                                                                 FILED 

                                                               NOV. 26, 2013 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 27489-6-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         PUBLISHED OPINION
                                              )
STEPHEN ANTHONY BAILEY,                       )

                                              )

                     Appellant.               )


      KULIK,   J.   At 16 years of age, Stephen Bailey stipulated to a waiver ofjuvenile

court jurisdiction and pleaded guilty to second degree robbery in adult court. The State

later used this conviction as a "strike" under the Persistent Offender Accountability Act

(POAA) of the Sentencing Refonn Act of 1981, chapter 9.94A RCW. In an unpublished

decision, this court concluded that the transfer of Mr. Bailey's case to adult court was

proper and, therefore, the robbery conviction could be used as a strike under the POAA.

State v. Bailey, noted at 157 Wn. App. 1026,2010 WL 3034924, review granted, 176

Wn.2d 1001,291 P.3d 886 (2013). We are now asked to reconsider our decision in light

of State v. Saenz, 175 Wn.2d 167,283 P.3d 1094 (2012), which identified two specific
No. 27489-6-111
State v. Bailey


prerequisites for a valid transfer ofjuvenile court jurisdiction: (1) the juvenile must be

fully informed of the rights and protections being waived, and (2) the juvenile court must

enter written findings in the record, including a finding that transfer is in the best interest

of the juvenile or pUblic.

       Adhering to the analysis and holding in Saenz, we conclude that Mr. Bailey was

not fully informed of the rights he waived and no written finding was entered that transfer

was in the best interest of the juvenile or public. Accordingly, we reverse the robbery

sentence.

                                        FACTS

       In 1997, Stephen Bailey, who was 16, was charged by information with first

degree robbery. In February 1998, Mr. Bailey entered an Alfori plea in adult court and

waived a declination hearing in exchange for the State's promise to reduce the charge to

second degree robbery. The stipulation regarding transfer to adult court provided:

       The defendant and his attorney herein indicate agreement that the
       prosecution of the Amended Information accusing the defendant of the
       crime of Second Degree Robbery with a deadly weapon shall be manifested
       in the adult division of the Yakima County Superior Court. The defendant
       and his attorney specifically consent to the waiver of any and all rights
       under RCW 13.40.110 (or any other applicable statute) to a declination
       hearing.


       1 North   Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970).

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No. 27489-6-III
State v. Bailey


               The court finds that the agreement of the parties is consistent with
        the interest ofjustice.

Ex.B.

        During the guilty plea hearing, the court explained the declination process as

follows:

                THE COURT: All right. Do you know what declination is? 

                THE DEFENDANT: Going to prison. 

                THE COURT: I'm sorry? 

                THE DEFENDANT: Getting sent to prison. 

               THE COURT: Well, it means-you're 16 now, is that right? 

               THE DEFENDANT: Yeah. 

               THE COURT: Juvenile court has jurisdiction over you. You are in adult 

        court right now because you were originally charged with a Class A felony, firs~­
        degree robbery. The [S]tate is reducing the charge to second-degree robbery.
                So, technically, you could go back to juvenile court. But part of the
        agreement is that you won't go back, and you are going to be treated as an
        adult here. And you are giving up the right to have a hearing to determine
        whether you should remain in juvenile court. Do you understand that?
                THE DEFENDANT: Yeah. 

               THE COURT: Are you sure? 

               THE DEFENDANT: Yes. 


Ex. Eat 1-2.

        The court further explained to Mr. Bailey that the second degree robbery was "a

very serious offense," which meant that he would "have a strike on [his] record already."

Ex. Eat 6. Mr. Bailey responded, "[t]hat means I'll have a felony, one strike." Ex. Eat

6.



                                              3

No. 27489-6-II1
State v. Bailey


       Ten years later, Mr. Bailey was convicted of first degree assault and intimidating a

witness. The State sought a sentence under the POAA. At sentencing, Mr. Bailey

challenged the use of the 1998 second degree robbery conviction as a strike under the

POAA, arguing that he did not knowingly and intelligently waive his right to be tried in

juvenile court. He testified that no one had explained that pleading guilty to a strike

crime could potentially result in a life sentence and claimed that when he agreed to give

up juvenile court jurisdiction, he believed a strike offense was the same as a felony

offense. Defense counsel argued:

       [W]hen a person has just turned 16 and is facing an extremely large amount
       of time in prison based on a very serious charge that person will sign
       anything and say anything. . .. At an age when a person is not old enough
       to sign a contract or buy a car or rent a house the Court expects that person
       to somehow be savvy enough to waive extraordinarily critical rights ....
       The testimony from Mr. Bailey is he thought all felonies were strikes.

