                                                         This opfnion was fffed for record
                                                         at 8:ooAm       on M?Aj '2~ ,'J-OIS.




            IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                              )
                                                  )      No. 89786-7
                     Respondent,                  )
                                                  )
       v.                                         )
                                                  )      EnBanc
CHRISTOPHER NELSON MAYNARD,                       )
                                                  )
                     Petitioner.                  )
                                                  )      Filed      MAY 2 8 2015


       MADSEN, C.J.-The State charged Christopher Nelson Maynard in juvenile court

with six counts of malicious mischief. Less than one month later, he turned 18 years old.

Maynard's counsel did not move for an order to extend the court's statutory jurisdiction

as provided in RCW 13.40.300(1)(a) before Maynard turned 18. As a result, the juvenile

court ruled that it had lost jurisdiction and dismissed the case without prejudice. The

State then filed the case in superior court. Maynard moved to dismiss, arguing that

preaccusatorial delay and ineffective assistance of counsel deprived him of the benefits of

juvenile court jurisdiction, including the opportunity to accept a plea offer from the State.

The trial court agreed and dismissed the case with prejudice.
No. 89786-7


      On appeal, the Court of Appeals reversed, holding that ineffective assistance of

counsel, not preaccusatorial delay, caused the loss of jurisdiction. We agree. The court,

however, determined that remand to adult trial court for a new trial was the proper

remedy. We vacate that order and, instead, direct the State to reoffer the plea proposal of

deferred disposition and remand the case for further proceedings consistent with the

Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW.

                                         FACTS

       On August 18, 2010, Woodland City police officers arrested Maynard on

suspicion of malicious mischief after he went to take photographs of a skate park that he

had recently tagged with graffiti. Maynard gave a signed confession. He admitted that

he had defaced several local properties with graffiti and also provided the names of other

participants. Maynard had just turned 17 years old on August 1.

       On September 14, the Woodland City police finished their investigation in the

case and turned over their reports and supporting documents to the Cowlitz County

Juvenile Court. These documents included a probable cause statement, which gave

amounts for each victim's property damage along with Maynard's confession. The

prosecutor assigned to the case requested more information from police. The prosecutor

received the requested information on November 17, and turned the case over to the

juvenile court for consideration of diversion. The juvenile court denied diversion on

December 10.




                                             2
No. 89786-7


       On July 7, 2011, the prosecutor formally charged Maynard by filing an

information in juvenile court. Maynard received a summons to appear in court on July

12-19 days before his 18th birthday. The prosecutor delayed filing in juvenile court in

order to seek "'more information, specifically in regards to restitution amounts owed to

the victims."' Clerk's Papers (CP) at 108. On July 12, Maynard appeared in court and

the court appointed him an attorney. The court scheduled arraignment for the following

week

       On July 19, Maynard appeared for arraignment with his attorney and entered a

plea of not guilty. Maynard's attorney did not notice that her client would soon tum 18,

even though the information clearly stated her client's date of birth. She also did not ask

her client about his birthday. Consequently, Maynard's attorney did not move at the

arraignment to extend juvenile court jurisdiction, which the court must extend before the

juvenile defendant turns 18 or else it loses authority to adjudicate the case. See RCW

13.40.300(1)(a).

       On July 25, the prosecutor sent Maynard's attorney a plea proposal that included a

recommendation of deferred disposition if Maynard pleaded guilty to two of the charges.

The offer stated that it expired on August 9, and Maynard intended to accept the offer.

       After the prosecutor sent the plea proposal, she noticed that Maynard would tum

18 on August 1, so she e-mailed Maynard's attorney and informed her about his

impending birthday. Maynard's attorney, however, did not read this e-mail before he




                                             3
No. 89786-7


turned 18. Without an extension of jurisdiction, the juvenile court lost authority over the

case and dismissed the charges without prejudice.

