author: WIGGINS, J. FAIRHURST, C.J. (concurring)

text:
    STATE of Washington, Respondent, v. Michael L. GEHRKE, Petitioner.
    No. 95635-9
    Supreme Court of Washington.
    Argued September 11, 2018 Filed February 14, 2019
    John Clinton Julian, John C. Julian, Attorney At Law, PLLC, 5 W. Alder Street, Suite 238, Walla Walla, WA 99362-2863, for Petitioner.
    Brian Clayton O'Brien, Gretchen Eileen Verhoef, Spokane County Prosecuting Attorney, 1100 W. Mallon Avenue, Spokane, WA 99260-2043, for Respondent.
   WIGGINS, J.

¶ 1 Michael Gehrke was charged with second degree murder, predicated on second degree assault, for the death of Christopher Pineyro. Immediately before the State rested its case, the trial court allowed the State to amend its charges to include first degree manslaughter. The jury found Gehrke guilty of first degree manslaughter but not second degree murder.

¶ 2 Gehrke asks us to order the trial court to vacate his conviction for first degree manslaughter and dismiss with prejudice, arguing that allowing the amendment violated his constitutional right to be informed of the charges against him. We hold that allowing the State to amend its charge after completing its case in chief and immediately prior to resting violated Gehrke's constitutional right. We agree with Gehrke and reverse the decision of the Court of Appeals and remand to the trial court for vacation of his conviction, dismissal of the first degree manslaughter charge with prejudice, and further proceedings consistent with this Opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3 Michael Gehrke was convicted of first degree manslaughter for the death of Christopher Pineyro, who died after being stabbed in a street fight with Gehrke. The two men had a history of conflict. At trial, the opposing sides offered conflicting accounts of the fight. According to Gehrke, he had just arrived at a friend's house in a vehicle driven by his girlfriend when Pineyro rode up to him on a bicycle. Pineyro stated that he had "something" for Gehrke and stopped his bicycle. Pineyro then reached behind himself and began to "shed his things." Gehrke reacted and kicked Pineyro's bike frame, which hit Pineyro in the leg. Pineyro and the bike fell to the ground together.

¶ 4 When Pineyro stood up, he was wielding a hammer. Gehrke drew a pocketknife. Pineyro began swinging the hammer at Gehrke, and Gehrke backed away. Pineyro advanced, and Gehrke retreated approximately 17 feet, toward a fence. Gehrke testified that he saw no opportunity to get any farther back and that "I thought that if I didn't do something, he would - he would back me up against the fence and hit me with the hammer." Gehrke jabbed at Pineyro twice with the knife, fatally wounding Pineyro in the neck. The police arrived and Gehrke admitted to striking Pineyro, saying, "I'm the guy. I stabbed him and it was self-defense."

¶ 5 The State charged Gehrke with second degree felony murder predicated on second degree assault. Clerk's Papers (CP) at 1. On the first day of trial, the prosecutor stated that the State was considering amending the charges to include first degree manslaughter as an alternative charge but noted that he was not currently seeking such an amendment. The prosecutor told the trial court, "I don't think that it would be prejudicial [to amend the charge], and it's a lesser offense.[ ][The defense was] not in favor of that [amendment], therefore, I'm not going to submit that, but I did put them on notice that, at the conclusion of the State's case, I may be moving for that to be charged in the alternative."

¶ 6 After the State called its last witness but before it had formally rested, the prosecutor moved to amend the information to add a manslaughter charge. The State made clear that it intended to rest even if the amendment was not allowed ("The State does intend on. resting [regardless] of the Court's decision [to allow the amendment] in this case."). Defense counsel objected to the prosecutor's motion to amend, on the grounds that manslaughter is not a lesser included offense of felony murder and that Gehrke did not mount a defense to manslaughter, which requires an element of recklessness not required for felony murder.

¶ 7 The trial court granted the State's motion to amend the information. The court explained that Gehrke's possible defense strategy against a first degree manslaughter charge was "essentially the same" as the defense he had presented to the second degree murder charge. It is unclear from the record whether the trial court believed that the manslaughter charge was a lesser included offense of the original felony murder charge.

¶ 8 The jury was apparently unable to agree as to whether Gehrke was guilty of second degree murder. It found Gehrke guilty of first degree manslaughter.

¶ 9 Gehrke appealed. The Court of Appeals affirmed the trial court, holding that, under CrR 2.1(d), Gehrke could not demonstrate prejudice because his defense at trial was self-defense and that would have also been his defense to the amended charge. Gehrke petitioned this court for review, which we granted.

STANDARD OF REVIEW

¶ 10 We review a trial court's ruling on a proposed amendment to an information for abuse of discretion. State v. Lamb, 175 Wash.2d 121, 130, 285 P.3d 27 (2012) (citing State v. Schaffer, 120 Wash.2d 616, 621-22, 845 P.2d 281 (1993) ).

ANALYSIS

¶ 11 The trial court violated Gehrke's constitutional rights by allowing the State to add an alternative charge against Gehrke after it finished its case in chief and immediately before it rested.

I. Criminal defendants are entitled to receive notice of the nature of the charges and an opportunity to present a defense

¶ 12 It is a central right, provided in our constitution, that "[i]n criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him." WASH. CONST. art. I, § 22. Pursuant to this right, "[t]he accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. ... This doctrine is elementary and of universal application, and is founded on the plainest principle of justice." State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894). The "accused must be informed of the charge he is to meet at trial and cannot be tried for an offense not charged." State v. Carr, 97 Wash.2d 436, 439, 645 P.2d 1098 (1982). Thus, "defendants have a right to be fully informed of the nature of accusations against them so that they may prepare an adequate defense. This right is satisfied when defendants are apprised with reasonable certainty of the accusations against them." State v. Leach, 113 Wash.2d 679, 695, 782 P.2d 552 (1989) (citations omitted).

A. Criminal rules that allow for midtrial amendments operate within the confines of the constitution and cannot be read to contravene the constitution

¶ 13 The constitutional rights created by article I, section 22 inherently limit when and whether the State may make midtrial amendments to its information. State v. Olds, 39 Wash.2d 258, 261, 235 P.2d 165 (1951) (holding that "a new count charging a different crime ... would contravene Art. I, § 22, of the state constitution"). Thus, although CrR 2.1(d) -used here by the State to amend its information midtrial-provides that "[t]he court may permit any information or bill of particulars to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced," this rule is inherently limited by article I, section 22. State v. Pelkey, 109 Wash.2d 484, 490, 745 P.2d 854 (1987) (referring to what was then CrR 2.1(e) but is now 2.1(d) ).

¶ 14 Courts of this state have long made clear that CrR 2.1 (d) is thus limited by our constitution. See, e.g., State v. Lutman, 26 Wash. App. 766, 768, 614 P.2d 224 (1980). In Lutman, the defendant was originally charged with hit-and-run and failure to yield. Id. at 767, 614 P.2d 224. At the conclusion of evidence, the trial court granted "a motion to amend the complaint to negligent driving." Id. Lutman was convicted of negligent driving and appealed. Id. The relevant criminal rule in effect at the time permitted an information " 'to be amended at any time before judgment' " if the amendment did not prejudice the defendant. Id. at 768, 614 P.2d 224 (quoting JTR (Justice Court Traffic Rules) 3.04). Nevertheless, the Court of Appeals held that this rule "cannot bear an interpretation which would contravene [article I, section 22]" of the constitution and that "[a]n amendment during trial stating a new count charging a different crime violates this provision." Id. at 768, 767, 614 P.2d 224.

¶ 15 In Carr, this court extended the holding in Lutman to the pretrial amendment of an information, reaffirming Olds in the process. 97 Wash.2d at 440, 645 P.2d 1098. In Carr , the defendant was originally charged with failing to register to carry goods intrastate. Id. at 438, 645 P.2d 1098. Prior to trial, the prosecution discovered that the goods in question were to be transported interstate, to Utah, not intrastate. Id. Just before trial began, the prosecutor amended the information to charge the defendant under a different statute, which required that he register to carry goods interstate. Id. The trial court granted Carr a one-week continuance to prepare for the new charge, as well as an additional continuance at the conclusion of the State's case. Id. Carr was found guilty of the amended charge. Id. We held that despite the difference in the timing of the amendments made in Carr and in Lutman , the concerns in Carr were "analogous to the Lutman case." Id. at 440, 645 P.2d 1098. We noted that in Lutman, amending the complaint to a new charge "[a]t the conclusion of the evidence" violated Lutman's rights to be informed of the accusations against him. Id. There was no substantive difference in Carr , as we held that "amending the complaint at the start of trial violated Carr's right to be informed of the accusations against him." Id.

B. Pelkey and its progeny

¶ 16 Five years after we decided Carr , the court accepted review of Pelkey . 109 Wash.2d at 488, 745 P.2d 854. The State originally charged Pelkey with one count of bribery. Id. at 486, 745 P.2d 854. However, "[a]t the conclusion of the presentation of the State's case at trial," the State amended the information to charge trading in special influence, a different crime. Id. We held that allowing the amendment violated Pelkey's article I, section 22 rights. Id. at 491, 745 P.2d 854.

¶ 17 The State argued that under CrR 2.1, the defendant bears the burden of establishing that prejudice resulted from the midtrial amendment. Id. at 490, 745 P.2d 854. We rejected this argument, repeating that CrR 2.1 operates "within the confines of article I, section 22" and that "[w]e cannot sustain an interpretation of a court rule which contravenes the state constitution." Id. Accordingly, we reversed Pelkey's conviction. Id. at 491, 745 P.2d 854.

¶ 18 In doing so, we created a rule that

[a] criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense. Anything else is a violation of the defendant's article 1, section 22 right to demand the nature and cause of the accusation against him or her.

Id. A violation of this right is per se prejudicial for the purposes of CrR 2.1.

