State v. Starrish , 86 Wash. 2d 200 ( 1975 )

Finley, J.

This is an appeal from an order of the Superior Court for King County dismissing a 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 a 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 a 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 own 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 a habitual criminal charge a “criminal prosecution” within the meaning of CrR 8.3 (b) ? (2) May the court dismiss a 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 a 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 Wn.2d 188, 190, 517 P.2d 192 (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 a 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 a 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 Wn.2d 519, 521, 451 P.2d 926 (1969); State v. Bryant, 73 Wn.2d 168, 173, 437 P.2d 398 (1968). In Greene at page 521, the court commented that a habitual criminal proceeding is “a part of the original felony case,” notwithstanding the characterization of this 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 Wn. App. 942, 944, 521 P.2d 57 (1974), referred to this proceeding as a “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 sen-fence 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 Wn.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 a 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 a 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 imderlying assault charge is not authorized by CrR 8.3 (b). We disagree. In State v. Sonneland, 80 Wn.2d 343, 347, 494 P.2d 469 (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 a habitual criminal charge independently of other criminal allegations if done for the purposes within the anibit of the authority vested in the trial court under CrR 8.3 (b).

We now treat the second issue which is whether a 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 a 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 which are protected by the court’s fastidious regard for the administration of justice.

We find that the court’s dismissal of the charge constituted an abuse of discretion because there was no evidence of arbitrary action or governmental misconduct.

The order of the court dismissing the supplemental information should be reversed, and the habitual criminal proceeding should be reinstated.

It is so ordered.

Stafford, C.J., and Hunter, Hamilton, Wright, and Brachtenbach, JJ., concur.

1 RCW 9.95.040(3) provides:

“The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

“(3) For a person convicted of being an habitual criminal within the meaning of the statute which provides for mandatory life imprisonment for such habitual criminals, the duration of confinement shall not be fixed at less than fifteen years. The board shall retain jurisdiction over such convicted person throughout his natural life unless the governor by appropriate executive action orders otherwise.”

2 Among other crimes, the record indicates that Starrish has been convicted in Alaska of petit larceny, grand larceny, and burglary.

3 RCW 9.92.090 provides in part:

“Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life.”

4 State v. Lei, 59 Wn.2d 1, 3, 365 P.2d 609 (1961).

5 State v. Domanski, 5 Wn.2d 686, 106 P.2d 591 (1940); State v. Furth, 5 Wn.2d 1, 19, 104 P.2d 925 (1940).

6 RCW 9.95.040(1) provides:

“The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

“(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.’’

7 State v. Pringle, 83 Wn.2d 188, 191, 517 P.2d 192 (1973).

8 RCW 10.46.010 has been superseded by CrR 3.3.

9 E.g., State v. Sonneland, 80 Wn.2d 343, 494 P.2d 469 (1972) (an amended information charging defendant with a felony after the prosecutor had agreed to charge him with a lesser crime in exchange for information constituted arbitrary action and was properly dismissed); State v. Cory, 62 Wn.2d 371, 382 P.2d 1019, 5 A.L.R.3d 1352 (1963) (information dismissed after the court found that eavesdropping upon an attorney-client conference violated the right to counsel); State v. Satterlee, 58 Wn.2d 92, 94, 361 P.2d 168 (1961) (dismissal of an information charging the defendant again for a crime for which he already had pleaded guilty and had served the maximum sentence was consistent with the court’s “fastidious regard for the honor of the administration of justice”).

10 RCW 72.08.101 provides:

“The director of institutions shall provide for the establishment of programs and procedures for convicted persons at the state penitentiary, which are designed to be corrective, rehabilitative and reformative of the undesirable behavior problems of such persons, as distinguished from programs and procedures essentially penal in nature,”

11 This case illustrates a possible or potential deficiency in the habitual criminal statute, i.e., it does not take into account the individual characteristics or potential of convicted persons relative to possible rehabilitation.

Judge Horowitz reasoned that the public’s need for protection, even absent the habitual criminal charge, would be met because Starrish would be incarcerated as a result of the assault conviction and would be subject to the parole board until 2009, at which time the defendant would be 75 years old. A letter written by Warden B. J. Rhay of the Washington State Penitentiary also weighed heavily in the trial court’s decision to dismiss the charge. Warden Rhay stated that Starrish was “more of [a] habitual drunk than [a] habitual criminal,’’ and that his rehabilitation would depend entirely upon treatment for his alcoholism.

Successful treatment of alcoholic addiction is perhaps somewhat dubious at best, but there are people who respond and who are capable of rehabilitation. It seems obvious that both the warden and the trial judge were of the opinion that Starrish would respond affirmatively to treatment. Based upon this assumption the trial judge ordered the dismissal of the charge, rather than have it preclude possible treatment and rehabilitation.

The problem presented to the trial judge and this court cannot be resolved under CrR 8.3(b) and the rule making power of this court. Any solution of the problem is a matter of substantive law, and can only be addressed, considered, and possibly resolved by legislative action.