State v. Franks

Becker, A.C. J.

The State intended to charge appellant Dominique Pranks with robbery, and filed an information naming her in the caption. But the charging language accused a different person. While the flaw in the information did not deprive the court of subject matter jurisdiction, it did deprive the appellant of her right to be informed of the charge she had to meet. Because that essential fact cannot be found in the charging document even by liberal construction, the appellant is entitled to a judgment of dismissal without prejudice.

According to testimony presented by the State, two juveniles approached Susan English as she was walking home from work late one night in June, 1998. They demanded her money and backpack. When she refused, they attacked her. She screamed, and they fled. Minutes later, two police officers arrived. Upon hearing the description of the assailants, the officers suspected Dominique Franks and her sister, Malia Franks, who lived nearby. They went to the Franks residence and asked for Dominique. Malia came to the door and introduced herself as Dominique. English identified Malia as one of the two girls who had attacked her. After the police arrested Malia, the actual Dominique emerged from the house and told the officers that she was the culprit and they had arrested the wrong person. The police then arrested Dominique.

The State filed separate informations in juvenile court. One of the informations named Dominique in the caption: “THE STATE OF WASHINGTON, Plaintiff, v. DOMINIQUE DANETTE FRANKS, B.D. 08-10-81, Respondent.” But the charging language in that information accused only Malia Franks of committing the crime:

I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the State of Washington, do accuse MALIA MYNETTE FRANKS of the crime of Robbery in the Second Degree, committed as follows:

That the respondent MALIA MYNETTE FRANKS in King County, Washington, together with another, on or about 5 June 1998, did unlawfully and with intent to commit theft take personal property of another, from the person and in the presence of Susan English, against her will, by the use or threatened use of immediate force, violence and fear of injury to such person or her property and the person or property of another!.]

The trial court joined the two cases. The sisters appeared through separate counsel. Each of them defended against the charge of robbery in the second degree. Malia presented an alibi defense. Dominique defended primarily on the ground that the victim had been unable to positively identify her. The court found Malia not guilty, and found Dominique guilty as charged.

Dominique raised no objection below to the information. On appeal, she contends that the finding of guilt must be reversed. Relying on State v. Corrado, 78 Wn. App. 612, 898 P.2d 860 (1995), she contends that the State’s failure to name her in the charging portion of the information means that the court lacked subject matter jurisdiction. The State, on the other hand, contends that the flaw in the information must be analyzed as a potential due process problem under State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991), rather than as a problem with the court’s jurisdiction.¹

“Jurisdiction is the power of the court to hear and determine the class of action to which a case belongs.” State v. Buchanan, 138 Wn.2d 186, 196, 978 P.2d 1070 (1999). The term “subject matter jurisdiction” refers to the authority of a court or tribunal to adjudicate a particular type of controversy, not a particular case. Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994). The superior court in this case has subject matter jurisdiction because the Washington State Constitution grants superior courts subject matter jurisdiction in felony cases, and the juvenile court is a division of the superior court. Wash. Const, art. IV, § 6; State v. Werner, 129 Wn.2d 485, 492, 918 P.2d 916 (1996).

According to State v. Corrado, a superior court “acquires” subject matter jurisdiction over a criminal action only from the time when an indictment or information is filed. Corrado, 78 Wn. App. at 615. In Corrado, the State filed an information against Corrado for second-degree murder. At Corrado’s first trial, the State was unable to locate a key witness. The trial court granted the State’s motion to dismiss the information without prejudice. The State later rearraigned Corrado but neglected to file a new information. A second trial proceeded, the jury convicted Corrado, and the court entered judgment. Corrado argued on appeal that the State’s failure to file a new information deprived the court of jurisdiction. The Court of Appeals held the conviction to be a nullity on the basis that the court “lost” subject matter jurisdiction when the original information was dismissed and never “reacquired” jurisdiction because the State did not file another information. Corrado, 78 Wn. App. at 615-16.

While the result in Corrado may be correct on some other basis, the analysis is flawed in its assumption that a superior court must “acquire” subject matter jurisdiction in each particular case, and that the court may “lose” such jurisdiction due to procedural error. As the Supreme Court made clear in Marley, subject matter jurisdiction is not temporal, and its existence is not dependent upon compliance with procedural rules:

A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate.

[T]he focus must be on the words “type of controversy.” If the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction.

Marley, 125 Wn.2d at 539 (quoting Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 B.Y.U. L. Rev. 1, 28).

