FILED
JULY 14,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32063-4-III Respondent, ) ) v. ) ) AMEL W. DALLUGE, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. - Arnel Dalluge appeals the result of a Dillenburgl hearing that
this court ordered to remedy the failure years earlier to conduct a decline hearing before
transferring criminal charges against Mr. Dalluge to adult court. The superior court
concluded that the juvenile court would have declined jurisdiction of property crime
charges filed against Mr. Dalluge in 1998. As a result, his 1998 conviction of those
charges in adult court stands.
Mr. Dalluge, who represented himself in the hearing, argues that the superior court
improperly allowed him to focus on legal challenges and to stipulate that the factual
factors to be considered in declining jurisdiction would have been satisfied. He asks us to
1 Dillenburgv. Maxwell, 70 Wn.2d 331, 413 P.2d 940 (1966), modified on reh'g, 422 P.2d 783 (1967) (court must hold a retroactive decline hearing when ajuvenile is tried in adult court without a decline hearing). i! I j I
Ii No. 32063-4-III State v. Dalluge
I
1 apply the protection against improvident waiver that we would accord to a juvenile facing
criminal prosecution. 1 As a 33-year-old seeking relief from convictions, Mr. Dalluge stands on a different
I footing than a juvenile faced with criminal prosecution. He made a knowing and
voluntary stipulation to facts on which the superior court reasonably relied. For that
reason, and because the superior court made all necessary findings, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Prior Matters
We first recount events dating back almost 20 years that led to the outcome of the
July 2013 hearing challenged in this appeaL The following history is largely drawn from
this court's Order Returning Personal Restraint Petition to Superior Court and Closing
Petition in Court of Appeals, In re Pers. Restraint ofDalluge, No. 292S6-8-III (Wash. Ct.
App., Jun. 8, 2011).
In September 1997, then 17-year-old Arnel Dalluge was charged with first degree
rape. On March 2, the State amended the information in the rape case to one count of
rape in the second degree and one count of rape in the third degree, or in the alternative,
two counts of third degree rape.
While evading apprehension for the rape charges, Mr. Dalluge committed property
crimes in November 1997. He was charged with burglary in the second degree, theft in
the second degree, and vehicle prowling in the second degree on January 16, 1998.
No. 32063-4-III State v. Dalluge
The property crime charges proceeded to trial before the rape charges, and on
March 5, 1998, Mr. Dalluge was convicted of the property crimes in adult court. On
March 30, he was convicted of two counts of rape in the third degree in adult court.
Both of Mr. Dalluge's cases were properly in adult court before March 2, 1998,
because the charge of first degree rape (a serious violent offense) subjected him to
automatic juvenile court declination and exclusive adult court jurisdiction. RCW
13.04.030(1)(e)(v)(A). On account of that automatic declination, he was no longer
considered a juvenile for purposes of the subsequent property crimes and the adult court
had sole jurisdiction over those proceedings as welL See RCW 13.40.020(15); State v.
Sharon, 100 Wn.2d 230,231,668 P.2d 584 (1983).
But when the information was amended to reduce the rape charges, Mr. Dalluge
was no longer charged with a serious violent offense and the case no longer qualified for
automatic declination ofjuvenile court jurisdiction. In response to a personal restraint
petition filed by Mr. Dalluge challenging his rape convictions, our Supreme Court ruled
that with the reduction of charges, the trial court should have remanded the rape charges
to the juvenile court for a decline hearing. In re Pers. Restraint ofDalluge, 152 Wn.2d
772, 783, 100 P.3d 279 (2004). Since Mr. Dalluge's petition was not barred as untimely
given the jurisdictional error, the remedy ordered was to remand to adult criminal court
for a de novo Dillenburg hearing on whether declination would have been appropriate.
No. 32063-4-111 State v. Dalluge
On remand, the superior court conducted a Dillenburg hearing and concluded Mr.
Dalluge would have been declined from juvenile jurisdiction to the adult system.