¶ 19 The bright-line rule established in Pelkey , which prohibits certain midtrial amendments, is not concerned with whether the State has formally rested. As Justice Utter repeatedly stated in the Pelkey decision, a trial court cannot allow the "State to amend the information ... after the State completed presentation of its case in chief." Id. at 487, 745 P.2d 854 (emphasis added); see also id. at 485, 745 P.2d 854 (other instances of this language). In State v. Markle, we reaffirmed this, stating that "amending a criminal charge after the State had presented its case in chief violate[s] the defendant's state constitutional rights under article 1, section 22 to be informed of the charges against him when the new charge is not a lesser included offense or an offense of a lesser degree." 118 Wash.2d 424, 433, 823 P.2d 1101 (1992) (emphasis added). Indeed, in Markle we did not even evaluate whether the State had formally rested-that the amendment was made at the end of the State's case in chief (described as a "midtrial amendment") was enough to disqualify it as "reversible error per se." Id. at 437, 823 P.2d 1101.

¶ 20 On the other hand, we have declined to apply Pelkey's bright-line rule when the State amends its case in the midst of its case in chief, when the defendant has an opportunity to respond meaningfully to the amendment. Schaffer, 120 Wash.2d at 620-21, 845 P.2d 281. In Schaffer, the trial court initially denied the State's motion to amend for lack of evidence of the charge sought. Id. at 618, 845 P.2d 281. In response, the State called an additional witness to testify. Id. After the witness's testimony, the State renewed its motion, and the trial court granted the amendment. Id. The defense then had the opportunity to cross-examine the witness (which it did), after which the State rested. Id. Schaffer was found guilty of the amended charge. Id. We upheld the amendment, noting that the rule established in Pelkey did not extend to this situation. Id. at 620-21, 845 P.2d 281. The court will grant relief in these circumstances only if the defendant was prejudiced by the amendment. CrR 2.1(d). In so doing, Schaffer reaffirmed the Pelkey rule, noting that the State cannot amend its information "following the close of the State's case." Id. at 621, 845 P.2d 281.

II. The amendment to the information violated Gehrke's constitutional rights to receive notice of the nature of the charges and an opportunity to present a defense

¶ 21 Here, the State moved to amend the information immediately before resting its case. The State told the court, upon moving to amend, that it "intend[ed to] rest[ ] [regardless] of the Court's decision [to allow the amendment]." Gehrke argues that the Pelkey rule applies to this situation. We agree. By informing the court that it would rest its case regardless of the court's decision of the amendment, the State made clear that it had completed its case in chief. As Pelkey and Markle stated expressly, when the State has completed its case in chief, it cannot amend the information. Pelkey, 109 Wash.2d at 487, 745 P.2d 854 ; Markle, 118 Wash.2d at 433, 823 P.2d 1101. In light of that, we agree with Gehrke. The Pelkey rule applies, and the amendment is barred as per se prejudicial.

¶ 22 Situations like the one before us now are within the scope of the Pelkey rule because when the State explicitly states that it will rest its case after moving to amend, it has functionally rested its case in chief. Pelkey , Markle , and Schaffer reiterate that the Pelkey rule applies when the State has completed its case in chief. If these statements are to mean something, they must mean, at least, that when the State has made it clear that it will rest its case, then it may no longer amend. We hold, therefore, that in a situation like the one before us here, where the State made it clear that it has completed its case in chief, the Pelkey rule applies.

¶ 23 The dissent argues, and the concurrence agrees, that Gehrke's case cannot be within the scope of the Pelkey rule because the Pelkey rule requires that the State formally rest its case; without such ritual formalism, the dissent indicates, the Pelkey rule cannot apply. Dissent at 534; concurrence at 533.

¶ 24 But this is wrong. Pelkey never required the talismanic invocation of the phrase, "the State rests." Only once does the Pelkey opinion state that its bright-line rule applies when the State "has rested its case." Pelkey, 109 Wash.2d at 491, 745 P.2d 854. In every other instance, Justice Utter makes clear that the Pelkey rule applies once the State has completed its case in chief. Id. at 485-86, 745 P.2d 854. In the face of this, it does not matter whether the State has "formally rested" its case. Rather, Pelkey was, and remains, concerned with whether the State had completed its case in chief. When the State informs the trial court that after its motion to amend, it will rest its case, then it has completed its case in chief. That is what the State did here. Accordingly, the Pelkey rule applies.

¶ 25 This is not to say that formalities are irrelevant. The formality of Miranda warnings, for instance, are central to criminal procedure. But the rule advocated for by the dissent and the concurrence would make formal resting the only indicator of whether the Pelkey rule applies and would elevate formality over reality in a manner that undermines Pelkey. Such a formalistic rule ignores the underlying logic of that case. Pelkey held that article I, section 22 assures that a defendant will not be faced with a situation where the State can amend its case without affording the defendant an opportunity to adequately respond. See Schaffer, 120 Wash.2d at 620, 845 P.2d 281 (citing Leach, 113 Wash.2d at 695-96, 782 P.2d 552 ). Were the State allowed to amend prior to resting but when it has made clear that it has completed its case in chief (as was the case here), the Pelkey rule would be rendered toothless. From the defendant's perspective - the perspective the Pelkey rule is concerned about - there is no difference between allowing an amendment immediately before the State rests and immediately after, in a situation where, as here, the State has made clear it will rest regardless of whether the court allows the amendment. Any "unsettl[ing]" of the Pelkey rule is perpetrated by the dissent and the concurrence, not by our opinion. See dissent at 534; concurrence at 533. Pelkey therefore applies.

¶ 26 Applying Pelkey in the instant case creates no "unnecessary confusion" for litigants, trial judges, or appellate courts. Dissent at 534; see also concurrence at 533. Pelkey's bright-line rule remains intact. Litigants and judges both are given a clear statement of the law: when the State has made it abundantly clear that it will rest its case after moving to amend, irrespective of the decision on that amendment, then the State has completed its case in chief and the Pelkey rule applies. No substantial "factual finding" is required of appellate courts to understand when this has occurred. See dissent at 534. Here, all that was required was to look at what the State actually said : that it would rest its case after moving to amend, irrespective of whether that amendment was permitted. A trial court and an appellate court need only take a prosecutor at his or her word to resolve this question.

¶ 27 We do not move the line of where the Pelkey rule applies any further into the State's case in chief than did Pelkey or Schaffer. The facts here, indeed, are very specific, concerning a likely rare situation in which the State has said it will rest after amending. Schaffer 's holding that the Pelkey rule does not apply in the midst of the State's case in chief thus stands. If the State had not completed its case in chief-and, for instance, had made clear that were the amendment denied, it would then call witnesses whose testimony would be used to support the amendment, as the State did in Schaffer -the outcome of this case would be different. That would not fall within the Pelkey rule. But that is not what happened. The State made it clear that it had completed its case in chief. In such a situation, the Pelkey rule applies.

¶ 28 Contrary to the State's arguments, the amended charge in this case more closely resembles the amendments made in Pelkey and Markle than that made in Schaffer. As in Pelkey and Markle, the State here did not move to amend until it had finished presenting its entire case in chief. Gehrke was not given an opportunity during the State's case to defend against the amended charge of manslaughter, which contains an element not present in felony murder: recklessly causing the death of another. He had not been charged with manslaughter during voir dire, and he was unable to cross-examine any witnesses called by the State with the objective of raising a reasonable doubt as to recklessness in the death of Pineyro. All the concerns that this court had in Pelkey and reaffirmed in Markle exist with equal force here.

¶ 29 This case is unlike Schaffer, in which the trial court initially denied the State's motion, forcing the State to present additional testimony to support the amended charge. 120 Wash.2d at 618, 845 P.2d 281. In Schaffer, following the new witness testimony, the State renewed its motion and it was granted. Id. Importantly, "Schaffer had the opportunity to cross-examine the key witness ... with full knowledge of the proposed amendment" after the amendment was allowed. Id. at 622, 845 P.2d 281. Here, the amendment came after the State had presented all its witnesses, and Gehrke was not able to cross-examine any witnesses regarding the new manslaughter charge.

¶ 30 Schaffer indeed demonstrates why we must answer as we do today. There, we noted that when protecting defendants' rights to fair notice of the charges and the opportunity to present a defense, "this court has avoided technical rules. Instead, we have tailored our jurisprudence toward the precise evil that article I, section 22 was designed to prevent-charging documents which prejudice the defendant's ability to mount an adequate defense by failing to provide sufficient notice." Schaffer, 120 Wash.2d at 620, 845 P.2d 281 (citing Leach, 113 Wash.2d at 695-96, 782 P.2d 552 ).

¶ 31 The State also argues that the State's informing Gehrke of the possibility of a later amendment prior to voir dire provided adequate notice. Suppl. Br. of Resp't at 12. We disagree. Warning a defendant that the State "may" charge an additional offense after the State presents its evidence does not provide the "reasonable certainty" necessary to satisfy the defendant's constitutional right to be properly informed of the charges. See Leach, 113 Wash.2d at 695, 782 P.2d 552 ("[D]efendants have a right to be fully informed of the nature of accusations against them so that they may prepare an adequate defense. This right is satisfied when defendants are apprised with reasonable certainty of the accusations against them." (citations omitted) ); see also City of Seattle v. Proctor, 183 Wash. 299, 304, 48 P.2d 241 (1935) ("[A defendant] is entitled to have the nature of the accusation against him sufficiently stated for the further reason that he may be enabled to prepare his defense."). Nor does a pretrial oral alert "fully inform[ ]" the defendant of the nature of the accusations such that the defendant should be expected to mount a defense against the hypothetical charge. Leach, 113 Wash.2d at 695, 782 P.2d 552. The State's implication that defendants must form a defense around the possibility of additional charges is entirely antithetical to our constitutional guaranties under article I, section 22.

