                                                                           FILED 

                                                                        SEPT. 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. 30860-0-111
                                             )
                     Petitioner,             )
                                             )
              V. 	                           )
                                             )
MICHAEL CRONIN,                              )         UNPUBLISHED OPINION
                                             )
                     Respondent.             )

       BROWN, J. - Today, we discretionarily review the superior court's decision

reversing a judgment and sentence the district court entered against Michael Francis

Cronin immediately after revoking his deferred prosecution for driving under the

influence and hit and run. The superior court decided the district court neglected to

make the necessary factual record before convicting Mr. Cronin and double jeopardy

principles bar further prosecution. The State contends jeopardy never attached

because the district court never heard evidence and, thus, never held a trial on his guilt.

We disagree and affirm the superior court.

                                         FACTS

       In April 2008, the district court granted Mr. Cronin deferred prosecution of

misdemeanor charges alleging he drove a vehicle while under the influence of alcohol




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No. 30860-0-111
State v. Cronin

and then hit and ran from an unoccupied vehicle. He later violated his deferred

prosecution conditions by consuming alcohol and refusing a breath analysis while in

physical control of a vehicle. At a hearing, the court found him noncompliant and

explored sanction options, eventually ruling,

       Well, if this had been a first-time alcohol related offense, I don't think it
       would be appropriate to terminate the deferred prosecution.
           But I'm - having made a finding of a violation, then the question turns
       to what the proper disposition should be, and for purposes of the
       disposition phase of the case, I am taking into consideration multiple
       occurrences of alcohol use and pending charges alcohol-based.
           So, I am gonna terminate the deferred prosecution at this time.
           Sentencing recommendations?

Clerk's Papers at 43. The court proceeded directly from revocation to sentencing

without finding him guilty upon the stipulated facts in the police report, as contemplated

by RCW 10.05.020 and Abad v. Cozza, 128 Wn.2d 575, 582, 911 P.2d 376 (1996). The

court then entered a guilty judgment against him.

       On appeal, the superior court reversed Mr. Cronin's convictions for insufficient

evidence because the district court did not identify any facts supporting them. The

superior court then concluded double jeopardy principles barred remand for the district

court to hold the required post-revocation trial. Our commissioner granted the State's

motion for discretionary review under RAP 2.3(d)(3). The parties agree the record the

district court made lacks sufficient evidence to support Mr. Cronin's convictions. But the

parties dispute whether the court placed him in jeopardy by convicting him.




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No. 30860-0-111
State v. Cronin

                                        ANALYSIS

       The issue is whether double jeopardy principles bar remand for the district court

to hold the required post-revocation trial. The State contends jeopardy did not attach

because the court sentenced Mr. Cronin immediately after revoking his deferred

prosecution and without holding a stipulated facts trial on his guilt. We review a district

court decision directly under RALJ 9.1, performing the same function as the superior

court. State v. Ford, 110 Wn.2d 827, 829, 755 P.2d 806 (1988). Thus, we review a

district court decision for legal error. See RALJ 9.1 (a). We review alleged double

jeopardy violations de novo. State v. Jackman, 156 Wn.2d 736, 746,132 P.3d 136

(2006).

       The federal double jeopardy clause provides, "No person shall ... be subject for

the same offense to be twice put in jeopardy of life or limb ...." U.S. CONST. amend.

V. 1 Jeopardy occurs when a criminal defendant is "put to trial before the trier of the 


facts." United States v. Jom, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). 


Thus, the federal double jeopardy clause bars a second trial for the same offense if 


jeopardy already attached and terminated in an earlier prosecution. Sattazahn v. 


Pennsylvania, 537 U.S. 101, 106, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003); North              !



Carolina v. Pearce, 395 U.S. 711,717,89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969),                 I
overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L.
                                                                                              I
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       1The state double jeopardy clause provides, "No person shall ... be twice put in
jeopardy for the same offense." CONST. art. I, § 9. We interpret the state provision the      J
same as the federal provision because they "are identical in thought, substance, and          ,
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purpose." State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959).

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No. 30860~0~111
State v. Cronin

Ed. 2d 865 (1989). Jeopardy attaches in a bench trial when the judge begins hearing

evidence, thereby exposing a defendant to the risk of a guilty finding based on

resolution of a factual issue. See Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct.

1055,43 L. Ed. 2d 265 (1975); United States v. Olson, 751 F.2d 1126, 1129 (9th Cir.

1985). Jeopardy terminates when, for example, a reviewing court determines

insufficient evidence supports a defendant's conviction. Richardson v. United States,

468 U.S. 317, 325,104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984); Burks v. United States,

437 U.S. 1, 11,98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

       Here, the State argues jeopardy never attached because the district court never

heard evidence. But the court ultimately entered a judgment of guilty against Mr.

Cronin, which undoubtedly placed him in jeopardy. See United States v. Patrick, 532

F.2d 142, 14546 (9th Cir. 1976). The court necessarily premised this guilty judgment

on some unarticlJlated guilty finding. While Mr. Cronin had stipulated the facts in the          I
                                                                                                 I
police report were sufficient to sustain a guilty finding, the parties agree that evidence

did not find its way into our record. We agree with the superior court that jeopardy

attached when the district court entered a guilty judgment against Mr. Cronin and
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terminated when the superior court reversed his convictions for insufficient evidence.

The district court may not try him a second time for the same offenses. Therefore,

double jeopardy principles bar remand for the district court to hold the required post-

revocation trial.


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No. 30860-0-111
State v. Cronin

      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                       Brown, J.
WE CONCUR:




Sidd~a~ 





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