In a personal restraint petition filed with this court in 2010, Mr. Dalluge raised the
same infirmity with his property crime convictions that he earlier raised and addressed
with the rape convictions. Here again, Mr. Dalluge's petition was not barred as untimely,
given the jurisdictional error. This court rejected the State's argument that the outcome
ofthe Dillenburg hearing on the rape charges controlled whether juvenile court
jurisdiction would have been declined as to the lesser property charges. The remedy
ordered was to again remand to the superior court for a Dillenburg hearing to determine,
this time, whether declination ofjurisdiction over the property crime charges would have
been appropriate.
Proceedings Following Remand
In November 2011, at the request of Mr. Dalluge, the trial court appointed a
lawyer to represent him. Mr. Dalluge later reported "political" disagreements and
conflicts with the lawyer, Robert Kentner, whom Mr. Dalluge also accused of being
nonresponsive. Mr. Dalluge eventually asked to represent himself.
Among Mr. Dalluge's reasons for wishing to represent himself were that Mr.
Kentner wanted to argue that the eight factors identified by the United States Supreme
Court inKentv. United States, 383 U.S. 541,566-67,86 S. Ct. 1045,16 L. Ed. 2d 84
No. 32063-4-II1 State v. Dalluge
(1966) as bearing on whether declination is appropriate2 did not support declination in
Mr. Dalluge's case. Mr. Dalluge preferred to attack the constitutionality of the
Dillenburg hearing. Mr. Dalluge was familiar with the Kent factors from his prior
Dillenburg hearing. See State v. Dalluge, noted at 148 Wn. App. 1004, 2009 WL 73138,
*3-*9. 3
Aware of Mr. Dalluge's difficulties in working with Mr. Kentner, the court
decided to proceed with the expectation that Mr. Dalluge would represent himself. In
reaching its decision, the court observed that Mr. Dalluge had previously participated in a
2 The eight factors identified by Kent, 383 U.S. at 566-67, are:
1. The seriousness of the alleged offense to the community and whether the protection of the community requires [declination]. 2. Whether the alleged offense was committed in an aggressive, violent,
premeditated or willful manner.
3. Whether the alleged offense was against persons or against property .... 4. The prosecutive merit of the complaint .... 5. The desirability of trial and disposition of the entire offense in one court when the juvenile'S associates in the alleged offense are adults .... 6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living. 7. The record and previous history of the juvenile .... 8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (ifhe is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.
3 Although the 2009 opinion was unpublished, we cite it not as authority but for its historical relation to this case. See GR 14.1(a).
Dillenburg hearing; had made clear that he had the ability to read and understand the law;
and was not before the court as a criminal defendant but instead as the moving party
seeking relief from convictions. The court ordered Mr. Kentner to remain standby
counsel, to assist and to step in if needed.
At a hearing on May 7,2013, the court signed an order documenting the self-
representation and standby counsel arrangement and also granted Mr. Dalluge's request
to continue the Dillenburg hearing to give him more time to prepare. In response to the
State's expression of concern about time and witness availability, Mr. Dalluge told the
court:
I'm going to do what I can-in my direction in the case is I'm going to waive the Kent factors, just so, you know, the state, you know, has-has no basis, I guess, to have the witnesses hanging [out] any more-she can let them go. 'Cause I'm going to write it up and waive that. And as I was trying to tell stand-by counsel, I-I don't see any reason for a factual defense and I'd rather go on a legal defense. And I was going to do that, you know, as that would save judicial resources and expedite the proceedings.
Report of Proceedings (RP) at 68-69. The court responded, "Okay. Well, then, you work
on what you want to propose as a stipulation with the [S]tate, and if you need the
assistance of Mr. Kentner in getting things back and forth, or wording, or whatever, he's
there [as] your standby." Id. at 69.
The Dillenburg hearing was continued to July 24. Mr. Dalluge submitted briefing
on his "law based defense." Clerk's Papers (CP) at 110-27, 129-30.
