Opinion
No. 55567-7-I.
May 7, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-1-01795-3, Ronald Kessler, J., entered December 21, 2004.
Affirmed by unpublished per curiam opinion.
Jerry Thompson and two codefendants robbed 15 people in a restaurant. Unlike his codefendants, Thompson rejected the State's plea offer. But Thompson knew the State would file additional charges if plea negotiations broke down and that he risked a substantially longer sentence by going to trial. Consequently, the mere fact that the State then filed the additional charges as promised and Thompson was convicted of virtually all of the additional charges does not raise a presumption of prosecutorial vindictiveness. Because there are no additional circumstances supporting such a presumption, we affirm Thompson's conviction for 10 counts of first degree robbery and 5 counts of first degree kidnapping.
FACTS
Shortly after 2:00 p.m. on July 3, 2003, three masked men entered a Denny's Restaurant in Renton. During the next 30 minutes, the three men rounded up approximately 15 employees and patrons from throughout the restaurant and ordered them-at gun-and knife-point-to surrender watches, wallets, purses, and other valuables. At some point, two employees who had hidden behind the bar were able to call the police.
After collecting the valuables, the robbers ordered the victims into a walk-in cooler. The robbers returned to the cooler several times, forcing the manager and a server to open the restaurant safe and the front cash register. Upon noticing that the police were waiting outside, the robbers removed their masks and unsuccessfully pretended to be patrons. Witnesses later identified appellant Jerry Thompson as the robber who displayed the knife.
Thompson and his two codefendants were each charged with two counts of first degree robbery and one count of unlawful imprisonment, each count including a firearm enhancement. The State communicated a plea offer to all of the defendants, offering to recommend a standard-range sentence of 213 months in exchange for a guilty plea to the information as charged. The State advised Thompson that if he rejected the offer, it would amend the information to allege 12 counts of first degree robbery and 15 counts of first degree kidnapping, each with a firearm enhancement, and 1 count of first degree unlawful possession of a firearm. Thompson's codefendants accepted the offer and were sentenced to standard-range terms. Thompson rejected the offer, and the State amended the information as promised, charging Thompson with a total of 28 counts. Thompson did not object to the amended information.
The jury found Thompson guilty as charged of 10 of the 12 counts of robbery and all 15 counts of kidnapping; the unlawful possession of a firearm charge was not submitted to the jury. The jury rejected all of the firearm enhancements.
Prior to sentencing, Thompson obtained new counsel and moved for a new trial, alleging prosecutorial vindictiveness and ineffective assistance of counsel. The trial court denied the motion for a new trial, but concluded that the State's decision to amend the information established "a reasonable likelihood of vindictiveness for the exercise of a constitutional right." The court ruled that the kidnappings did not merge with the robberies, but based on the finding of prosecutorial vindictiveness, the court dismissed all 10 kidnapping counts associated with robbery convictions for the same victim, leaving a total of 10 counts of first degree robbery and 5 counts of first degree kidnapping. The court noted that although trial counsel was arguably ineffective for failing to object to the amended information, no further action was required given the remedy. The court then sentenced Thompson to a total term of 409 months.
Thompson has appealed, challenging the trial court's failure to dismiss all counts added in the amended information. The State did not file a notice of cross-appeal.
DECISION
Thompson contends the trial court violated his due process rights by applying the wrong remedy for prosecutorial vindictiveness. He argues that all of the charges added in the amended information should be dismissed and the case remanded for resentencing solely on the two robbery counts that were charged in the initial information.
Prosecuting attorneys have broad discretion to determine the nature and timing of criminal charges. A prosecutorial charging decision is impermissibly "vindictive" only if it is "designed to penalize a defendant for invoking legally protected rights." The trial court concluded that Thompson had established a presumption of vindictiveness, which arises if the circumstances support a "realistic likelihood of vindictiveness." In reaching this conclusion, the court relied on the following factors: the disparity between Thompson's sentence range and the sentence range of his codefendants, the disparity between the sentence range available in the plea offer and the sentence range following trial, and the State's failure to articulate reasons for adding charges other than Thompson's decision not to plead guilty.