Report of Proceedings (RP) at 1526-27.

       The sentencing court reviewed the transcript of the 1998 guilty plea hearing and

concluded that Mr. Bailey's waiver was voluntary and intelligent, stating, "The fact that

he went through that process with a lawyer satisfies me that the process was thorough and

complete and [the trial judge] made appropriate findings and ... an appropriate

colloquy." RP at 1552.




                                             4

No. 27489-6-111
State v. Bailey


       Mr. Bailey appealed. This court concluded that Mr. Bailey intelligently waived his

right to a declination hearing because he had been fully informed of the rights he was

waiving and, therefore, the second degree robbery was properly counted as a strike under

the POAA. We specifically noted that the trial court had informed Mr. Bailey that he was

entering a plea to a strike crime, that he would be confined in adult prison, and that he had

acknowledged in his written guilty plea statement that second degree robbery was a "most

serious offense" that could count toward a mandatory life sentence. Bailey, 157 Wn.

App. 1026. Mr. Bailey filed a petition for review in the Supreme Court.

       After Mr. Bailey filed his petition for review, the Washington Supreme Court

reviewed the intersection of the Juvenile Justice Act of 1977, chapter 13.40 RCW, with

the POAA in Saenz. The court held that even when parties stipulate to a waiver of

juvenile court jurisdiction, the juvenile court is statutorily required to enter findings that

transfer is in the best interest of the juvenile or the public before transferring the case to

adult court. Saenz, 175 Wn.2d at 180. The court also held that before a waiver of

juvenile court jurisdiction can be deemed knowing and intelligent, the juvenile must be

informed of the significant protections and rights he forever surrenders by waiving

juvenile court jurisdiction. [d. at 178.




                                               5

No. 27489-6-III
State v. Bailey


       The court granted Mr. Bailey's petition for review and remanded the case for

reconsideration in light of Saenz.

                                       ANALYSIS

       This court reviews de novo a sentencing court's decision to consider a prior

conviction as a strike. State v. Thiefault, 160 Wn.2d 409,414, 158 P.3d 580 (2007). The

prosecution bears the burden of proving by a preponderance of the evidence that a prior

conviction constitutes a "strike" under the POAA. Saenz, 175 Wn.2d at 172.

       The issue before us is whether in view of Saenz, the transfer of Mr. Bailey's

juvenile case to adult court was proper. In Saenz, Jorge Saenz entered a guilty plea to

second degree assault at the age of 15. Mr. Saenz stipulated to the waiver of a declination

hearing and transfer to adult court pursuant to a plea bargain. Saenz, 175 Wn.2d at 171.

During the 2001 guilty plea hearing, Mr. Saenz's attorney advised the court that he had

two conversations with Mr. Saenz about the consequences of waiving juvenile court

jurisdiction and assured the court that Mr. Saenz understood the implications of

transferring the case to adult court. Id. Mr. Saenz also checked a box on his written

guilty plea statement indicating that he understood the offense was a potential strike

offense. The juvenile court approved the stipulation and transfer, but did not enter any

findings regarding the declination or waiver.



                                                6

No. 27489-6-111
State v. Bailey


       In 2008, Mr. Saenz was convicted of two counts of first degree assault. At

sentencing, the State sought to use Mr. Saenz's 2001 second degree assault conviction as

a "strike" under the POAA. Mr. Saenz argued that the conviction could not be used as a

strike because the court had improperly transferred jurisdiction to adult court. Id. The

trial court held that the 2001 conviction could not be used as a strike. However, this court

reversed and remanded for sentencing under the POAA, reasoning that the juvenile court

did not err by failing to enter findings regarding the declination hearing because Mr.

Saenz waived the hearing. State v. Saenz, 156 Wn. App. 866,879,234 P.3d 336 (2010),

rev'd, 175 Wn.2d 167.

       The Washington Supreme Court reversed in part, concluding that the transfer of

Mr. Saenz's case to adult court was invalid because (1) there was no evidence the waiver

ofjuvenile court jurisdiction was knowing and intelligent, and (2) the juvenile court

failed to enter findings that declination ofjuvenile court jurisdiction was in the best

interest of Mr. Saenz or the public. Saenz, 175 Wn.2d at 174-75. As to the issue of

waiver, the court pointed out that there was no evidence that Mr. Saenz "understood the

serious implications of having his case transferred to adult court," which included forever

losing the many benefits and protections of the juvenile system. Id. at 177. The court

held that without evidence that Mr. Saenz was informed of these rights and the legal



                                              7

No. 27489-6-III
State v. Bailey


effect of the waiver, his waiver was invalid and, therefore, the juvenile conviction could

not be counted as a strike under the POAA. ld.

