State v. Downing

93 P.3d 900, 122 Wash. App. 185
CourtCourt of Appeals of Washington
DecidedJune 15, 2004
DocketNo. 28995-4-II
StatusPublished
Cited by19 cases

This text of 93 P.3d 900 (State v. Downing) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Downing, 93 P.3d 900, 122 Wash. App. 185 (Wash. Ct. App. 2004).

Opinion

Quinn-Brintnall, C.J.

Following a stipulated facts bench trial, Robert Downing, Jr., was convicted of bail jumping based on his failure to appear for arraignment on charges of unlawful issuance of bank checks (UIBC). Downing appeals the bail jumping conviction, arguing that double jeopardy and the mandatory joinder rule rendered the underlying UIBC charges invalid at the time of the missed court appearance. He also claims ineffective assistance based on his counsel’s failure to raise mandatory joinder. We disagree and affirm.

FACTS

Downing passed a series of bad checks in March and April of 2001. In December 2001 and February 2002, he was charged by citation in Mossyrock District Court with UIBC under RCW 9A.56.060. Each of the four citations listed a date and location of issuance, but not the check numbers of the bad checks.1

[188]*188Meanwhile, the Lewis County prosecutor filed three counts of UIBC against Downing on February 5, 2002, in the superior court. The charging document alleged the same time period as the district court citations but listed specific check numbers.

On March 1, 2002, Downing appeared in superior court without counsel. The court continued the hearing for two weeks to allow Downing to hire an attorney. Downing signed an order setting conditions of release, including a condition that he return to court on March 14, 2002.

Downing pleaded guilty to the four citations in district court on March 13, 2002. Again, the statement of defendant on plea of guilty listed the dates of the checks, but not the check numbers.

Downing failed to appear as he agreed for the continued superior court hearing the next day, March 14. The superior court issued a bench warrant, and on March 21, the State filed an amended information, adding the bail jumping charge.

On March 28, Downing appeared in custody at superior court for arraignment and trial setting.

On April 1, the district court entered amended judgment and sentence orders to establish the amount of restitution Downing owed. (The first judgment and sentence had ordered that he pay an amount “to be determined.” Clerk’s Papers (CP) at 46.) The documents ordered restitution on eight specific checks, listing the check numbers for each. The dates of these checks did not all match the dates of the citations.2

[189]*189At the June 14 superior court bench trial, Downing, now represented by counsel, moved to dismiss under the double jeopardy clause, claiming the superior court information alleged the same charges as the district court citations. Downing argued that he pleaded guilty to passing the checks listed in the amended restitution order. The State conceded that Downing pleaded to the checks alleged in Counts II and III, and the court dismissed those charges. The State did not concede Count I and instead argued that Downing agreed only to pay restitution for the checks, but he was never charged with nor did he plead guilty to issuing the checks. Nonetheless, the State moved to dismiss Count I because Downing had already been ordered to pay restitution.

In the end, the court dismissed all three UIBC counts: two on double jeopardy grounds and the third on the State’s motion. Downing then moved to dismiss Count IV, bail jumping, arguing that the underlying charges had been dismissed. The judge denied the motion and found Downing guilty of bail jumping. He appeals.

ANALYSIS

(1) Mandatory Joinder and Ineffective Assistance

Downing first contends that his counsel should have moved to dismiss Count I under the mandatory joinder rules and that failure to do so constituted ineffective assistance. This argument is crucial to Downing’s ultimate [190]*190argument that none of the underlying charges was valid and that his conviction for bail jumping cannot stand.

CrR 4.3.1 requires mandatory joinder where the crimes are “related offenses.” CrR 4.3.1(b); State v. Lee, 132 Wn.2d 498, 501, 939 P.2d 1223 (1997). Offenses are “related” under the rule “if they are within the jurisdiction and venue of the same court and are based on the same conduct.” CrR 4.3.1(b)(1); Lee, 132 Wn.2d at 501.

In Lee, the defendant was charged with criminal trespass and second degree theft of rent after he fixed up a house and collected rent from prospective tenants, when he did not own the house and did not have the permission of the house’s owner. 132 Wn.2d at 500. Lee was subsequently charged with theft for collecting rent and deposits but failing to provide promised housing to different victims. Lee, 132 Wn.2d at 500. He moved successfully to dismiss the second case under the mandatory joinder rule. Lee, 132 Wn.2d at 501. But our Supreme Court reversed, explaining that “same conduct” for purposes of deciding which offenses are “related offenses” and therefore subject to mandatory joinder, is conduct involving “a single criminal incident or episode.” Lee, 132 Wn.2d at 503. The court included as examples

offenses based upon the same physical act or omission or same series of physical acts. Close temporal or geographic proximity of the offenses will often be present; however, a series of acts constituting the same criminal episode could span a period of time and involve more than one place, such as one continuous criminal episode involving a robbery, kidnapping, and assault on one victim occurring over many hours or even days.

Lee, 132 Wn.2d at 503-04. But the court held that Lee’s conduct did not qualify. The court explained that the fact a series of crimes is part of a common plan does not necessarily mean that joinder is mandatory; instead, “permissive joinder is authorized where offenses are based upon a series of acts constituting a single scheme or plan.” Lee, 132 Wn.2d at 504.

[191]*191The present case does not clearly fall under the mandatory joinder rule, as do some cases that are based on the same conduct, such as State v. Dallas, 126 Wn.2d 324, 329, 892 P.2d 1082 (1995) (holding theft and possession of stolen property were related charges since based on the same conduct); State v. Anderson, 96 Wn.2d 739, 638 P.2d 1205 (holding mandatory joinder required dismissal of second charge of first degree premeditated murder, after first conviction for premeditated murder under “extreme indifference” was overturned as an inappropriate charge), cert, denied, 459 U.S. 842 (1982); and State v. Holt, 36 Wn. App. 224, 228, 673 P.2d 627 (1983) (holding that the charges in two possession of pornography cases were the same conduct because the charges were the same, the kind of material allegedly illegally possessed was the same, and the date of possession was the same). Nor does this case fall squarely under the permissive joinder cases, where the conduct is clearly not the same. See, e.g., State v. Watson, 146 Wn.2d 947, 957, 51 P.3d 66

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State v. Downing
93 P.3d 900 (Court of Appeals of Washington, 2004)

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Bluebook (online)
93 P.3d 900, 122 Wash. App. 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downing-washctapp-2004.