IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 78486-2-I
)
Respondent, ) UNPUBLISHED OPINION
)
v. )
)
DANIEL JACOB MILTENBERGER, )
)
Appellant. )
)
ANDRUS, A.C.J. – Daniel Miltenberger was arrested for violating a domestic
violence no-contact order and for malicious mischief in April 2015. The State
charged him with felony violation of a no contact order (VNCO) in July 2016, after
which Miltenberger was charged with an unrelated rape and sexually motivated
burglary. Miltenberger agreed to postpone his trial on the VNCO charge until after
his trial on the rape and burglary charges. After being convicted and sentenced to
an indeterminate sentence with a maximum of life in prison for the rape,
Miltenberger asked the State to dismiss the VNCO charge. The State declined,
claiming it had offered to dismiss that charge only if Miltenberger pleaded guilty to
rape and burglary.
Miltenberger filed a motion to dismiss the VNCO charge under CrR 8.3(b),
arguing that governmental mismanagement of the case had prejudiced him. The
Citations and pin cites are based on the Westlaw online version of the cited material.
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trial court denied the motion, finding that the State had misrepresented its
intentions regarding the VNCO prosecution but finding no detrimental reliance on
the promise or any prejudice to Miltenberger. Miltenberger asks this court to
review the trial court’s denial of his CrR 8.3(b) motion to dismiss. We affirm.
FACTS
S.M. obtained a one-year domestic violence protection order against Daniel
Miltenberger on April 1, 2015. Two weeks later, S.M. and Miltenberger exchanged
a series of text messages while S.M. was at work. Throughout the exchanges,
Miltenberger grew increasingly angry, accusing S.M. of communicating via text
with his then-girlfriend. They met at a motel later that day, at which time
Miltenberger attempted to convince S.M. to get out of her car and go inside a motel
room with him. When S.M. put her car in reverse, Miltenberger jumped on the car.
Miltenberger broke the front driver’s side mirror before jumping off. As S.M. drove
away, Miltenberger threw something that shattered her back windshield.
S.M. pulled over when she saw a Washington State Patrol trooper. Everett
Police Officer John Coats arrived shortly thereafter to assist and arrested
Miltenberger for violation of a domestic violence protective order and malicious
mischief.
On July 15, 2016, the State charged Miltenberger with felony VNCO. Before
the State filed the charges, the assigned prosecutor, Tobin Darrow, offered to
reduce the charge to a gross misdemeanor in exchange for a guilty plea, but
Miltenberger declined the offer. Miltenberger was arraigned on August 11, 2016.
Three months later, on November 23, 2016, Miltenberger was charged with
an unrelated first-degree rape and first-degree burglary. Darrow reached out to
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Miltenberger’s then-counsel on the VNCO case, Emily Hiskes, to discuss a
possible plea on the VNCO charge as a result of these new charges. Darrow
informed Hiskes via e-mail that he would be willing to dismiss the VNCO charge in
exchange for a guilty plea on the rape and burglary charges. Darrow also recalled
making a verbal comment to Hiskes in passing, indicating that it was unlikely that
he would prosecute Miltenberger for the VNCO charge if he was convicted of rape
and burglary.
In October 2017, Teresa Cox took over the prosecution of the VNCO case,
and Jason Schwarz replaced Hiskes as Miltenberger’s defense counsel. Cox
asked Schwarz if Miltenberger intended to proceed to trial on the VNCO case on
the then-scheduled October 20 trial date. Schwarz informed Cox that he
understood that “[Darrow] is willing to dismiss if and when Mr. Miltenberger is
convicted of Rape 1/Burg 1 w/ FA. If convicted, he will spend the rest of his life in
prison.” Cox replied, telling Schwarz that “I talked to [Darrow], and yes, that was
his plan. So, I’m good with that.” They agreed to tentatively continue the VNCO
trial date to mid-February.
On January 29, 2018, a jury found Miltenberger guilty of first-degree rape
and first-degree burglary with sexual motivation. The sentencing court imposed
an indeterminate sentence with a minimum term of 450 months and maximum term
of life on the rape charge and an exceptional determinate sentence of 140 months
on the burglary charge.
On February 7, 2018, Cox e-mailed Schwarz to tell him that she had spoken
with Darrow and learned that he had offered to dismiss the VNCO charge only if
Miltenberger had pleaded guilty to the rape and burglary charges. Because
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Miltenberger had not pleaded, Cox said she intended to try Miltenberger on the
VNCO charge and to charge him with two additional VNCO counts.
