                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           May 30, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 49968-1-II

                                Appellant,                         Consolidated with
                                                                    No. 49976-2-II
        v.

 BLAKE ANDREW CROY;                                           UNPUBLISHED OPINION
 ALONDRA STEPHANIE TRUJILLO,

                                Respondents.

       WORSWICK, J. — The State appeals from orders dismissing with prejudice its charges

against Blake Croy and Alondra Trujillo. We affirm.

                                               FACTS

       On March 18, 2015, the State charged Blake Croy with second degree theft, first degree

trafficking in stolen property, and third degree theft. On that same date, the State filed a motion

and affidavit of prejudice removing Judge Gary Bashor from all matters in the cause. On

November 9, 2015, the State charged Alondra Trujillo with two counts of unlawful possession of

a controlled substance and third degree theft. On that same date, the State filed a motion and

affidavit of prejudice removing Judge Bashor from all matters in the cause.

       The State later entered into agreements with both Croy and Trujillo for their entry into

drug court. As part of the agreements, each defendant admitted to committing the charges

against them and waived certain rights, including their speedy trial rights. In exchange, the State

agreed to dismiss the charges with prejudice upon successful completion of all aspects of the

drug court program. The agreements further provided that termination from the drug court
No. 49968-1-II;
Cons. with No. 49976-2-II

program would result in a bench trial on the original charges with a stipulated record consisting

of the defendant’s agreement, confession, and any police or laboratory reports. The trial court

accepted the agreements and transferred Croy’s and Trujillo’s cases to drug court. At that time,

Judge Bashor was the only judge presiding in Cowlitz County’s drug court.

       Croy and Trujillo each appeared for numerous drug court hearings with Judge Bashor

presiding. In October 2016, while Croy and Trujillo were each still participating in the drug

court program, Judge Bashor became aware that the State had filed affidavits of prejudice against

him and thereafter removed himself from Croy’s and Trujillo’s cases.

       On December 14, 2016, Judge Stephen M. Warning entered orders dismissing Croy’s and

Trujillo’s charges with prejudice. In dismissing Croy’s charges, Judge Warning entered the

following findings of fact and conclusions of law:

       Findings of Fact:
              1) On March 18, 2015, the Prosecuting Attorney filed an Affidavit of
                    Prejudice against Judge Bashor, the presiding judge in the Cowlitz
                    County Drug Court.
              2) On April 4, 2016 the parties agreed that the defendant should enter the
                    Cowlitz County Drug Court program, and his entry into the program
                    was approved by Judge Haan on that date. As a condition of entry
                    into that program the defendant waived a number of rights and
                    admitted to facts sufficient to convict him of the charged offenses.
              3) Since that time the defendant has participated in the Drug Court
                    program and been generally successful. His case was handled by
                    Judge Bashor despite the Affidavit of Prejudice as neither party
                    brought the fact of the affidavit to his attention[.] In October of 2016
                    Judge Bashor became aware of the existence of the Affidavit of
                    Prejudice filed by the State. The delay in discover[y] of that affidavit
                    was not due to any inappropriate conduct on the part of any party. The
                    judge in Drug Court does not see the court file when reviewing cases
                    in Drug Court, and the paper docket does not note the presence of an
                    Affidavit of Prejudice.
              4) Since that time Judge Bashor has not participated in the defendant’s
                    case.



                                                2
No. 49968-1-II;
Cons. with No. 49976-2-II

               5)   This court does not have the resources to create or conduct a Drug
                    Court program with another judge.

       Conclusions of Law:
             1) All actions and decisions by Judge Bashor in this case, prior to being
                   made aware of the existence of that affidavit, were proper and binding
                   on the parties. State v. Smith, 13 Wn. App 859[, 539 P.2d 101] (1975).
             2) “No judge of a superior court of the state of Washington shall sit to
                   hear or try any action or proceeding when it shall be established as
                   hereinafter provided that said judge is prejudiced against any party or
                   attorney, or the interest of any party or attorney appearing in such
                   cause.” RCW 4.12.040[.] As Judge Bashor is now aware of the
                   Affidavit of Prejudice, he may not hear this matter.
             3) It has been suggested that the prosecutor may selectively waive their
                   Affidavit of Prejudice, precluding Judge Bashor from hearing some
                   portions of a case but allowing him to hear others. This is certainly
                   not contemplated by the statute. Further, it would give a party an
                   inappropriate tactical advantage if they were permitted to exercise
                   such an affidavit sporadically. The deputy prosecutor has filed an
                   affidavit, sworn under oath, stating that they cannot “receive a fair trial
                   and impartial trial in this case before the Honorable Gary Bashor.”
                   They are bound by that affirmation.
             4) Because of the existence of the Affidavit of Prejudice, the defendant
                   may not continue to participate in the Drug Court program.
             5) One of the rights waived by the defendant in order to participate in that
                   program was his right to a speedy trial. Even a resolution of this
                   matter which precluded any use of his waivers and admissions would
                   still prejudice his right to a speedy trial.
             6) The only remedy which protects the rights of the defendant is a
                   dismissal. This works no harm against the State, as a dismissal would
                   be the outcome of a successful completion of the program by the
                   defendant.