The Corrado court cited State v. Sponburgh, 84 Wn.2d 203, 206, 525 P.2d 238 (1974) for the proposition that “a superior court acquires subject matter jurisdiction only [f]rom the time an action is commenced’.” Corrado, 78 Wn. App. at 615. Sponburgh was cited for the same proposition in State v. Cronin, 130 Wn.2d 392, 398, 923 P.2d 694 (1996).² But Sponburgh does not actually discuss the superior court’s “subject matter jurisdiction.” Rather, it merely uses the term “jurisdiction.” Sponburgh, 84 Wn.2d at 206. In Sponburgh, the court rejected the defendant’s argument that a trial court lacked “jurisdiction” to enter an order releasing grand jury evidence that had been previously sealed pursuant to an order that was issued along with an order dismissing the case against the defendant. The Supreme Court held that the trial court had retained “jurisdiction” to modify the protective order despite the dismissal of the indictment. Sponburgh, 84 Wn.2d at 206. The Sponburgh court wrote:

From the time an action is commenced, the superior court acquires jurisdiction. Const, art. 4, § 1 et seq.; Swan v. Landgren, 6 Wn. App. 713, 495 P.2d 1044 (1972); Daniel v. Daniel, 116 Wash. 82, 198 P. 728, 27 A.L.R. 177 (1921).

Sponburgh, 84 Wn.2d at 206.

The above passage and the authorities cited therein address jurisdiction, but they do not address “subject matter jurisdiction.” In Swan v. Landgren, 6 Wn. App. 713, 495 P.2d 1044 (1972), the court was confronted with the procedural issue of when a trial court’s authority to control its own trial calendar begins. The Swan court held that a court acquires “jurisdiction,” including the ability to control its calendar, when a complaint is filed or a summons is served. Swan, 6 Wn. App. at 715-16. Swan noted, in passing, that “Article 4 of the Washington State Constitution defines the jurisdiction of our courts.” Swan, 6 Wn. App. at 715. Likewise, Daniel v. Daniel, 116 Wash. 82, 198 P. 728 (1921), does not address the issue of how a superior court “acquires” any type of jurisdiction. Daniel notes, in dicta, that Const, art. IV, § 6 “defines the jurisdiction of the superior courts,” but also states that this provision does not purport to regulate or control the manner in which courts exercise their “jurisdiction.” Daniel, 116 Wash, at 84.

In sum, Sponburgh does not support the interpretation of “subject matter jurisdiction” for which it is relied upon in Corrado and cited in dicta in Cronin. Those cases have confused the superior courts’ exercise of jurisdiction over particular defendants with the courts’ inherent jurisdiction over the subject matter. As the Supreme Court stated in Marley, “ ‘The term “subject matter jurisdiction” is often confused with a court’s “authority” to rule in a particular manner. This has led to improvident and inconsistent use of the term.’ ” Marley, 125 Wn.2d at 539 (quoting In re Marriage of Major, 71 Wn. App. 531, 534, 859 P.2d 1262 (1993)).

The Supreme Court’s discussion of subject matter jurisdiction in Marley is consistent with its earlier rejection, in Kjorsvik, of the argument that a trial court lacks subject matter jurisdiction over a case commenced by a deficient information. An information that fails to state the essential elements of the charged crime raises an issue that can be considered on appeal despite the lack of an objection below. But the issue raised is lack of due process, not lack of jurisdiction. The Court declined to “view a constitutional challenge to a charging document as an issue regarding the power of the trial court to act.” Kjorsvik, 117 Wn.2d at 107.

Superior courts do not “acquire” or “lose” their subject matter jurisdiction over juvenile felony cases based upon procedural events and errors in those particular cases. Here, there is no question that the superior court had the power to act in this juvenile felony case, and therefore there is no issue as to subject jurisdiction. The only question is whether the charging document adequately informed Dominique Franks of the charges she had to prepare to defend against.

When a defendant challenges the charging document for the first time on appeal, the appellate court must liberally construe all of the information in the document in favor of validity. Kjorsvik, 117 Wn.2d at 102. The test to determine the sufficiency of a charging document under Kjorsvik has two prongs: “(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?” Kjorsvik, 117 Wn.2d at 105-06.

Applying the first prong of the Kjorsvik test, the court looks at the face of the document only. The information must be written in such a manner as to enable persons of common understanding to know what is intended. State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992); Kjorsvik, 117 Wn.2d at 110-11; RCW 10.37.050(6). If the first prong is satisfied, the court in applying the second prong of the test “may look beyond the face of the charging document to determine if the accused actually received notice of the charges he or she must have been prepared to defend against.” Kjorsvik, 117 Wn.2d at 106.

