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                                                                                                2013        X



       IN THE COURT OF APPEALS OF THE STATE OF W.

                                                  DIVISION II

STATE OF WASHINGTON,                                                           No. 43204 -8 -II


                                      Appellant,


         V.



CHRISTOPHER NELSON MAYNARD,                                           PART PUBLISHED OPINION




            JOHANSON, A. C. J. —      This case involves the loss of juvenile court jurisdiction. The State


initially charged 17- year -old Christopher Nelson Maynard in juvenile court with six counts of

malicious mischief. Although Maynard turned 18 while the case was pending, the juvenile court

did    not extend   jurisdiction.     Accordingly, the juvenile court dismissed, without prejudice, the

charges for lack of jurisdiction. The State refiled the charges in adult criminal court. That court

dismissed, with prejudice; the charges based on the State' s preaccusatorial. delay and ineffective -

assistance of defense counsel.


            The State    appeals,   arguing that ( 1)   the trial court erred by concluding that there was

preaccusatorial        delay, ( 2) dismissal is not the appropriate remedy for ineffective assistance of

counsel, and (    3)   substantial evidence     does not    support several   factual findings. In the published


portion, we hold that ineffective assistance of counsel and not preaccusatorial delay caused the

loss   of   juvenile   court   jurisdiction;   we reverse   because   retrial, not   dismissal, is the   appropriate
No. 43204 -8 - II




remedy for     a successful           ineffective     assistance claim.      In the unpublished portion, we hold that


substantial evidence supports the court' s factual findings.

                                                                 FACTS


         Police arrested 17- year -old Maynard in August 2010, for painting graffiti on several

businesses'        and               in Woodland.             The prosecutor' s office received the police report in


September 2010.              The prosecutor asked the police for more information about the specific


locations of painted property and requested photos in order to obtain probable cause to support a

diversion     referral.       In November 20103, the prosecutor forwarded the police reports to the


juvenile   court probation           department for       consideration    for diversion. On December 10, 20104, the


juvenile    court     rejected       Maynard'    s     case    for diversion.    After reviewing the case again, the

prosecutor determined that it needed more information to file charges and requested this

information from            police.    Between January and June 2011, the State corresponded with police

about   restitution      amounts        owed     to    victims.     The State charged Maynard with six counts of


malicious mischief on           July    7, 2011.      Maynard was summoned to appear on July 12.

         At Maynard' s July 12 appearance, the juvenile court appointed counsel and scheduled an

arraignment        for the    next week.        On July 19, Maynard appeared and pleaded not guilty, and the

court set pretrial       for August 9,        and     trial   for September 15. At Maynard' s initial appearance and




    Woodland Auto Supply and Columbia Mega Storage ( a U -haul location).
2
    Rolling Freedom Skate Park and a shed, both located in Horseshoe Lake Park and owned by the
city of Woodland, and also Baseball fields of Woodland Little League.
3
    Finding   of   fact 8   states    the   year as   2011. This is a scrivener' s error.

4
    Finding   of   fact 9   states    the   year as   2011.     This is a scrivener' s error.



                                                                     2.
No. 43204 -8 - II



arraignment,    nobody     mentioned     that he   would      turn 18    on   August 1.    On July 25, the prosecutor

sent an offer   to Maynard'      s   attorney recommending           a   deferred disposition.          The offer was set to


expire   on   August 9.     Maynard told his attorney that he would accept a deferred disposition.

After sending the       offer,   the    prosecutor       noticed    that     Maynard      was   about     to turn    18.   The


prosecutor then e- mailed Maynard' s attorney asking how she wanted to proceed, but Maynard' s

attorney did    not respond.     On August 1, Maynard turned 18 years old. At the pretrial hearing on

August 9, the juvenile court dismissed, without prejudice, the charges for lack of jurisdiction.

         The State filed an information with the same charges in superior court, and the court

appointed     Maynard      a new     attorney.    Maynard moved to dismiss all charges, arguing negligent

preaccusatorial     delay     and    ineffective       assistance   of   counsel.        The trial court dismissed the


charges, with prejudice,         finding that the delay violated Maynard' s due process rights and that

defense counsel was ineffective. The State appeals.


                                                         ANALYSIS


                                              I. PREACCUSATORIAL DELAY


         The State argues that the trial court erred by dismissing Maynard' s charges with

prejudice due to preaccusatorial delay. We agree because preaccusatorial delay did not cause the

loss of juvenile court jurisdiction.