¶ 32 Were it considered adequate notice to advise the defendant that another charge "may" be added, the defendant would be uniquely harmed. The defendant, once told that the prosecution might add another charge, would have the option either to proceed as if that charge will never be brought or to alter the defense to address that possibility. This creates a dilemma. If the defendant chooses to act as if the charge will never be brought but the prosecution does bring the additional charge at the close of the State's case, then the defendant will have insufficiently prepared to defend against it. However, if the defendant expends time and resources defending against the charge and the prosecution declines to bring it, then the defendant will have wasted that time and those resources, which would otherwise have solely been utilized defending against the actual charge brought. Given that what to charge (and not to charge) rests solely in the hands of the State-and that in any criminal case the power of the State vastly outweighs that of the criminal defendant-the State cannot avoid the rules established by Pelkey and its progeny merely by dropping pretrial hints regarding possible additional or amended charges. To permit the State to wait until resting its case to amend the information would allow fundamental unfairness to creep into the trial, and "our system of the administration of justice suffers when any accused is treated unfairly." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State must put all of its cards on the table at the outset; the State may not bluff.

¶ 33 Not only is a verbal hint insufficient to notify a defendant of the charges but, here, the prosecutor did not even give Gehrke an accurate warning against which he could have mounted a defense. In telling Gehrke that the State "may" add a charge, the prosecutor also mistakenly indicated that first degree manslaughter was a lesser offense to felony murder. If manslaughter were a lesser included offense, it would by its nature require no additional notice and no changes to the defense at trial, as a lesser included offense necessarily contains only elements present in the charged offense. State v. Berlin, 133 Wash.2d 541, 545, 947 P.2d 700 (1997). However, the prosecutor's warning to Gehrke was misleading: first degree manslaughter is not a lesser included offense to Gehrke's original felony murder charge. State v. Gamble, 154 Wash.2d 457, 469, 114 P.3d 646 (2005) ("We hold that first degree manslaughter is not a lesser included offense of second degree felony murder where second degree assault ... is the predicate felony."). Second degree felony murder based on second degree assault requires the State to prove that the defendant "acted intentionally and 'disregard[ed] a substantial risk that [substantial bodily harm] may occur,' " while first degree manslaughter requires the State to prove that the defendant " '[knew] of and disregard[ed] a substantial risk that a [homicide] may occur.' " Id. at 467-68, 114 P.3d 646 (alterations in original) (emphasis omitted) (quoting RCW 9A.08.010(1)(c) ). Further, "[b]ecause manslaughter requires the proof of a mens rea element [recklessness] vis-à-vis the resulting death, while felony murder as charged here [predicated on second degree assault] does not, it cannot be a lesser included offense to the State's felony murder charge." Id. at 469, 114 P.3d 646. Therefore, the prosecutor's warning did not alert Gehrke to such additional elements or the crucial differences between the two crimes. Thus the State cannot convincingly argue that the erroneous "warning" provided Gehrke with constitutionally sufficient notice to mount a defense against the then hypothetical charge.

¶ 34 The State also argues that Gehrke's failure to request a continuance is evidence that the amendment should be upheld. This, too, is inapposite. Failure to seek a continuance indicates a lack of surprise and prejudice only when the amendment is made at the beginning of trial. See State v. Brown, 74 Wash.2d 799, 801, 447 P.2d 82 (1968) (holding that failure to request a continuance after an information is amended at the start of trial is "persuasive of a lack of surprise and prejudice"). When the State amends the charges after it has presented its entire case in chief, as it did here, a continuance is of little value: a jury has been picked, opening arguments have been made, and the defense has already cross-examined the State's witnesses-all based on the offense as charged. See Pelkey, 109 Wash.2d at 490, 745 P.2d 854 ("All of the pretrial motions, voir dire of the jury, opening argument, questioning and cross examination of witnesses are based on the precise nature of the charge alleged in the information."). Furthermore, Gehrke's attorney indicated that he would have sought a continuance had the information been amended prior to the commencement of trial.

¶ 35 Finally, the State's amendment also does not fit into either of the two exceptions to the rule against midtrial amendments. These exceptions apply when the amendment either is to a lesser degree of the original charge or is a lesser included offense of the original charge. Pelkey, 109 Wash.2d at 491, 745 P.2d 854. Here, the State initially charged Gehrke with second degree felony murder predicated on second degree assault and then moved to amend to first degree manslaughter. As we held in Gamble, "first degree manslaughter is not a lesser included offense of second degree felony murder where second degree assault ... is the predicate felony." 154 Wash.2d at 469, 114 P.3d 646 ; see also Berlin, 133 Wash.2d at 550, 947 P.2d 700. Thus, the first degree manslaughter charge could not have been a lesser included offense. See id. First degree manslaughter is also not a lesser degree felony murder. Therefore, neither of the exceptions to the rule applies.

¶ 36 In light of this, we hold that by allowing this amendment to the information, the trial court abused its discretion as it acted on an erroneous view of the law set down in Pelkey . State v. Quismundo, 164 Wash.2d 499, 504, 192 P.3d 342 (2008) ("a court 'would necessarily abuse its discretion if it based its ruling on an erroneous view of the law' " (quoting Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993) ) ).

III. We remand to the trial court for vacation of Gehrke's conviction and dismissal of the first degree manslaughter charge with prejudice

¶ 37 Gehrke has asked us to order that his manslaughter conviction be dismissed with prejudice pursuant to the mandatory joinder rule. The mandatory joinder rule provides that related charges against a defendant shall be consolidated for trial. CrR 4.3.1(a). Charges are related within the meaning of this rule if "they are within the jurisdiction and venue of the same court and are based on the same conduct." CrR 4.3.1(b)(1). In the case of an untimely amendment to the information, the mandatory joinder rule requires dismissal with prejudice of the charge in the late-filed amendment (unless the ends of justice exception applies). See State v. Dallas, 126 Wash.2d 324, 327-28, 892 P.2d 1082 (1995) (citing Pelkey, 109 Wash.2d at 491, 745 P.2d 854 ).

¶ 38 In light of this clear precedent, we agree with Gehrke. We remand to the trial court for vacation of his conviction and dismissal of the first degree manslaughter charge with prejudice.

CONCLUSION

¶ 39 For the foregoing reasons, we reverse the Court of Appeals and remand to the trial court for vacation of Gehrke's conviction and dismissal of the first degree manslaughter charge with prejudice, and for further proceedings consistent with this opinion.

WE CONCUR.

Madsen, J.

Stephens, J.

Gordon McCloud, J.

FAIRHURST, C.J. (concurring)

¶ 40 CrR 2.1(d) permits amendments to criminal charges "at any time before verdict or finding if substantial rights of the defendant are not prejudiced." We have established a bright line rule that "[a] criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense" because such an amendment creates prejudice per se. State v. Pelkey, 109 Wash.2d 484, 491, 745 P.2d 854 (1987) (emphasis added). I agree with the dissent that maintaining this bright line rule is important in order to give clarity to both judges and litigants. See dissent at 534-35. I also agree that because, in this case, the State moved to amend before resting its case in chief, this rule does not apply.

¶ 41 However, I write separately because I believe that Michael L. Gehrke demonstrated actual prejudice in this case. See lead opinion at 529 n.7. Prejudice under CrR 2.1(d) involves surprise or inability to prepare a defense. See State v. James, 108 Wash.2d 483, 489, 739 P.2d 699 (1987). Prejudice is more likely "when a jury is involved and the amendment occurs late in the State's case." State v. Schaffer, 120 Wash.2d 616, 621, 845 P.2d 281 (1993). In this jury trial, the State added a new charge directly before resting. This charge included a new element-recklessness. Gehrke could not address this element in his voir dire, opening statement, or cross-examination of any of the State's witnesses. See Pelkey, 109 Wash.2d at 490, 745 P.2d 854 (explaining that where all of this has already occurred, "the defendant is highly vulnerable to the possibility that jurors will be confused or prejudiced by a variance from the original information"). A continuance would not have allowed Gehrke to retroactively change his trial strategy in these crucial stages. See lead opinion at 532. The lead opinion convincingly explains why the State's warning at the beginning of trial that it may move to amend at some point was insufficient to cure this prejudice. See id. at 530-32. In this case, the trial court also conceded that a defense to manslaughter may involve "somewhat of a differen[t] strategy" than a defense to second degree felony murder but allowed the amendment because it felt that the defenses were similar enough. I believe this was an abuse of discretion. 3 Verbatim Report of Proceedings at 550. Because Gehrke was unable to effectively prepare a defense to the recklessness element of first degree manslaughter, I would hold that the trial court improperly allowed the State to amend the charges and would dismiss the manslaughter charge with prejudice.

Owens, J.

González, J. (dissenting)

¶ 42 Resting a case means something. After the State formally rests in a criminal case, it may not offer any more evidence, call any more witnesses, or amend the information without reopening the case with permission of the court for good cause shown. This is a bright line rule. See State v. Schaffer , 120 Wash.2d 616, 621, 845 P.2d 281 (1993) (citing State v. Pelkey, 109 Wash.2d 484, 490-91, 745 P.2d 854 (1987) ). The lead opinion proposes the per se rule of Pelkey applies before the State has rested its case in chief. I respectfully dissent.

¶ 43 We have previously declined to extend the per se rule "to a point earlier in the [trial,]" and we should decline to do so again. See id. at 622, 845 P.2d 281 ; accord State v. Vangerpen, 125 Wash.2d 782, 790, 888 P.2d 1177 (1995) ; see also State v. Hockaday, 144 Wash. App. 918, 926, 184 P.3d 1273 (2008) ("In Schaffer , our Supreme Court strictly limited Pelkey to situations where the State brings the motion to amend the information after resting its case, emphasizing the risk of prejudice").

¶ 44 The State can amend the charges midtrial, but that power is properly limited by constitutional concerns. See CONST . art. I, § 22 ; Pelkey, 109 Wash.2d at 490, 745 P.2d 854 ( CrR 2.1(d)"operates within the confines of article 1, section 22."). As a practical matter, the further into the trial, the harder it is to amend the charges because of the increasing likelihood of prejudice. CrR 2.1(d). Further, "[a] criminal charge may not be amended after the State has rested its case in chief." Pelkey, 109 Wash.2d at 491, 745 P.2d 854. Once the State rests, prejudice is presumed, except in well-established situations. See, e.g., State v. Peterson, 133 Wash.2d 885, 889-90, 948 P.2d 381 (1997) (quoting State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894) ). All of this is settled law.

