Pretrial diversion programs allow some criminal defendants to avoid prosecution by successfully completing treatment, counseling, or other court-approved conditions. These agreements offer an opportunity for rehabilitation while reducing the burden on the criminal justice system. However, what happens if a prosecutor believes a defendant has violated the agreement?
The Washington Supreme Court answered that question in State v. Marino, 100 Wn.2d 719, 674 P.2d 171 (1984). The decision established important due process protections for defendants while preserving prosecutorial discretion over diversion agreements. Today, Marino remains an important Washington case regarding deferred prosecution and pretrial diversion.
What Happened in State v. Marino?
Mark Marino was charged with second-degree assault after a four-year-old child suffered injuries believed to be the result of abuse. Before trial, Marino entered into a pretrial diversion agreement with the Snohomish County Prosecutor.
Under the agreement, prosecution would be postponed for three years if Marino successfully completed counseling and complied with several treatment requirements. In exchange, Marino waived certain constitutional rights, including his right to a speedy trial, and admitted responsibility for the assault.
About a year later, the prosecutor determined that Marino had failed to comply with the counseling requirements and terminated the diversion agreement, allowing the criminal case to proceed.
Marino challenged the termination, arguing that he had been denied due process because the trial court did not independently decide whether his violations justified ending the diversion agreement.
Washington Pretrial Diversion and Due Process
The central issue before the Washington Supreme Court was whether due process requires a judge to independently determine that a diversion agreement should be terminated, or whether judicial review is limited to determining whether the prosecutor acted reasonably.
The Court recognized that pretrial diversion agreements involve significant constitutional rights because defendants often waive important protections when entering these agreements. As a result, some level of judicial oversight is necessary.
However, the Court also acknowledged that prosecutors traditionally possess broad discretion over charging decisions.
The challenge was balancing these competing interests.
The Court’s Holding
The Washington Supreme Court held that due process requires two important protections:
- The trial court must independently determine whether the defendant violated the diversion agreement.
- The State must prove the violation by a preponderance of the evidence.
Once the court determines that a violation occurred, however, the judge does not substitute his or her own judgment for the prosecutor’s.
Instead, the court reviews whether the prosecutor’s decision to terminate the agreement was reasonable in light of the facts established during the hearing.
The Court rejected Marino’s argument that judges must independently decide whether termination itself was the appropriate outcome.
Why the Court Distinguished Diversion From Probation
One of Marino’s primary arguments relied on probation revocation cases, where judges exercise broad discretion over whether probation should be revoked.
The Supreme Court explained why diversion agreements are different.
Judicial Supervision of Probation
When someone is placed on probation:
- The court imposes the sentence.
- The court supervises compliance.
- The court decides whether probation should be revoked.
Because probation is part of sentencing, judicial discretion is central.
Prosecutorial Control of Diversion
Pretrial diversion operates differently.
The prosecutor:
- Negotiates the diversion agreement.
- Establishes the program requirements.
- Monitors compliance.
- Decides whether prosecution should resume.
The court’s role is narrower. It protects the defendant’s due process rights by ensuring that the alleged violations actually occurred and that the prosecutor’s decision has a factual basis.
This distinction preserves the constitutional separation between prosecutorial charging authority and judicial oversight.
The Court Applied the Rule to Marino
Although the trial judge did not make detailed written findings, the Supreme Court reviewed the record and found overwhelming evidence that Marino had failed to complete counseling as required.
Counselors testified that Marino repeatedly missed appointments, failed to resume treatment, and was ultimately discharged from the program before completion.
Marino did not substantially dispute these facts.
Because the evidence clearly established noncompliance, the Court concluded that the prosecutor acted reasonably in terminating the diversion agreement.
The conviction for second-degree assault was therefore affirmed.
The Venue Issue
Marino also argued that the State failed to prove the crime occurred in Snohomish County.
The Supreme Court rejected this claim.
The Court reaffirmed an important Washington rule regarding criminal venue:
Venue does not have to be proven beyond a reasonable doubt.
Instead, the jury may reasonably infer venue from the surrounding circumstances.
Evidence showed:
- The child lived at a Snohomish County address.
- The treating physician reported suspected abuse to Snohomish County authorities.
- Marino admitted pushing the child against a coffee table.
Taken together, this evidence allowed the jury to reasonably conclude that the offense occurred in Snohomish County.
Why State v. MarinoStill Matters
Washington Pretrial Diversion Remains an Important Alternative
State v. Marino continues to guide Washington courts whenever questions arise about terminating diversion or deferred prosecution agreements.
The decision protects defendants by requiring:
- Notice of the alleged violations.
- A meaningful evidentiary hearing.
- Independent judicial findings regarding whether violations occurred.
- Proof by a preponderance of the evidence.
At the same time, it preserves the prosecutor’s authority over charging decisions by limiting judicial review to whether termination was reasonable rather than allowing judges to replace prosecutorial discretion with their own.
For defendants considering diversion agreements, Marino serves as an important reminder that compliance with every condition is critical. Missing counseling sessions, failing to complete treatment, or otherwise violating the agreement can result in prosecution moving forward despite the opportunity originally offered.
Contact Blanford Law
If you have questions about pretrial diversion, deferred prosecution, or criminal charges in Washington, contact Blanford Law today at ken@blanfordlaw.com or 253-720-9304 for guidance on your legal matter.
Additional Resources
What Happens Next? Understanding the Pretrial Services Process
Learn what to expect after an arrest, including the role of pretrial services, release conditions, and how early decisions can affect your criminal case.
https://blanfordlaw.com/what-happens-next-pretrial-services-process/
Off-the-Record Continuances in SeaTac Municipal Court
Find out how off-the-record continuances work in SeaTac Municipal Court and when they may provide additional time to resolve a criminal case before trial.
https://blanfordlaw.com/seatac-off-the-record-continuances/
RPC 1.16: When Can an Attorney Withdraw From Representation?
This article explains Washington Rule of Professional Conduct 1.16, including when attorneys may or must withdraw from representing a client.
https://blanfordlaw.com/rpc-1-16-attorney-withdrawal/
Alcohol Monitoring Requirements in Kittitas County
Learn how alcohol monitoring may be imposed as a condition of release or sentencing and what defendants should know about complying with court orders.
https://blanfordlaw.com/alcohol-monitoring-requirement-kittitas/
Kittitas County Community Service Sites
Review approved community service locations and learn how community service obligations are completed in Kittitas County.
https://blanfordlaw.com/kittitas-county-community-service-sites/