Opinion
No. 24436-9-III.
January 9, 2007.
Appeal from a judgment of the Superior Court for Grant County, No. 98-1-00532-0, John M. Antosz, J., entered July 18, 2005.
Counsel for Appellant(s), Bevan Jerome Maxey, Attorney at Law, 1835 W Broadway Ave, Spokane, WA, 99201-1819.
Counsel for Respondent(s), John Dietrich Knodell III, Attorney at Law, Pros Atty Grant Co Crthse, Po Box 37, Ephrata, WA, 98823-0037.
Teresa Jeanne Chen, Grant County Prosecutors Office, Po Box 37, Ephrata, WA, 98823-0037.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Brown, J.
After Carl Lee Ford was convicted of second degree felony murder, his conviction was affirmed on appeal. His subsequent personal restraint petition was granted and his conviction vacated pursuant to In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). The matter was remanded for further lawful proceedings. On remand, the State, without trial, sought to resentence Mr. Ford for the predicate offense of second degree assault. The court entered an amended judgment and sentence for second degree assault. We affirm.
In 1998, the State charged Mr. Ford with second degree murder while committing or attempting to commit second degree assault. The State amended the charges to include an alternative charge of first degree manslaughter. A jury convicted Mr. Ford of second degree felony murder. The court sentenced him to life imprisonment without the possibility of parole under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.392 (1988). This court affirmed his conviction in an unpublished opinion filed October 24, 2000.
In 2002, our Supreme Court issued Andress, 147 Wn.2d 602, holding that assault may not serve as the predicate crime for second degree felony murder. Our Supreme Court then decided Andress applied retroactively to personal restraint petitioners convicted of second degree felony murder predicated on assault. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 860-61, 100 P.3d 801 (2004).
On December 23, 2004, applying Andress and Hinton, we granted Mr. Ford's personal restraint petition, vacated his conviction, and remanded for further lawful proceedings consistent with Andress and Hinton.
On remand, the State indicated it would be satisfied with a conviction for the predicate felony of second degree assault. On February 8, 2005, Mr. Ford was rearraigned on the original amended information charging him with second degree felony murder or in the alternative first degree manslaughter. Mr. Ford pleaded not guilty.
At a hearing in March 2005, the State mentioned amending the information to charge Mr. Ford with second degree assault. The State thereafter moved for the entry of an amended judgment and sentence convicting Mr. Ford, without trial, of second degree assault. He opposed the motion.
On March 30, 2005, the court considered the motion to amend the judgment and sentence. The State argued the jury's original verdict convicting Mr. Ford of second degree felony murder necessarily found him guilty of second degree assault. The court was concerned that the jury could have based its murder conviction on attempted second degree assault. The jury instructions did not include any instructions on attempt or a unanimity instruction. The State responded that this court stated a unanimity instruction was not required because the State had alleged only one act and never presented evidence of an attempted assault.
The court granted the State's motion and entered an amended judgment and sentence that Mr. Ford was found guilty of second degree assault. He remained subject to the POAA. The court therefore sentenced Mr. Ford to life imprisonment without the possibility of parole. This appeal follows.
Mr. Ford claims the court lacked subject matter jurisdiction. "`Jurisdiction is the power of the court to hear and determine the class of action to which a case belongs.'" State v. Franks, 105 Wn. App. 950, 954, 22 P.3d 269 (2001) (quoting State v. Buchanan, 138 Wn.2d 186, 196, 978 P.2d 1070, cert. denied, 528 U.S. 1154 (1999)). "`Subject matter jurisdiction' refers to the authority of a court or tribunal to adjudicate a particular type of controversy, not a particular case." Franks, 105 Wn. App. at 954 (quoting Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)). The state constitution grants subject matter jurisdiction over felonies to the superior courts. Franks, 105 Wn. App. at 954.