¶ 45 The lead opinion attempts to unsettle this law because it believes allowing the State to amend the information after it has called its last witness but before it has rested would be unfair to Michael Gehrke. See lead opinion at 528-29. But the current rule already protects against unfairness. The lead opinion need only apply CrR 2.1(d) to the facts of the case to determine whether it is unfair to the defendant to allow amendment. See Hockaday, 144 Wash. App. at 927, 184 P.3d 1273 ("Where, as here, the Pelkey rule, does not apply, the defendant has the burden of demonstrating prejudice under CrR 2.1 (d)."). If the amendment is unfair-if it prejudices the defendant-it is not allowed. Instead of hewing to this simple approach, the lead opinion attempts to change the rule itself, creating unnecessary confusion.

¶ 46 Some formalities are meaningful, including when the State formally rests in a criminal case. See, e.g., Pelkey, 109 Wash.2d at 491, 745 P.2d 854. When the State has no more witnesses to call, no more evidence to offer, and is, for all purposes, done presenting its case in chief, then the State will rest its case. Then Pelkey applies because "[a] criminal charge may not be amended after the State has rested its case in chief," except under highly limited circumstances. Id. Now, the lead opinion proposes a rule that calls on appellate courts to make a factual finding that the State has "functionally rested its case in chief" in order to apply Pelkey . See lead opinion at 529 (emphasis omitted). The lead opinion states that its proposed rule does not disturb the bright line rule or move it to a point earlier in the trial. See id. at 530. This is simply false.

¶ 47 The lead opinion argues that if the State were "allowed to amend prior to resting but when it has made clear that it has completed its case in chief (as was the case here), the Pelkey rule would be rendered toothless." Lead opinion at 529. Presumably, what it means is that Pelkey would not protect against prejudice. But Pelkey is only a piece of the whole; the constitutional protection against prejudicial amendments and the right to know charges brought against you would remain. See CONST . art. I, § 22 ; CrR 2.1(d). At this point, because the State had not rested, the CrR 2.1(d) standard would apply, and the trial court could still find prejudice against the defendant and deny the amendment. Pelkey would not be rendered toothless, it is simply not yet invoked.

¶ 48 It appears that the lead opinion's confusion grows largely from the fact that cases have characterized the Pelkey application point as the point when the State "rested its case" but also when the State "completed its case in chief." Under my reading of the cases, it is clear that the State's actual resting point is the desired Pelkey application mark. This is why it is a "bright line" rule. Vangerpen, 125 Wash.2d at 790, 888 P.2d 1177. But as the lead opinion correctly states, Justice Utter stated the holding of Pelkey as "after the State has rested its case in chief" and in other parts of the opinion characterized the same point as "after the State completed presentation of its case in chief." Pelkey, 109 Wash.2d at 491, 487, 745 P.2d 854. This may be because no verbatim report of proceedings was presented to the Pelkey court and it had to make reasonable inferences from the narrative report before it. Id. at 485 n. 1, 745 P.2d 854. Justice Utter simply equated "after the State has rested its case in chief" with "after the State completed presentation of its case in chief." In other words, "completion of the State's case in chief" means it has rested. Through semantic gymnastics, the lead opinion splits the two and attempts to move the application point to a point earlier in the trial. We should not, and since a majority in this case would not, we do not.

¶ 49 Extending the per se rule interferes with a trial judge's courtroom management. Trial courts can no longer rule on the State's amendment when the court entertains "halftime" motions "[f]ollowing the State's final witness but before the State rests." See, e.g., State v. Holtz, No. 43995-6-II, 2014 WL 4088204 (Wash. Ct. App. Aug. 19, 2014) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2043995-6-II%20%20Unpublished%20Opinion.pdf; see also State v. Phillips, 98 Wash. App. 936, 940, 991 P.2d 1195 (2000) (quoting State v. Kjorsvik, 117 Wash.2d 93, 103, 812 P.2d 86 (1991) ). Instead, the court will need to entertain the State's motion before the indeterminate moment when the State has "functionally rested its case in chief." Lead opinion at 529 (emphasis omitted).

¶ 50 This court should apply our existing CrR 2.1(d) standard. Under that standard, Gehrke cannot show that he suffered any actual prejudice from the amendment. In other words, it was not an abuse of discretion for the trial judge to allow that amendment. Under the lead opinion's proposed rule, there would be per se prejudice. I disagree. Under the lead opinion's approach, the mandatory joinder rule would attach and it would necessarily follow that the manslaughter charge must be dismissed with prejudice. State v. Dallas, 126 Wash.2d 324, 327-28, 892 P.2d 1082 (1995). This shows the arbitrary and unfortunate consequences of extending the per se rule to an indeterminate point earlier in the trial. The lead opinion can reach the same result if it believes there was prejudice to Gehrke without changing the rule. I respectfully dissent.

Johnson, J.

Yu, J.

      As discussed below, this characterization of first degree manslaughter as a "lesser offense" was inaccurate and misleading.

      When filling out the verdict forms, the jury left blank "Verdict Form A," for second degree murder, but on "Verdict Form B" found Gehrke guilty of first degree manslaughter. CP at 188-89. The jury had been instructed to leave Verdict Form A blank if it could not agree on a verdict on that charge. 4 Report of Proceedings at 773 (oral instruction); CP at 173 (written instruction). This indicates that the jury was unable to agree on the charge of second degree murder.

      A due process right also exists in this realm. The United States Supreme Court has articulated that "the most basic ingredients of due process of law" include " '[a] person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense.' " Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (quoting In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948) ). However, given that this right is fully fleshed out by article I, section 22 of our constitution, no further discussion of a defendant's due process right to be informed of the charges against him is necessary.

      The existence of per se prejudice in this situation is no accident. In situations where, as in Pelkey and here, the defendant has no opportunity whatsoever to respond to the amended charges, prejudice exists inherently because the defendant has no opportunity to modify even a shred of defendant's strategy before being faced with the new charge. The defense always must build its case around the architecture provided by the State, the latter of which decides what to charge and what not to charge. (As discussed below, the mere indication provided by the State that a new charge may be brought is an insufficient foundation on which the defendant can properly build a case.) When the State amends the information at the end of its case, the State places the defendant not only (as is necessarily the case) in an edifice not of defendant's own making but also in one that looks entirely different from what the defendant had, up to that point, been led to expect. With half of the opportunity to respond to the new charge gone, prejudice necessarily follows.

      Specifically, Justice Utter wrote, "The State violated Const, art. 1, § 22 (amend. 10) when it amended its information to charge a separate crime after it had already presented its case in chief ," Pelkey, 109 Wash.2d at 485, 745 P.2d 854 (emphasis added); "the trial court erred in permitting the State to amend the information from bribery to trading in special influence after the State completed presentation of its case in chief ," id. at 487, 745 P.2d 854 (emphasis added); and "Pelkey convincingly argues the trial judge violated article 1, section 22 of the Washington State Constitution by allowing the State to amend the information against the defendant after the State completed presentation of its case in chief." Id. (emphasis added).

      Contrary to the dissent's arguments (and the concurrence's agreement with them), Schaffer did not disturb Pelkey' s emphasis on whether the State had completed its case in chief, but, instead, reaffirmed it. See dissent at 534. The dissent relies on State v. Vangerpen, 125 Wash.2d 782, 790, 888 P.2d 1177 (1995), to make this argument. Vangerpen states, in dicta and without citation, that "[w]e explained in Schaffer that Pelkey only prohibits amendments after the State has rested its case because the likelihood of prejudice is so great." Id. (emphasis added). Vangerpen 's dicta mischaracterizes Schaffer 's treatment of Pelkey. While Schaffer does say that Pelkey "addressed only the constitutionality of an amendment adopted after the State had rested its case," this was not a statement of law but merely a recitation of Pelkey 's facts-for in Pelkey, the State had indeed rested its case before moving to amend. Schaffer, 120 Wash.2d at 620-21, 845 P.2d 281 (some emphasis added). True, Schaffer also says that the Pelkey rule prohibits amendments made after the State has rested-but this recitation of law must be read in conjunction with another, as we went on to say that "amendments are not permitted following the close of the State's case because the likelihood of prejudice is too great." Id. at 621, 845 P.2d 281 (emphasis added). In other words, Schaffer reaffirmed what Pelkey itself held: the State cannot amend after it completes its case in chief, including, but not necessarily limited to, after it rests its case. Our holding in today's case is merely an application and clarification of that doctrine.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      We have decided this case under the per se rule crafted by Pelkey. However, were it otherwise-that is, were this case outside the boundaries of the per se rule-we would still reverse, as Gehrke was clearly prejudiced by the trial court's allowing the amendment to the information. The concurrence is correct to so conclude. Prejudice in this context involves surprise or inability to prepare a defense. See State v. James, 108 Wash.2d 483, 489, 739 P.2d 699 (1987) (citing State v. Purdom, 106 Wash.2d 745, 725 P.2d 622 (1986) ; State v. Jones, 26 Wash. App. 1, 6, 612 P.2d 404 (1980) ). Prejudice is also more likely when the amended information alleges additional counts rather than merely specifying " 'a different manner of committing the crime originally charged or charg[ing] a lower degree of the original crime charged.' " Schaffer, 120 Wash.2d at 621, 845 P.2d 281 (citation omitted) (quoting Pelkey, 109 Wash.2d at 490-91, 745 P.2d 854 ). Here, because the State's amendment occurred after the jury had heard the State's entire case and the amendment alleged an additional charge, Gehrke would have been prejudiced. The State's warning that an additional charge might be brought does no more to cure the prejudice than it does to insulate the State against the per se rule.

      As the concurrence correctly points out, the result would be the same were we to hold that CrR 2.1(d) prejudice, not the Pelkey rule, disposes of this case. Concurrence at 533.


source: Caselaw Access Project

author: Pennell, J. Korsmo, J. (dissenting)

license: Public Domain

text:
    STATE of Washington, Respondent, v. David Emerson NICKELS, Petitioner.
    No. 35369-9-III
    Court of Appeals of Washington, Division 3.
    FILED FEBRUARY 7, 2019
    PUBLISHED OPINION
   Pennell, J.