       The transfer ofjurisdiction here is similarly flawed. RCW 13.40.140(1) requires

that "[a] juvenile shall be advised of his or her rights when appearing before the court."

Additionally, RCW 13.40.140(9) provides: "Waiver of any right which a juvenile has

under this chapter must be an express waiver intelligently made by the juvenile after the

juvenile has been fully informed of the right being waived."

       Here, although the court informed Mr. Bailey that his guilty plea to second degree

assault was a very "serious" matter that would result in "a strike on [his] record," the

court did not explain that a strike conviction could later be used to sentence him to life

without parole or inform him of the significant protections he would forever lose by

exiting the juvenile court system. Ex. E at 6. For example, unlike adult

courts, juvenile courts maintain a system of rehabilitation that the legislature intended

"capable of ... responding to the needs of youthful offenders." RCW 13.40.010(2).

RCW 13.40.0lO(2)(f) and G) declare as a purpose to provide necessary treatment for

juveniles.

       Additionally, a juvenile court is granted broader sentencing discretion for

alternative confinement than adult courts. A juvenile court is allowed to alter the



                                              8

No. 27489-6-III
State v. Bailey


mandated disposition if it finds that disposition would impose an excessive

penalty on the juvenile and commitment of a juvenile is limited to juvenile facilities.

RCW 13.40.020(12); RCW 13.40.160; chapter 72.05 RCW. Moreover, the juvenile

justice system limits the use ofjuvenile records and prohibits confinement past the age of

21. Saenz, 175 Wn.2d at 173. Significant for our purposes, juvenile offenses are

generally not considered crimes and do not count as strikes under the POAA. Id. In sum,

"[a]lthough juveniles will be held accountable for their behavior, juvenile courts are

vested with broad powers to provide any necessary treatment, guidance, or rehabilitation

for juvenile offenders. The procedures are not as punitive as are adult criminal

proceedings." State v. Holland, 30 Wn. App. 366, 373,635 P.2d 142 (1981), ajJ'd, 98

Wn.2d 507, 656 P.2d 1056 (1983).

       There is no evidence Mr. Bailey was informed of any of these rights and

protections. While the court detailed the rights Mr. Bailey was waiving in adult court by

pleading guilty, it did not mention any of the juvenile court protections listed above.

Additionally, nothing in the record suggests that defense counsel informed Mr. Bailey of

the juvenile court protections he would forever lose by stipulating to adult court

jurisdiction. Like Mr. Saenz, Mr. Bailey had never been in adult court and there is no

evidence he understood the'" vitally important statutory rights of the juvenile.'" Saenz,



                                             9

No. 27489-6-III
State v. Bailey


175 Wn.2d at 174 (quoting Kent v. United States, 383 U.S. 541, 556, 86 S. Ct. 1045, 16

L. Ed. 2d 84 (1966)).

       Moreover, the court failed to specifically infonn Mr. Bailey that an adult "strike"

conviction could be used in the future to sentence him to life without the possibility of

parole. While the court infonned Mr. Bailey that he would have a strike on his record, it

failed to explain the critical legal significance of that fact. The State argues that Mr.

Bailey's written guilty plea statement is evidence that he understood the legal effect of his

conviction in adult court. While Mr. Bailey initialed a box that stated the crime of second

degree robbery was a "most serious offense" and that two or more convictions for most

serious offenses would result in a mandatory life sentence, the court did not question Mr.

Bailey on the record about his understanding ofthis consequence. Ex. F at 2. Alone, this

deficiency may not render the waiver invalid; however, it undennines the State's position

that the waiver ofjuvenile court jurisdiction was voluntary. In rejecting a similar

argument from the State, the Saenz court noted:

       Saenz's acknowledgment that he read his guilty plea has no bearing on
       whether he understood his entirely separate waiver of rights in juvenile
       court. The guilty plea simply does not detail all the rights Saenz gave up by
       exiting the juvenile system, and the record contains no evidence that Saenz
       was ever infonned of those rights.

Saenz, 175 Wn.2d at 177.


