State v. HeadState v. Head
Petitioner challenges the sufficiency of the evidence supporting his conviction for eight counts of first degree theft. He also maintains that the absence of written findings of fact and conclusions of law following his bench trial requires reversal, or, alternatively, remand for entry of findings and conclusions. We agree that remand is required, and do not reach the merits of petitioner‘s challenge to the sufficiency of the evidence.
FACTS
In light of our legal analysis, only a brief overview of the facts is provided. Petitioner Stephen Head was an owner and officer of RBH2S, Inc., a company which managed logging of timberland. RBH2S entered agreements with the owners of the timberland whereby the company would collect and distribute the money received from the sale of harvested forest products. Some of the contracts authorized RBH2S to pay its management fee from amounts collected. RBH2S bookkeepers testified that the owners’ shares of funds collected from timber mills were placed in trust accounts, and that Head transferred money from these accounts to pay RBH2S‘s bills and to pay other clients for previously logged timber. RBH2S declared bankruptcy in 1991. At that time, there was a deficit in the trust accounts of about $230,000. Head told the bankruptcy trustee that he had been using funds from the trust accounts to pay immediate obligations, that he was “robbing Peter to pay Paul.” Verbatim Report of Proceedings (RP) at 406.
Head was charged with nine counts of first degree theft. Each count involved a separate landowner whose funds Head allegedly appropriated for corporate or personal use. Following a bench trial, the trial court issued an oral decision finding Head guilty of eight of the counts, and entered a judgment and sentence accordingly. The court did not enter written findings of fact and conclusions of law.
Head appealed, arguing that the evidence was insufficient to convict him, and that the absence of written findings and conclusions requires reversal. The Court of Appeals affirmed. We granted discretionary review, and remand for entry of written findings and conclusions.
ANALYSIS
Remand for entry of written findings and conclusions is the proper course. A trial court‘s oral opinion and memorandum opinion are no more than oral expressions of the court‘s informal opinion at the time rendered. State v. Mallory, 69 Wash.2d 532, 533, 419 P.2d 324 (1966). An oral opinion “has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment.” Id. at 533-34, 419 P.2d 324; accord State v. Dailey, 93 Wash.2d 454, 458-59, 610 P.2d 357 (1980).
Moreover, appellate review is facilitated by written findings and conclusions. A prosecuting attorney required to prepare findings and conclusions will necessarily need to focus attention on the evidence supporting each element of the charged crime, as will the trial court. That focus will simplify and expedite appellate review. This case demonstrates the need for that focus. The eight counts here involve eight separate agreements (which are not identical), and different factual circumstances which may affect the determination as to each element of each of the alleged offenses. Yet the trial court‘s oral decision does not sufficiently address each count separately, and it does not adequately identify the evidence relied upon to support each element of each count. It fails to “`treat with the elements of the crime[s] separately, indicating the factual basis for each of‘” its conclusions of law. State v. Wilks, 70 Wash.2d 626, 628, 424 P.2d 663 (1967) (quoting State v. Russell, 68 Wash.2d 748, 750, 415 P.2d 503 (1966)). If
Written findings and conclusions also enable an appealing defendant to focus on issues arguably supported by the record and avoid pursuing issues obviously lacking merit. By the same token, adequate findings and conclusions may in some circumstances support dismissal on a motion on the merits, thus expediting disposition of meritless appeals.
Decisions by the Court of Appeals point up the need for a consistent, uniform approach.2
We hold that the failure to enter written findings of fact and conclusions of law as required by
We note the possibility that reversal may be appropriate where a defendant can show actual prejudice resulting from the absence of findings and conclusions or following remand for entry of the same. For example, a defendant might be able to show prejudice resulting from the lack of written findings and conclusions where there is strong indication that findings ultimately entered have been “tailored” to meet issues raised on appeal.3 The burden of proving any such prejudice will be on the defendant. Cf. State v. Royal, 122 Wash.2d 413, 423, 858 P.2d 259 (1993) (burden of proving prejudice resulting from late entry of written findings and conclusions on defendant; concerning
We will not infer prejudice, however, from delay in entry of written findings of fact and conclusions of law. In this case, petitioner has not established actual prejudice resulting from the absence of findings and conclusions, and accordingly remand for entry of written findings of fact and conclusions of law is the proper course.
