Jason Fuller was charged with failure to register as a sex offender (second offense). He was charged on September 29, 2021, but arraigned and pleaded not guilty on March 7, 2022. On May 31, 2022 the State and Defense confirmed they were ready to proceed to trial on June 14th. On June 9th, the parties struck a plea deal to have Mr. Fuller plea to “attempted” failure to register, a gross misdemeanor that would reduce the potential punishment from 43 – 57 months to a maximum of 364 days, which the State agreed to recommend the following day. Good deal. Well done.
Not so fast!
The amendment was just before trial, in contravention of a Grays Harbor Local Court Rule requiring amendments to be done by the pre-trial hearing. Of course, anyone in the real world realizes there are a million reasons for plea bargains to be struck up to the last minute. This is contemplated by Washington Criminal Rule 2.1(d), which allows the State to amend charges up to resting its case at trial.
The State did a good job of explaining to the Court why the amendment came after the pre-trial hearing, including explaining that a new prosecutor viewed the State’s charging standards differently. The following remarks indicate the rigidity of the Court inflicting the local rule.
[THE STATE]: The parties have reached a resolution on this matter.
THE COURT: Well, but your resolution proposes an amendment, and you are past pretrial. So the time for amending the information has passed. So what basis is there to deviate from the rule in this case?
Mr. Fuller then waived jury. The trial court then stated,
THE COURT: I think the thing the parties need to understand is that it’s not efficient. We have already called a jury. So it has saved almost nothing by doing this late, which is why the rule is in place that these sorts of amendments are not allowed post pretrial.
Mr. Fuller was sentenced to 43 months, and appealed. CrR 2.1(d) indicates “the Court may permit any information or bill of particulars to be amended at any time before the verdict or finding of substantial rights of the defendant are not prejudiced.” It gives broad discretion to the trial court, which was not exercised here. The appellate court found the Judge here abused his discretion by inflicting the local rule without real consideration of the State’s reason behind its motion to amend, or the fact that Mr. Fuller had not waived jury when the parties appeared. The appellate court found the prejudice to Mr. Fuller “can hardly be overstated: his ultimate sentence… was three and a half times longer.”
The appellate court held the trial court erred in denying the motion to amend and rejecting the plea agreement; Mr. Fuller’s conviction was reversed. The appellate court also instructed the State on remand to reinstate its plea offer and refile the motion to amend the charge.
Local rules in many counties exist in order to promote judicial economy of resources. This court’s ruling did the opposite. The local rule disallowed amendments after pretrial unless the parties could establish extenuating circumstances. The extenuating circumstances were left up to the local trial judge to decide.