Cody C. Thornock v. The Hon. Michael Lambo ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CODY C. THORNOCK,
No. 80294-1-I
Appellant,
DIVISION ONE
v.
PUBLISHED OPINION
THE HON. MICHAEL LAMBO,
Respondent.
LEACH, J. — Cody Thornock appeals the denial of a deferred prosecution
based solely on his out of state residency. He claims the municipal court abused
its discretion and violated his rights to equal protection by denying him a deferred
prosecution. Because the deferred prosecution statute does not prohibit a court
from considering a defendant’s residency, and the municipal court’s decision
served a legitimate State interest in ensuring compliance with the deferred
prosecution program, the municipal court did not abuse its discretion or deny
Thornock equal protection rights. We affirm.
FACTS
The City of Kirkland charged Cody Thornock with driving under the influence
(DUI) in Kirkland Municipal Court. Thornock, a resident of Idaho, appeared for
arraignment on the charge on August 26, 2012. Later that year, he was arrested
Citations and pincites are based on the Westlaw online version of the cited material.
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and charged with two more DUIs in Idaho and Colorado. He pleaded guilty to both
charges.
In March 2013, the municipal court issued a bench warrant when Thornock
failed to appear for hearing. In September 2013, Thornock asked to be heard on
the court’s bench warrant calendar, but he failed to appear. In April 2016, when
Thornock failed to appear for a warrant expiration hearing, the court issued another
bench warrant. In October 2018, Thornock appeared with counsel, was served
with the warrant, and was taken into custody. He posted bond and was released.
On January 28, 2019, Thornock filed a petition for a deferred prosecution,
a pre-conviction program that allows a defendant charged with a misdemeanor or
gross misdemeanor to avoid a conviction upon successful completion of a
treatment program. 1 He told the court he had intended to reside in Idaho during
his deferred prosecution where he planned to complete a treatment program.
On April 29, 2019, Thornock appeared in court for a hearing on the deferred
prosecution petition. Judge Michael Lambo denied Thornock’s request for a
deferred prosecution. The court stated, “I’m not going to approve a deferred
prosecution for an out-of-state defendant” stating, “it’s too difficult to
enforce….[w]ith probation, to enforce violations. Warrants aren't any good [if] [the]
out of state Defendant was to fail[] to appear-if the Defendant was to violate
conditions of the deferred.” The court then denied Thornock’s request to exonerate
bail because he was an out of state defendant and “was in a failure to appear
status for almost six years.”
1 RCW 10.05, State v. Sell, 110 Wn. App. 741, 747, 43 P.3d 1246 (2002).
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No. 80294-1-I/3
Thornock sought a writ of review of Judge Lambo’s order in King County
Superior Court. Thornock argued Judge Lambo acted illegally by denying the
deferred prosecution based on a “blanket policy” of denying this relief to out of
state defendants because Washington residency is not a statutory requirement for
granting a deferred prosecution. The court denied the writ ruling that Judge Lambo
did not abuse his discretion. The court stated, “I have nothing in this record to
show that there is a blanket policy that was implemented here; what I do see is a
clear exercise of discretion that the Court, it appears to me, had the ability to
exercise.” The superior court did not have a transcript of the proceeding before
Judge Lambo. It had just a docket entry indicating that counsel asked Judge
Lambo to explain his reasons. Thornock filed a motion to reconsider which
included a transcript of the hearing before Judge Lambo. The court denied the
motion to reconsider finding that:
Mr. Thornock’s declaration as to what the judge said is hearsay. It is
also not an accurate recitation of what the transcript shows, which is
that the judge exercised his discretion to deny the requested
disposition for this out of state defendant. The judge was entitled to
decide that in this case, the probation could not be enforced.
Thornock appeals.
ANALYSIS
Thornock claims the municipal court acted illegally by imposing a blanket
policy of denying deferred prosecutions for out of state residents because the
statute does not require the petitioner to be a Washington State resident. He also
contends the court’s “blanket policy” violates equal protection because it treats him
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No. 80294-1-I/4
differently from similarly situated in-state defendants who are eligible to participate
in a deferred prosecution program.