Dominique Franks does not show actual prejudice, as the second prong would require. She appeared in court and mounted a defense against the charge of robbery. But we do not reach the second prong if, upon scrutiny of the document under the first prong, the necessary elements are not found or fairly implied. State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000). In that case, prejudice is presumed.

This court has held that the correct spelling of a defendant’s name is not a necessary element. State v. Flett, 98 Wn. App. 799, 803, 992 P.2d 1028, review denied, 141 Wn.2d 1002 (2000). In Flett, the information charged Gary Flett, Jr., with first-degree assault. At the arraignment and trial, the defendant stated his name as Gary Flett, Sr. On appeal, he unsuccessfully sought reversal of his conviction on the basis that the information should have referred to him as Gary Flett, Sr. The court held that the spelling of his name was not an essential element to be proved. Flett, 98 Wn. App. at 803. See also State v. Passila, 117 Wash. 295, 201 P. 295 (1921) (confusion as to the proper spelling of difficult names was not cause for dismissal).

The problem in this case, however, concerns the identity of the person charged with the crime, not the spelling of her name. The identity of the person charged is just as important and essential as the other requirements of the information, including the title of the action and the statement of the acts constituting the crime. State v. Royse, 66 Wn.2d 552, 557, 403 P.2d 838 (1965). Identity of the person charged is a necessary fact because the primary purpose of the charging document is to inform the defendant of the nature of the accusations brought against her. See Wash. Const, art. I, § 22 (a person accused of a crime has the right “to demand the nature and cause of the accusation against him”); Kjorsvik, 117 Wn.2d at 101.

The State contends that the information, with Dominique’s name appearing only in the caption, adequately advised her that she was being charged with robbery. The use of Malia’s name instead of Dominique’s in the charging language, according to the State, was clearly a scrivener’s error.

If the body of the information leaves a blank where the defendant’s name should be, but includes language charging the “defendant” or otherwise relating the charging language to the name in the caption, the information is not invalid. State v. Maldonado, 21 Wash. 653, 59 P. 489 (1899); City of Port Angeles v. Fisher, 130 Wash. 110, 226 P. 489 (1924). But the information received by Dominique Franks does not leave a blank space in the charging language. Rather, it affirmatively charges a different person, Malia Mynette Franks, with committing the crime.

Persons of common understanding would not know upon reading the information that the State was accusing Dominique Franks of robbery. The caption, “STATE OF WASHINGTON v. DOMINIQUE DANETTE FRANKS,” would indicate only that the State was initiating a lawsuit against her. The rest of the document charges Malia Franks with committing the crime. It uses Malia’s name twice and does not mention Dominique at all. We are not persuaded by the State’s argument that inclusion of the phrase “together with another” can be fairly construed as giving notice to Dominique that she was charged with robbery as Malia’s accomplice. Nothing in the context of the statement relates “another” to Dominique.

In short, the defect does not fit within the Kjorsvik rule allowing for “vague” or “inartful” language when an information is challenged for the first time on appeal. Kjorsvik, 117 Wn.2d at 106. Rather, the defect is a failure to include a necessary fact. The information does not satisfy the first prong of the Kjorsvik test. On its face, the information violated Dominique Franks’ constitutional right to be informed of the charges against her.

The proper remedy for a conviction based on a defective information is dismissal without prejudice to the State refiling the information. State v. Markle, 118 Wn.2d 424, 440-41, 823 P.2d 1101 (1992); State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982).

Accordingly, the judgment is reversed and the case remanded for dismissal of the information without prejudice.

Kennedy, J., concurs.

1 As to personal jurisdiction, the parties agree that there is no issue. The superior court acquired personal jurisdiction over Dominique when she appeared at her arraignment. See State v. Cronin, 130 Wn.2d 392, 398, 923 P.2d 694 (1996). We regard as anomalous one federal case describing the problem of a name omitted from the charging language as a defect depriving the court of in personam jurisdiction. See Chow Bing Kew v. United States, 248 F.2d 466, 468-69 (9th Cir. 1957).

2 Cronin held that a notice of special sentencing (death penalty) was properly served on the defendants when a copy of the notice was delivered to the office of each defendant’s attorney. Cronin, 130 Wn.2d at 394. The Cronin court noted, in dicta, the superior court “acquired subject matter jurisdiction at the commencement of the action (see State v. Sponburgh, 84 Wn.2d 203, 206, 525 P.2d 238 (1974)) and personal jurisdiction when [the defendants] appeared at their arraignment. State v. Melvern, 32 Wash. 7, 12, 72 P. 489 (1903).” Cronin, 130 Wn.2d at 398.