On March 1, 2018, Miltenberger moved to dismiss the VNCO charge under
CrR 8.3(b). 1 He asked the trial court to enforce the State’s promise to dismiss the
VNCO once he was convicted of the more serious felonies. Miltenberger argued
that the State’s mismanagement of the case required dismissal because he had
waived his right to a speedy trial in the VNCO case based on the belief that the
State intended to dismiss that charge. He contended that he would have
negotiated the pending cases differently had he known the State intended to
prosecute him for the VNCO charge because a VNCO conviction would impact his
ability to obtain extended family visits while serving a life sentence on the rape
conviction.
Miltenberger also argued that the State’s decision not to dismiss the VNCO
charge also impacted the fairness of his trial. Miltenberger’s counsel contended
that:
The State has not conducted a 3.5 hearing yet. The State got a
continuance because of officer delays, prosecutor delay –
engagement in another trial. Had we been able to go to trial at that
point at that time when the first trial call occurred, there would have
been no 3.5 hearing, which means any statements Mr. Miltenberger
had made would not be coming in.
Counsel also contended that after he confirmed his readiness for trial, the State
provided a new statement from the victim.
1
CrR 8.3(b) states: “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 right to a fair trial.”
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The State denied the contention that it had provided new discovery to
Miltenberger. The State noted that “there is no new discovery on this case. There
[are] no new witnesses, no late discovery, as counsel is stating, and there is no
Amended Information being sought in this case.” It further argued that had
Miltenberger been acquitted in the rape case, he would be in the same posture he
was in at that time.
In its oral ruling, the trial court found unpersuasive the State’s argument that
Cox’s October 2017 e-mail to Schwarz did not promise a dismissal of the VNCO
charge. It concluded that the e-mail was a specific offer that Miltenberger had
accepted. The trial court reserved ruling on the issue of whether he had
established any actual prejudice.
In its subsequent March 13, 2018 written findings, the trial court reiterated
its oral ruling that the October 2017 e-mail constituted an agreement that the
VNCO charge would be dismissed “if and when [Miltenberger] is convicted” of the
rape and burglary charges. And it found that Miltenberger’s counsel had relied on
this agreement when agreeing to postpone the trial until the rape and burglary
charges were resolved.
The trial court, however, rejected Miltenberger’s argument that the change
in the State’s position regarding dismissal caused any actual prejudice affecting
Miltenberger’s fair trial rights. It rejected Miltenberger’s argument that the delay
allowed the State to hold a CrR 3.5 hearing or to obtain a new victim statement. It
concluded that Miltenberger had other remedies, such as moving to exclude
evidence or to preclude the State from adding new charges, in lieu of dismissal.
With regard to any argument that Miltenberger may have pleaded guilty to the rape
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and burglary charges to ensure a dismissal of the VNCO case, the court rejected
that argument as “speculative at best.”
The trial court expressed its concern for the way in which the State had dealt
with the case:
While this Court continues to believe that the weight of the evidence
clearly shows that the State led the defense to believe, by both
conversation and email, of its intent to dismiss the VNCO upon the
defendant’s conviction to Rape/Burglary, and remains very troubled
by the State’s position in this case, the Court cannot find under the
law and facts of this case that the defendant has shown detrimental
reliance such that he can no longer receive a fair trial on this charge.
It denied Miltenberger’s motion to dismiss under CrR 8.3(b) and any motion to
enforce the State’s offer to dismiss the charge.
On March 28, 2018, a jury found Miltenberger guilty of the VNCO charge
and found against him on a domestic violence aggravating factor. Miltenberger
was sentenced to 60 months of incarceration to be served concurrently with the
indeterminate rape sentence and determinate burglary sentence.
ANALYSIS
Miltenberger asks this court to reverse the trial court’s decision to deny his
motion to dismiss under CrR 8.3(b). 2 To be entitled to a dismissal under CrR
8.3(b), a defendant must show by a preponderance of the evidence (1) arbitrary
government action or misconduct and (2) actual prejudice to the defendant’s right
to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). Dismissal
under CrR 8.3(b) is “an extraordinary remedy available only when there has been
prejudice to the rights of the accused which materially affected his or her rights to
2
Miltenberger also argues that in light of State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018),
the criminal filing fee and DNA collection fee should be stricken. The State concedes that these
fees should be stricken. We accept the State’s concession.