         We review de novo whether preaccusatorial delay violates a party' s due process rights.

State    v.   Oppelt,   172    Wn.2d       285,    290,      257    P. 3d     653 ( 2011).         To    determine     whether


preaccusatorial     delay   violates a    party'   s   due   process rights, courts        apply   a    three -
                                                                                                              prong test: (   1)


the defendant       must   show      actual   prejudice      from the       delay; (   2) if the defendant shows actual


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



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No. 43204 -8 -II



the reasons and the prejudice to determine whether fundamental conceptions of justice would be

violated by allowing prosecution. Oppelt, 172 Wn.2d at 295.

            Although a defendant has no constitutional right to be tried in juvenile court, the loss of

juvenile jurisdiction subjects a defendant to higher penalties and the loss of juvenile system

benefits. State       v.   Hodges, 28 Wn.           App.       902, 904, 626 P. 2d 1025 ( 1981).        Thus, a defendant has


carried his burden of showing actual prejudice when a delay causes loss of juvenile court

jurisdiction. State v. Dixon, 114 Wn.2d 857, 860 -61, 792 P. 2d 137 ( 1990).

            But, as the State argues, all cases affirming dismissal for preaccusatorial delay involve

the loss of juvenile court jurisdiction before the State filed charges, and here, the juvenile court

did   not   lose jurisdiction       until after      the State filed       charges.    That is   a significant   difference. The


concept      of " preaccusatorial          delay" means before the accusation, or, stated another way, delay

before the charging.           See,      e. g.,   State   v.   Calderon, 102 Wn.2d 348, 353, 684 P. 2d 1293 ( 1984)


 Preaccusatorial           delay   in   bringing     charges       may     violate   due   process).   Importantly, the Oppelt

court derived the three -prong test we use to determine if a delay violates due process from

Calderon.        172 Wn.2d          at   289 -90.         Thus, under those cases, if the State files charges before


juvenile jurisdiction expires and there is still an opportunity for the defendant to extend

jurisdiction, then the Oppelt three -prong test is inapplicable.                             See Oppelt, 172 Wn.2d at 290;


Calderon, 102 Wn.2d at 353.


            Here, because the State filed charges 24 days before juvenile jurisdiction expired and

Maynard had           an   opportunity to         extend    jurisdiction, the Oppelt test is inapplicable.          The juvenile


court lost jurisdiction because of defense counsel' s failure to request a simple extension of

juvenile      court   jurisdiction       at   Maynard'      s arraignment or         any time before his 18th     birthday.   The




                                                                      El
No. 43204 -8 -II



juvenile      court   did   not   lose jurisdiction because           of   the State'   s   delay   in   filing   the   charges.   While


the trial court pointed out that everybody missed Maynard' s birth date in the necessary rush to

get through the juvenile docket, defense counsel maintained a duty to provide competent

representation to Maynard and reasonably inform him about matters affecting his case. See RPC

1. 1, 1. 4.   We do not require prosecutors to give special treatment to juvenile defendants and keep

track of every         juvenile'       s   birthday.    Dixon, 114 Wn.2d         at   866.    The first opportunity to extend

jurisdiction was at Maynard' s July 12 appearance, although it is uncertain whether defense

counsel       was     present     at       that time.   But, certainly his counsel was present on July 19, when

Maynard appeared and pleaded not guilty, and during this time Maynard' s attorney should have

moved to extend juvenile court jurisdiction; but at no time while Maynard' s case was pending

did his attorney make that motion.

             We reject the conclusion that preaccusatorial delay caused the loss of juvenile court

jurisdiction when the State filed the charges 24 days before Maynard' s 18th birthday.

Additionally, we note that all cases cited by the parties involve instances in which the State did
not   file    charges until after             the defendant'   s   18th   birthday,   an    important distinction here.            Thus,


because the juvenile court did not lose jurisdiction because of preaccusatorial delay, the trial

court erred by dismissing Maynard' s charges with prejudice.

                                              II. INEFFECTIVE ASSISTANCE OF COUNSEL


             Next, the parties agree that defense counsel was ineffective, but they disagree whether the

proper       remedy is      remand or           dismissal   with prejudice.      We agree with the State that the proper


remedy for a successful ineffective assistance of counsel claim is remand for a new trial.




                                                                      5
No. 43204 -8 -II



             Generally, the remedy for ineffective assistance of counsel is remand for a new trial. See

State   v.   Sutherby,      165 Wn.2d 870, 888, 204 P. 3d 916 ( 2009); State v. Thomas, 109 Wn.2d 222,


232, 743 P. 2d 816 ( 1987); State                   v.    Powell, 150 Wn.             App. 139,      158, 206 P. 3d 703 ( 2009).