No. 32063-4-III State v. DaUuge
A substantial part of the Dillenburg hearing was consumed by a discussion-
principally between the court and Mr. DaUuge-about Mr. Dalluge's desire to "waiv[e]
the challeng[e]ofthe Kent factors and mov[e] on to the second part of Dillenburg,"
challenging the constitutionality of the hearing. RP at 75. Since what was invited and
agreed by Mr. Dalluge is at the heart of this appeal, we reproduce substantial portions of
the discussion.
It began with the prosecutor expressing her concern about whether the parties were
addressing "Mr. Dalluge's issues or ... the Kent factors," reminding the court that Mr.
Dalluge said he was waiving the factors but that she so far had no written stipulation. RP
at 74. She argued, "[I]f [it's] true [he's going to stipulate to the Kent factors] I'd like to
have something in writing signed by the parties for the file." RP at 74-75.
The following dialogue ensued:
DEFENDANT: ... It wasn't stipulating to nothing; it was waiving-waiving the challenging of the Kent factors and moving on to the second part of Dillenburg, challenging under constitutional rights. THE COURT: Okay. Mr. Dalluge, I was trying to recreate the representations that you made from the clerk's minutes and I'm having some difficulty doing that. When you say that you--waived the Kent factors, or what-I may misstate your language-what exactly did you intend in that regard? DEFENDANT: As in Dillenburg, it has-I can-I can wait 'til after the Kent factors and that's how Dillenburg lays it out, is after we do the Kent factors I can argue, you know, "Hey, this is unconstitutional for these reasons." But I find that--because we already have the first hearing we can use that and I can demonstrate any unconstitutionally from that [sic]. So I feel it may be more efficient for this court, and a preservation ofjudicial
I ) No. 32063-4-III 1 State v. Dalluge j resources, if we just skip that and move on to the challenging of the unconstitutionality of it. THE COURT: Okay. So let me ask it in-in very specific terms. Do you stipulate that a consideration of the Kent factors in this case would result in a decline ofjuvenile court jurisdiction? DEFENDANT: I believe that-that that's-that's going beyond-is with the waiver I'm-I guess I'm trying to stay away from that. Is-is you know, I'm not going to come back on--on appeal-I see where you're coming from, but if I do that I guess I'd be admitting defeat, and- ...
. . . I don't think I would have to go that far and that's why I'm staying away from stipulation and going more towards waiver-just-.
RP at 75-77 (alteration in original).
In order to determine how to proceed, the superior court explained to Mr. Dalluge
that the Court of Appeals had remanded the cause for a Dillenburg hearing, reviewing
what that entails.
THE COURT: ... That court says that we're required to conduct a hearing, a Dillenburg hearing, in which the court considers the Kent factors to determine whether or not, had it been timely, decline would have been ordered, to decline juvenile court jurisdiction in this case. You want to add to that consideration some legal arguments based on the constitutionality of this proceeding, and I'm totally comfortable with that. But the question is, what do we do with the first part of the hearing that the Court of Appeals has ordered us to conduct. If you-If you are waiving that, saying, "No, Judge, you don't have to do that part," I don't think you have authority to do that. If you are stipulating that the Kent factors, without the constitutional considerations, the Kent factors alone, would have resulted in decline, then we can proceed to your constitutional argument.
RP at 77-78. The court clearly told Mr. Dalluge that "the Kent factors have to be applied
in regard to the specific charges." RP at 80.
