...that the legislature intends different terms used within an individual statute to have different meanings.” State v. Tracer, 173 Wash.2d 708, 718, 272 P.3d 199 (2012).C. Heinmiller is a substantially prevailing party ¶ 45 Here, we grant fees to Heinmiller under RCW 4.84.370(1) because he su......
-
State v. Nickels
...the public’s confidence in the impartial administration of justice and the appearance of a just proceeding. See State v. Tracer, 173 Wash.2d 708, 720, 272 P.3d 199 (2012). The State argues that office-wide disqualification inflicts a distinct harm by depriving the citizenry of its chosen re......
-
Cannabis Action Coal. v. City of Kent
...the language of a statute differs, we presume the difference is intentional and give the difference effect. State v. Tracer, 173 Wash.2d 708, 718, 272 P.3d 199 (2012). Accordingly, the statute's first sentence is not limited to zoning requirements over only licensed producers.3 ¶ 19 The sta......
-
§ 4.3 Superior Court Decisions that May Be Appealed
...Appeals held that the state may not appeal an order granting a defendant's motion for severance. In State v. Tracer, 173 Wn.2d 708, 715, 272 P.3d 199 (2012), the Supreme Court held that the state could appeal a judgment and sentence entered on a guilty plea by the son of a sheriff's deputy.......
-
Table of Cases
...63, 143 P. 165 (1916): 4.8 State v. Sturtevant, 76 Wash. 158, 135 P. 1035 (1913): 4.16(2)(a), 4.24(3) State v. Tracer, 173 Wn.2d 708, 272 P.3d 199 (2012): 17.3(1)(c)(i) State v. Waymire, 26 Wn. App. 669, 614 P.2d 214 (1980): 18.2(4) State ex rel. Carpenter v. City of Everett Bd. of Adjust.,......
-
Table of Cases
...Wn.2d 838, 15 P.3d 145 (2001): 12.8(7) State v. Tracer, 155 Wn. App. 171, 229 P.3d 847 (2010): 4.3(14)(a) State v. Tracer, 173 Wn.2d 708, 272 P.3d 199 (2012): 4.3(14)(a) State v. Trader, 54 Wn. App. 479, 774 P.2d 522, review denied, 113 Wn.2d 1027 (1989): 11.7(9)(b) State v. Traicoff, 93 Wn......
-
§ 17.3 - Conflicts of Interest in Real Estate Transactions
...and applying it to facts clearly involving direct conflicts of interest between existing clients. In State v. Tracer, 173 Wn.2d 708, 272 P.3d 199 (2012), the court held an attorney appointed by the court to serve as a special deputy prosecutor was not qualified to serve due to a conflict of......