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a fair trial.” State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993) (internal
quotation marks omitted) (quoting Spokane v. Kruger, 116 Wn.2d 135, 144, 803
P.2d 305 (1991)). “[A] party cannot meet this burden by generally alleging
prejudice to his fair trial rights—a showing of actual prejudice is required.” State
v. Salgado-Mendoza, 189 Wn.2d 420, 431-32, 403 P.3d 45.
We review a trial court’s decision on a motion to dismiss under CrR 8.3(b)
for manifest abuse of discretion. Blackwell, 120 Wn.2d at 830. “A discretionary
decision is manifestly unreasonable or based on untenable grounds if it results
from applying the wrong legal standard or is unsupported by the record.” Salgado-
Mendoza, 189 Wn.2d at 427 (internal quotation marks omitted) (quoting State v.
Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009)).
Miltenberger does not contend that the trial court applied the incorrect legal
standard. Instead, he argues that the trial court erred in finding that he was not
prejudiced by the State’s October 2017 email in which it stated its intention to
dismiss the VNCO case. He contends that he relied, to his detriment, on the
promise that the case would be dismissed, and the trial court erred in concluding
otherwise.
We must therefore decide whether the trial court’s findings are supported
by substantial evidence and whether the findings support its legal conclusions.
State v. Budge, 125 Wn. App. 341, 345-46, 104 P.3d 714 (2005). “Substantial
evidence is evidence sufficient to persuade a fair-minded, rational person of the
truth of the finding.” Id. at 346 (quoting State v. Mendez, 137 Wn.2d 208, 214, 970
P.2d 722 (1999)).
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Miltenberger contends that he demonstrated prejudice by showing that he
relied on the State’s offer of dismissal to his detriment in two different ways. First,
he argues that he agreed to continue his VNCO trial for over a year pending
resolution of the rape and burglary trial, giving the State additional time to gather
evidence against him. Second, he maintains that he declined the State’s offer in
both the VNCO and rape cases because he was motivated to find a way to
maintain extended family visits if convicted of rape and sentenced to life in prison.
The record, however, does not support either argument.
With regard to the agreed trial continuances, the trial court found that
Miltenberger relied on an email dated October 2017, more than a year after he was
charged. By that point, Miltenberger had already agreed to postpone his VNCO
trial while awaiting the conclusion of the rape and burglary case. There is nothing
in the record to establish that his waiver of his speedy trial rights between the date
he was charged with rape and burglary in November 2016 and October 2017 was
based on the agreement reached in October 2017.
While Miltenberger did agree to continue his VNCO trial date in October
2017 in reliance on Cox’s October 2017 email, the record does not support his
contention that this delay allowed the State to gather new evidence. Miltenberger
argues that the State was able to request a CrR 3.5 hearing and obtain a court
order allowing the admission of exculpatory statements. But the record does not
reveal any causal connection between the trial delays and the timing of the CrR
3.5 hearing. CrR 3.5(a) states, in relevant part:
(a) Requirement for and Time of Hearing. When a statement of the
accused is to be offered in evidence, the judge at the time of the
omnibus hearing shall hold or set the time for a hearing, if not
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previously held, for the purpose of determining whether the
statement is admissible.
The record before this court lacks an order setting a deadline for the CrR 3.5
hearing in this case. We thus have no basis on which to conclude that the trial
delay between October 2017 and March 2018 impacted the scheduling of this
hearing in any way.
Moreover, the trial court signaled to defense counsel that a remedy short of
dismissal might be available, including the exclusion of evidence. There is no
indication that Miltenberger objected to the trial court conducting a CrR 3.5 hearing
on the first day of trial. In fact, Miltenberger’s counsel explicitly told the court that
he did not object to the occurrence of a CrR 3.5 hearing but that he objected to the
State’s proposed dates for the hearing because he was going to be out of the
country. Counsel did not object to the timeliness of the State’s request for a CrR
3.5 hearing once he returned to town.
And Miltenberger does not contend that he was surprised by anything that
occurred during the CrR 3.5 hearing. The State called only one witness, Officer
Coats, who stated that before he read Miltenberger his Miranda 3 rights,
Miltenberger told him that he arrived at the hotel and saw S.M.’s car in the parking
lot and that S.M. drove her car towards him, forcing him to jump on the vehicle’s
hood to avoid getting hit, with the driver’s side window somehow getting broken.
