State Of Washington, Resp/cross-app V. Jason Michael Smith, App/cross-resp

• Court: Court of Appeals of Washington
• Decided: May 30, 2023
• Docket: 83875-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 83875-0-I Respondent, (consolidated with No. 83874-1-I) v. DIVISION ONE JASON MICHAEL SMITH, UNPUBLISHED OPINION Appellant.

MANN, J. — Jason Smith moved to vacate two counts of possession of a

controlled substance and two counts of bail jumping following our Supreme Court’s

decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). The trial court vacated

the two counts of possession of a controlled substance but denied the motion to vacate

the two counts of bail jumping. Smith appeals and argues that the trial court erred in

refusing to vacate the bail jumping convictions because they were premised on facially

invalid drug possession charges. We disagree and affirm.

I.

Smith was charged with one count of possessing a controlled substance in early

2006. The State amended the information to add one count of bail jumping after Smith No. 83875-0-I/2

failed to appear for a pretrial hearing. Smith pleaded guilty to both counts under

Snohomish County Superior Court No. 06-1-00057-3.

Similarly, Smith was charged with one count of possession of a controlled

substance in September 2005. In January 2007, the State amended the information to

add a count of bail jumping after Smith again failed to appear for a pretrial hearing.

Smith pleaded guilty to both counts under Snohomish County Superior Court No. 05-1-

02319-2.

In 2021, our Supreme Court held that former RCW 69.50.4013(1), which

criminalized simple drug possession, violated “the due process clauses of the state and

federal constitutions and is void.” Blake, 197 Wn.2d at 195.

Following Blake, Smith moved to vacate both the possession convictions and bail

jumping convictions. The trial court issued identical orders granting Smith’s motion to

vacate the possession of a controlled substance convictions, but denying Smith’s

motion to vacate the bail jumping convictions.

Smith appeals.

II.

Smith argues that the bail jumping convictions should be vacated because they

were predicated on the possession of a controlled substance convictions that were

vacated under Blake. We disagree.

We review the court’s denial of a motion to vacate under CrR 7.8 for an abuse of

discretion. State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994). The court

abuses its discretion when its decision is “manifestly unreasonable, or exercised on

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untenable grounds, or for untenable reasons.” State v. McCormick, 166 Wn.2d 689,

706, 213 P.3d 32 (2009).

Smith’s argument turns on whether the charge of bail jumping includes an

implied element of a constitutionally valid predicate crime. Determining whether the

validity of the underlying charge is an implied element of bail jumping requires us to

engage in statutory interpretation. Statutory construction is a question of law subject to

de novo review. State v. Kindell, 181 Wn. App. 844, 851, 326 P.3d 876 (2014).

Former RCW 9A.76.170(1) (2001) stated that any “person having been released

by court order or admitted to bail with knowledge of the requirement of a subsequent

personal appearance before any court of this state . . . and who fails to appear . . . is

guilty of bail jumping.” Bail jumping has three elements, and they “are satisfied if the

defendant (1) was held for, charged with, or convicted of a particular crime; (2) had

knowledge of the requirement for a subsequent appearance; and (3) failed to appear as

required.” State v. Downing, 122 Wn. App. 185, 192, 93 P.3d 900 (2004).

Smith argues that absent a constitutionally valid crime, the first element was

never satisfied. But viewing the language as a whole, which contemplates early stages

of criminal proceedings, the validity of the underlying charge is not an element of the

crime. As Division Three of this court explained in State v. Paniagua, 22 Wn. App. 2d

350, 356, 511 P.3d 113, review denied, 200 Wn.2d 1018, 520 P.3d 970 (2022):

Former RCW 9A.76.170 does not require that, to be guilty of the crime, the accused must have later been found guilty of the pending charge at the time of release on bail, only that he be under charges at the time of the failure to appear. Thus, a predicate crime does not constitute an element of bail jumping.

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See also Downing, 122 Wn. App. at 193 (rejecting the argument that the validity of an

underlying offense is an implied element of the crime of bail jumping). Concluding

otherwise would mean that a criminal defendant would be left to decide whether to

comply with the court’s order to appear based on the defendant’s own assessment of

the validity of the underlying crime or criminal charge. This is an untenable result.

We agree with Paniagua and Downing, and conclude that the validity of the

underlying charge is not a predicate element of bail jumping.

Affirmed.

WE CONCUR:

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