State v. Watson

¶17 Sanders, J.

(dissenting) — The State petitions to review language of a published Court of Appeals opinion affirming the sentence of Charles Watson. But it does not challenge the result. Specifically it questions the court’s conclusion that a memo authored by the Pierce County prosecuting attorney and circulated to the Pierce County superior court judges violated the ex parte rule because the memo was distributed five months before Watson committed the crime and seven months before he was charged. It did, however, probably impact other cases actually pending before individual judges at the time. But because the State is not an aggrieved party under RAP 3.1, we should dismiss.

¶18 RAP 3.1 states that “[o]nly an aggrieved party may seek review by the appellate court.” “An aggrieved party is *582one whose proprietary, pecuniary, or personal rights are substantially affected.” Aguirre v. AT&T Wireless Servs., 109 Wn. App. 80, 85, 33 P.3d 1110 (2001).

¶19 Here, the State is not aggrieved, having won on all issues in the Court of Appeals. But it complains of nondispositive language in the opinion below, seeking our correction of perceived error. This we cannot do unless an aggrieved party brings the matter to us on review. We once stated the rule in this way: “ ‘no one can appeal to an appellate court unless he has a substantial interest in the subject matter of that which is before the court and is aggrieved or prejudiced by the judgment or order of the court.’ ” Sheets v. Benevolent & Protective Order of Keglers, 34 Wn.2d 851, 855, 210 P.2d 690 (1949) (emphasis added) (quoting State ex rel. Simeon v. Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944)). But here the State is not prejudiced by the judgment or order of the Court of Appeals and hence is not aggrieved.

¶20 We have applied this rule in a similar situation: “Clearly respondent was not ‘aggrieved’ by the final judgment rendered in the case, since it afforded respondent all relief it asked and that could possibly have been granted to it in the cause; and, not being so aggrieved, respondent was not required to appeal to protect its rights.” Paich v. N. Pac. Ry., 88 Wash. 163, 165-66, 152 P. 719 (1915). Since the State is not aggrieved, we should dismiss review.

¶21 Were we to consider this matter on the merits, I would concur with the majority that there was no violation of RPC 3.5 with respect to Mr. Watson since he was not then a party to an actual proceeding. However circulation of the memo to judges ex parte who were sitting on other relevant cases pending sentencing is much more problematic.

¶22 Ex parte communications during the sentencing phase of a criminal proceeding violate the appearance of fairness doctrine and require a new sentencing hearing. State v. Romano, 34 Wn. App. 567, 569, 662 P.2d 406 (1983). They may also raise due process concerns since the evidence in the communication may not be verified. In re Pers. *583Restraint of Boone, 103 Wn.2d 224, 233, 691 P.2d 964 (1984).

¶23 The Court of Appeals reasoned that: “[T]he Horne memorandum conveyed the State’s position regarding [drug offender sentencing alternative] recommendation to the court ex parte. The recommendation and the supporting information were communicated to all Pierce County sentencing courts en banc without notice to the individual defendants who would be sentenced by those courts or their counsel.” State v. Watson, 120 Wn. App. 521, 535, 86 P.3d 158 (2004). Although this would be inapplicable to Watson, the Court of Appeals is correct with respect to others with a pending or impending case at the time the memo was circulated ex parte.

¶24 In Romano the defendant pleaded guilty to theft and argued that his restitution payment should reflect a seasonal income as a jewelry salesman. The judge personally called some of the defendant’s coworkers to confirm the seasonal nature of the salesman’s income. The Court of Appeals held the contact did not appear fair, even though no actual prejudice was apparent from the record. It reversed and remanded for resentencing.

f 25 In Boone the defendant pleaded guilty to assault and was sentenced to jail time and probation. At a probation revocation hearing, the probation officer submitted a report to the judge that the defendant’s girl friend had called the officer in a panic because she feared for her safety if the defendant was released. Boone did not discover the report until sometime after his probation was revoked. We remanded the case to the superior court to determine if the secret report influenced the judge’s decision. If it did, then the court was to hold another revocation hearing since the first violated due process because it was based on unverified facts. Watson agrees with the Court of Appeals that the communications were ex parte but disagrees that the error was harmless. He points to the language of CJC 3(A)(4) that a judge cannot “consider ex parte or other communications concerning a pending or impending proceeding.” He empha*584sizes the term “impending” and argues that his case was impending when the memo was circulated. Resp’t’s Suppl. Br. at 8. “[I]mpending” means “that is about to occur,” Webster’s Third New International Dictionary 1132 (2002), which implies an immediacy and certainty not present when the crime has not occurred. Since Watson’s case was not pending or impending when this memo circulated, it was not communicated in violation of the ex parte rule as to him.6 Therefore there was no error as to him which could be characterized as harmful.

¶26 The State also offers policy reasons to support its case. The prosecutor has the duty to “[s]eek to reform and improve the administration of criminal justice and stimulate efforts to remedy inadequacies or injustice in substantive or procedural law.” RCW 36.27.020(13). “Judges may serve as members, officers, or directors of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice.” CJC 4(C). The State argues that these functions of prosecutors and judges to improve the legal system will be chilled if their communications will be considered ex parte at some later date. See Corrected Suppl. Br. of Pet’r at 7. But if the communication violates the ex parte rule, this argument is irrelevant.

¶27 In summary, I would dismiss this petition for review because the State is not an aggrieved party and has no standing. If the merits were reached, I would concur in the judgment of the majority that the ex parte rule was not violated with respect to Watson because the memorandum was circulated before he became a party to an actual proceeding.

Watson also challenges the Court of Appeals ruling that he was given adequate opportunity to respond to the memo since he received it only one day before the hearing. Resp’t’s Suppl. Br. at 12-13. This ruling was central to the court’s finding the error harmless.