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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II


CITY OF LAKEWOOD,                                                No. 42918 7 II
                                                                           - -


                              Appellant,

          V.




AARON W.ROBERTS,                                            UNPUBLISHED OPINION




          JOHANSON, A. .
                    JC         The City of Lakewood (City) appeals the Lakewood Municipal

Court's denial of its motion to revoke Aaron W. Roberts's pretrial diversion agreement. The

City argues that the municipal court failed to apply the standards required under State v. Marino,

100 Wn. d 719, 674 P. d 171 ( 1984),
      2             2              and State v. Kessler, 75 Wn. App. 634, 879 P. d 333
                                                                               2

1994). Because the municipal court's findings do not comply with Marino and Kessler, we

reverse and remand for further proceedings.

                                               FACTS


          In January 2008, the City charged Roberts with two counts of third degree malicious

mischief,' one   of which included   a   domestic violence allegation. On June 10, the City and



1
    RCW   090(
          9A. 8.
             1)..
             4
No. 42918 7 II
          - -




Roberts entered into a pretrial diversion agreement, titled as a Stipulated Order of Continuance

with Conditions (SOC).The SOC provided that the City would dismiss the charges if Roberts

complied with     the SOC's conditions for 24 months.            If Roberts failed to comply with the

conditions, he agreed to be tried on stipulated facts. One of the SOC conditions required Roberts

to "have no violations [of]criminal law during the period of the continuance." Transmittal of

Record on Appeal to Superior Court ( TRASC)at 24.

         In March 2009, the City of Fife charged Roberts with third degree driving while license

suspended;    it then reduced the    charge   to   a   traffic infraction.   In April 2010, the City of

Steilacoom charged Roberts with third degree driving while license suspended; that case was

resolved by bail forfeiture.

         On June 10, 2010, two years after the SOC was entered, the City moved to revoke the

SOC; the City alleged that Roberts had "[
                                        ed]
                                        f] to [ m] [ flaw [a] [ b]
                                          ail[   aintain    biding ehavior,"

based on these two third degree driving while license suspended charges 2 TRASC at 26 27. At
                                                                        .             -
the hearing on this matter, Roberts argued that (1) 2009 incident was an infraction and was
                                                   the

therefore not a violation of the SOC; and (2) 2010 incident was ultimately a bail forfeiture
                                             the

because the prosecutor had advised Roberts, who was not then represented by counsel, that if he

paid the fine " e could have it go away that day," he did not understand that this would then
              h                                  and

be considered     a   violation of the SOC. Electronic Record         Transcript (ERT) at   2. Roberts's


counsel also told the court about her contacts with Roberts since he entered into the SOC, noted




2
    The City also alleged that he was in arrears on his financial obligations; Roberts resolved this
issue, and the City abandoned this revocation ground.



                                                       2
No. 42918 7 II
          - -




his many successes since he agreed to the SOC, and asked the court to consider that none of the

alleged   violations related to the      charged   incidents.   The City argued that even though Roberts

may have disposed of the two charges with " lternative dispositions," " a bail forfeiture one
                                          a                         one

an amendment," was still charged with those crimes and "the allegations [were] supported by
             he

the officer's sworn police reports which the City would posit on their face do support the

allegation that the defendant did in fact breach the SOC."ERT at 5.

          The municipal court denied the City's motion, ruling that:

          Well, I'l tell you what I am going to do . . .
                   l                                         I[ ] frankly am persuaded by
          counsel's argument that she has a close professional contact with ... Mr. Roberts.
               I'
                m   going   to   deny   the motion to revoke ...   this [SOC]   ... counsel and the
          defendant should be aware that that's an unusual act for this Court because its
          SOC] are routinely revoked whenever there is an arguable violation. I' not
                                                                                   m
          going   to do that.    And the reason I' not going to do that is because counsel
                                                 m
          represented that she has close enough contact with Mr. Roberts and that he's been
          a good enough client that he's reporting to her on a regular basis          and ...   I'
                                                                                                 m

          going to continue to give him the benefit, the benefit of the [SOC].

ERT at 6. Then, because the 24 month SOC term had expired, the municipal court dismissed the
                               -

malicious mischief charges.

          The City appealed to the superior court, arguing that the municipal court's decision was

contrary to Marino. Roberts responded that the municipal court's decision was correct because

1) driving without a license violations were not related to the original charges; 2) was
  the                                                                             ( he

driving without a license because financial difficulties prevented him from paying traffic fines;

and (3)although the SOC form contained a condition requiring the defendant to not drive

without a valid license and insurance, that condition was not among the conditions imposed.


3 Counsel stated that Roberts had since completed a deferred prosecution, had done well in a
drug alcohol treatment program, and was earning his associates degree in landscape design.
     /


                                                         3
No. 42918 7 II
          - -



Analogizing to City ofAberdeen v. Regan, 170 Wn. d 103, 239 P. d 1102 (2010), superior
                                               2             3              the

court concluded that the municipal court had not abused its discretion in denying the City's

motion to revoke the SOC and affirmed the municipal court's ruling.

       We granted the City's motion for discretionary review.