Clerk’s Papers (CP) at 16-18. Judge Warning entered nearly identical findings and conclusions

with regard to the dismissal of Trujillo’s charges.1 The State appeals from the orders dismissing

with prejudice its charges against Croy and Trujillo.



1
 Apart from the use of female pronouns, the findings and conclusions regarding Trujillo’s case
dismissal differed from Croy’s only with respect to the applicable dates in findings of fact one



                                                 3
No. 49968-1-II;
Cons. with No. 49976-2-II

                                            ANALYSIS

                                     I. PRELIMINARY MATTERS

       The State’s sole assignment of error is that “[t]he trial court erred in entering sua sponte

an order of dismissal.” Br. of Appellant (Croy) at 1; Br. of Appellant (Trujillo) at 1. But the

State provides no facts, argument, or legal authority supporting its claim that the court erred by

sua sponte entering its dismissal orders. Because the State does not address its assignment of

error in the argument section of its brief, we deem that it has waived any contention with the sua

sponte nature of the dismissal order. See RAP 10.3(a)(6) (appellant’s brief should contain

argument in support of issues presented in addition to citations to legal authority and to the

relevant parts of the record); State v. Harris, 164 Wn. App. 377, 389 n. 7, 263 P.3d 1276 (2011)

(assignment of error waived where appellant failed to present supporting argument and legal

authority).

       The State does not assign error to any of the trial court’s findings of fact or conclusions

of law in support of the orders dismissing Croy’s and Trujillo’s charges. Croy and Trujillo

contend that we should decline to consider these appeals in light of the State’s failure to argue its

sole assignment of error and failure to assign error to the trial court’s findings of fact and

conclusions of law. We agree with Croy and Trujillo that the State’s brief does not strictly




and two. Finding of fact number one stated that the State had filed its affidavit of prejudice in
the Trujillo matter on November 9, 2015. And finding of fact number two stated that the parties
had entered into the drug court agreement on February 25, 2016, which agreement was approved
by Judge Evans.




                                                  4
No. 49968-1-II;
Cons. with No. 49976-2-II

comply with RAP 10.3(a)(4), (6).2 But we may review unassigned errors if the issues are

reasonably clear from the arguments in the brief, the opposing party has not been prejudiced, and

the court has not been overly inconvenienced. State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629

(1995) (citing RAP 1.2(a)).

       Here, it is clear from the State’s statement of the issue pertaining to assignment of error,

and from the argument contained in its brief, that it is contending the trial court abused its

discretion when entering its dismissal orders because it erroneously concluded that the State had

not waived, and could not waive, its affidavit of prejudice by failing to bring it to Judge Bashor’s

attention and by not objecting when Judge Bashor presided over Croy’s and Trujillo’s

appearances at drug court.

       It appears from this statement of the issue pertaining to assignment of error and related

argument, that the State is challenging the trial court’s conclusion of law number three. Neither

Croy nor Trujillo contend that they are prejudiced by the State’s noncompliance with RAP

10.3(a), and each have responded to the merits of the State’s argument. Because the nature of

the State’s challenge is clear from its briefing and because neither of the respondents claim

prejudice from the State’s noncompliance with RAP 10.3(a), we elect to address the issue.

                                       II. DISMISSAL ORDER

       The State contends that the trial court abused its discretion when entering its dismissal

orders because it erroneously concluded that the State had not waived and could not waive its



2
 RAP 10.3(a)(4) requires an appealing party to set forth “[a] separate concise statement of each
error a party contends was made by the trial court,” and RAP 10.3(a)(6) requires argument in
support of those assignments of error.



                                                  5
No. 49968-1-II;
Cons. with No. 49976-2-II

affidavit of prejudice against Judge Bashor. On the limited record before us, we disagree that the

trial court abused its discretion, and we affirm the orders dismissing with prejudice Croy’s and

Trujillo’s criminal charges.

          CrR 8.3(b)3 governs a trial court’s dismissal of criminal charges due to governmental

misconduct. A trial court may dismiss a defendant’s charges upon two showings. State v.

Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). First, the defendant must show arbitrary

action or governmental misconduct. Michielli, 132 Wn.2d at 239. Such governmental

misconduct “‘need not be of an evil or dishonest nature; simple mismanagement is sufficient.’”

Michielli, 132 Wn.2d at 239-40 (emphasis omitted) (quoting State v. Blackwell, 120 Wn.2d 822,

831, 845 P.2d 1017 (1993)). Second, a defendant must show that such governmental misconduct

prejudiced his or her right to a fair trial. Michielli, 132 Wn.2d at 240. “Such prejudice includes

the right to a speedy trial.” Michielli, 132 Wn.2d at 240. “[D]ismissal under CrR 8.3 is an

extraordinary remedy, one to which a trial court should turn only as a last resort.” State v.

Wilson, 149 Wn.2d 1, 12, 65 P.3d 657 (2003).

          We review a trial court’s CrR 8.3(b) dismissal ruling for a manifest abuse of discretion.

