## Facts

- Police investigated a complaint that Michael J. McDowell, a juvenile, ordered his father’s dogs to menace neighborhood children.
- Police recommended charging McDowell with reckless endangerment, and the matter was screened into a juvenile diversion program.
- McDowell met with diversion staff but refused to participate; the matter was returned to the prosecutor with notice of the refusal.
- Several weeks later, the State filed an information charging McDowell with second-degree assault (felony).
- McDowell moved to dismiss, arguing the increased charge created prosecutorial vindictiveness; the juvenile court denied the motion.
- After a fact-finding hearing, the court adjudicated McDowell guilty of second-degree assault.
- At disposition, McDowell argued the court could not impose a sanction greater than what diversion would have allowed; the court sentenced within the standard range for second-degree assault (including 2 days’ detention and regular school attendance).
- The Court of Appeals certified the appeal to the Washington Supreme Court.

## Issues

1. Whether due process requires a presumption of prosecutorial vindictiveness when a prosecutor files a felony information after a juvenile rejects diversion offered on a lesser complaint.
2. Whether the juvenile court’s disposition is limited to diversion-level sanctions when the juvenile is adjudicated of a more serious offense than the one initially offered for diversion.

## Decision

- The Washington Supreme Court affirmed the adjudication and disposition.
- The court held no presumption of prosecutorial vindictiveness arose from the post-refusal filing of a felony charge under these circumstances.
- The court held the sentencing judge was not limited to diversion-level sanctions and could sentence within the standard range for the offense adjudicated.

## Legal Principles

- A due process presumption of prosecutorial vindictiveness applies only where the circumstances create a realistic likelihood of retaliatory charging; it is generally not triggered by pretrial charging decisions.
- When increased charges follow a defendant’s exercise of a procedural option in a pretrial posture, the defendant must show actual vindictiveness absent a setting that inherently suggests retaliation.
- In juvenile proceedings, rejection of diversion and return of the matter to the prosecutor does not, by itself, create a realistic likelihood of retaliation sufficient to presume vindictiveness.
- Juvenile court disposition authority is based on the offense actually adjudicated; statutory provisions governing diversion do not cap sanctions at diversion levels when the adjudicated offense differs from the offense initially considered for diversion.

## Conclusion

The court upheld a prosecutor’s decision to file a more serious charge after a juvenile refused diversion because the circumstances did not warrant a presumption of vindictiveness, and it upheld a standard-range disposition because diversion limits did not restrict sentencing for the more serious adjudicated offense.


State v. McDowell, 102 Wash. 2d 341, 685 P.2d 595 (Wash. 1984)