State v. Sonneland

494 P.2d 469, 80 Wash. 2d 343, 1972 Wash. LEXIS 590

• Court: Washington Supreme Court
• Decided: March 9, 1972
• Docket: 42076
• Status: Published

Opinions

Stafford, J.

The state appeals from an order of dismissal granted by the trial court upon defendant’s motion. The essence of this appeal is the construction to be given RCW 10.46.090.

In March 1969, the defendant was charged with possession of marijuana, a felony under then existing law. Defendant offered to plead guilty if the charge was reduced to a gross misdemeanor. Subsequently, an amended information was filed.

Before trial, defendant offered to be an informant if the gross misdemeanor charge was dismissed. He bargained to give information leading to the arrest of three dealers in marijuana who, upon arrest, would be in possession of marijuana or heroin. Failing to do so, he agreed to plead guilty to the lesser charge. The prosecuting attorney accepted the proposal. As a “cover”, defense counsel obtained a continuance and the defendant was released.

In August, the defendant informed on one dealer. During the raid which followed, the named dealer and two other dealers were arrested. Afterward defendant furnished no further information.

In February 1970, concluding that the defendant would offer no additional information, the prosecuting attorney set the case for trial in June. At that point, the defendant indicated his unwillingness to plead guilty to the gross misdemeanor charge. His refusal was met by the filing of a second amended information charging him with the violation of RCW 69.40.070(5) (i.e., possession of marijuana in excess of 40 grams, a felony).

Defendant successfully demurred to the second amended felony charge. It was based upon a criminal statute enacted subsequent to the commission of the alleged crime.

The prosecuting attorney then filed a third amended information charging him with possession of marijuana, a misdemeanor. Defendant moved to dismiss the latter charge, asserting that he had fulfilled the bargain. He filed no affidavit to support the motion.

The trial court, after taking testimony pertaining to the agreement, granted the motion to dismiss. The order of dismissal stated only that the furtherance of justice would be served thereby. The state appeals and argues five issues.

I

First, the state contends that a defendant lacks standing to move for dismissal of a criminal action. It is said that only the court and prosecuting attorney have such authority.

The state argues that, at common law, only the prosecutor was empowered to move for the dismissal of a criminal charge.¹ From that springboard it is urged that RCW 10.46.090² merely grants the trial court power equal to that possessed by the prosecuting attorney.

Such a narrow construction fails to give the statutory language its proper effect. RCW 10.46.090 provides: “No prosecuting attorney shall hereafter discontinue or abandon a prosecution except as provided in this section”. Clearly this evidences a legislative intent that the trial court alone is authorized to dismiss criminal charges. The statute completely abrogates the prosecuting attorney’s common-law discretion to dismiss a criminal prosecution.

Next, the state asserts that the trial court’s power should be limited to rectifying defects readily apparent in the official file (e.g., an unsigned information or an information that fails to state a crime). However, that suggestion ignores the language of RCW 10.46.090 which authorizes the court to act “in furtherance of justice”. If the court’s power is confined to mere scrutiny of the case file, its statutory authority will be emasculated. One of the purposes of RCW 10.46.090 is to protect accused persons from arbitrary, albeit infrequent, actions of some prosecutors. If it is required “in furtherance of justice”, the trial court is empowered to dismiss a criminal prosecution on its own motion, even though the prosecutor disagrees.

The state urges that its interpretation of the statute is more consistent with the overall legislative scheme. It directs our attention to RCW 10.37.020 and RCW 10.46.010 which require the dismissal of criminal charges if the state fails to file an information within 30 days or fails to bring a defendant to trial within 60 days, respectively. The state appears to conclude that since a defendant may move to dismiss charges under either of the foregoing statutes, he may not do so under RCW 10.46.090. We fail to see either the logic or the relevance of such contention. Neither of the above-mentioned statutes expressly authorize defendants to move for dismissal. Nevertheless, they are permitted to do so for the same reason that we here allow them to move for dismissal under RCW 10.46.090. It is the only practicable way by which trial courts can be informed of circumstances warranting dismissal.

II

The state challenges defendant’s failure to support his motion by an affidavit setting forth the grounds for dismissal. However, the statute contains no such requirement.

The state asserts that a supporting affidavit is compulsory, citing State v. Johnson, 77 Wn.2d 423, 462 P.2d 933 (1969), State v. Camp, 67 Wn.2d 363, 407 P.2d 824 (1965). However, these cases are not controlling. Camp did not hold that an affidavit is required. It held merely that the proffered affidavit was inadequate. Johnson held only that the defendant could not avail himself of a mistake in the prosecutor’s affidavit. The affidavit there had been made in support of a motion to dismiss charges against a witness who had been granted immunity in return for his testimony against the defendant.

Although a supporting affidavit is desirable, the purpose served thereby was achieved, in this case, by sworn testimony taken during the hearings on the motion.

Ill

Next, it is contended that the grounds upon which the dismissal was ordered are untenable. On the contrary, we find them both supportable and reasonable.

The state claims the trial court based its order, sub silentio, on the erroneous ground that there was an unreasonable delay between the time of arrest and the trial. Assuming, without deciding, that such delay was at the core of the court’s action, the prosecution was responsible for a significant part thereof. Granted, defendant moved for the initial continuance, but he did so to provide the “cover” necessary for him to operate as the prosecutor’s informant. Further, the prosecution concedes that the defendant ceased performing his agreement in August 1969. The record fails to disclose why the prosecution waited until February 1970 to set the trial in June. Absent some showing that the delay was excusable, the trial court could properly have based its dismissal upon unreasonable delay.