A writ of review is an extraordinary remedy that courts should grant
sparingly. 2 On an appeal from a superior court decision, in a writ of review case,
we review de novo the record of the lower tribunal or agency and not the superior
court judgment. 3 A court may issue a statutory writ of review if the petitioner can
show:
an inferior tribunal, board or officer, exercising judicial functions has
exceeded the jurisdiction of such tribunal board or offer, or one acting
illegally, or to correct any erroneous or void proceeding, or a
proceeding not according to the course of the common law, and there
is no appeal, nor in the judgment of the court, any plain, speedy and
adequate remedy at law. 4
For purposes of issuing a writ under RCW 7.16.040, a court acts illegally when it
(1) has committed an obvious error that would render further proceedings useless;
(2) has committed probable error and the decision substantially alters the status
quo or substantially limits the freedom of a party to act; or (3) has so far departed
from the accepted and usual course of judicial proceedings as to call for the
exercise of revisory jurisdiction by an appellate court. 5
RCW 10.05 provides courts of limited jurisdiction discretionary authority to
grant or deny a deferred prosecution to persons charged with a misdemeanor or
gross misdemeanor. 6 Because the court’s authority to grant a deferred
2
City of Seattle v. Holifield, 170 Wn.2d 230, 243, 240 P.3d 1162 (2010).
3
Leavitt v. Jefferson Cnty, 74 Wn. App. 668, 677, 875 P.2d 681 (1994).
4 RCW 7.16.040.
5 Holifield, 170 Wn.2d at 244-45.
6 State v. Higley, 78 Wn. App. 172, 187, 902 P.2d 659 (1995); State v.
Ashue, 145 Wn. App. 492, 498, 188 P.3d 522 (2008).
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prosecution is discretionary, we review the court’s ruling for an abuse of discretion.
A trial court abuses its discretion when its ruling is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons. 7 A trial court also
abuses its discretion when it makes a reasonable decision but applies the wrong
legal standard or bases its ruling on an erroneous view of the law. 8
Thornock fails to show the municipal court abused its discretion.
Thornock’s living out of state was not an untenable reason for the court to deny his
petition for a deferred prosecution. As the superior court noted:
A judge could, it seems to me, reasonably distinguish
between people who live in state and out of state; and calculating the
likelihood that a deferred prosecution will be successful. And I can
think of a lot of reasons why a judge could reasonably exercise his
discretion to do that; a judge could decide that no matter how much
the defendant touts the good name of an Idaho treatment program,
that a judge in Kirkland does not know whether, in fact, it is a
trustworthy and reliable program, or whether he can count on that
program to let him know if the defendant is non-compliant. A judge
may feel, legitimately, that prior issuance of warrants for out-of-state
folks were pretty unsuccessful; this case could be viewed as a poster
child for that view, considering that a warrant issued, I think, in 2013,
and the defendant does not appear to have shown his face in
Kirkland Municipal Court until about five years later. That doesn’t
seem like a real effective use of warrants to make sure that cases
move along in a smooth fashion.
Our review of Judge Lambo’s oral ruling reflects these concerns. While he
provided a brief explanation of his decision, when pressed by Thornock to explain
why he would not grant a deferred prosecution to an out of state defendant, Judge
Lambo noted the difficulty of enforcement and ensuring a timely appearance with
bench warrants. Judge Lambo denied Thornock’s request to exonerate bail for the
7 State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006).
8 Dixon, 159 Wn.2d at 76.
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same reason noting he “was in a failure to appear status for almost six years.”
Based on this record, we cannot say that Judge Lambo’s ruling was manifestly
unreasonable or based on untenable reasons.
The cases Thornock relies on do not support his position. For example, in
State v. Grayson, the trial court denied the defendant’s request for a Drug Offender
Sentencing Alternative (DOSA) based on the court’s belief that the State could no
longer fund treatment for DOSA participants. 9 The court held that the trial court
abused its discretion because it “categorically refused to consider a statutorily
authorized sentencing alternative.” 10 But here, Judge Lambo did not “categorically
refuse” to consider a deferred prosecution. He did so based on a particular fact,
Thornock’s out of state residency status. As discussed above, this was not an
untenable reason to deny the deferred prosecution. Moreover, unlike Grayson,
where the court’s stated reason was a fact outside the record that had not been
proved, Thornock does not dispute his out of state residency. And, the record
demonstrates its effect on the court’s ability to ensure his appearance before the
court.
In State v. McFarland, the trial court imposed consecutive sentences based
on its erroneous belief that it did not have discretion to decline to do so. 11
Washington State Supreme Court reversed concluding the trial court erred by
operating under an erroneous view of the law. The court reiterated that “when a
court is called on to make a discretionary sentencing decision, the court must
9 154 Wn.2d 333, 336-37, 111 P.3d 1183 (2005).
10 Grayson, 154 Wn.2d at 342.
11 189 Wn.2d 47, 55-56, 399 P.3d 1106 (2017).