       The prosecutor then filed charges in Cowlitz County Superior Court. Maynard

appeared with new representation. He moved to dismiss the charges with prejudice based

on two arguments. First, he argued that negligent preaccusatorial delay violated his due

process rights because the delay resulted in the loss of juvenile jurisdiction. Second, he

argued that he received ineffective assistance of counsel because his attorney failed to

extendjuveni1e court jurisdiction before he turned 18. The trial court dismissed the

charges with prejudice, finding both arguments provided a separate and distinct basis to

dismiss.

       The Court of Appeals reversed in a partially published opinion.· State v. Maynard,

178 Wn. App. 413,418-19, 315 P.3d 545 (2013). The court held that ineffective

assistance, not preaccusatorial delay, caused Maynard to lose the benefits of juvenile

court jurisdiction. I d. As a remedy, the court concluded that remand for trial as an adult

would adequately resolve the harm caused by counsel's ineffective assistance.

       Maynard petitioned this court for discretionary review, which we granted. State v.

Maynard, 180 Wn.2d 1001, 321 P.3d 1207 (2013).

                                        ANALYSIS

       We review de novo whether preaccusatorial delay violated a defendant's right to

due process and whether a defendant received ineffective assistance of counsel. State v.

Oppelt, 172 Wn.2d 285, 290, 257 P.3d 653 (2011) (reviewing the issue ofpreaccusatorial




                                              4
No. 89786-7


delay de novo); State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (reviewing

ineffective assistance of counsel claim de novo).

         Preaccusatorial Delay

         The State argues that preaccustorial delay did not violate Maynard's right to due

process because he had an opportunity to extend jurisdiction before he turned 18. We

agree.

         A court will dismiss a prosecution for preaccusatorial delay if the State's

intentional or negligent delay violates a defendant's due process rights. Oppelt, 172

Wn.2d at 288-89. To determine ifpreaccusatorial delay violated a defendant's due

process rights, we apply a three-pronged test: (1) the defendant must show he or she was

actually prejudiced by the delay; (2) if the defendant shows actual prejudice, the court

must determine the reasons for the delay; and (3) the court must weigh the reasons for

delay and the prejudice to determine whether fundamental conceptions of justice would

be violated by allowing the prosecution. I d. at 295.

         Although a defendant has no constitutional right to be tried as a juvenile, we have

recognized that juvenile court offers an offender important benefits. See State v. Dixon,

114 Wn.2d 857, 860, 792 P.2d 137 (1990). For example, an adjudication as a juvenile

avoids the stigma of an adult criminal conviction. !d. It also provides less harsh

penalties. Id. By statute, a juvenile defendant loses the benefits of the JJA if the court

does not extend jurisdiction before the defendant turns 18. RCW 13.40.300(1)(a). We

have therefore held that a defendant meets his or her burden to show actual prejudice




                                                5
No. 89786-7


when the preaccusatorial delay causes the loss of juvenile jurisdiction. State v. Salavea,

151 Wn.2d 133, 139, 86 P.3d 125 (2004).

       In this case, Maynard cannot meet the first prong-actual prejudice-because

preaccusatorial delay did not cause the loss of juvenile jurisdiction. We agree with the

Court of Appeals that preaccusatorial delay does not cause the loss of jurisdiction when

the State files charges before juvenile jurisdiction expires and the defendant has an

opportunity to extend it. See Maynard, 178 Wn. App. 413; see also Oppelt, 172 Wn.2d at

290. Maynard appeared for arraignment on July 19-12 days before he turned 18 years

old on August 1. Maynard's attorney did not move to extend jurisdiction at that time or

at any time before he turned 18, but she could have. This failure and the consequential

loss of jurisdiction was not the result of the State's actions.

       Ineffective Assistance of Counsel

       To prove ineffective assistance of counsel, a defendant must show (1) that

counsel's conduct fell below an objective standard of reasonableness; and (2) that this

deficient conduct resulted in prejudice to the defendant-that there is a reasonable

probability that, but for the deficient conduct, the outcome of the proceeding would be

different. State v. Rezchenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Although

courts strongly presume that defense counsel's conduct was not deficient, a defendant

rebuts this presumption when no conceivable legitimate tactic exists to explain counsel's

performance. !d.