Similarly, where an adult trial court errs and a juvenile court has since lost jurisdiction, the

remedy is to         remand   to the      adult   trial    court   for further    proceedings.       See In re Pers. Restraint of

Dalluge, 152 Wn.2d 772, 786 -87, 100 P. 3d 279 ( 2004).                                   In Dalluge, Dalluge challenged his


superior court felony convictions, arguing that because he was 17 years old when the State

charged him with crimes that did not automatically mandate adult court jurisdiction, the trial

court erred         by failing   to   remand      to juvenile       court   for   a   decline   hearing. 152 Wn.2d at 776 -77.

Our Supreme Court held that although the trial court erred by not remanding for a decline

hearing, because Dalluge turned 18 and the juvenile court no longer had jurisdiction over him,

the   proper       remedy   was    to   remand      to the    adult   trial   court    for further   proceedings.   Dalluge, 152


Wn.2d at 786 -87.


             Here, Maynard' s attorney failed to move to extend jurisdiction before Maynard turned

18. Like Dalluge, because the juvenile court no longer has jurisdiction over Maynard, the proper


remedy is to         remand      to the   adult    trial    court   for further       proceedings.    Therefore, we reverse and


remand for proceedings consistent with this opinion.


             A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record       in   accordance with     RCW 2. 06. 040, it is         so ordered.
No..43204 -8 -II



                                                III. SUBSTANTIAL EVIDENCE


         Finally, the State argues that substantial evidence did not support many of the trial court' s

findings of fact.5 We hold that substantial evidence supports the findings of fact, in all material

respects, and where they are not supported, they do not materially affect a conclusion of law.

Thus, reversal is not necessary on this ground.

         We review findings of fact to determine whether substantial evidence supports them.


State   v.    Stevenson, 128 Wn.          App. 179,      193,    114 P. 3d 699 ( 2005).           Substantial evidence is


evidence sufficient           to   persuade a   fair -
                                                     minded,    rational person of       the   finding' s   truth.   Stevenson,


128 Wn.         App.     at    193.    Circumstantial evidence receives the same consideration as direct


evidence.       State    v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).                 An erroneous finding of

fact that does not materially affect a conclusion of law is not prejudicial and does not warrant

reversal. State v. Caldera, 66 Wn. App. 548, 551, 832 P. 2d 139 ( 1992).

         The State argues that finding of fact 10 is erroneous because it indicates the prosecutor

already had the information it             continued     to   request   from the   police.      Although the first August


26, 2010 police report did not contain all of the damage information for all of the victims, any

error in finding of fact 10 is harmless because it does not materially affect the court' s conclusion

that there was preaccusatorial delay.

             Finding of fact 10 states:

                    Between           December     10,   2011,       and   June    16,    2011,     the     prosecutor

             exchanged a number of e -mails with the Woodland Police [ D] epartment, seeking
              more information, specifically in regards to restitution amounts owed to the
             victims."        The [ S] tate made these repeated requests in spite of the fact that the


5
    Specifically, the State argues that substantial evidence does not support the following findings
of fact: 7, 10, 11, 12, 13, 14, 15, 16, 19, 20, and 21.


                                                                 7
    No. 43204 -8 -II



                  police reports and the probable cause statements already provided contained a
                  detailed statement of the damages each victim has sustained.


    Clerk'    s   Papers ( CP)       at   108 (   citations omitted).      The information filed in juvenile court lists four


    victims:       the city of Woodland, Woodland Little League, Woodland Auto Supply, and Columbia

    Mega Storage ( U- Haul). The                   police report   lists   restitution amounts     for three   of   the victims:   the



    city   of     Woodland, Woodland Little League,                  and    Columbia Mega Storage ( U- Haul).             The State

    argues that it needed information on all of the victims before making a charging decision. But,

    the final       police      report    filed in    superior   court     on   September 21, 2011,        does not contain any

    estimates additional             to those included in the initial        police report.   CP   at   108 ( FF 11); compare CP


    at   57   with   CP    at   9.   Moreover, the trial court concluded that, even if the prosecutor could justify

    the    delay,    the    prejudice       to Maynard       outweighed         it.   Thus, although the first probable cause


    statement and police reports did not contain estimates for all of the victims, the error in finding

    of fact 10 is not prejudicial because it does not materially affect the trial court' s conclusion about

    preaccusatorial delay.

