State of Washington v. Michael Francis Cronin ( 2013 )

FILED
SEPT. 26, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30860-0-111
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Petitioner, )
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V. )
)
MICHAEL CRONIN, ) UNPUBLISHED OPINION
)
Respondent. )
BROWN, J. - Today, we discretionarily review the superior court's decision
reversing a judgment and sentence the district court entered against Michael Francis
Cronin immediately after revoking his deferred prosecution for driving under the
influence and hit and run. The superior court decided the district court neglected to
make the necessary factual record before convicting Mr. Cronin and double jeopardy
principles bar further prosecution. The State contends jeopardy never attached
because the district court never heard evidence and, thus, never held a trial on his guilt.
We disagree and affirm the superior court.
FACTS
In April 2008, the district court granted Mr. Cronin deferred prosecution of
misdemeanor charges alleging he drove a vehicle while under the influence of alcohol
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State v. Cronin
and then hit and ran from an unoccupied vehicle. He later violated his deferred
prosecution conditions by consuming alcohol and refusing a breath analysis while in
physical control of a vehicle. At a hearing, the court found him noncompliant and
explored sanction options, eventually ruling,
Well, if this had been a first-time alcohol related offense, I don't think it
would be appropriate to terminate the deferred prosecution.
But I'm - having made a finding of a violation, then the question turns
to what the proper disposition should be, and for purposes of the
disposition phase of the case, I am taking into consideration multiple
occurrences of alcohol use and pending charges alcohol-based.
So, I am gonna terminate the deferred prosecution at this time.
Sentencing recommendations?
Clerk's Papers at 43. The court proceeded directly from revocation to sentencing
without finding him guilty upon the stipulated facts in the police report, as contemplated
by RCW 10.05.020 and Abad v. Cozza, 128 Wash. 2d 575, 582, 911 P.2d 376 (1996). The
court then entered a guilty judgment against him.
On appeal, the superior court reversed Mr. Cronin's convictions for insufficient
evidence because the district court did not identify any facts supporting them. The
superior court then concluded double jeopardy principles barred remand for the district
court to hold the required post-revocation trial. Our commissioner granted the State's
motion for discretionary review under RAP 2.3(d)(3). The parties agree the record the
district court made lacks sufficient evidence to support Mr. Cronin's convictions. But the
parties dispute whether the court placed him in jeopardy by convicting him.
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ANALYSIS
The issue is whether double jeopardy principles bar remand for the district court
to hold the required post-revocation trial. The State contends jeopardy did not attach
because the court sentenced Mr. Cronin immediately after revoking his deferred
prosecution and without holding a stipulated facts trial on his guilt. We review a district
court decision directly under RALJ 9.1, performing the same function as the superior
court. State v. Ford, 110 Wash. 2d 827, 829, 755 P.2d 806 (1988). Thus, we review a
district court decision for legal error. See RALJ 9.1 (a). We review alleged double
jeopardy violations de novo. State v. Jackman, 156 Wash. 2d 736, 746,132 P.3d 136
(2006).
The federal double jeopardy clause provides, "No person shall ... be subject for
the same offense to be twice put in jeopardy of life or limb ...." U.S. CONST. amend.
V. 1 Jeopardy occurs when a criminal defendant is "put to trial before the trier of the
facts." United States v. Jom, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971).
Thus, the federal double jeopardy clause bars a second trial for the same offense if
jeopardy already attached and terminated in an earlier prosecution. Sattazahn v.
Pennsylvania, 537 U.S. 101, 106, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003); North !
Carolina v. Pearce, 395 U.S. 711,717,89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), I
overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 Lans. Ch.
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1The state double jeopardy clause provides, "No person shall ... be twice put in
jeopardy for the same offense." CONST. art. I, § 9. We interpret the state provision the J
same as the federal provision because they "are identical in thought, substance, and ,
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purpose." State v. Schoel, 54 Wash. 2d 388, 391, 341 P.2d 481 (1959).
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State v. Cronin
Ed. 2d 865 (1989). Jeopardy attaches in a bench trial when the judge begins hearing
evidence, thereby exposing a defendant to the risk of a guilty finding based on
resolution of a factual issue. See Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct.
1055,43 L. Ed. 2d 265 (1975); United States v. Olson, 751 F.2d 1126, 1129 (9th Cir.
1985). Jeopardy terminates when, for example, a reviewing court determines
insufficient evidence supports a defendant's conviction. Richardson v. United States,
468 U.S. 317, 325,104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984); Burks v. United States,
437 U.S. 1, 11,98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).
Here, the State argues jeopardy never attached because the district court never
heard evidence. But the court ultimately entered a judgment of guilty against Mr.
Cronin, which undoubtedly placed him in jeopardy. See United States v. Patrick, 532
F.2d 142, 14546 (9th Cir. 1976). The court necessarily premised this guilty judgment
on some unarticlJlated guilty finding. While Mr. Cronin had stipulated the facts in the I
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police report were sufficient to sustain a guilty finding, the parties agree that evidence
did not find its way into our record. We agree with the superior court that jeopardy
attached when the district court entered a guilty judgment against Mr. Cronin and
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terminated when the superior court reversed his convictions for insufficient evidence.
The district court may not try him a second time for the same offenses. Therefore,
double jeopardy principles bar remand for the district court to hold the required post-
revocation trial.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
Sidd~a~
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