        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                     No. 79361-6-I
                                  Appellant,
                                                     DIVISION ONE
                V.


 ELIJAH EMMANUEL SLADE,                              UNPUBLISHED OPINION

                                  Respondent.        FILED: March 2, 2020


       CHUN, J.     —   On the first day of trial, the State dismissed all charges against

Elijah Slade except for one count of bail jumping. When the court asked the

State why it was pursuing the remaining charge, the State answered that the

delay caused by the bail jumping could have affected its ability to maintain

contact with its witnesses with respect to the dismissed charges. The trial court

determined the record did not support this contention, and it dismissed the case

under CrR 8.3(b). We determine the State did not commit arbitrary action or

governmental misconduct within the meaning of the rule. We reverse and

remand for trial.

                                     I. BACKGROUND

       On September 18, 2014, the State charged Slade with one count of

forgery. Slade failed to appear for his arraignment. The court issued a bench

warrant for Slade’s arrest.
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       Over three years later, on February 12, 2018, Slade appeared before the

court. At an April omnibus hearing, the court set trial for June 15, 2018. The

omnibus hearing was rescheduled for June 1. The order from the April hearing

provided:
       THE DEFENDANT MUST APPEAR FOR TRIAL AND FOR ALL
       SCHEDULED HEARINGS. FAILURE TO APPEAR MAY RESULT
       IN ISSUANCE OF AN ARREST WARRANT, FORFEITURE OF
       BAIL, AND CRIMINAL PROSECUTION FOR BAIL JUMPING.
Slade signed the order.

       Slade failed to appear for the omnibus hearing on June 1, 2018. The

court issued a bench warrant for Slade’s arrest. Five days later, Slade appeared

and the court quashed the warrant.

       On October 25, 2018, the State amended the information to charge Slade

with two counts of forgery, second degree identity theft, and bail jumping. The

bail jumping charge related to Slade’s failure to appear at the June 1 omnibus

hearing.

       The trial was continued to December 7, 2018. On the first day of trial, the

State moved to dismiss all charges against Slade, except for the bail jumping

charge, because it was unable to locate necessary witnesses. After it dismissed

the other charges, the court asked the prosecutor why she intended to proceed

with the bail jumping charge. The prosecutor stated that the case had been

pending since 2014 and she believed she lost contact with witnesses, in part,

because the case had been pending for so long. In response, the court indicated

that Slade’s bail jumping in June 2018 did not significantly delay the case:




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 No. 79361-6-113

       That is an inaccurate statement. It’s an inaccurate assumption and
       you need to rethink that. Because the bail jumping came from June
       of this year, it has nothing to do with when these crimes were
       committed, allegedly. It has nothing to do with how long this case
       was. You didn’t lose a witness because this gentleman failed to
       appear in June for an omni hearing. I think your witness was lost
       anyways. That’s an inaccurate statement, Counsel. And so now
       what I’m wondering is, are you proceeding on this based on
       vindictiveness?
The court further noted that it believed it was “an extraordinary waste of

resources” for it to impanel a jury when the State was proceeding on only a bail

jumping charge.

       The court then took a brief recess for the prosecutor to speak with her

supervisor. When court reconvened, the supervisor maintained that the State

planned to proceed with the charge because bail jumping is a crime. The

supervisor stated that the delay affected, or could have affected, its ability to

keep contact with its witnesses; she also indicated that such an effect is “not

required to prove a crime.” The court again challenged this contention, noted

Slade was African-American, and “quer[ied] whether or not we would be moving

forward if we had a different nationality.” The court then dismissed the case:
       I’m dismissing this, in the interest of justice, under 8.3 and the
       previous 10.46.090. I’m going to find that, because the underlying
       charges have been dismissed, I’m not inclined to impanel a jury in
       this case and incur all the costs associated with it to have one
       witness testify that this particular defendant failed to appear for five
       days.
       On December 19, 2018, the court entered a Supplemental Order of

Dismissal. In the order, the court again stated that, given the many trial

continuances in the case, Slade’s failure to appear for five days did not contribute

to the State’s failure to produce essential witnesses.


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No. 79361-6-114


       The State appeals.

                                     II. ANALYSIS

       The State argues that the court erred by dismissing its case because the

court did not find that it committed any government misconduct or that Slade’s

fair trial rights had suffered prejudice. Slade contends that we should remand for

the trial court to enter findings supporting the contention that the State based its

prosecution for bail jumping on his race. We conclude the court erred.

       “A trial court’s decision to dismiss under CrR 8.3(b) can be reversed only

when a trial court has abused its discretion by making a decision that is

manifestly unreasonable or based on untenable grounds.” State v. Wilson, 149

Wn.2d 1, 9, 65 P.3d 657 (2003).