I                 The State next assigns error to findings of fact 11 and 15 because they misstate the

    number of charges.                Finding of fact 11 states that Maynard was charged with five counts of

    malicious mischief when he was actually charged with six counts of malicious mischief, and

    finding of fact 15 states that the State' s recommendation of deferred disposition required

    Maynard to plead guilty to two of the charges when it actually required him to plead guilty to all

    of    the charges.          Those errors do not affect any of the trial court' s conclusions of law; thus, they

    are    harmless.
No. 43204 -8 -II




          The State assigns error to finding of fact 12 because the finding states that Maynard was

summoned            19 days before he turned 21                  years    old.     That finding is in error because he was

summoned            19 days before he turned 18                 years     old.    But, that is a harmless scrivener' s error.


Other findings correctly state Maynard' s age and birth date.

          Next, the State assigns error to finding of fact 13 because it argues that there is not

substantial evidence to show ( 1) what the normal procedure of the court is or (2) that none of the

parties mentioned Maynard' s age. We disagree. Finding of fact 13 states, in relevant part,

          Although the normal procedure during the first appearance would have been for
          the court to extend jurisdiction for an offender such as the defendant who was
           close to turning eighteen years of age, the court did not do so in this case. Neither
           the      court,     the    prosecutor[,       nor]   the probation officer in charge of the case
           mentioned that the defendant would be eighteen years old within a few weeks.

  WWIT- lug
      I


           Substantial evidence supports the finding that the court' s normal procedure is to extend

jurisdiction        at   the defendant'      s   first   appearance.         Maynard' s juvenile court counsel testified that-


the normal-procedure when a juvenile is nearing his 18th birthday is for the probation officer to

move      to   extend     jurisdiction     at    the juvenile'    s    initial   appearance.   Although defense counsel was


not present at Maynard' s initial appearance, she had worked as either a prosecutor or defense

counsel        in juvenile      court    for     over    10   years.    Given her experience and testimony, substantial

evidence supports the finding that the normal procedure is to move to extend jurisdiction at the

initial    appearance.               Substantial evidence also supports the finding that no one mentioned

Maynard'        s   age   at   his initial       appearance.       As defense counsel testified, the probation officer


would normally have moved to extend jurisdiction if he knew that Maynard' s 18th birthday was




                                                                         9
No. 43204 -8 -II




approaching,      and    he did        not   do    so   here.      Additionally, the first mention in the record of

Maynard' s approaching birthday was the e -mail the prosecutor sent at the end of July 2011.

          Similarly, the State argues that substantial evidence does not support findings of fact 14

and   20 because they         require    the   court    to   speculate.    Both findings state that the court could have


entered    an   order    extending jurisdiction              and    note   that this      would     be the       usual   practice.   As


discussed       above,   substantial evidence shows that the juvenile court could have extended


jurisdiction and that the usual practice was to do so when the juvenile' s 18th birthday was

approaching.       Additionally, finding of fact 20 states that Maynard could have entered into a plea

agreement with        the State       and obtained a         deferred    sentence.     This is also supported by substantial

evidence:       the State     sent    Maynard       an offer       recommending           a   deferred disposition.         Substantial


evidence supports both findings.


          The State next argues that there is not substantial evidence to support finding of fact 16

because defense         counsel could not remember when she read                          the   prosecutor' s e -mail.      Finding of

fact 16   states, "   The defendant' s attorney did not read [ the prosecutor' s e -mail notifying her that

Maynard     was       about    to turn 18]        until   after    the   defendant'   s       eighteenth   birthday."      CP at 109.


Defense counsel testified that she could not remember when she received this e -mail, but she

also testified that she did not know Maynard had turned 18 until he came into her office on

August 3, two days            after   his   birthday. If defense counsel had read the e -mail before Maynard' s

                                      have known he. had turned 18 before he                               her   on   August 3.   There
birthday,   then   she would                                                                     visited




is substantial evidence to support finding of fact 16.

          Finally, the State assigns error to findings of fact 19 and 21 because they contain

conclusions of        law.     We treat incorrectly labeled findings of fact as conclusions of law if they


                                                                     10
No. 43204 -8 -I1




resolve the ultimate issue. In re Det. ofM.K., 168 Wn. App. 621, 623 n.3, 279 P. 3d 897 ( 2012).

