State v. Maynard , 183 Wash. 2d 253 ( 2015 )

Owens, J.

¶27 (dissenting) — Eleven months after Christopher Maynard was arrested on suspicion of malicious mischief, the State charged him in juvenile court. Though the stated reason for the delay in bringing charges was to gather more information on the case, the prosecutor relied entirely on the probable cause statement prepared at the time of the arrest when filing charges. Twenty days after he first appeared in juvenile court, Maynard turned 18. No party mentioned his impending birthday to the court, nor did any party move to extend juvenile jurisdiction before he turned 18. As a result, Maynard lost the benefit of having his case adjudicated in juvenile court.³ The majority places full responsibility for the loss of juvenile jurisdiction on Maynard’s defense attorney and fails to acknowledge that the prosecutor’s lengthy and — on this record — unjustified delays significantly contributed to the loss of juvenile jurisdiction. The trial court correctly recognized that the prosecutor shares responsibility for Maynard’s loss, and I would affirm that ruling. Therefore, I respectfully dissent.

ANALYSIS

¶28 There is a “fundamental difference between juvenile courts and adult courts — unlike wholly punitive adult courts, juvenile courts remain[ ] rehabilitative.” State v. Saenz, 175 Wn.2d 167, 173, 283 P.3d 1094 (2012). Prosecutors and defense attorneys both bear a duty to ensure that criminal offenders are not unfairly denied juvenile court jurisdiction. Prosecutors must not engage in intentional or negligent delay when deciding when to charge an offender. See State v. Norby, 122 Wn.2d 258, 262-63, 858 P.2d 210 (1993) (citing United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977)). Inexcusable delay that results in the loss of juvenile court jurisdiction can violate a defendant’s due process rights. State v. Dixon, 114 Wn.2d 857, 865-66, 792 P.2d 137 (1990). And defense attorneys have a constitutional duty to provide their clients effective assistance of counsel. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). An attorney who fails to move for extended juvenile court jurisdiction before a defendant’s 18th birthday may well violate a defendant’s right to effective assistance of counsel.

¶29 The right to counsel — including the right to effective assistance of counsel — exists “to assure fairness in the adversary criminal process.” United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981). In Morrison, the United States Supreme Court recognized that conduct on behalf of the government can have a negative effect on counsel’s ability to provide effective assistance.⁴ Id. It noted that courts have “been responsive to proved claims that governmental conduct has rendered counsel’s assistance to the defendant ineffective.” Id. The Court opined that “[c]ases involving Sixth Amendment [to the United States Constitution] deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” Id.

¶30 In this case, the prosecutor interfered with counsel’s effective assistance by unnecessarily delaying the prosecution at every opportunity. First, after the prosecutor requested more information from the police to prepare for diversion consideration, the prosecutor delayed one month after receiving the requested information before turning the case over for diversion. Next, the prosecutor delayed for seven months after diversion was denied, again asking the police for more information. Then the prosecutor delayed for over three weeks after the prosecutor prepared the charging documents before filing them 24 days before Maynard turned 18. None of these delays have been satisfactorily explained. These delays significantly contributed to the loss of juvenile jurisdiction, as they gave court-appointed defense counsel little time to notice the impending birthday and move to extend juvenile jurisdiction. Together, these failings violated Maynard’s constitutional rights.

¶31 The majority asserts that the prosecutor bears no responsibility for the loss of juvenile jurisdiction because he filed charges before juvenile jurisdiction expired and thus Maynard had a (brief) chance to extend it. But as I explained above, prosecutors do not have unfettered discretion to delay filing charges, even if they ultimately file charges before the statutory deadline. State v. Oppelt, 172 Wn.2d 285, 288-89, 257 P.3d 653 (2011). Instead, we ask whether the delay “ Violate [d] those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency,’ ” which requires the court to make a qualitative assessment of the reasons for and effects of the delay. Id. at 289 (internal quotation marks omitted) (quoting Lovasco, 431 U.S. at 790). We do not know the reasons, but we know the effects: the prosecutor’s lengthy and repeated delays significantly contributed to the loss of Maynard’s juvenile jurisdiction.

¶32 I do not mean to excuse defense counsel’s performance in this case. Defense counsel’s actions fell below an objective standard of reasonableness and prejudiced Maynard’s ability to receive fair treatment in the criminal justice process. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (describing the analysis for claims of ineffective assistance of counsel (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))).

CONCLUSION

¶33 I am mindful of the competing interest in this case — i.e., the State’s interest in enforcing its criminal laws. But the State effectively waived that interest by delaying prosecution for 11 months. The fundamental conceptions of justice would be violated by allowing the prosecution to proceed. See Oppelt, 172 Wn.2d at 287, 289-90 (describing the “core question” that must be answered when analyzing claims of preaccusatorial delay). I would hold that the combined effect of both unjustified preaccusatorial delay and ineffective assistance of counsel in this case denied Maynard fair treatment in the adversary criminal process in violation of his constitutional rights. The only meaningful remedy is to dismiss.

¶34 I respectfully dissent.

Johnson, Stephens, and González, JJ., concur with Owens, J.

3 The majority concludes that courts can reinstate juvenile jurisdiction after a defendant has turned 18. This is contrary to RCW 13.40.300(l)(a), which states that a juvenile court may retain jurisdiction over a defendant past his or her 18th birthday “only if prior to the juvenile’s eighteenth birthday... the court by written order setting forth its reasons extends jurisdiction of juvenile court over the juvenile beyond his or her eighteenth birthday.” (Emphasis added.) As the majority suggests no reason why this statute would not apply, I must respectfully dissent to that holding as well.

4 The defendant in Morrison was improperly contacted by federal agents after she was indicted on several drug charges. 449 U.S. at 362. The agents spoke to her alone and made comments that potentially interfered with her representation. Id. The Court ultimately dismissed the claim for lack of prejudice. Id. at 366-67.