                                              10 

No. 27489-6-III
State v. Bailey


       Under Saenz, checking a box on an adult guilty plea fonn is insufficient to

establish a knowing waiver ofjuvenile court jurisdiction. In the absence of any evidence

that Mr. Bailey was infonned of the many protections he was losing by waiving a

declination hearing and juvenile court jurisdiction, his waiver cannot be deemed knowing

and intelligent.

       The other critical defect in the transfer ofjuvenile court jurisdiction is the juvenile

court's failure to enter specific written findings that transfer was in the best interest of

Mr. Bailey or the public. Citing fonner RCW 13.40.110(2)2 and (3) (1997),3 the Saenz

court was clear that such findings are mandatory: "Even where the parties stipulate to

decline juvenile jurisdiction, the statute still requires the court to enter findings, and the

court cannot transfer a case to adult court until it has done so." Saenz, 175 Wn.2d at 179.

Jurisdiction cannot be transferred if declination is not in the best interest of the juvenile

or the public, despite any agreement between the parties. Id. The Saenz court explained:



       2 Fonner RCW 13.40.110(2) provides: "The court after a decline hearing may
order the case transferred for adult criminal prosecution upon a finding that the
declination would be in the best interest of the juvenile or the pUblic. The court shall
consider the relevant reports, facts, opinions, and arguments presented by the parties and
their counsel."
       3 Fonner RCW 13.40.110(3) provides: "When the respondent is transferred for
criminal prosecution or retained for prosecution in juvenile court, the court shall set forth
in writing its finding which shall be supported by relevant facts and opinions produced at
the hearing."

                                               11 

No. 27489-6-III
State v. Bailey


       Juvenile court judges are not simply potted palms adorning the courtroom
       and sitting idly by while the parties stipulate to critically important facts.
       Instead, these judges enforce a juvenile code, "designed with [juveniles']
       special needs and limitations in mind."

Saenz, 175 Wn.2d at 179 (quoting Dutil v. State, 93 Wn.2d 84, 94, 606 P.2d 269 (1980)).

       The court emphasized that if the juvenile court is unable to enter findings without

a declination hearing, it should order a hearing because the "ramifications of waiving

juvenile court jurisdiction are as numerous as they are drastic." Id. at 180. Moreover,

these findings must be sufficiently specific to permit meaningful review. State v. Foltz,

27 Wn. App. 554, 558, 619 P.2d 702 (1980) (quoting In re Welfare ofHarbert, 85 Wn.2d

719, 724,538 P.2d 1212 (1975)).

       Here, the juvenile court failed to enter sufficiently specific findings, simply

concluding that the "agreement" of the parties was "consistent with the interest of

justice." Ex. B. Nothing in the record suggests that the court reviewed any of the Kent
       4
criteria in arriving at its conclusion or independently determined that the waiver of its



       4 These criteria include: (1) the seriousness of the offense and whether protection
of the community requires transfer to adult court; (2) whether the offense was committed
in an aggressive, willful manner; (3) whether the offense was committed against a person
or property; (4) the merits of the complaint; (5) the desirability of trial in one court when
the juvenile'S associates in the alleged offense are adults who will be tried in adult court;
(6) the sophistication of the juvenile in view of his home life and emotional attitude;
(7) previous history with the juvenile system; and (8) the prospects for adequate
protection of the public and likelihood of reasonable rehabilitation in juvenile court.

                                             12 

No. 27489-6-111
State v. Bailey


jurisdiction was in the best interest of the juvenile or public. It failed to give any reasons

supporting its conclusion that justice would be better served in the adult system rather

than the juvenile system. Under Saenz, the transfer of Mr. Bailey's case to adult court is,

therefore, invalid and his 1998 conviction in adult court cannot be used as a strike under

thePOAA.

       We reverse our previous decision and remand to the trial court for resentencing.




                                                   Kulik, 1.

1 CONCUR:




Kent, 383 U.S. at 566-67.

                                              13
                                      No. 27489-6-111

       KORSMO, C.J. (dissenting)      Stephen Bailey cut a deal in adult court 16 years ago

that significantly limited the time he would spend in custody and substituted one "strike"

offense for another. He acknowledged what he was doing at the time. His inability to

avoid repeatedly committing additional strike offenses is not a basis for reconsidering

that choice in this action. The decision in State v. Saenz, 175 Wn.2d 167,283 P.3d 1094

(2012) is inapplicable to the facts of this case. Instead, the governing case is State v.