After being informed of his Miranda rights, Miltenberger agreed to speak to Coats
and told him that he and S.M. had been communicating via text because
Miltenberger wanted to find out why one of S.M.’s friends had contacted him at
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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3:00 that morning. The trial court admitted Miltenberger’s post-Miranda statements
but excluded any of Miltenberger’s pre-Miranda statements. There is nothing in
this record to suggest that Miltenberger or his counsel was unprepared to address
the exculpatory statements admitted by the court during his trial.
With regard to his motivations for rejecting plea offers, we have no evidence
in the record that the State made any plea offers to Miltenberger other than the
initial offer to dismiss the VNCO charge if he pleaded guilty to rape and burglary.
While defense counsel argued that the State’s change in position regarding
dismissal “could have” affected Miltenberger’s plea negotiating position, this
argument is not evidence.
The record shows that Miltenberger did rely on the State’s expressed intent
to dismiss the VNCO charge between October 2017 and February 2018, when he
learned that the State had changed its position and intended to proceed to trial.
But the record does not show he relied on this promise to his detriment during that
five month period.
The State’s agreement to dismiss Miltenberger’s VNCO charge was not
technically a plea offer because Miltenberger was not required to admit guilt to any
criminal offense or to forfeit any legal rights as a part of the agreement. But the
cases relating to when the State may revoke a plea offer provide some guidance
here. “[A]bsent some detrimental reliance by the defendant, the State may
withdraw from any plea agreement prior to the actual entry of a guilty plea.” State
v. Wheeler, 95 Wn.2d 799, 803, 631 P.2d 376 (1981). “The right to specific
performance of a plea proposal, if it can be called a right, is not rooted in the
‘traditions and conscience of our people.’” Id. at 804. Although a defendant must
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be treated fairly, the right to a specific plea offer does not rise to constitutional
magnitude. Id. Our courts have reasoned that “enforcing bargains made before
the plea would inhibit the prosecutor's use of plea bargaining; and that the
defendant, because she or he can still get a jury trial, has an adequate remedy for
the State's revocation.” Id. at 803.
In the pre-guilty plea setting, a defendant is entitled to compel specific
performance of an offer by the State only if the defendant establishes detrimental
reliance on the offer. State v. Bogart, 57 Wn. App. 353, 357, 788 P.2d 14 (1990).
The defendant “must establish he relied on the bargain in such a way that a fair
trial is no longer possible.” Id. Miltenberger made no such showing here.
Miltenberger’s prejudice arguments have nothing to do with the fairness of
his VNCO trial. Had Miltenberger been acquitted of the rape and burglary charges,
he would have been in the same position he was in when he went to trial on the
VNCO charge. He had not given up any procedural or substantive rights affecting
the second trial. This is not a case in which the State added last-minute charges
or delayed the discovery process, requiring the defendant to choose between his
right to a speedy trial and his right to effective counsel. See e.g. State v. Michielli,
132 Wn.2d 229, 937 P.2d 587 (1997) (Supreme Court affirmed CrR 8.3(b)
dismissal of charges after the State brought new charges days before trial and
defendant was forced to choose between a speedy trial and effective
representation); State v. Teems, 89 Wn. App. 385, 948 P.2d 1336 (1997) (CrR
8.3(b) dismissal of charges was proper after trial notice was served to withdrawn
counsel, and new counsel had 12 days to prepare for trial, forcing defendant to
choose between a speedy trial and effective representation).
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Instead, this record shows that Miltenberger’s counsel was prepared to go
to trial on February 16, 2018. While the State asked for a continuance due to
prosecutor unavailability, there is no indication that defense counsel needed a
continuance to prepare for any newly produced evidence or newly alleged crimes.
Thus, the trial court correctly concluded that Miltenberger failed to show that
he detrimentally relied on counsel’s statement that the VNCO charge would be
dismissed upon a conviction of the rape and burglary. We conclude that the trial
court did not abuse its discretion in denying Miltenberger’s CrR 8.3(b) motion to
dismiss the VNCO charge.
We affirm Miltenberger’s conviction but remand to allow the trial court to
strike the DNA fee and criminal filing fee from the judgment and sentence.
WE CONCUR:
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