Finding      of   fact 19   states, "   Juvenile court defense counsel' s failure to note the defendant' s age at


arraignment and failure to then move to extend jurisdiction fell below the standard of a


reasonably         prudent   attorney."      CP   at    110.   Finding    of   fact 21   states, "   Juvenile court defense


counsel' s failure to note the defendant' s age at arraignment and failure to then move to extend


jurisdiction caused prejudice to the defendant through ( 1) the loss of juvenile court jurisdiction,


and (   2) the loss    of an    opportunity to     obtain a    deferred   sentence."     CP   at   110. The' State is correct


that these findings          are    actually legal     conclusions.      But, the State does not assign error to the


conclusions; it merely argues that they are improperly labeled. None of the errors in the findings
                                6
here    require reversal.




                                                                                                           I.


                                                                                  Johanson, A.C.J.


I concur:




                  Fearilw, J.




6
    The State also argues that substantial evidence does not support finding of fact 7. But, the State
does     not      provide    any    argument - to       support   this   claim.     We do not consider unsupported
assignments          of error.      RAP 10. 3(   a)(   6); State v. Goodman, 150 Wn.2d 774, 782, 83 P. 3d 410
    2004).



                                                                  11
No. 43204 -8 -II




             PENOYAR, J. ( Dissent) —                I write separately because it is clear from the record that the

main cause for Christopher Maynard' s loss of a chance to have his case resolved as a juvenile

                    accusatorial
was unjustified pre -                               delay.      The trial court correctly applied the Oppelt test and

dismissed the case.


             The State argues that all the cases affirming dismissal for pre -accusatorial delay involved

situations where the juvenile court lost jurisdiction before the information was filed, and here,

the juvenile        court      did   not     lose jurisdiction   until after   the information   was   filed. But it offers no


reason why this should change the test from Oppelt. I conclude that the test is the same and the

fact that the information was filed before Maynard turned 18 only goes to the issue of actual

prejudice, which the trial court addressed in its conclusion of law 2.

             While a defendant has no constitutional right to be tried in juvenile court, the loss of

juvenile jurisdiction subjects a defendant to higher penalties and the loss of juvenile system

benefits.       State     v.   Hodges, 28 Wn.            App.    902, 904, 626 P. 2d 1025 ( 1981).        Thus, our Supreme


Court has held that a defendant has carried his burden of showing actual prejudice when a delay

causes       loss   of   juvenile       court    jurisdiction.     State v. Dixon, 114 Wn.2d 857, 861, 792 P. 2d 137

    1990).


             Here, pre -accusatorial delay combined with other factors caused the loss of juvenile court

jurisdiction.        As the trial            court pointed out "[     e] verybody missed [ Maynard' s birth date] in the

                                                              the juvenile docket."   1 Report        Proceedings         51.   But,
necessary       rush     to    get through a       day   on                                      of                 at




clearly, the delay in filing was largely responsible for the loss ofjurisdiction, which occurred less
than     three      weeks            after    Maynard'    s    arraignment.       Maynard   had       agreed   to   the     State' s



7
    State v. Oppelt, 172 Wn.2d 285, 257 P. 3d 653 ( 2011).


                                                                      12
No. 43204 -8 -II



recommendation,       a   fact that   would   have     come out at          the August      9   hearing.    Resolution of the.


case would      have followed     soon   thereafter.     But the delay in filing meant there simply was not

enough time for the mistake to be noticed and rectified.


          Because Maynard        can show prejudice,           I    now consider        the     reasons    for the   delay.   The


State argues that it needed additional information about the victims before charging Maynard.

Therefore, it is necessary to weigh the prosecutor' s need for more information and the prejudice

to Maynard in losing his right to be tried in juvenile court.

         Here, the prejudice to Maynard is considerable and the State' s reason for delay is

unjustified.     The State had offered Maynard a deferred disposition, which he was willing to take.

Instead, because of the State' s delay, Maynard is now faced with a possible felony conviction in

adult criminal court.       Further, the State'      s reason       for. delay is    not   justified.     The police included


victim   information in the      report written on       August 26, 2010.             The State received this report on


September 15, 2010, but did           not charge   Maynard          until   July   7, 2011.     The State argues that it was


waiting for more information from the police, but the probable cause statement filed in superior

court on September 21, 2011, does not contain any additional victim information. The trial court

did   not err   by dismissing   Maynard'      s case   for   pre -accusatorial       delay. I would not reach the issue

of ineffective assistance of counsel and would affirm the trial court' s dismissal.


                                                                                                 f`




                                                                                   Penoyar,




                                                               13