                                               6
No. 89786-7


       Here, the conduct of Maynard's counsel fell below objective standards of

reasonableness. She did not notice her client's impending birthday, even though the

information clearly stated it. Consequently, she did not move to extend the juvenile

court's jurisdiction before he turned 18, not because of a legitimate tactic but because of

an absence of judgment. An attorney who represents a juvenile should promptly learn his

or her client's birthday because the client may lose the benefits of juvenile prosecution if

the attorney does not move to extend jurisdiction before the client turns 18.

       Maynard also suffered prejudice because of counsel's deficient conduct: he lost

the benefits of being prosecuted as a juvenile. If counsel had moved to extend

jurisdiction, the juvenile court could have entered an appropriate order.

       We now must determine the remedy for the harm caused by the ineffective

assistance of counsel. The Court of Appeals erred when it concluded that a new trial in

adult court would adequately remedy the harm in this case. 1 Maynard, 178 Wn. App. at

419. Without any remedy, Maynard already faces the prospect of trial as an adult


1
  The Court of Appeals relied on In re Personal Restraint ofDalluge, 152 Wn.2d 772, 100 P.3d
279 (2004), and concluded that it should remand to adult court for a new trial. Maynard, 178
Wn. App. at 419. But Dalluge does not control this case because Maynard did not request a new
trial as a remedy. In Dalluge, the State charged a 17-year-old defendant with crimes that
automatically granted exclusive jurisdiction to the adult criminal court. 152 Wn.2d at 776.
Later, the State amended the charges, rendering the adult court's jurisdiction no longer
mandatory but subject to the juvenile court declining jurisdiction. Id. at 77 6, 783. The trial court
did not remand to juvenile court for a decline hearing as required. Id. at 776. Instead, the trial
court proceeded to trial, where the jury convicted the defendant. Id. We held that the trial court
erred by not remanding for a decline hearing. Id. at 789. As a remedy, the defendant was
entitled to a hearing to determine if the juvenile court should have retained jurisdiction, and if so,
the defendant requested a new trial in adult court. Id. at 786-87, 775. Apparently, the defendant
felt a new trial would provide adequate relief. Here, Maynard does not ask for a new trial; he
asks for dismissal, a remedy that we find unwarranted. We do, however, agree with Maynard
that a new trial in adult court would not adequately resolve the harm.


                                                  7
No. 89786-7


because the juvenile court's statutory authority lapsed. To hold that his remedy is to be·

tried as an adult means, in effect, that he will receive no remedy at all. Maynard argues

that our only option is to dismiss his case with prejudice, but we can fashion an

appropriate remedy short of dismissal.

       When confronting deprivations under the Sixth Amendment to the United States

Constitution, "remedies should be tailored to the injury suffered from the constitutional

violation and should not unnecessarily infringe on competing interests." United States v.

Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981). In the plea

bargain context, when ineffective assistance of counsel causes a plea offer to lapse, an

appropriate remedy could require the prosecutor to reoffer the plea. See Lafler v. Cooper,

_U.S._, 132 S. Ct. 1376, 1389, 182 L. Ed. 2d 398 (2012). In Frye, the State

charged the defendant with driving with a revoked license and offered the defense

attorney two plea offers, stating that both offers would expire on a specified date.

Missouri v. Frye,_ U.S._, 132 S. Ct. 1399, 1404, 182 L. Ed. 2d 379 (2012). The

attorney failed to advise the defendant of the offers, and the offers expired. I d.

Counsel's failure to communicate the offers constituted ineffective assistance of counsel.