No. 32063-4-lII State v. Dalluge
Following the court's explanation, Mr. Dalluge acceded to the court's position that
it would not forgo review of the Kent factors unless Mr. Dalluge was stipulating that the
juvenile court's consideration of the Kent factors in 1998 would have resulted in
declination. Since Mr. Dalluge still stated that he preferred "waiver" to "stipulation," the
court sought to confinn, and did confinn, that Mr. Dalluge did not believe a ''waiver''
would preserve review of the Kent factors for another day. The court inquired:
THE COURT: ... lfthe court allowed you to waive the Kent factors and not stipulate, if we then had a hearing on your legal defenses, your constitutional claims and so on, and if this court decided against you on the legal claims, where do you think you would be in regard to the finality of of the judgment and sentence in this case? DEFENDANT: It would be a matter, I guess, for the Court of Appeals. THE COURT: On the legal issues. DEFENDANT: Yeah. Not-not-not-going into the waiver or the stipulation; it would be merely, as I'm saying, the constitutionality of it. THE COURT: Okay- DEFENDANT: It would be strictly towards that. THE COURT: And-And if, after full legal appeals and so on, you did not prevail on the legal defenses, and the constitutional argument, would you then expect that at some point the court would have to conduct a hearing in regard to the Kent factors? DEFENDANT: That would not be honorable. No.
THE COURT: Okay.
So, under these circumstances I understand Mr. Dalluge essentially
to stipulate. I honor for the record his attempt to distinguish between a waiver and a stipulation. But I understand him to stipulate that the-the Kent factors alone would result in declination ofjuvenile court jurisdiction in this case-Or, in the context of a Dillenburg hearing, would have resulted in declination.
RP at 81-82.
The court continued with the remaining issues and at the conclusion ofthe
hearing, took the matter under advisement pending supplemental briefing. But it also
entered an order setting forth the parties' stipulation and other matters; in relevant part,
the order states that "[t]he parties stipulate that an application of the factors identified in
Kent v. United States would, without consideration ofDefendanfs constitutional
arguments and legal defenses, result in declination ofjuvenile court jurisdiction in this
cause." CP at 131-32 (citation omitted). The court asked Mr. Dalluge ifhe had any
issues with the form of the order and Mr. Dalluge answered, "No, I don't, your Honor."
RP at 91. Once prepared, Mr. Dalluge signed the order, indicating, as the prosecutor did,
"Copy received and approved for entry." CP at 132.
Following the hearing, the State filed a response brief and Mr. Dalluge filed his
reply. The court issued a written memorandum concluding that Mr. Dalluge's legal
defenses to the Dillenburg hearing were without merit. It also stated:
The court concludes, on the parties' stipulation, that application of the legal standards for declination ofjuvenile court jurisdiction, had they been addressed prior to adult division proceedings in this case, would have resulted in declination.
CP at 160. It therefore ruled that ''the conviction in this case remains intact and no new
trial is ordered." Id. Mr. Dalluge filed, and the court denied, a motion for
reconsideration. Mr. Dalluge appeals.
ANALYSIS
Mr. Dalluge has accepted representation by counsel on appeaL His five
assignments of error are variations on arguments that the trial court erred by accepting his
stipulation and by failing to make necessary and adequately supported findings, including
that declination ofjuvenile jurisdiction was in Mr. Dalluge's or the public's best interest.
As aptly summarized by the superior court:
A Dillenburg hearing is ordered when a matter has been prosecuted to conviction in Superior Court without a legally-required declination hearing in juvenile court. The hearing is intended to answer this question: if the court had conducted a declination hearing before the adult court prosecution, applying the factors identified in Kent v. United States, would the juvenile court have declined jurisdiction? If the answer is "yes," the adult court conviction stands; if "no," the conviction is vacated and a new trial ordered.
CP at 158 (emphasis omitted) (citation omitted). The State was required to show that
declination would have been appropriate in 1998 by a preponderance of the evidence. Cf
State v. HD., 119 Wn. App. 549, 551, 81 P.3d 883 (2003) (decision to decline
jurisdiction over a juvenile charged with a crime is subject to preponderance standard).
This court reviews a decision to decline jurisdiction for abuse of discretion. Id. at 556.
Failure to Consider Kent Factors
Mr. Dalluge contends that the court abused its discretion when it failed to
independently consider the Kent factors despite his request to waive them and his
ultimate stipulation that they would have supported declination. In response, the State
J I1,
1 1 No. 32063-4-111 State v. Dalluge
argues that Mr. Dalluge is bound by his stipulation and alternatively that if error
occurred, Mr. Dalluge invited it.