Michielli, 132 Wn.2d at 240. “‘Discretion is abused when the trial court’s decision is manifestly

unreasonable, or is exercised on untenable grounds or for untenable reasons.’” Michielli, 132

Wn.2d 240 (quoting Blackwell, 120 Wn.2d at 830). A trial court may also abuse its discretion by




3
    CrR 8.3(b) provides:
         The court, in the furtherance of justice, after notice and hearing, may dismiss any
         criminal prosecution due to arbitrary action or governmental misconduct when
         there has been prejudice to the rights of the accused which materially affect the
         accused’s right to a fair trial. The court shall set forth its reasons in a written order.


                                                      6
No. 49968-1-II;
Cons. with No. 49976-2-II

applying an incorrect legal analysis. State v. Kinneman, 155 Wn.2d 272, 289, 119 P.3d 350

(2005).

          The State presents only a narrow argument regarding the trial court’s dismissal orders.

Specifically, the State argues only that the trial court erred by concluding that the State’s

“affidavit of prejudice had not and could not be waived.” Br. of Appellant (Croy) at 8; Br. of

Appellant (Trujillo) at 8. But the State has not designated for the record on appeal a transcript of

the trial court’s dismissal hearing. RAP 9.2(b); State v. Sisouvanh, 175 Wn.2d 607, 619, 290

P.3d 942 (2012). And, on the limited record before us, it appears that the State has

misrepresented the trial court’s legal conclusions. Nothing within the trial court’s findings,

conclusions, and dismissal order indicate that it concluded the State had not waived and could

not waive its affidavits of prejudice. Therefore, we are unable to review this alleged error.

Instead, the trial court’s conclusion of law number three addresses an apparent argument4

regarding the State’s ability to unilaterally and selectively waive its affidavits of prejudice,

providing:

          It has been suggested that the prosecutor may selectively waive their Affidavit of
          Prejudice, precluding Judge Bashor from hearing some portions of a case but
          allowing him to hear others. This is certainly not contemplated by the statute.
          Further, it would give a party an inappropriate tactical advantage if they were
          permitted to exercise such an affidavit sporadically. The deputy prosecutor has
          filed an affidavit, sworn under oath, stating that they cannot “receive a fair trial and
          impartial trial in this case before the Honorable Gary Bashor.” They are bound by
          that affirmation.




4
 Because the State has not designated a transcript of the dismissal hearing for the record on
appeal, it is not clear what arguments were raised at the hearing.


                                                     7
No. 49968-1-II;
Cons. with No. 49976-2-II

CP at 17, 41 (emphasis added). Former RCW 4.12.050 (2009) supports the legal conclusion that

a party may not unilaterally waive its affidavit of prejudice in a manner allowing a trial court

judge to hear portions of a case while prohibiting the judge from hearing the remaining portions

of a case.

        Former RCW 4.12.050 provides in relevant part that “notwithstanding the filing of such

motion and affidavit [of prejudice], if the parties shall, by stipulation in writing agree, such judge

may hear argument and rule upon any preliminary motions, demurrers, or other matter thereafter

presented.” An interpretation of former RCW 4.12.050 allowing the prosecutor to unilaterally

waive its affidavit of prejudice to permit Judge Bashor to preside over Croy’s and Trujillo’s drug

court appearances while prohibiting him from presiding over other aspects of their cases would

render the statutory language quoted above inoperative. See State v. Ervin, 169 Wn.2d 815, 823,

239 P.3d 354 (2010) (Courts “‘interpret a statute to give effect to all language, so as to render no

portion meaningless or superfluous.’”) (quoting Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d

186 (2010)). Accordingly, the trial court correctly concluded that the State could not selectively

waive its affidavit of prejudice absent a written stipulation with the defendants. And the record

does not show that the parties had entered into such written stipulation allowing Judge Bashor to

preside over the defendants’ drug court appearances despite the State’s filing of motions and

affidavits of prejudice against him.

        Because the trial court properly interpreted former RCW 4.12.050 to prohibit a unilateral

selective waiver of filed affidavits of prejudice, we discern no error with regard to its conclusion




                                                  8
No. 49968-1-II;
Cons. with No. 49976-2-II

of law number three.5 Accordingly, we affirm the orders dismissing with prejudice Croy’s and

Trujillo’s criminal charges.6

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                         Worswick, J.
    We concur:



    Maxa, C.J.




    Lee, J.




5
  The State relies on State v. Smith, 13 Wn. App. 859, and Bargreen v. Little, 27 Wn.2d 128, 177
P.2d 85 (1947), to support its claim that it had waived its affidavits of prejudice such that Judge
Bashor was permitted to preside over the defendants’ drug court appearances despite Judge
Bashor becoming aware of the affidavits. But, as addressed above, the record before us does not
indicate whether the State had raised, and whether the trial court had considered, this claim
below. Accordingly, Smith and Bargreen are not germane to our analysis.
6
 The State does not challenge the trial court’s conclusion that dismissal of the charges with
prejudice was the appropriate remedy.


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