I d. In a companion case, the Court stated that the appropriate remedy may require the

prosecutor to reoffer the lapsed plea proposal. See id.; Lafler, 132 S. Ct. at 13 89. That

remedy, the Court observed, would place the defendant in the same position he was in

before he was deprived, through the ineffective assistance of counsel, of the opportunity

to accept the State's proposal. See Lafler, 132 S. Ct. at 1389. A similar remedy for the




                                               8
No. 89786-7


deprivation in this case must place Maynard in the same position he was in before the

violation of his right to effective representation.

       A juvenile defendant has the statutory right to be prosecuted under the provisions

of the JJA if the State files charges before the defendant turns 18, subject to limited

exceptions. 2 See RCW 13.04.030; RCW 13.40.300. Title 13 RCW states that the

juvenile court has "exclusive original jurisdiction" over cases that involve juvenile

defendants. RCW 13.04.030. But used in this context, the word "jurisdiction" is more

properly understood as authority. Jurisdictionally, juvenile courts and superior courts are

not separate and distinct; juvenile courts exist as a division of the superior court. State v.

Posey, 174 Wn.2d 131, 141,272 P.3d 840 (2012) (Posey II); RCW 13.04.021. Properly

understood, then, Title 13 RCW entitles a juvenile to the protections of the JJA, requires

the juvenile division of the superior court to apply the JJA, with some exceptions, to a

juvenile defendant, and authorizes the court to extend the act beyond a defendant's 18th

birthday for a variety of explicit reasons. See Posey II, 174 Wn.2d at 141; RCW

13.40.300. The only absolute prohibition we see to applying the JJA is when the

defendant allegedly committed the crime after the age of 18. RCW 13.40.300(4). Under

the circumstances of this case, we see no prohibition to extending the trial court's

authority to apply provisions of the JJA as a remedy for the violation of a juvenile's right

to effective assistance of counsel.



2
 For example, the juvenile court lacks authority over a juvenile charged with a serious violent
offense if the juvenile was 16 or 17 years old on the date of the alleged offense. See RCW
13 .04.030(1 )(v)(A).


                                                9
No. 89786-7


       Our decision in Posey II provides guidance. There we upheld the trial court's

application of the JJA to an adult improperly denied juvenile jurisdiction. Posey II, 174

Wn.2d at 133. The State charged 16-year-old Posey with three counts of second degree

rape and one count of first degree assault. !d. By statute, the charge of first degree

assault required the juvenile court to automatically decline juvenile jurisdiction, and the

case proceeded to trial in superior court. !d. at 134. The jury convicted Posey of two

counts of second degree rape but acquitted Posey on the count of first degree assault-the

charge that automatically transferred the case from juvenile court to superior court. !d.

The trial judge then sentenced Posey under adult sentencing guidelines. Id. We affirmed

the convictions but held that the trial judge should have remanded the case to juvenile

court for a declination hearing and possible sentencing, presuming the juvenile court

would not decline jurisdiction. See State v. Posey, 161 Wn.2d 638, 647, 167 P.3d 560

(2007). The mandate for our opinion issued less than a month after Posey turned 21.

Posey II, 174 Wn.2d at 134. On remand, Posey argued that the juvenile court lacked

jurisdiction to sentence him because he was 21 years old and the trial judge agreed. !d.

The trial judge, however, acting as a superior court judge, sentenced Posey within the

standard juvenile sentencing range. Id. at 135. We affirmed the trial court's sentence.

Id. at 142.

       Similarly, to remedy the harm caused by the ineffective assistance of counsel in

this case, we remand for further proceedings in accordance with the JJA. We also direct

the State to reoffer the plea proposal of deferred disposition. This remedy will put




                                             10
No. 89786-7


Maynard in the same position he was in before the statutory time to extend juvenile court

jurisdiction elapsed. As in Posey II, if Maynard is convicted, the trial court may still

impose a juvenile sentence. See id.