¶ 1 When an attorney transitions from representing individual clients to the position of elected prosecutor, conflicts of interest can arise, restricting not only the attorney's ability to work on a given case, but also necessitating recusal of the entire prosecutor's office. The standard set by the Washington Supreme Court is that when an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor's office should ordinarily be disqualified from further participation.

¶ 2 The questions raised by Mr. Nickels's appeal are whether the Supreme Court's office-wide recusal standard contemplates a bright-line rule and, if not, what circumstances can disentangle an elected prosecutor's need for recusal from that of the prosecutor's office. We hold that a prosecutor's office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court's test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor's current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor's conflict of interest.

¶ 3 Here, Grant County Prosecuting Attorney Garth Dano previously represented David Nickels in a first degree murder case that remains pending in Grant County Superior Court. Mr. Dano's work caused him to be privy to confidential work product and attorney-client information. Given this circumstance, coupled with the seriousness of Mr. Nickels's criminal charge, extraordinary circumstances do not justify differentiating Mr. Dano's conflict of interest from that of the entire Grant County Prosecuting Attorney's Office. Instead, the general rule applies and the entire prosecutor's office must be recused along with Mr. Dano. The trial court's order to the contrary is reversed.

BACKGROUND

¶ 4 In 2012, a Grant County jury convicted David Nickels of first degree murder. Deputy prosecutors Tyson Hill and Edward Owens handled the case under the supervision of Grant County's elected prosecutor, D. Angus Lee.

¶ 5 Mr. Nickels was represented by Seattle-based attorneys Mark Larranaga and Jacqueline Walsh. Because they worked remotely, Mr. Nickels's attorneys sought local assistance from then-private attorney Garth Dano. According to an uncontested affidavit by Ms. Walsh, defense counsel routinely consulted with Mr. Dano about a wide range of matters regarding Mr. Nickel's defense, including defense strategy, theory of the case, potential witnesses and jury selection. Ms. Walsh states Mr. Dano was considered a consulting defense attorney on the case and "as such all confidences and communications fell under the attorney client, work product doctrine." Clerk's Papers at 179.

¶ 6 On September 4, 2012, Mr. Dano entered a notice of association of counsel so that he could represent Mr. Nickels while Mr. Larranaga and Ms. Walsh attended to matters out of state. Mr. Dano subsequently appeared in court with Mr. Nickels for a jury question and when the jury returned its verdict. Mr. Dano did not provide any substantive input at the time of the jury question or the verdict. However, after the verdict, Mr. Dano met with Mr. Nickels to discuss the case.

¶ 7 In November 2014, while Mr. Nickels's case was pending appeal, Mr. Dano was elected as the Grant County Prosecuting Attorney. Mr. Dano took office in January 2015. The Grant County Prosecuting Attorney's Office did not handle Mr. Nickels's appeal. Instead it contracted with the Kitsap County Prosecuting Attorney's Office for the appointment of two of its deputies, pursuant to RCW 36.27.040, as special deputy prosecuting attorneys for Grant County. Contract details were arranged several months prior to Mr. Dano's election.

¶ 8 In early 2017, this court reversed Mr. Nickels's first degree murder conviction based on instructional error. On remand, the case was assigned to Grant County deputy prosecutors Kevin McCrae and Edward Owens. Mr. Dano was recused from the case, and has had no participation at any time during his tenure as the prosecuting attorney.

¶ 9 After Mr. Nickels's case was remanded to superior court, defense counsel moved to disqualify the entire Grant County Prosecuting Attorney's Office from further participation based on Mr. Dano's conflict of interest. The trial court denied the motion; but, recognizing there were substantial grounds for a difference in opinion, the court certified its order for immediate appellate review under RAP 2.3(b)(4). We granted discretionary review.

ANALYSIS

¶ 10 The issue in this case is narrow. The parties agree the elected prosecutor, Garth Dano, has a disqualifying conflict of interest and must be recused from Mr. Nickels's case. The only issue to be decided is whether Mr. Dano's entire office must be recused as well. Our review is de novo. State v. Greco, 57 Wash. App. 196, 200, 787 P.2d 940 (1990).

¶ 11 The lead authority governing our analysis is State v. Stenger, 111 Wash.2d 516, 760 P.2d 357 (1988). Stenger addressed the issue of when, under the Rules of Professional Conduct (RPC), an elected prosecutor's conflict of interest must be imputed to the balance of the prosecutor's office. The Stenger court articulated the following standard:

Where the prosecuting attorney (as distinguished from a deputy prosecuting attorney) has previously personally represented the accused in the same case or in a matter so closely interwoven therewith as to be in effect a part thereof, the entire office of which the prosecuting attorney is administrative head should ordinarily also be disqualified from prosecuting the case and a special deputy prosecuting attorney appointed. This is not to say, however, that anytime a prosecuting attorney is disqualified in a case for any reason that the entire prosecuting attorney's office is also disqualified. Where the previous case is not the same case (or one closely interwoven therewith) that is being prosecuted, and where, for some other ethical reason the prosecuting attorney may be totally disqualified from the case, if that prosecuting attorney separates himself of herself from all connection with the case and delegates full authority and control over the case to a deputy prosecuting attorney, we perceive no persuasive reason why such a complete delegation of authority and control and screening should not be honored if scrupulously maintained.

111 Wash.2d at 522, 760 P.2d 357 (footnote omitted).

¶ 12 The parties dispute the nature of the Stenger standard. According to Mr. Nickels, Stenger sets a bright-line rule, requiring office-wide recusal whenever an elected prosecutor has a conflict of interest based on prior representation of a client in the same or similar case as the one currently pending prosecution. The State claims Stenger articulated only a general standard, and that office-wide recusal is not required in extraordinary circumstances.

Stenger did not create a bright-line recusal rule

¶ 13 Stenger's imputed recusal standard comes close to creating a bright-line rule, but it ultimately falls short. For one thing, Stenger's analysis is couched in qualified language. In announcing the standard for recusal of a prosecutor's office, Stenger used the auxillary verb "should;" not "shall" or "must." Id. In so doing, the decision indicated that recusal of an entire office is not always required, even when the elected prosecutor himself or herself must be recused based on prior representation in the same case.

¶ 14 In addition to Stenger's qualified language, the decision did not purport to change the written RPCs, which specifically exclude government agencies from bright-line rules of imputed conflicts. As recognized in Stenger, 111 Wash.2d at 522-23 & n.15, 760 P.2d 357, a conflict based on a private attorney's prior representation is automatically imputed to other attorneys in the same law firm. RPC 1.10. But there is no similar rule for government lawyers. See RPC 1.11. Instead, the conflict rules for government lawyers are assessed more narrowly, according to each lawyer's individual circumstances. Id.

¶ 15 Given an elected prosecutor's administrative duties, Stenger recognized that an elected prosecutor's individual circumstances generally will require recusal of the entire prosecuting attorney's office. But, because no per se recusal rule exists for public service attorneys, there is the possibility of an exception, based on the individual circumstances of the elected prosecutor.

Stenger's office-wide recusal rule does not apply in extraordinary circumstances.

¶ 16 Rather than a bright-line rule, we interpret Stenger as setting a general standard that an elected prosecutor's prior representation of the accused in the same or similar case will ordinarily require office-wide recusal, but an exception can apply in extraordinary circumstances. The question left unanswered by Stenger is what constitutes extraordinary circumstances.

Extraordinary circumstances are not informed by the level of participation as a prosecutor

¶ 17 The State posits that the nature of an elected prosecutor's current activities are relevant to the issue of extraordinary circumstances. It points out that the elected prosecutor in Stenger had taken official actions in support of his former client's prosecution, including communicating with the press, being present at law enforcement briefings, and receiving updates on the case from deputy prosecutors. 111 Wash.2d at 519, 760 P.2d 357. In contrast, Mr. Dano has never been involved in any aspect of Mr. Nickels's prosecution. The decision to charge Mr. Nickels was handled by a prior administration and Mr. Dano has been completely screened from all information regarding the prosecution of Mr. Nickels by deputy prosecutors.

¶ 18 We find the elected prosecutor's current activities irrelevant to the question of extraordinary circumstances. Whether an elected prosecutor has participated in an ongoing case against a prior client goes to the issue of screening. Effective screening is not an extraordinary circumstance. It is an ordinary requirement, applicable to all types of conflicts regardless of the identity of conflict holder. Id. at 522-23, 760 P.2d 357 (Screening, as opposed to office-wide recusal, is required when a prosecuting attorney is conflicted for reasons other than prior representation in the same case.); Washington State Bar Association (WSBA) Advisory Opinion 1773 (1997) (Screening is required when a conflict is held by a deputy prosecuting attorney.). We therefore must look beyond an elected prosecutor's work as a prosecutor to discern the nature of Stenger's extraordinary circumstances standard.

Extraordinary circumstances are informed by the prior representation

¶ 19 Rather than being informed by the nature of an elected prosecutor's current work as a prosecutor, we interpret Stenger's extraordinary circumstances standard to be focused on the elected prosecutor's prior work as counsel for the accused. Two aspects of an elected prosecutor's prior work are salient: (1) whether the elected prosecutor's prior work involved acquisition of privileged work product and/or confidential attorney-client information, and (2) the nature of the case giving rise to the elected prosecutor's conflict of interest.

¶ 20 In announcing a general standard for imputed conflicts, Stenger was primarily concerned with protecting "privileged information." 111 Wash.2d at 521-22, 760 P.2d 357. Stenger was a death penalty prosecution. The elected prosecutor had previously represented Mr. Stenger in an unrelated case. The Supreme Court recognized that had Mr. Stenger been charged with an ordinary felony, the elected prosecutor's prior representation would not have created a conflict of interest. However, because a death penalty prosecution involves an assessment of an accused's past, including "earlier criminal and antisocial conduct," there was a danger that the current prosecution could be tainted by "privileged information obtained by the prosecuting attorney when he was the defendant's counsel." Id.

