State v. Haner

¶1(dissenting) — The majority, by characterizing this case as one involving only a judicial interest, incorrectly resolves the delicate separation of powers problem presented. That doctrine, when implicated, is to be applied in a manner that guarantees a system of checks and balances which furthers rather than impairs cooperative action among governmental entities. United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974); United States v. Cowan, 524 F.2d 504 (5th Cir. 1975); State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977). The majority's application of that doctrine is too rigid and essentially ignores that, as in this case, there is often an overlapping of judicial and executive functions; an overlapping which requires a balancing approach.

¶2Whenever, as here, the prosecution attempts to amend an information to a lesser included offense and to drop other charges pursuant to an incipient plea bargain, there arises a conflict between the judicial and executive branches. Comment, Judicial Discretion To Reject Negotiated Pleas, 63 Geo. L.J. 241, 252 (1974); United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973); People v. Matulonis, 60 Mich. App. 143, 230 N.W.2d 347 (1975). The prosecutor is seeking to influence the sentencing options available to the court. Id.Conversely, the trial judge, if he or she refuses the amendment, encroaches upon the executive's inherent power to prosecute or dismiss charges. Id.

¶3The majority acknowledges this conflict, but concludes that the judicial interest is superior and then, by analyzing the problem solely in light of that interest, unnecessarily denigrates the executive function. In contrast, several courts have applied a test which not only accommodates both interests, but is consistent with the separation of *867powers doctrine. Ammidown, supra;Matulonis, supra; State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973); see also State ex rel. Lodwick v. Cottey, 497 S.W.2d 873 (Mo. Ct. App. 1973). Those courts have analyzed the problem of this case as primarily involving prosecutorial discretion, and I think properly so.

¶4In Pruett, the Kansas Supreme Court interpreted a statute substantially similar to CrR 2.1(d). That statute provides:

"K.S.A. 1971 Supp. 22-3201 (4). The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."

¶5State v. Pruett, supra at 46.

¶6The court concluded, in light of the separation of powers doctrine, that the judge's role is only to ensure that the proposed amendment does not prejudice the defendant's rights. It held

that when the prosecutor exercises his discretion as to the charges to be filed or as to amendments of the information seeking to reduce the charges to lesser offenses, the trial judge has no right to substitute his judgment for that of the prosecutor absent some compelling reason to protect the rights of the defendant.

¶7Pruett, at 47. In so holding, the court noted:

The public interest is best served and even-handed justice best dispensed not by a mechanical application of the 'letter of the law' but by a flexible and individualized application of its norms through the exercise of the trained discretion of the prosecutor as an administrator of justice."

¶8Pruett, at 47, citing 1 American Bar Ass'n, Standards for Criminal Justice, Std. 3-3.9, Commentary at 3.56 (2d ed. 1980).

¶9In Ammidown, that deference to prosecutorial discretion was not only acknowledged, but expanded. The court stated that prosecutorial determinations are presumptively valid and that they, even in the context of plea bargaining, *868should be honored absent an abuse of prosecutorial discretion. According to that court, trial judges cannot deny proposed amendments simply because their conception of the public's interest differs from that of the prosecution. Given the prosecutorial charging role, the court ruled that proposed amendments can be condemned "as a trespass on judicial authority only in a blatant and extreme case." Ammidown, at 622. Relevant to this case, the court noted:

When we come to the possible ground of intrusion on the sentencing function of the trial judge, we have a consideration that is interdependent of the other. That is to say, a dropping of an offense that might be taken as an intrusion on the judicial function if it were not shown to be related to a prosecutorial purpose takes on an entirely different coloration if it is explained to the judge that there was a prosecutorial purpose, an insufficiency of evidence, a doubt as to the admissibility of certain evidence under exclusionary rules, a need for evidence to bring another felon to justice, or other similar consideration.

¶10Ammidown, at 623.

¶11Based on the above reasoning, Ammidownsuggests that amendments may be judicially rejected only when required either by fairness to the defendant or the prosecutor, or when the court's sentencing authority is substantially undermined. This balancing test, though not uniformly accepted,3 has been followed elsewhere and does represent an attempt to accommodate, consistent with the separation of powers doctrine, the overlapping judicial and executive functions. Matulonis, supra; see generally 1 C. Wright, Federal Practice and Procedure § 128 (1969).

¶12In this case, the first two Ammidownfactors are not present. No one alleges that the proposed amendment would prejudice either the defendant or the prosecutor. Instead, both argue for its acceptance.

¶13Nor is this a case where there is any allegation of prose-cutorial abuse. The prosecutor, after exercising his assigned *869duties, concluded in good faith that insufficient evidence existed to prove second degree assault. That conclusion has a factual predicate and thus ought to be honored, absent a flagrant intrusion on judicial sentencing authority. See Ammidown, supra; United States v. Greater Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483, 486-87 (S.D.N.Y. 1964).

¶14Only the third Ammidownfactor has significance in this case. The proffered amendment was apparently rejected because the trial judge felt it unduly limited his sentencing options. The original charge of second degree assault with a weapon carries from a mandatory IV2 to a maximum 10-year sentence. Contrastingly, the amended charge of third degree assault carries a maximum term of 5 years.

¶15On greater sentencing disparities, trial courts have been reversed for refusing to accept proposed amendments. Ammidown, supra;Matulonis, supra.In Ammidown, the defendant appealed his first degree murder conviction on the ground that the trial court abused its discretion in refusing a plea to second degree murder. In reversing the trial court, the appellate court concluded that the sentence disparity.between first and second degree murder is not "so blatant as to constitute as [sic] intrusion upon the judicial domain." Ammidown, at 623. It reasoned:

The life sentence is mandatory on a conviction for first degree murder, and discretionary with the court on a conviction for murder in the second degree. Parole is available after a minimum of 20 years in the case of first degree murder, and after a minimum of 15 years in the case of murder in the second degree. The difference is insufficient by itself to warrant judicial rejection of a properly bargained plea of guilty to murder in the second degree on the ground of undue interference with the sentencing domain of the judiciary.

¶16Ammidown, at 623.

¶17A similar conclusion was reached in Matulonis. There, the sentencing disparity between the proposed amendment and the initial charge was the difference between a maximum term of 2 years and one of 10. In reversing the trial *870court's refusal to accept the proffered amendment, the appellate court stated that the disparity lacked the egregiousness necessary for its rejection.

¶18Both of these cases present a disparity greater than that in this case. In this case, the sentencing disparity was quite minimal. The majority acknowledges this when it states:

This is not to say the judge was without alternatives in exercising his discretion in this fashion. Had he granted the motion to amend, the court could have recommended to the parole board that Haner be sentenced to the full 5 years without parole. Moreover, he could have suggested revocation of Haner's probation, imposing sentence on the first offense to run consecutively. Such a sentence could have run longer than the 7 ¥2-year mandatory minimum, if good time credits were applied to the minimum. RCW 9.95.080; 9.95.110.

¶19Majority opinion, at 865 n.2.

¶20I therefore must conclude that the trial court improperly refused the amendment. The amendment would not have substantially undermined sentencing authority; whereas its rejection did significantly weaken the prosecutorial discretion we, as the public, have delegated to our public attorneys. If the prosecutor has not acted wisely, he or she will be accountable to the electorate. It is not proper for the judicial branch to question the wisdom of his or her action, based on the facts of this case.

¶21For these reasons, I dissent.

¶22Brachtenbach, C.J., and Dimmick, J., concur with Utter, J.

¶23Reconsideration denied October 5, 1981.