                                      CONCLUSION

       Preaccusatorial delay did not cause the loss of juvenile jurisdiction under RCW

13.40.300. The State filed charges before Christopher Maynard's 18th birthday, and he

had an opportunity to extend jurisdiction. Therefore, the State did not violate Maynard's

right to due process. Instead, the violation of Maynard's Sixth Amendment right to

effective assistance of counsel caused Maynard to lose the benefits of being prosecuted as

a juvenile. If defense counsel had recognized her client's impending 18th birthday, as an

attorney representing a child in juvenile court should, she could have properly moved to

extend jurisdiction pursuant to the statute.

       To remedy the harm caused by the ineffective assistance of counsel, we remand

for further proceedings in accordance with the JJA. We also direct the State to reoffer the

plea proposal of deferred disposition that lapsed after the juvenile court lost statutory

authority.




                                               11
No. 89786-7




WE CONCUR:




              12
State v. Maynard




                                       No. 89786-7


      OWENS, J. (dissenting) -        Eleven months after Christopher Maynard was

arrested on suspicion of malicious mischief, the State charged him in juvenile court.

Though the stated reason for the delay in bringing charges was to gather more

information on the case, the prosecutor relied entirely on the probable cause statement

prepared at the time of the arrest when filing charges. Twenty days after he first

appeared in juvenile court, Maynard turned 18. No party mentioned his impending

birthday to the court, nor did any party move to extend juvenile jurisdiction before he

turned 18. As a result, Maynard lost the benefit of having his case adjudicated in

juvenile court. 1 The majority places full responsibility for the loss of juvenile



1
  The majority concludes that courts can reinstate juvenile jurisdiction after a defendant
has turned 18. This is contrary to RCW 13.40.300(l)(a), which states that a juvenile
court may retain jurisdiction over a defendant past his or her 18th birthday "only if prior
to the juvenile's eighteenth birthday ... the court by written order setting forth its reasons
extends jurisdiction of juvenile court over the juvenile beyond his or her eighteenth
birthday." (Emphasis added.) As the majority suggests no reason why this statute would
not apply, I must respectfully dissent to that holding as well.
State v. Maynard
No. 89786-7
Owens, J., Dissenting


jurisdiction on Maynard's defense attorney and fails to acknowledge that the

prosecutor's lengthy and-on this record-unjustified delays significantly contributed

to the loss of juvenile jurisdiction. The trial court correctly recognized that the

prosecutor shares responsibility for Maynard's loss, and I would affirm that ruling.

Therefore, I respectfully dissent.

                                       ANALYSIS

       There is a "fundamental difference between juvenile courts and adult courts-

unlike wholly punitive adult courts, juvenile courts remain[] rehabilitative." State v.

Saenz, 175 Wn.2d 167, 173, 283 P.3d 1094 (2012). Prosecutors and defense attorneys

both bear a duty to ensure that criminal offenders are not unfairly denied juvenile

court jurisdiction. Prosecutors must not engage in intentional or negligent delay when

deciding when to charge an offender. See State v. Norby, 122 Wn.2d 258, 262-63,

858 P.2d 210 (1993) (citing United States v. Lovasco, 431 U.S. 783,97 S. Ct. 2044,

52 L. Ed. 2d 752 (1977)). Inexcusable delay that results in the loss of juvenile court

jurisdiction can violate a defendant's due process rights. State v. Dixon, 114 Wn.2d

857, 865-66, 792 P.2d 137 (1990). And defense attorneys have a constitutional duty

to provide their clients effective assistance of counsel. State v. Thomas, 109 Wn.2d

222, 225, 743 P.2d 816 (1987). An attorney who fails to move for extended juvenile

court jurisdiction before a defendant's 18th birthday may well violate a defendant's

right to effective assistance of counsel.


                                             2
State v. Maynard
No. 89786-7
Owens, J., Dissenting


       The right to counsel-including the right to effective assistance of counsel-

exists "to assure fairness in the adversary criminal process." United States v.