Knippling, 166 Wn.2d 93,206 P.3d 332 (2009). Our previous opinion explained why

Knippling was satisfied in this case. Since Saenz did not change Knippling and, indeed,

asserted that Knippling was controlling, I there is no basis for reversing our prior opinion.

In addition, giving juvenile court judges control over the disposition of adult prosecutions

is a bad policy. For both reasons, I disagree with the amended resolution of this case.

       In Knippling, as here, the defendant was charged in adule court with first degree

robbery committed at age 16. 166 Wn.2d at 97. Plea negotiations resulted in a guilty

plea in adult court to a reduced charge of second degree robbery, an offense over which


       I Saenz, 175 Wn.2d at 176.
       2 The Juvenile Justice Act of 1977, chapter 13.40 RCW distinguishes the juvenile
court division of superior court from the "adult" side of superior court. E.g., RCW
13.04.030; RCW 13.40.110. I will use the same nomenclature.
No. 27489-6-111
State v. Bailey


the juvenile court would have exclusive jurisdiction. ld. At sentencing six years later for

a third "strike" offense, Mr. Knippling argued that the robbery conviction should not be

counted as a "strike" for persistent offender purposes absent proof that superior court had

obtained jurisdiction from juvenile court. ld. at 97-98. The Washington Supreme Court

agreed and concluded that the bare court judgment and sentence was insufficient

evidence to establish that the case was properly in adult court. ld. at 101-02.

       Unlike Knippling, the record in this case shows exactly how the adult court

retained jurisdiction over the case-Mr. Bailey stipulated to the jurisdiction in

conjunction with the plea agreement that reduced the charge. He received a substantially

reduced sentence3 and the prosecutor obtained without need of trial a "strike" on the

record of an apparently dangerous young offender.4 He could not have received the

benefit of the bargain without the superior court retaining the case by his agreement; the

court had no authority to amend the information to the lesser offense without Mr.

Bailey's consent to jurisdiction. There is nothing uncommon or untoward in this




       3 Even in prosecutions originating in juvenile court, it is not uncommon to see an
offender seek to have a case transferred to adult court where the sentence range will be
shorter because the prior juvenile history will not count in the adult sentence. The
youthful offender has the right to seek declination ofjuvenile court jurisdiction. RCW
13.40.110(1).
       4 The 1998 offense was the second "strike" offense committed by Mr. Bailey
while still a youth. He already had a 1996 second degree robbery offense that had been
handled in juvenile court.

                                             2
No. 27489-6-III
State v. Bailey


decision. Mr. Bailey received a distinct short-term benefit that was potentially offset by

its long-term consequences in the event that he failed to straighten his life out.

       Nothing in Saenz changes that calculus or the ruling in Knippling. Instead, Saenz

involved a totally different scenario by which the case moved from juvenile to adult

court. In Saenz the case originated as a juvenile court prosecution and the parties agreed

to a guilty plea in adult court to second degree assault, another "strike" offense; the

defendant was then 15. 175 Wn.2d at 171. The case was removed to adult court without

either a declination hearing or a waiver ofjuvenile court jurisdiction. Id. When the

prosecution later attempted to use that offense as one of the predicates for a persistent

offender sentence in adult court, the court concluded that the absence of a declination

hearing or a valid waiver ofjurisdiction, the offense did not constitute a "strike" in

subsequent persistent offender scoring. Id. at 176, 181. In the course of its analysis, the

Saenz majority explained the important benefits a youthful offender gives up by agreeing

to leave juvenile court. Id. at 176-80.

       The majority unfortunately seizes upon some of that language and substitutes it for

the Saenz holding that an unexplained transfer ofjurisdiction is insufficient to allow use

of the prior offense in a persistent offender sentencing. However, because Saenz arose

from a totally different factual setting, I fear that the majority places too much emphasis

on the discussion there about the process necessary to move a case from juvenile to adult




                                              3

No. 27489-6-III
State v. Bailey


court as opposed to the process necessary to retain a case in adult court. Saenz did not

import the one into the other.

       The two cases are totally different in factual circumstances. In Saenz, the

defendant, charged in juvenile court, was offered a plea bargain in adult court; to accept

it the case had to be moved to adult court. Mr. Bailey, however, faced the opposite

situation. He already was in adult court facing trial on a greater offense (and risking

substantially lengthier incarceration) and was offered a disposition in adult court to a less

serious offense and much less incarceration. To facilitate that deal he needed to waive

juvenile court jurisdiction in order for adult court to have authority even to reduce the

charge and accept the plea. RCW 13.40.140(9) provides the framework for how the

statutory rights conveyed by our juvenile code are waived. There "must be an express

waiver intelligently made by the juvenile after the juvenile has been fully informed of the

right being waived." RCW 13.40.140(9).

