No. 52522-1-I.The Court of Appeals of Washington, Division One.
Filed: July 6, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-09020-2. Judgment or order under review. Date filed: 06/13/2003. Judge signing: Hon. Steven C Gonzalez.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jim Hill — Informational Only (Appearing Pro Se), Regional Justice Center, 620 West James Street, Kent, WA 98032.
Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
PER CURIAM.
Before a trial court may dismiss a criminal case for preaccusatorial delay, the defendant must show that he was prejudiced by the delay. Hill’s argument that the State might have plea bargained with him to settle all his cases at once and insure concurrent sentences had the present case not been delayed was entirely speculative. The trial court did not err in denying Hill’s motion to dismiss.
FACTS
Hill was convicted of delivering cocaine to a confidential informant on March 20, 2001. The State did not file the charge until April 23, 2003, when it amended an information filed on December 10, 2002.[1] Hill moved to dismiss the charge, arguing that he had been prejudiced by the delay between the incident and the filing of the information.
Hill’s claim of prejudice was based on charges filed against him under two separate cause numbers. In King County No. 01-1-02449-0, Hill was charged and convicted on two counts. Count I involved a charge of possession of cocaine with intent to deliver on June 1, 2000. A jury found him guilty of the lesser offense of possessing cocaine. In Count II, the charge was possessing cocaine on March 8, 2001. Hill pleaded guilty to this offense. On January 11, 2002, Hill was sentenced to 15 months on each count, concurrent with each other, but consecutive to any other sentence. In the second case, King County No. 01-1-03376-6, Hill was charged with one count of possessing cocaine with intent to deliver on March 29, 2001. A jury found him guilty of the lesser offense of possession of cocaine. On October 25, 2001, he was sentenced to 16 months.
Hill was thus accused of four offenses involving cocaine in two years: one occurring in June 2000 and three (including this offense), occurring in March 2001. Hill had completed serving his first sentence and was out of custody for a short time when this charge was filed. At the time of sentencing in this case, he was serving the 16-month sentence, after the second conviction had been affirmed on appeal.
On June 13, 2003, the trial court here imposed a 108-month sentence, the low end of the standard range, and gave Hill credit for 16 months time served, apparently crediting him with the time in custody on the previous offense.
ANALYSIS Preaccusatorial Delay
Preaccusatorial delay may violate a defendant’s right to due process under the United States Constitution.[2] Nonetheless, police and prosecutors have broad discretion to delay filing charges until they are satisfied that they should prosecute and will be able to promptly establish a defendant’s guilt beyond a reasonable doubt.[3] A trial court applies a three-part test to determine if preaccusatorial delay violates an individual’s right to due process.[4] A defendant must show he was prejudiced by the delay, the court must consider the reasons for the delay; and if the State is able to justify the delay, the court must undertake a further balancing of the State’s interest and the prejudice to the accused.[5]
Hill argued that if this charge had been filed at the same time as his earlier charge, `there may well have been a global settlement reached, some kind of a plea deal.’[6] Hill’s counsel acknowledged that he could not prove that such a deal could have been worked out but opined that, based on counsel’s experience in similar cases, both parties would prefer to avoid multiple trials.
The mere possibility of prejudice is insufficient to support a motion to dismiss. Only a specific showing that the delay caused actual prejudice triggers the State’s obligation to explain the delay.[7]
Here, the possibility of a plea agreement that would have settled all of these cases was entirely speculative. A prosecutor has broad discretion to determine whether to enter into a plea bargain or to go to trial.[8]
And it is unclear whether Hill would have been willing to accept whatever plea bargain was offered. As it was, Hill chose to go to trial twice and was twice convicted of a lesser-included offense.
Hill also argued that he was prejudiced because his sentences would have run concurrently if all his cases were sentenced at the same time. But the two cause numbers involving the three earlier cases were not sentenced concurrently. Moreover, at sentencing, Hill asked the trial judge to run this sentence concurrent with the 16-month sentence under his previous conviction. The court instead gave Hill credit for 16 months, essentially making this sentence concurrent with the earlier sentence.
Hill was unable to establish actual prejudice. Without such a showing, Hill cannot establish that the trial court erred in denying his motion to dismiss.
Additional Issues
Hill contends he was prejudiced because State’s Exhibit 1 (the evidence envelope) was not shown to the jury. But Exhibit 1 was not shown to the jury initially because it had not been sufficiently identified. Exhibit 1 was admitted at the end of the trial. There is no indication that the exhibit did not go to the jury or was unavailable for them to view.
Contrary to Hill’s argument, there was no basis for a suppression hearing because no evidence was seized from him. Nor is there any indication that he was denied the ability to check the confidential informant’s background. The informant, Frederick Flye, testified and admitted to a number of criminal convictions, including crimes of dishonesty. Likewise, there is no basis for finding that his trial counsel was ineffective for challenging the late amended charge for preaccusatorial delay, rather than for delay in arraignment.
Finally, there is no merit to Hill’s contention that he was sentenced to the high end of the standard range `for a charge that was dismissed.’[9] Hill was sentenced to the low end of the standard range and received credit for 16 months on a previous charge. The criminal history in the judgment and sentence reveals Hill’s actual convictions and does not contain a dismissed charge.
Affirmed.
SCHINDLER and BECKER, JJ.