See State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990).
State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)).
Korum, 157 Wn.2d at 627 (quoting United States v. Meyer, 810 F.2d at 1246). Prosecutorial vindictiveness can be either actual or presumptive. See Korum, 157 Wn.2d at 627. Thompson has not made any claim of actual vindictiveness.
The trial court's analysis was based solely on the Court of Appeals' reasoning in State v. Korum, a prosecution for a series of home invasion robberies. Under the terms of a plea agreement, Korum pleaded guilty to a two-count information. After Korum withdrew his guilty plea, the State, as promised, filed an amended 32-count information, and a jury found Korum guilty of 30 of the 32 counts. On appeal, the Court of Appeals concluded that the circumstances raised a presumption of prosecutorial vindictiveness and dismissed the charges added after Korum withdrew his guilty plea. The case was then remanded to the trial court for a determination of whether the remaining charges should be dismissed under CrR 8.3(b).
120 Wn. App. 686, 86 P.3d 166 (2004), rev'd in part, 157 Wn.2d 614, 141 P.3d 13 (2006).
Korum, 120 Wn. App. at 719-20.
Upon further review, our Supreme Court reversed the Court of Appeals' analysis of prosecutorial vindictiveness and reinstated Korum's convictions on the additional charges included in the amended information. The Court concluded that "the mere filing of additional or more serious charges after the withdrawal of a plea agreement, without proving additional facts, does not give rise to a presumption of vindictiveness." The Court rejected any suggestion that the disparity between the State's recommended sentence following Korum's guilty plea and the recommended sentence following conviction after trial, or the disparity between Korum's sentence following trial and the significantly lower sentences of his codefendants constituted an additional fact supporting prosecutorial vindictiveness. Such discrepancies necessarily result from the increased number of charges, not prosecutorial vindictiveness.
Korum, 157 Wn.2d 614, 141 P.3d 13 (2006).
Korum, 157 Wn.2d at 631 (emphasis added).
Korum, 157 Wn.2d at 634 ("the mere filing of additional charges and the consequent increase in sentence, regardless of the `magnitude,' cannot support a presumption of vindictiveness without proving `additional facts'").
Korum, 157 Wn.2d at 614.
The trial court's decision in this case and Thompson's arguments on appeal rest solely on the Court of Appeals' reasoning in Korum, which was squarely rejected by our Supreme Court. Thompson has not suggested the remaining charges were unsupported by the evidence. Nor has he identified any additional facts raising a presumption of prosecutorial vindictiveness. Consequently, Thompson has failed to make any showing that he is entitled to the dismissal of additional charges on the basis of prosecutorial vindictiveness.
The parties' briefs in this case were submitted before the Supreme Court's decision in Korum. Neither side has attempted to submit any additional argument.
See Korum, 157 Wn.2d at 632-33.
Thompson also appears to suggest that the remaining kidnapping charges must be dismissed because they were incidental to the robbery charges. But first degree kidnapping, even when incidental to a first degree robbery, does not merge with the robbery conviction.
State v. Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005).
Finally, Thompson contends that he was denied effective assistance when trial counsel failed to object to the amended information. In order to establish ineffective assistance of counsel, Thompson must demonstrate both (1) that his attorney's representation fell below an objective standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. But the trial court's conclusion that the circumstances raised a presumption of prosecutorial vindictiveness is contrary to the Supreme Court's decision in Korum. Based on that conclusion, the trial court dismissed 10 kidnapping counts, a decision the State has not challenged on appeal. Under the circumstances, including the relief already granted, Thompson cannot establish that he was prejudiced by trial counsel's alleged deficient failure to object to the amended information.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Thompson has filed a statement of additional grounds for review. See RAP 10.10. But his arguments are essentially identical to those raised in his appellate brief. For the reasons set forth above, these arguments are without merit.
Affirmed.