¶ 21 Stenger relied heavily on State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982), which also emphasized a concern for privileged information. According to the Kansas rule set out in Laughlin, the test for recusal of a prosecuting attorney and his office turns completely on access to confidential information. In Kansas, recusal of an entire prosecutor's office is required if "by reason of his [or her] prior professional relationship with the accused, [the prosecuting attorney] has obtained knowledge of facts upon which the later case is predicated or facts which are closely interwoven therewith." Id. at 114, 652 P.2d 690. If no material confidences were shared during the prior representation, disqualification is not required. Id.

¶ 22 Given Stenger's emphasis on protecting privileged information, it is apparent that the existence of confidential attorney-client communications is relevant to the extraordinary circumstances analysis. Generally, an attorney's representation of a client will involve acquisition of privileged information through confidential communications. Thus, an elected prosecutor and his or her office will typically need to be recused from prosecuting a case in which the elected prosecutor previously served as defense counsel. But in unusual circumstances, the elected prosecutor's prior representation may have been so brief, or so attenuated, that no confidential communications were shared. Such circumstances would be extraordinary and might not necessitate recusal of the entire prosecutor's office.

¶ 23 Apart from the concern for privileged information, we recognize the Stenger standard as also informed by the nature of the case under prosecution. Because Stenger was a death penalty prosecution, there was a "heightened 'need for reliability in the determination that death [was] the appropriate punishment.' " State v. Clark, 143 Wash.2d 731, 761, 24 P.3d 1006 (2001) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ). Given the significant commitment of resources necessary for a death penalty prosecution, it is difficult to imagine that an elected prosecutor, tasked with prioritizing a county's prosecution resources, can ever be fully walled off from a death penalty prosecution. It is perhaps for this reason that in 1997 the WSBA's RPC Committee issued an advisory opinion, stating that, in death penalty cases, recusal of an elected prosecutor based on prior representation in the same criminal case must result in recusal of the prosecutor's office as a whole. WSBA Advisory Opinion 1773 (1997). But in less significant prosecutions, there is a greater chance that an elected prosecutor could be effectively walled off from a case brought by his or her office. We therefore discern the nature of the case as relevant to Stenger's extraordinary circumstances standard.

¶ 24 Our assessment of the importance of the nature of the case under prosecution finds support in the commentary to Washington's RPCs. As recognized by the comment to RPC 1.11, the question of whether or how recusal should apply to a government agency involves "a balancing of interests." RPC 1.11 cmt. 4. Although steps must always be taken to protect client confidences, the recusal standard should not be so broad as to limit the pool of qualified attorneys who might work in government service. Id. This concern for the governmental talent pool applies to elected prosecutors. By taking the nature of a prior case into account, Stenger's exceptional circumstances standard provides space for a greater pool of potential elected prosecutors including, for example, a defense attorney whose practice has focused on misdemeanor work or the supervisor in a public defender's juvenile unit. Under a flexible Stenger standard, individuals involved in routine defense cases would be free to seek election as prosecuting attorney without raising the concern that the county would be burdened by a significant number of office-wide recusals.

Extraordinary circumstances do not permit continued prosecution by the Grant County Prosecuting Attorney's Office

¶ 25 Having discerned two factors relevant to our analysis, we find no extraordinary circumstances that would excuse the Grant County Prosecuting Attorney's Office from being conflicted out of Mr. Nickels's case. It is uncontested, based on Ms. Walsh's affidavit, that Mr. Dano was privy to privileged work product information during his association with Mr. Nickels's defense team. In addition, because Mr. Dano met with Mr. Nickels individually after entry of the jury verdict, he presumably engaged in confidential attorney-client communications. If Mr. Nickels were merely facing a low-profile misdemeanor charge, Mr. Dano's work on the case might not have created the need for office-wide recusal. In such a circumstance, Mr. Dano's conflict might have been sufficiently handled by instituting screening mechanisms. But Mr. Nickels is charged with first degree murder. While this is not a death penalty case, the charge against Mr. Nickels is of great significance. No amount of screening can be sufficient to fully wall off Mr. Dano from the case or prevent him from being cognizant of the resources being committed to Mr. Nickels's case, and thus not devoted to other office priorities. Given the foregoing circumstances, Mr. Dano's conflict of interest and need for recusal must extend to the entire Grant County Prosecuting Attorney's Office.

CONCLUSION

¶ 26 Because Mr. Nickels has been charged with a serious offense, the same offense about which the Grant County Prosecuting Attorney has acquired privileged information through work product and attorney-client communications during his time as a private attorney, the entire Grant County Prosecuting Attorney's Office must be recused from Mr. Nickels's first degree murder prosecution. The trial court's ruling to the contrary is reversed. Mr. Nickels's case is remanded to the trial court for further proceedings consistent with this decision.

I CONCUR:

Lawrence-Berrey, C.J.

Korsmo, J. (dissenting)

¶ 27 Although I agree with much of what the majority writes, my concern is that the test adopted is too narrow and operates as a per se standard. The likely outcome is that no small county attorney with significant practice involving the county government, nor a head public defender in any county, could become the elected prosecutor without causing severe conflict of interest problems. Mr. Dano's token appearance at the end of the first trial rightly leads to his exclusion from the prosecution of his former client, but screening him from the retrial of this case is an adequate remedy. There is no need for recusal of the entire prosecutor's office for the retrial of a case previously prosecuted by another administration.

¶ 28 I agree with the majority that this case is controlled by State v. Stenger, 111 Wash.2d 516, 760 P.2d 357 (1988). I also agree with the majority's construction of the Stenger dicta concerning recusal of the entire prosecutor's office when the elected prosecutor previously represented the defendant in the same case-"ordinarily" the entire office will be recused. Id. at 522, 760 P.2d 357. However, I see nothing in that language suggesting that only "extraordinary" circumstances will justify a remedy other than recusal of the entire office; rather, recusal is the presumptive remedy. However, RPC 1.11 provides for screening of conflicted government attorneys, not recusal of the entire office.

¶ 29 Instead, I think the key to Stenger is found in the paragraphs of the opinion following the one emphasized by the majority. Noting that there is a significant difference in imputing disqualification in the government sphere than in the private firm context, the court opined, also in dicta, that screening ordinarily will be the remedy when a deputy prosecutor has a conflict of interest. Stenger , 111 Wash.2d at 522-23, 760 P.2d 357. The court then finally turned to the issue of the elected prosecutor's actions in that case:

Under the facts of the case before us, although the prosecuting attorney did eventually delegate handling of the case to a deputy prosecuting attorney in his office, he did not effectively screen and separate himself from the case but instead maintained quite close contact with it. We need go no further in this capital case in order to conclude that it is appropriate that a special prosecuting attorney be appointed to handle and control the case.

Id. at 523, 760 P.2d 357.

¶ 30 In sum, the prosecutor had been involved in the preparation of the case against his former client and was not screened. Under those circumstances, the entire office had to be recused. There would have been no need to talk about the ineffectual screening of the prosecutor if his conflict had required recusal of the entire office from the beginning. Rather, the ineffectual screening simply demonstrated that recusal of the entire office was necessary since the screening remedy had failed.

¶ 31 This case is completely different. The charging decision had been made, the evidence developed, and the trial had been completed two years before Mr. Dano was elected prosecutor. Screening could be an effective remedy since there were no discretionary decisions to make about the case and none of the client's secrets could possibly be used against him in the future because the evidence and record already was settled. I do not believe that Stenger requires anything more in this case.

¶ 32 Nonetheless, I need to comment further because the majority's chosen test factors are ineffectual. First, the majority discounts the prosecutor's current activities as prosecutor, arguing they are irrelevant. They aren't. Prosecutor's offices run the gamut from two attorney offices to those numbering in the hundreds. Elected prosecutors vary in their practices-some are merely managers who set policy and have little or no responsibility for any particular case, while others maintain significant caseloads and have only minimal management functions. Some work solely on the civil or the criminal side of the office. Others leave civil and criminal department heads the job of managing their respective sides of the office. In many of these situations, it is easy to effectively screen the elected prosecutor from a particular case because it is a case that the prosecutor normally would not be involved with.

¶ 33 The majority ignores these differing office arrangements and turns, instead, to the nature of the prior representation of the defendant and the nature of the case charged. Without considering the possibility of effective screening in the particular circumstances of each office, the majority effectively writes that option out of existence.

Instead, it relies on factors that are likely to always require recusal of the entire office.

¶ 34 The first of those factors is that nature of the prior representation. Although I agree that this factor could have some application to the remedy, the majority's limitation of the factor necessarily requires only one remedy-recusal. That arises from the fact that the majority is concerned with the prior representation only if the "prior work involved acquisition of privileged work product and/or confidential attorney-client communications." All private communications between an attorney and client are privileged, whether or not the communications involve a client secret or not. In other words, as long as the client talked to the attorney, this factor will always suggest recusal is in order. As applied by the majority, this factor is largely meaningless except in those "extraordinary" cases where an attorney somehow represented a client without communicating with the client.

¶ 35 The second factor involves the seriousness of the case being prosecuted. This factor is problematic for two very different reasons. First, it draws the wrong lesson from Stenger and fails to focus on the problem of privileged information. Second, this factor is going to be very difficult to apply.

¶ 36 As to the first problem, the majority rightly notes that Stenger was concerned with the possible misuse of privileged information in making the decision to seek the death penalty. From this, it discerns that the nature of the case is meaningful in deciding whether recusal is required. That is an overly ambitious leap of logic. Capital cases are sui generis, in part because the defendant's character and his prior convictions necessarily are at issue during sentencing. They are not necessarily at issue in any other criminal case. The leap from Stenger to a non-capital case is not justified.

¶ 37 More importantly, this factor is problematic because it only considers how the potential misuse of privileged information will affect the pending case, not how it will affect the client whose secrets are being misused. I think such a narrow focus is misplaced. It is the nature of the privileged information, not the nature of the current charge, that can make the privileged information particularly problematic. On occasion privileged information will be relevant to the case at hand, but likely the privileged information is potentially more damaging to the client's reputation than it is to the case in question. The fact that damaging secrets are betrayed in a misdemeanor case rather than in a Class A felony is of no comfort to the damaged client. Thus, I see this focus, too, as too narrow.