Morrison, 449 U.S. 361,364, 101 S. Ct. 665,66 L. Ed. 2d 564 (1981). In Morrison,

the United States Supreme Court recognized that conduct on behalf of the government

can have a negative effect on counsel's ability to provide effective assistance. 2 Id. It

noted that courts have "been responsive to proved claims that governmental conduct

has rendered counsel's assistance to the defendant ineffective." ld. The Court opined

that "[c]ases involving Sixth Amendment [to the United States Constitution]

deprivations are subject to the general rule that remedies should be tailored to the

injury suffered from the constitutional violation and should not unnecessarily infringe

on competing interests." ld.

       In this case, the prosecutor interfered with counsel's effective assistance by

unnecessarily delaying the prosecution at every opportunity. First, after the

prosecutor requested more information from the police to prepare for diversion

consideration, the prosecutor delayed one month after receiving the requested

information before turning the case over for diversion. Next, the prosecutor delayed

for seven months after diversion was denied, again asking the police for more



2
  The defendant in Morrison was improperly contacted by federal agents after she was
indicted on several drug charges. 449 U.S. at 362. The agents spoke to her alone and
made comments that potentially interfered with her representation. I d. The Court
ultimately dismissed the claim for lack of prejudice. Id. at 366-67.


                                             3
State v. Maynard
No. 89786-7
Owens, J., Dissenting


information. Then the prosecutor delayed for over three weeks after the prosecutor

prepared the charging documents before filing them 24 days before Maynard turned

18. None of these delays have been satisfactorily explained. These delays

significantly contributed to the loss of juvenile jurisdiction, as they gave court-

appointed defense counsel little time to notice the impending birthday and move to

extend juvenile jurisdiction. Together, these failings violated Maynard's

constitutional rights.

       The majority asserts that the prosecutor bears no responsibility for the loss of

juvenile jurisdiction because he filed charges before juvenile jurisdiction expired and

thus Maynard had a (brief) chance to extend it. But as I explained above, prosecutors

do not have unfettered discretion to delay filing charges, even if they ultimately file

charges before the statutory deadline. State v. Oppelt, 172 Wn.2d 285, 288-89, 257

P.3d 653 (2011). Instead, we ask whether the delay "'violate[ d) those fundamental

conceptions of justice which lie at the base of our civil and political institutions, and

which define the community's sense of fair play and decency,"' which requires the

court to make a qualitative assessment of the reasons for and effects of the delay. Id.

at 289 (internal quotation marks omitted) (quoting Lovasco, 431 U.S. at 790). We do

not know the reasons, but we know the effects: the prosecutor's lengthy and repeated

delays significantly contributed to the loss of Maynard's juvenile jurisdiction.




                                             4
State v. Maynard
No. 89786-7
Owens, J., Dissenting


       I do not mean to excuse defense counsel's performance in this case. Defense

counsel's actions fell below an objective standard of reasonableness and prejudiced

Maynard's ability to receive fair treatment in the criminal justice process. See State v.

McFarland, 127 Wn.2d 322,334-35, 899 P.2d 1251 (1995) (describing the analysis

for claims of ineffective assistance of counsel (citing Strickland v. Washington, 466

U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))).

                                    CONCLUSION

       I am mindful of the competing interest in this case-i.e., the State's interest in

enforcing its criminal laws. But the State effectively waived that interest by delaying

prosecution for 11 months. The fundamental conceptions of justice would be violated

by allowing the prosecution to proceed. See Oppelt, 172 Wn.2d at 287, 289-90

(describing the "core question" that must be answered when analyzing claims of

preaccusatorial delay). I would hold that the combined effect of both unjustified

preaccusatorial delay and ineffective assistance of counsel in this case denied

Maynard fair treatment in the adversary criminal process in violation of his

constitutional rights. The only meaningful remedy is to dismiss.

       I respectfully dissent.




                                            5
State v. Maynard
No. 89786-7
Owens, J., Dissenting




                        6