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No. 80294-1-I/7
meaningfully consider the request in accordance with the applicable law.” 12 But
here, the municipal court had no mistaken belief about the court’s discretion to
grant a deferred prosecution. Rather, Judge Lambo acted within his discretionary
authority to deny one. Thornock cites other cases none of which apply here. 13
Thornock’s equal protection claims also lack merit. The equal protection
clause of the Fourteenth Amendment and article I, section 12 of the Washington
State Constitution are “substantially identical and subject to the same analysis.” 14
The constitutional right to equal protection of the law requires similarly situated
persons receive like treatment under the law. 15 As a threshold requirement, an
equal protection claim must establish the defendant received disparate treatment
because of membership in a class of similarly situated individuals, and that the
disparate treatment was the result of intentional or purposeful discrimination. 16
The city does not dispute Thornock received different treatment from similarly
situated individuals based on his classification as an out of state defendant. To
determine whether the discriminatory state action violates equal protection rights,
we apply the appropriate standard of review, which depends on the nature of the
classification or the rights involved. 17 When, as here, the state action does not
infringe on a fundamental right or involve a suspect class, we apply rational basis
12McFarland, 189 Wn.2d at 56.
13State v. Pettitt, 93 Wn.2d 288, 609 P.2d 1364 (1980); State v. Sinclair,
192 Wn. App. 380, 367 P.3d 612 (2016); State v. Blazina, 182 Wn.2d 827, 344
P.3d 680 (2015).
14 State v. Osman, 157 Wn.2d 474, 483 n. 11, 139 P.3d 334 (2006).
15 State v. Shawn P., 122 Wn.2d 553, 559-60, 859 P.2d 1220 (1993).
16 Osman, 157 Wn.2d at 484.
17 State v. Hirschfelder, 170 Wn.2d 536, 550, 242 P.3d 876 (2010).
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review. 18 To conduct rational basis review, we apply the following standards:
Under the rational basis test, state action does not violate the equal
protection clause if there is a rational relationship between the
classification and a legitimate state interest. We will uphold State
action unless “it rests on grounds wholly irrelevant to the
achievement of legitimate state objective.” Disparate treatment of
those within and without a designated class rationally relates to
achievement of the State's objective if there is some basis in reality
for the distinction between the two classes and the distinction serves
the purpose intended by the legislature. 19
In State v. Osman, the court held that a trial court did not violate equal
protection when it denied a special sex offender sentencing alternative (SSOSA)
based on concerns that the defendant, an alien subject to deportation, would not
be able to comply with the requirements of a SSOSA. 20 The trial court was
concerned that if the defendant was deported, after serving his reduced sentence,
he would not receive treatment and would receive a lower than warranted
sentence. 21 Applying rational basis review, the court concluded the trial court’s
decision was rationally related to the Sentencing Reform Act’s (SRA) goal of
ensuring standard sentencing and it did not violate the defendant’s right to equal
protection. 22 In doing so, the court noted the SRA gives the court discretion to
impose a SSOSA and it does not expressly prohibit imposition of a SSOSA if the
defendant is an alien nor does it expressly prohibit a court from considering
alienage or deportability when determining whether a SSOSA is appropriate. 23
18 Hirschfelder, 170 Wn.2d at 550.
19 Osman, 157 Wn.2d at 486.
20 157 Wn.2d at 487.
21 157 Wn.2d at 487.
22 157 Wn.2d at 487-88.
23 157 Wn.2d at 486.
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No. 80294-1-I/9
Classifications based on residency have also been upheld against equal
protection challenges. In Holbrook Inc. v. Clark County, the court held that a
county had a rational basis for its decision to notify only county residents of
proceedings involving land that was also owned by a non-county resident. 24
Likewise here, the court’s different treatment of out of state defendants,
such as Thornock, withstands rational basis review. The court’s concerns with
compliance and monitoring of a deferred prosecution granted to an out of state
defendant serve the State’s legitimate interest in ensuring the requirements of a
deferred prosecution are met. While Thornock points out the statute does not
require state residency for eligibility, nothing in the statute prohibits a court from
considering a defendant’s out of state residence in exercising its discretion to deny
a deferred prosecution. 25
Because the municipal court’s decision to deny the deferred prosecution
was a proper exercise of its discretion and did not violate the right to equal
protection, Thornock fails to demonstrate a basis for issuing a statutory writ of
review of the municipal court’s ruling. We affirm the superior court’s denial of his
request for a writ of review.
WE CONCUR:
24 112 Wn. App. 354, 368-69, 49 P.3d 142 (2002).
25 Osman, 157 Wn.2d at 486.
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