¶ 38 The significance of the current case factor also is going to be very difficult to apply. What makes a case serious? Although our legislature has established seriousness levels for felony cases, it would be an arbitrary decision for judges to determine which ones are serious enough to matter for conflict of interest purposes. And, how would that work in the civil context? If the newly elected prosecutor was the county's preeminent private land use attorney and represented most of the county's big land developers, would that fact require that all cases involving those developers be farmed out to special prosecutors over the length of the entire term, or simply require that only pending projects the prosecutor had worked on before the election be sent out? Would, or should, the standard vary simply because the prosecutor had worked on only one small land use case involving a non-developer? These are very real problems in smaller counties where the smaller bars necessarily means that most attorneys will have worked on behalf of clients who were being opposed by the prosecutor's office, or by county agencies represented by that office.

¶ 39 Contrary to the majority opinion, I also see no reason why the seriousness level of the prior crimes matters. The fact that high-volume misdemeanor or juvenile court cases are "routine defense cases" should be meaningless except to suggest the possibility of large numbers of future conflicts arising from having large numbers of former clients. One's privileged secrets, shared with defense counsel, simply do not become less important because the case in which they were divulged is less serious than a current case.

¶ 40 At issue in Stenger was the potential importance of privileged information to the charging decision in the pending case. The factors discerned by the majority from that decision are largely divorced from the privilege problem presented there. For that reason, I don't think those factors work.

¶ 41 Rather, I think a totality of the circumstances approach is necessary to determine if this, or any other, case is exempted from the "ordinary" or presumptive remedy of office-wide recusal. Rather than apply fixed factors that, to my mind, don't appear to determine which cases are "extraordinary," I think that factors to consider are those aspects of the particular case that suggest the "ordinary" remedy is unnecessary.

¶ 42 As to the totality of the circumstances applied to this case, I have already stated most of those considerations: (1) Mr. Dano had pretty minimal involvement in the defense of Mr. Nickels, serving primarily as a local contact attorney and taking the verdict, while not developing or implementing the defense; (2) the case was tried two years before Mr. Dano was elected prosecutor; (3) the case against Mr. Nickels was developed long before the election and without any possible disclosure of client secrets by Dano; (4) one of the deputy prosecutors on the original trial is still available to try the case, and the other deputy assigned to the case was hired by the prior prosecutor; (5) this court ordered a new trial due to judicial error, not error contributed to by the attorneys on either side; (6) as prosecutor, Dano has had no involvement with this case, nor is there any evidence in the record that suggests the elected prosecutor normally would have had any involvement with the retrial-ergo, the screening has been effective. Two other factors, not previously mentioned, also suggest that this is the out-of-the-ordinary case where screening per RPC 1.11 would be effective and office-wide recusal is unnecessary.

¶ 43 One reason is that the county has tried to find a special prosecutor to handle the retrial. No other county was willing to take the case on, nor was the attorney general. The second reason is related to the first. This case took multiple weeks to try. It will be extremely burdensome to some other office to take on this case, and it will be extremely expensive to Grant County to pay for a special prosecutor. Major murder cases are tried by experienced deputy prosecutors, and few counties are so well stocked with such veterans that they can afford to be without them for several weeks. Even if such attorneys can be located and borrowed, it will cost the county money to feed and house them for several weeks, to say nothing of any salary costs. While these factors are irrelevant to the determination that a conflict of interest exists, they should be factors taken into consideration in deciding whether there is any utility in imputing a conflict to an entire prosecutor's office in the absence of evidence that screening has failed to do the job.

¶ 44 The majority's resolution of this case will impose unnecessary office-wide recusals. While large offices can more easily address the comparatively small number of recusals generated by a single attorney in practice, even they will have problems dealing with the large number of cases handled by a public defender with significant supervisory authority. Small prosecutor offices will incur significant expenses in large cases, and probably have conflicts in a higher percentage of cases. Imputing an individual prosecutor's personal conflicts to the entire office is not necessary here.

¶ 45 In my opinion, the trial court did not err in deciding that screening Mr. Dano was adequate to protect Mr. Nickels' right to a fair retrial. Accordingly, I would affirm.

      State v. Nickels, No. 31642-4-III, 2017 WL 887218 (Wash Ct. App. Feb. 28, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/316424_unp.pdf.

      At the time of Stenger, RPC 1.10(a) provided as follows: "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9, or 2.2." Former RPC 1.10(a) (1987). The same provision now states, "Except as provided in paragraph (e) [regarding waiver], while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." RPC 1.10(a).

      At the time of Stenger, the applicable rule stated, "Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not ... [p]articipate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful designation may be, authorized to act in the lawyer's stead in the matter." Former RPC 1.11(c)(1) (1987). The relevant provision now states, "Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing."RPC 1.11(d).

      The RPC Committee was the predecessor of the current WSBA Committee on Professional Ethics. Advisory opinions of these committees are based solely on the RPCs, of which the Washington Supreme Court is the ultimate arbiter.

      Interestingly, this court once decided that a trial judge did not have to recuse from a criminal case even though he had both defended and prosecuted the defendant in earlier cases. State v. Dominguez , 81 Wash. App. 325, 914 P.2d 141 (1996). A former client's secrets can more easily be used against him by a judge than by an attorney.

      Stenger involved a death penalty prosecution of the defendant for aggravated murder; the elected prosecutor had previously represented the defendant a decade earlier in a different case. 111 Wash.2d at 518, 760 P.2d 357. Thus, the discussion of how to address the elected prosecutor's representation of the defendant in the same case his new office was prosecuting technically is dicta, though it was understandable that the court would use the opportunity to opine on a problem that could easily arise.

      Subject to the exceptions of RPC 1.6(b).

      From a practical perspective, admission of the prior judgment and sentence during the sentencing phase of a capital case that shows the prosecuting attorney's name as the former attorney for the defendant is likely to be extremely damaging to the defendant. A juror might conclude that the prosecutor who represented the client has additional valid reasons for seeking the death penalty than those presented at trial.

      My review of the previous file indicates that the Report of Proceedings totaled 29 volumes through final argument and verdict; sentencing and post-trial motions consumed additional hearings.

      As a result, I suspect that the attorney general is likely to be assigned these types of cases by trial judges needing to find a special prosecutor.


author: Siddoway, J.

