State v. McDowell

Michael McDowell (defendant) was a juvenile who was charged with reckless endangerment after he ordered his father’s dogs, Doberman pinschers, to menace a group of children in his neighborhood. Representing the state (plaintiff), the prosecutor referred McDowell’s case to the diversion unit. However, McDowell refused to enter into the diversion program, and his case went back to the prosecutor’s office. A felony information was filed a few weeks later, charging McDowell with second-degree assault. Before the fact-finding hearing occurred on the assault charge, McDowell sought dismissal of the felony filing, alleging prosecutorial vindictiveness. A trial court denied McDowell’s motion and found him guilty. At a sentencing hearing, McDowell argued that the court was limited to sentencing him consistently with the diversion program. The sentencing court instead sentenced McDowell consistently with the felony charge. McDowell appealed, and the appellate court certified McDowell’s appeal. On appeal, McDowell argued that permitting a prosecutor to file a more serious charge after a juvenile refused a diversion program penalized the juvenile for pursuing the right to a trial. McDowell also argued that even if a more serious charge was permitted, he should not have received a stiffer penalty than he would have under the diversion program. McDowell acknowledged that there was no evidence of the prosecutor’s actual vindictive motive but argued that the structure of the diversion program necessitated a presumption of an unlawful motivation whenever a prosecutor increased a juvenile’s charge without cause after the juvenile rejected the diversion program.