Next, the state maintains the defendant carried out only one-third of his bargain. Thus, it is asserted, an order for dismissal based upon “compliance” with the agreement would be untenable. We do not agree. There is considerable support for the trial court’s oral finding that the defendant had substantially complied with the agreement. We quote the state’s version of the agreement from page 16 of its brief:

The record clearly indicates that Mr. Sonneland . . . in exchange for a dismissal of the charges filed against him would provide information . . . which would result in the arrest of at least three (3) separate dealers or sellers in marijuana and that at the time of the arrest the people arrested must actually be in possession of either marijuana or heroin.

The agreement neither required that defendant provide information leading to the conviction of three marijuana dealers nor did it require that the dealers be arrested as the result of three separate “tips”. The defendant was only required to provide information leading to the arrest of three dealers, who, at the time of arrest, were to be in possession of marijuana or heroin.

Based on defendant’s information, the police raided the Davis residence. During the raid 10 “lids” of marijuana were seized. As a result, the police arrested Messrs. Davis, Chadwick and Gent.

The state complains that the three men were not dealers in marijuana. On the other hand, the defendant testified that they were. The state had ample opportunity to rebut defendant’s testimony but failed to do so. Thus, there was sufficient evidence to support the court’s conclusion that the men were, in fact, dealers in marijuana.

Next, the state urges that it was an abuse of discretion for the trial court to find “substantial compliance” by inquiring into circumstances surrounding defendant’s performance of the agreement. It is argued that the court’s inquiry should have been limited to a determination of whether the prosecutor, not the court, felt the agreement had been honored.

We do not believe the state’s position is well taken. Such a proposal would ring down an impenetrable curtain, preventing the trial court from exercising the protective discretion provided for in RCW 10.46.090.

The trial court properly accorded the defendant an opportunity to have the motion completely heard and determined.

IV

The state objects to the fact that the trial court’s order of dismissal merely recited that it was issued “in furtherance of justice”. Presumably all such orders are granted “in furtherance of justice”. Thus, such a statement, standing alone, adds nothing to the requirement that the court must give “the reason for the dismissal”.

We do not approve of the order’s deficiency, and recommend that similar deficient recitations be avoided in the future. Nevertheless, the court’s reason for dismissal is fully evident from its oral opinion. Thus, no useful purpose would be served, in this case, by remanding the matter solely to complete the formality of providing written reasons. See Rutter v. Rutter, 59 Wn.2d 781, 784, 370 P.2d 862 (1962); Heikkinen v. Hansen, 57 Wn.2d 840, 845, 360 P.2d 147 (1961); High v. High, 41 Wn.2d 811, 819, 252 P.2d 272 (1953). It is readily apparent that the reason for dismissal was the defendant’s substantial compliance with the agreement.³

Y

Finally, the state maintains that the interests of justice would be best served by setting aside the order of dismissal. It is said that enforcement of the agreement here involved is a matter of prosecutorial discretion; that it is strictly up to the prosecutor to see that his bargains are adhered to.

However the trial court has usurped no prosecutorial discretion. RCW 10.46.090 gives the power of dismissal to the court, not to the prosecuting attorney. By enforcing the agreement reached by the prosecuting attorney and the defendant, the trial court has merely exercised its statutory power.

The record amply supports the trial court’s conclusion that the defendant substantially complied with the agreement. Society is best served when the prosecution abides the terms of its agreements and when the court fulfills its statutory duty by seeing that it is done.

The trial court is affirmed.

Hamilton, C.J., Finley, Rosellini, Hunter, Neill, and Wright, JJ., concur.

1 See Annot., Power of court to enter nolle prosequi or dismiss prosecution, 69 A.L.R. 240 (1930). For a recent discussion of the prosecutor’s discretion see LaFave, The Prosecutor’s Discretion in The United States, 18 Am. J. Comp. L. 532 (1970).

2 RCW 10.46.090. “Nolle prosequi. The court may, either upon its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order any criminal prosecution to be dismissed; but in such case the reason of the dismissal must be set forth in the order, which must be entered upon the record. No prosecuting attorney shall hereafter discontinue or abandon a prosecution except as provided in this section.”

3 Concerning the defendant’s compliance with the agreement, the trial court said in its oral opinion:

But it does seem like Mr. Sonneland did make an effort to live up to the deal and that his efforts did result in the apprehension of — well, I don’t know. There is some question here. Mr. Dunn indicates that two of these were not sellers, but Mr. Sonneland’s testimony was that they were, I guess, known to be sellers, Davis and Chadwick, I believe it was.

Thereafter, the trial court in responding to the prosecutor’s request that the order contain the reasons for dismissal stated:

Well, all right, I have indicated to Mr. Donaldson if he’d like to present another order, well, I would be glad to consider it and I think I have stated my reasons here.

The fact that this has been reduced to a misdemeanor, the fact that this man was on parole, and the fact that this young man had made reasonable efforts to make the deal, although he hasn’t right to the tooth and toe of it, he hasn’t fulfilled it. We don’t have it in writing. We don’t have the contract in writing, but I think he’s made a substantial effort here.