                                          ANALYSIS


       The City argues that the municipal and the superior court's decisions conflict with State

v. Marino State v. Kessler. We agree.

                    1. DIVERSION AGREEMENTS AND STANDARD OF REVIEW


       The State, acting through the prosecutor's office, enters into and supervises pretrial

diversion agreements; such agreements are not under the direct supervisory control of the trial

court. Kessler, 75 Wn. App. at 639. In reviewing a prosecutor's decision to revoke a diversion

agreement, both the trial court and the appellate court owe "a degree of deference to the

prosecutor's reasons for termination."Kessler, 75 Wn. App. at 639. When a prosecutor decides

to revoke a diversion agreement, the trial court must hold a hearing to determine whether, by a

preponderance of the evidence, the defendant violated the agreement. Marino, 100 Wn. d at
                                                                                   2
725.


        Once the trial court has determined that the defendant has breached the agreement, it

reviews the reasonableness of the prosecutor's decision to revoke in light of the facts determined

at the hearing. Marino, 100 Wn. d at 725. In reviewing for reasonableness, the trial court must
                              2

ascertain that facts exist that support [the] prosecutor's termination decision." Marino, 100

Wn. d at 726. "
  2           The determination as to whether termination is reasonable [based on the alleged

violations] is analogous to the determination in a breach of contract case of whether a breach is


                                                M
No. 42918 7 II
          - -



material thus warranting a remedy."Kessler, 75 Wn. App. at 640 41. The prosecutor's decision
                                                               -

to revoke is not unreasonable merely because the trial court disagrees with that decision.

Kessler, 75 Wn. App. at 639. The trial court must "clearly state the evidence upon which [it]

relied"in making its reasonableness determination. Marino, 100 Wn. d at 727.
                                                                 2

          We first review the trial court's findings that the defendant violated his diversion

agreement for sufficiency of the evidence. Kessler, 75 Wn. App. at 638 39. We then engage in
                                                                       -

the same inquiry as the trial court, asking whether, as a matter of law, the prosecutor's decision

to terminate the agreement is reasonable in light of the facts the trial court determined. Kessler,

75 Wn.App. at 639

                                            II. VIOLATIONS


          Here, the municipal court did not expressly find that Roberts violated the terms of the

agreement; it merely. suggested that he had " rguabl[
                                            a       y]" ERT at 6. Thus,the municipal
                                                      done so.
court's   findings   are   insufficient under Marino and Kessler.   Despite this failure, however,

Roberts concedes that the trial court could have found that his two driving without a license

charges established that he had violated the SOC based on the police reports the prosecutor

provided. Br. of Appellant at 6. We agree. Although nothing in the record shows that Roberts

was convicted of any violations of criminal law, case law establishes that a criminal conviction

was not necessary. In Regan, our Supreme Court held:

                   Because the plain language of "violations of law" means engaging in
          conduct that is prohibited by the law, and because the word "criminal"merely
          restricts what type of legal violation triggers the condition, we hold that the
          condition "no criminal violations of law"plainly restricted [the defendant] from
          engaging in conduct prohibited by criminal law.




                                                   5
No. 42918 7 II
          - -



170 Wn. d at 112 13. Here, the facts clearly established by a preponderance of the evidence that
      2          -

Roberts committed third     degree driving   while license   suspended. Accordingly, the key issue

here is whether the municipal court properly determined that the prosecutor's revocation decision

was unreasonable.


                                       III. REASONABLENESS


         The municipal court did not expressly find that the prosecutor's revocation decision was

unreasonable. The court's findings merely stated that it would not revoke the agreement because

Roberts had been in regular contact with his counsel. Nothing in the record shows that the

municipal court evaluated whether the two violations were material breaches of the contract as

required under Kessler or that the court gave any deference to the prosecutor's revocation

decision.   The municipal court's ruling appears to reflect only that the court's decision would

have been different but without more detailed findings this court cannot fully evaluate the
                    —

municipal   court's   reasoning. Furthermore, the superior court's ruling does not address these

defects and appears to defer to the municipal court's decision rather than give any degree of
                                        4
deference to the   prosecutor's decision. Kessler, 75 Wn. App. at 639. Accordingly, we reverse

and remand to the municipal court with instructions that the court determine whether the




4
    The superior court concluded that the municipal court had not "abused [its] discretion" in
denying the City's motion to revoke the SOC. Clerk's Papers at 42. As noted above, in this,
context, the appellate court first reviews the trial court's findings that the defendant violated his
diversion agreement for sufficiency of the evidence and then engages in the same inquiry as the
trial court, asking whether, as a matter of law, the prosecutor's,      decision to terminate the
agreement is reasonable in light of the facts the trial court determined. Kessler, 75 Wn. App. at
638 39. Accordingly, the superior court applied the wrong standard of review.
     -



                                                   6
No. 42918 7 II
          - -



prosecutor's decision to terminate the agreement given these two violations was reasonable as

required under Kessler.

       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

040,
2.6.it is so ordered.
 0




                                                              Johanson, A. l
                                                                         0
We concur:




              Quinn-
                   Brintnall,


                  orgen, J.




                                              7