       That statutory requirement was met here. A written waiver and findings were

accepted by the court. In part, that agreement states:

       The defendant and his attorney herein indicate agreement that the
       prosecution of the amended information accusing the defendant of the
       crime of Second Degree Robbery with a deadly weapon shall be manifested
       in the adult division of the Yakima County Superior Court. The defendant
       and his attorney specifically consent to waiver of any and all rights under
       RCW 13.40.110 (or any other applicable statute) to declination hearing.
               The court finds that the agreement of the parties is consistent with
       the interest ofjustice.


                                             4

No. 27489-6-III
State v. Bailey


Ex. B. The agreement was signed by the judge, prosecutor, defense counsel, and Mr.

Bailey. Id. Mr. Bailey knowingly waived his right to a hearing in juvenile court on the

propriety of the case continuing in adult court on the lesser offense.

       Saenz discussed the necessity of a juvenile court entering findings and making an

express determination, if declining jurisdiction, that declination is in the best interest of

the juvenile or of the public in accordance with current RCW l3.40.110(3) and (4).

Saenz, 175 Wn.2d at 179. The court noted that the statute required that the "best interest"

finding be made even when the parties waive the declination hearing. Id. at 179-80.

Without these findings, the court "cannot transfer a case to adult court." Id. at 179. 5

       The majority errs in applying this transfer standard to the retention ofjurisdiction

by the adult court in Mr. Bailey's case. There was no transfer by the juvenile court and,

thus, no need for entry of the statutorily mandated findings. If the case had begun in the

juvenile court like Saenz, then Mr. Bailey needed to waive his right to remain in juvenile

court and the judge would need to enter appropriate findings. Instead, he was in adult

court and was going to stay there. He, however, needed and wanted.to empower the adult

court to enter a lenient judgment that it otherwise had no authority to do. He did that by

waiving his right to a hearing in juvenile court. There was no need to acknowledge and



       5Even if it had been necessary to make a "best interest" finding, the last sentence
of the waiver would certainly support it. The defendant's agreement with the action
showed that it was in his best interest. The finding that the agreement was "consistent
with the interests ofjustice" is at least the equivalent of finding that the agreement was in

                                              5

No. 27489-6-III 

State v. Bailey 



waive the rights attendant to a juvenile court prosecution since he was not facing a

criminal action in juvenile court. There was no need to do anything other than confirm

that Mr. Bailey knew he had the right to have a hearing there and that he desired to give

up that right. There was a knowing waiver of that right in this case.

       While that analysis explains why we should be affirming the persistent offender

sentence, I also note that the majority's result is contrary to the best interest of most

defendants who are similarly situated to Mr. Bailey. Youthful offenders charged with the

most serious felonies are automatically outside the scope of the juvenile system. If the

prosecutor decides that youth or some other mitigating factor suggests that the defendant

should be treated as an adult but not be punished as severely as an older person who

.committed the same crime, the majority decision does not permit the prosecutor directly

to do so by filing reduced charges. Instead, he or she loses control of the charging power

and cedes that authority over to a juvenile court judge who will decide whether the

prosecutor's desire for a moderated adult disposition is appropriate. Why should a

juvenile judge weigh in on the propriety of a jointly agreed adult court sentence? There

is no statutory requirement to do so (unlike when a case is originally within the

jurisdiction of the juvenile court) and there is no good policy reason why the juvenile

judge should be involved in the disposition of an adult case by an adult court judge.

Encouraging this unnecessary endeavor benefits no one, least of all the offender who


the public interest.
                                              6
No. 27489-6-III
State v. Bailey


could see his chance for mercy dashed by an outsider. The prosecutor likewise could see

his adult court case hijacked to juvenile court by a judicial officer who would essentially

be exercising the executive prosecutorial function of deciding what charges will be filed

and where they will be filed.

       Ajuvenile court judge has authority only over a juvenile court case. The potential

exercise of authority over an adult prosecution by a juvenile court judge will only

discourage a prosecutor from showing charging leniency to the serious youthful offender.

No one benefits from such an approach.

       Saenz does not apply to this case. Moreover, the policies at issue when a juvenile

court must decide to decline its own jurisdiction are not in play when an adult court

decides that the parties have reached an appropriate resolution of their case. For both

reasons, I respectfully dissent.



                                                        Korsmo, C.J.




                                             7