       State prosecutors maintain broad discretion in deciding whether to charge

a crime. State v. Moen, 150 Wn.2d 221, 227, 76 P.3d 721 (2003). Nevertheless,

CrR 8.3 enables courts to dismiss criminal cases in the furtherance of justice:
       (b) On Motion of Court. 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 rights to a fair trial. The court shall set forth its reasons in
       a written order.
Thus, before a court may dismiss charges under CrR 8.3, there must be arbitrary

action or governmental misconduct and material prejudice to the defendant.

State v. Korum, 157 Wn.2d 614, 638, 141 P.3d 13 (2006); State v. Michielli,

132 Wn.2d 229, 239, 937 P.2d 587 (1997) (finding government mismanagement

where State filed an additional charge three business days before trial with no




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No. 79361-6-1/5


justification for the delay). But governmental misconduct “need not be of an evil

or dishonest nature; simple mismanagement is sufficient.” State v. Salgado

Mendoza, 189 Wn.2d 420, 431, 403 P.3d 45(2017) (internal citation and

quotation marks omitted) (determining that delayed discovery disclosure

constituted misconduct under CrR 8.3(b)).

       CrR 8.3’s purpose is “to protect against arbitrary action or governmental

misconduct and not to grant courts the authority to substitute their judgment for

that of the prosecutor.” Michielli, 132 Wn.2d at 240 (internal citation and

quotation marks omitted). Thus, “dismissal under CrR 8.3 is an extraordinary

remedy, one to which a trial court should turn only as a last resort.” Wilson, 149

Wn.2d at 12.

       Here, the court dismissed the case because it did not believe the record

supported the State’s justification for prosecuting Slade for bail jumping.1 This

difference of opinion, however, does not reflect arbitrary action or governmental

misconduct. See State v. Woll, 35 Wn. App. 560, 564, 668 P.2d 610 (1983)

(“Although the trial court (and we might also have) disagreed with the

prosecutor’s decision to file the charges, the prosecutor’s decision is clearly not


       1  While the court queried as to “whether or not we would be moving forward if we
had a different nationality,” it did not mention race in its written order. Because the court
did not mention this query in its decision or make any factual findings regarding race, we
do not consider race as a reason for the dismissal. See Michielli, 132 Wn.2d at 242
(cautioning appellate courts against relying on a trial court’s oral statements because “a
trial court’s oral decision has no binding or final effect unless it is formally incorporated
into findings of fact, conclusions of law, and judgment”) (internal citations and quotation
marks omitted). Because the court did not articulate Slade’s race as a reason for
dismissing the case in its written order, we decline to remand for further fact finding on
the issue. And to be sure, the court’s oral ruling did not clearly indicate that the issue of
race played any role in its analysis.

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 No. 79361-6-1/6


 conduct falling within the purview of CrR 8.3(b). Neither can we hold that the

prosecutor’s decision to file the charge constituted ‘arbitrary action.”). The trial

court did not question—and Slade does not challenge on appeal—the State’s

ability to prove the elements of the bail jumping charge, and the record

demonstrates the State had sufficient evidence to support the charge.2 ~

State v. Underwood, 33 Wn. App. 833, 837-38, 658 P.2d 50 (1983) (reversing a

court’s dismissal under CrR 8.3(b) because, despite the court’s belief that the

State failed to meet its burden of proof in the first trial, “[rjenoting a matter for trial

following mistrial because of a hung jury is not an arbitrary act by the prosecutor

where there is sufficient evidence to present the matter to the jury for a

determination on the facts”). Additionally, the parties agree that the State may

prosecute a defendant for bail jumping after dismissing the underlying charges.

Thus, the court merely disagreed with the prosecutor’s use of her discretion to

pursue the charge. CrR 8.3, however, does not grant trial courts the authority, in

the absence of arbitrary conduct or governmental mismanagement, to dismiss

cases because it disagrees with prosecutor’s charging decision. Michielli, 132

Wn.2d at 240. Indeed, the court did not make any finding relating to arbitrary

action or governmental misconduct. Since the State did not commit arbitrary




       2  To prove a bail jumping charge the State must show “the defendant: (1) was
held for, charged with, or convicted of a particular crime; (2) was released by court order
or admitted to bail with the requirement of a subsequent personal appearance; and, (3)
knowingly failed to appear as required.” State v. Williams, 162 Wn.2d 177, 183-84, 170
P.2d 30 (2007) (internal citation and quotation marks omitted) (emphasis omitted).

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 No. 79361-6-1/7


action or governmental misconduct within the meaning of the rule, the court

based its decision to dismiss the case on untenable grounds.3

        Reversed and remanded for trial.




WE CONCUR:




      •~I1                                                        fr_I




       ~ Because the State did not commit arbitrary action or governmental misconduct,
we do not reach whether Slade suffered prejudice affecting his right to a fair trial. See
Wilson, 149 Wn.2d at 12 (declining to reach the issue of prejudice because no
prosecutorial misconduct occurred).

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