Second degree assault is a felony. Thus, the superior court had subject matter jurisdiction. CrR 2.1 provides that a criminal proceeding is commenced when the State files an initial pleading either by indictment or information. State v. Barnes, 146 Wn.2d 74, 81, 43 P.3d 490 (2002). "`From the time an action is commenced, the superior court acquires jurisdiction.'" Id. (quoting State v. Sponburgh, 84 Wn.2d 203, 206, 525 P.2d 238 (1974)). In 1998, the State charged Mr. Ford with second degree felony murder predicated on second degree assault or in the alterative first degree manslaughter. The superior court then had jurisdiction.
Mr. Ford asserts the court lost jurisdiction when his felony murder conviction was vacated and the case remanded for further lawful proceedings. He relies on State v. Corrado, 78 Wn. App. 612, 898 P.2d 860 (1995). There, the State filed an information charging the defendant with attempted first degree murder. Id. at 613. The trial court granted the State's motion to dismiss the charge without prejudice because the State was unable to locate a material witness. Shortly thereafter, the State located the witness and the defendant was rearraigned. No new information was filed. The case proceeded to trial and the defendant was convicted. Id. at 613-14. Division Two of this court reversed his conviction, holding that the superior court lost subject matter jurisdiction when the information was dismissed without prejudice. "[T]he superior court acquired jurisdiction when an information was filed. . . . It lost jurisdiction when the information was dismissed without prejudice. . . . It never reacquired jurisdiction, because the State never filed another information." Id. at 616.
Corrado has been criticized, not for its result, but for its misuse of the term "subject matter jurisdiction." Barnes, 146 Wn.2d at 83-85; Franks, 105 Wn. App at 954-56. The Barnes court resolved the confusion, stating, "a valid judgment consists of three jurisdictional elements: jurisdiction of subject matter, jurisdiction of person, and power or authority to render a particular judgment." Barnes, 146 Wn.2d at 85. The court here had jurisdiction over the subject matter and of Mr. Ford. At issue is whether the court had the authority to amend the judgment and sentence as it did.
Mr. Ford claims the State should have refiled an information against him. The State counters that an amended information was not required because second degree assault is a lesser included offense of second degree murder. A defendant can be convicted of a lesser included offense, even if that offense is not specifically charged in the information. State v. Gamble, 154 Wn.2d 457, 462-63, 114 P.3d 646 (2005). A lesser included offense exists if all the elements of the lesser offense are necessarily included in the charged offense, and the evidence supports an inference that the lesser offense was committed. Id. at 463.
In 2003, Division Two was asked to determine if second degree assault was a lesser included offense of second degree murder in a case involving the reversal of a second degree murder conviction under Andress. State v. Hughes, 118 Wn. App. 713, 731, 77 P.3d 681 (2003), review denied, 151 Wn.2d 1039 (2004). The court looked at the to-convict instruction and determined the jury was instructed on second degree assault. It further found that in finding Mr. Hughes guilty of second degree murder, the jury necessarily found he had committed second degree assault. Id. at 733. The court reversed the second degree murder conviction and remanded to the trial court with instructions to enter a verdict of guilty on second degree assault. Id. at 733-34.
We find Hughes persuasive. The jury here was instructed on second degree assault, specifically indicating that to convict Mr. Ford of second degree assault it had to find he had committed or attempted to commit second degree assault. In our opinion affirming his murder conviction, we determined no evidence of an attempted assault was presented to the jury. Thus, the court here properly found that in convicting Mr. Ford of second degree murder, the jury had necessarily determined he committed second degree assault. Under Hughes, the court's amendment of the judgment and sentence was proper.
Mr. Ford further contends the compulsory joinder rule should preclude the State from now seeking a conviction for second degree assault. CrR 4.3.1, the joinder rule, mandates the consolidation of related offenses for trial. State v. Wright, 131 Wn. App. 474, 487, 127 P.3d 742 (2006). But because lesser included offenses need not be charged at all, the joinder rule is not implicated. See State v. Dallas, 126 Wn.2d 324, 329, 892 P.2d 1082 (1995).
Second degree assault is a lesser included offense of second degree murder. The court properly amended the judgment and sentence.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Schultheis, A.C.J. Brown, J.