text:
    STATE of Washington, Respondent, v. David Michael ROMISH, Appellant.
    No. 35643-4-III
    Court of Appeals of Washington, Division 3.
    FILED FEBRUARY 7, 2019
    PUBLISHED OPINION
    Pennell, A.C.J.
    ¶ 1 Restitution is a penalty applicable to the crime of possession of stolen property. But because possession of stolen property is different from the underlying crime of theft, the scope of permissible restitution for mere possession is generally more limited than it would be for theft. When it comes to a conviction for unlawful possession of stolen property, the State must prove a specific connection between the defendant's conduct and damage to property or other losses. The State is not relieved of its burden simply because the property possessed by the defendant was stolen recently.
    ¶ 2 David Romish pleaded guilty to possessing recently-stolen property. The State sought restitution for all losses associated with the property, including physical damage.
    There was no specific evidence of when Mr. Romish came into possession of the stolen property or when the damage occurred. Nevertheless, the State reasoned that one could infer Mr. Romish caused the damage based on the short time between the theft and when the stolen property was discovered in Mr. Romish's possession.
    ¶ 3 We reject the State's retrospective theory of causation. Without specific evidence that Mr. Romish's offense preceded the victim's losses, the trial court lacked authority to impose restitution for all of the victim's losses. The order of restitution is therefore reversed.
    FACTS
    ¶ 4 On August 23, 2016, Mr. Romish was found in possession of a Bobcat front loader and other property that had been reported stolen a week earlier. Mr. Romish was charged with possession of stolen property and pleaded guilty. In his guilty plea statement, Mr. Romish admitted to knowingly possessing stolen property, but he denied altering the condition of any of the property in his possession. Mr. Romish also did not indicate when he came into possession of the stolen property.
    ¶ 5 At the July 13, 2017, plea and sentencing hearing, counsel for Mr. Romish agreed that restitution could be ordered if the State showed a causal connection between the damage to the Bobcat and Mr. Romish's possession of it, but expressed doubts that the State could establish such a connection. Defense counsel reiterated that Mr. Romish denied altering the condition of the Bobcat. Counsel also disputed the amount of claimed damages and requested a separate hearing on restitution.
    ¶ 6 A restitution hearing was held October 12, 2017, and the only witness to testify was the owner of the stolen property. The owner detailed the damage that had been sustained by the Bobcat as a result of the theft. He explained that the Bobcat had been repainted in a haphazard manner and that a taillight had been broken. Although there did not appear to be any functional damage, the owner had the Bobcat serviced, just to make sure. Receipts showed the service, repair and repainting costs totaled $4,897.42. In addition to having the Bobcat repaired and serviced, the owner testified he had to rent replacement equipment during the period that the Bobcat was unavailable for use in his excavation business. Rental fees were incurred not only for the period that the Bobcat was missing as stolen, but also for the time the Bobcat was out of commission for service and repairs. The total rental cost was $4,928.46.
    ¶ 7 On cross-examination, the property owner denied knowing who stole the Bobcat or who had repainted it. The owner testified that the paint on the Bobcat was neither fresh nor wet when it was recovered. And the property owner denied seeing any paint at the location where the Bobcat was recovered.
    ¶ 8 After the close of evidence, the trial court ordered Mr. Romish to pay restitution for all costs associated with the disappearance, repair and repainting of the Bobcat. The court recognized Mr. Romish had not been convicted of stealing the Bobcat. Nevertheless, the court reasoned it could find at least by a preponderance of the evidence that the damage to the Bobcat had occurred while it was in Mr. Romish's possession. The total amount of restitution was set at $9,825.88.
    ¶ 9 Mr. Romish appeals.
    ANALYSIS
    ¶ 10 A court's authority to impose restitution is derived entirely from statute. State v. Griffith , 164 Wash.2d 960, 965, 195 P.3d 506 (2008). On appeal, our initial step is to discern whether the type of restitution ordered by the trial court was authorized by statute. See State v. Tobin , 161 Wash.2d 517, 523-24, 166 P.3d 1167 (2007). The legal aspect of this inquiry involves de novo review. State v. Acevedo , 159 Wash. App. 221, 229-30, 248 P.3d 526 (2010). Underlying factual findings are reviewed for substantial evidence. Griffith , 164 Wash.2d at 965, 195 P.3d 506. Restitution unauthorized by statute must be stricken. Id. at 967-68, 195 P.3d 506.
    ¶ 11 A trial court is authorized to impose restitution for "an offense which results in injury to any person or damage to or loss of property." RCW 9.94A.753(5). Our courts have interpreted this authorization to mean that there must be a causal connection between a victim's losses and the defendant's offense. Griffith , 164 Wash.2d at 965, 195 P.3d 506. "Losses are causally connected if, but for the charged crime, the victim would not have incurred the loss." Id. at 966, 195 P.3d 506. If a defendant challenges the restitution amount sought by the State, the State must prove causation and damages by a preponderance of the evidence. State v. Kinneman , 155 Wash.2d 272, 285, 119 P.3d 350 (2005). Only after a causal connection has been established does the sentencing court gain broad discretion to order restitution amounts within the statutory limits. See State v. Tetters , 81 Wash. App. 478, 481, 914 P.2d 784 (1996) ; RCW 9.94A.753(3).
    ¶ 12 The law of restitution relies on causation, and that reliance creates a distinction between theft and possession of stolen property. " '[C]ulpability for possession of stolen property does not necessarily include culpability for the stealing of the property. The actual thief is guilty of a different crime.' " Griffith , 164 Wash.2d at 967, 195 P.3d 506 (alteration in original) (quoting State v. Griffith , 136 Wash. App. 885, 894, 151 P.3d 230 (2007) ) (Schultheis, J. dissenting). A thief is responsible for all damages incurred in connection to the victim's loss of property, even if not individually caused by the thief or specifically foreseeable. Tobin , 161 Wash.2d at 524, 166 P.3d 1167 (foreseeability not required); State v. Hiett , 154 Wash.2d 560, 564, 115 P.3d 274 (2005) (Restitution damages for taking a motor vehicle without permission need not be caused by individual defendant.). But a defendant convicted simply of possessing stolen property is only responsible for damage actually sustained during the course of his or her possession. Tetters , 81 Wash. App. at 480-81, 914 P.2d 784.
    ¶ 13 When a defendant has been convicted of possessing-but not the theft of-stolen property, sentencing courts must ensure a true causal connection links the defendant's conduct to the victim's losses. The mere fact that property was recently stolen does not permit inferring causation. Id. (one week between theft of items from stolen vehicle and defendant's possession of vehicle was insufficient to establish basis for full restitution), cited with approval in Hiett , 154 Wash.2d at 565-66, 115 P.3d 274. Instead, we require more specific evidence tying the defendant's conduct to the victim's losses.
    ¶ 14 No such evidence was presented in Mr. Romish's case. The record indicates neither when Mr. Romish came to possess the Bobcat, nor when it was damaged. Although the Bobcat was found in a barn at Mr. Romish's residence, there was no evidence of painting supplies or recent painting activities at that location. Nor were there shards of glass or plastic that might signify the tail light had been broken at Mr. Romish's residence. In addition, the paint on the Bobcat was not fresh. This suggests that at least some time had passed between the repainting of the Bobcat and the date of its recovery by law enforcement.
    ¶ 15 The evidence presented at the hearing does not link Mr. Romish's criminal conduct to many of the victim's claimed damages. No evidence was presented that might lead one to believe the Bobcat would not have been repainted or the taillight broken "but for" Mr. Romish's possession. Acevedo , 159 Wash. App. at 230-31, 248 P.3d 526. In like manner, there is no reason to think Mr. Romish's possession of the Bobcat was the "but for" cause of the victim's rental fee expenses prior to the offense conduct date of August 23, 2016. Given these circumstances, the order of restitution must be reversed. Id.
    ¶ 16 Although we reverse the trial court's restitution order, we recognize Mr. Romish should still be held accountable for some restitution. See Griffith , 164 Wash.2d at 967-68, 195 P.3d 506. There is sufficient causal connection between Mr. Romish's offense and at least a portion of the victim's damages. Most obviously, Mr. Romish can be held responsible for rental fees incurred on the date of his offense conduct, August 23, 2016. In addition, the record indicates the victim would have had the Bobcat serviced, regardless of how long it had been missing. Thus, there is a "but for" connection linking the service costs and related rental fees to Mr. Romish's conduct. See Kinneman , 155 Wash.2d at 287, 119 P.3d 350 (A victim's compensable losses include investigative costs.).
    ¶ 17 We remand Mr. Romish's case for a new restitution hearing. On remand, the trial court has discretion to calculate the amount of restitution causally connected to Mr. Romish's August 23, 2016, offense conduct date. This would include service costs, rental fees for the day the Bobcat was discovered in Mr. Romish's possession, and rental fees for the period that the Bobcat was out of use for servicing. But pursuant to the terms of this opinion, restitution cannot include the costs of repainting the Bobcat or replacing the taillight. Also excluded are rental fees incurred prior to August 23 or for the period that the Bobcat was out of use solely for repainting and repair of the tail light. Because new evidence on remand would conflict with the requirement that restitution be set within 180 days after sentencing, RCW 9.94A.753(1), the evidence considered by the court must be limited to the existing record. Griffith , 164 Wash.2d at 968 n.6, 195 P.3d 506.
    CONCLUSION
    ¶ 18 We vacate the trial court's restitution order and remand this matter for a new restitution hearing, limited to the existing record.
    I CONCUR:

      Mr. Romish contends the trial court erroneously relied on a probable cause affidavit at his original restitution hearing. Because the trial court's limited reliance on the probable cause affidavit is not relevant to the causation analysis set forth in this opinion, this claim is moot. On remand, the court's assessment of the restitution amounts for servicing of the Bobcat and for post-offense rental fees will be limited to the existing record.

   Siddoway, J.

Korsmo, J. (dissenting in part)

¶ 19 I believe it was within the trial judge's fact-finding authority to infer that Mr. Romish was responsible for the need to repaint the Bobcat and the other expenses associated with the defendant's possession of it. Most certainly, the restitution order was justified under the court's authority to double the victim's proven losses. Accordingly, I would affirm.

¶ 20 Trial courts have statutory authority to impose restitution on defendants convicted of a crime. RCW 9A.20.030(1) provides in part:

If a person has gained money or property or caused a victim to lose money or property through the commission of a crime, upon conviction thereof ... the court ... may order the defendant to pay an amount, fixed by the court, not to exceed double the amount of the defendant's gain or victim's loss from the commission of a crime. Such amount may be used to provide restitution to the victim at the order of the court.

A court's decision respecting the amount of restitution is reviewed for abuse of discretion. State v. Tobin , 161 Wash.2d 517, 523, 166 P.3d 1167 (2007) ; State v. Davison , 116 Wash.2d 917, 919, 809 P.2d 1374 (1991). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker , 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 21 The court shall order restitution "whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property." RCW 9.94A.753(5). In interpreting the restitution statutes, we must "recognize that they were intended to require the defendant to face the consequences of his or her criminal conduct." Tobin , 161 Wash.2d at 524, 166 P.3d 1167. Accordingly, the court should not engage in an overly technical construction that would permit the defendant to escape from just punishment. Id. The legislature intended "to grant broad powers of restitution" to the trial court. Davison , 116 Wash.2d at 920, 809 P.2d 1374.

¶ 22 Restitution must be established by a preponderance of the evidence. State v. Kinneman , 155 Wash.2d 272, 285, 119 P.3d 350 (2005). Evidence is sufficient to support a restitution order if it provides a reasonable basis, other than conjecture or speculation, to estimate the loss. Id. ; State v. Fleming , 75 Wash. App. 270, 274-75, 877 P.2d 243 (1994).

Restitution is not limited to cases where the damage computation is simple. Kinneman , 155 Wash.2d at 285, 119 P.3d 350. Since restitution is an aspect of the sentencing process, the Rules of Evidence do not apply. ER 1101(c)(3) ; State v. Kisor , 68 Wash. App. 610, 620, 844 P.2d 1038 (1993). Instead basic due process concerns govern this situation-whether the defendant had the opportunity to contest the evidence and whether the evidence was reasonably reliable. Kisor , 68 Wash. App. at 620, 844 P.2d 1038.

¶ 23 Here, Mr. Romish had the ability to contest the restitution request and did so by cross-examining the Bobcat's owner, although he did not present any testimony of his own. He also did not challenge the prosecutor's incorporation of the affidavit of facts into the restitution hearing memorandum. The Bobcat was stolen in the early morning of August 16, 2016. Clerk's Papers at 1-4. Mr. Romish pleaded guilty to possessing the stolen Bobcat on August 23, 2016. The question before us is whether the trial court erred by inferring that the physical damages (painting and damaged taillight) occurred during the 14-16 hours that defendant admittedly possessed the Bobcat instead of during the 6 days when the Bobcat was stolen and/or possessed by persons unknown. I think the trial court was quite able to infer that the painting occurred during Mr. Romish's possession of the Bobcat and that he bears the responsibility for that expense. The Bobcat simply was not gone long enough that the court was required to believe someone else caused the damages; it was reasonable to conclude that Mr. Romish was the responsible party.

¶ 24 At a minimum, those costs, along with the rental costs that the majority is reversing, were well within the court's discretionary authority under the doubling provision of RCW 9A.20.030(1). For both of those reasons, I would affirm. The trial judge carefully and thoughtfully considered the case, and did so with all relevant statutory and due process concerns in mind. He rejected the restitution request that was not supported by any live testimony, while giving full restitution to the claim that was supported, at least in part, by the victim's testimony. On this record, there simply was no abuse of discretion.

¶ 25 For the noted reasons, I respectfully dissent.