However, no additional evidence may be taken; the findings and conclusions are to be based on the evidence already taken. See State v. Alvarez, 128 Wash.2d 1, 20-21, 904 P.2d 754 (1995) (double jeopardy principles prohibit second trial for purpose of affording the prosecution the opportunity to supply evidence which it failed to muster in the first proceeding; this rule is not violated where remand is solely for entry of additional findings and conclusions required by
The judgment and sentence are vacated and this case is remanded for entry of findings and conclusions in accord with
DURHAM, C.J., DOLLIVER, SMITH, GUY, ALEXANDER, TALMADGE, JJ., concur.
SANDERS, Justice (dissenting).
The majority is correct that
I agree in some cases remand may be appropriate. However, failure to comply with
The majority simply assumes delay per se is not prejudicial, but in the case before us more than six years have elapsed since the Defendant‘s trial on June 26, 1992 (Clerk‘s Papers at 94) and a time lapse of this magnitude warrants further inquiry as to prejudice.
In the case before us the source of the excessive delay was the failure of the State to fulfill its obligations, since the responsibility for ensuring that findings of fact and conclusions of law are accurately recorded lies primarily with the prevailing party. See State v. Vailencour, 81 Wash.App. 372, 378, 914 P.2d 767 (1996); State v. Portomene, 79 Wash.App. 863, 865, 905 P.2d 1234, review denied, 129 Wash.2d 1016, 917 P.2d 576 (1996); Peoples Nat‘l Bank v. Birney‘s Enters. Inc., 54 Wash.App. 668, 670, 775 P.2d 466 (1989).
How much time must pass before the delay is prejudicial? It has been held that a delay of almost three years before a final opinion could be entered on appeal was an “unnecessary delay” which violated
The necessity for speedy justice dates at least as far back as the Magna Charta of 1215, which at section 40 mandates, “To no one will we sell, to no one will we deny or delay right or justice.” The principle that justice should be prompt has been incorporated into the legal tradition of this country and has been enshrined in the constitutions of many states. See, e.g.,
The majority‘s decision to remand means that if the trial court again convicts the accused, properly supported by written findings, and the defendant subsequently exercises his right to appeal from that new judgment of conviction, it will certainly be another year or more before the matter is finally put to rest. I posit a lapse of seven or eight years is “unnecessary delay” and is prejudicial for the same reason that
Notes
In a case tried without a jury, the court shall enter findings of fact and conclusions of law. In giving the decision, the facts found and the conclusions of law shall be separately stated. The court shall enter such findings of fact and conclusions of law only upon 5 days’ notice of presentation to the parties.
We see this proposition at work inThere is considerable inconsistency in decisions of the Court of Appeals. For example, in a case relied upon by petitioner, Division Three held that reversal is required where there is a complete absence of any written findings of fact and conclusions of law required by
In other cases, the appellate court has held that there is a strong presumption that dismissal is required. State v. Cruz, 88 Wash.App. 905, 909, 946 P.2d 1229 (1997) (Div. I) (suppression hearing); State v. Smith, 68 Wash.App. 201, 842 P.2d 494 (1992) (Div. I) (same). Some cases direct remand for entry of findings and conclusions, expressly rejecting reversal as a remedy. E.g., State v. Jones, 34 Wash.App. 848, 664 P.2d 12 (1983) (Div. I). Others direct remand with little discussion of remedy. City of Bremerton v. Fisk, 4 Wash.App. 961, 486 P.2d 294 (1971) (Div. II), disapproved on other grounds by State v. Souza, 60 Wash.App. 534, 805 P.2d 237 (1991); State v. Denison, 78 Wash.App. 566, 897 P.2d 437 (1995) (Div. III).
In some cases, Division One has required that there be actual prejudice before reversal is required. State v. Portomene, 79 Wash.App. 863, 905 P.2d 1234 (1995) (involving late entry of findings and conclusions after defendant appealed); State v. McGary, 37 Wash.App. 856, 683 P.2d 1125 (1984) (same). However, Division One has also concluded that although prejudice is required before reversal, a complete disregard for a rule requiring written findings and conclusions nevertheless requires reversal because the disregard for procedure creates an appearance of unfairness. State v. McCrorey, 70 Wash.App. 103, 851 P.2d 1234 (1993) (Div. I). Division Two has also reversed where it found obvious prejudice because the practice of permitting entry of findings after remand has an appearance of unfairness. However, the court added that “perhaps more important,” the defendant had been in custody since filing the notice of appeal and could not be afforded the same relief following remand, given the possibility of a new appeal and the time it would require for additional briefing. State v. Witherspoon, 60 Wash.App. 569, 572, 805 P.2d 248 (1991) (Div. II).
This phrase originates in Greek mythology which tells of a sword suspended by a single hair over the head of Damocles while he was seated at a sumptuous banquet. The Sword of Damocles has come to represent impending disaster.