Mr. Dalluge cites no case law holding that a competent adult-and Mr. Dalluge
was 33 years old at the time of the Dillenburg hearing-cannot stipulate to facts at such a
hearing. He relies instead on cases holding that juveniles cannot waive a decline hearing
and that the juvenile court must independently consider the Kent factors in deciding
whether declination is in the best interest of the juvenile or the public. The questions
addressed at a timely decline hearing for a juvenile and a Dillenburg hearing, often
involving an adult, are similar but not identical. A decline hearing is conducted in
accordance with statute while a Dillenburg hearing is conducted as prescribed by the
Dillenburg decision. The ramifications of the two proceedings are vastly different.
As explained by our Supreme Court in State v. Saenz, 175 Wn.2d 167, 174,283
P.3d 1094 (2012), when ajuvenile facing criminal prosecution waives juvenile court
jurisdiction
he or she also waives the increased protections of the juvenile justice system, exiting a system designed to rehabilitate and entering a system designed to punish. This exit is a one-way street with no return: by waiving juvenile jurisdiction once, the juvenile enters the adult system permanently, forfeiting the right to be tried in juvenile court for all future offenses. RCW 13.40.020(14); State v. Sharon, 100 Wn.2d 230,231,668 P.2d 584 (1983). Thus, moving a case from juvenile court to adult court is "a 'critically important' action determining vitally important statutory rights of the juvenile." Kent, 383 U.S. at 556, (citing Black v. United States, 122 U.S. App. D.C. 393, 355 F.2d 104, 105 (1965)).
By contrast, an adult being provided retroactive relief through a Dillenburg
hearing has already been prosecuted in adult court. The adult is making a motion for
relief. He or she faces at best, the vacating of the conviction and a new trial (in adult
court), and at worst, that the conviction will stand. Where an adult can choose whether or
not to even request a Dillenburg hearing, we see no reason why he or she cannot
knowingly and voluntarily stipulate to facts for reasons like those Mr. Dalluge identified:
to "save judicial resources and expedite the proceedings." RP at 68-69.
Even in a criminal trial, a defendant's stipulation to facts--even to elements of a
crime---{}o not need to be accompanied by a colloquy on the record between the
defendant and the trial court. State v. Humphries, 181 Wn.2d 708, 715, 336 P.3d 1121
(2014). "[R]equiring trial courts to question defendants personally as to the voluntariness
of every stipulation would 'needlessly delay and confuse the conduct of a typical triaL'"
Id. (quoting Us. v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980)). Instead, when a
stipulation is agreed to by a defendant's attorney in the presence of the defendant, the
trial court may presume that the defendant consents, unless the defendant objects at the
time the stipulation is made.
Here, of course, Mr. Dalluge personally agreed to the stipulation. He did so after
the benefit of a colloquy with the trial court. He does not raise any challenge on appeal
to his knowing, voluntary, and intelligent decision to represent himself.
The invited error doctrine would provide another basis for affinning the superior
court notwithstanding its acceptance of Mr. Da1luge's stipulation, even if it were error.
The doctrine is applicable when a party '" takes affinnative and voluntary action that
induces the trial court to take an action that party later challenges on appeaL'" Hymas v.
UAP Distrib., Inc., 167 Wn. App. 136, 148,272 P.3d 889 (2012) (quoting Lavigne v.
Chase, Haskell, Hayes & Kalamon, PS, 112 Wn. App. 677, 681, 50 P.3d 306 (2002)). It
was Mr. Dalluge who asked, and persisted in his request, not to address the Kent factors.
Because we fmd no error, however, we need not address invited error further.
Failure to Enter Findings
Mr. Dalluge also assigns error to the trial court's failure to enter a written finding
that transfer to adult court was in the best interest of the juvenile or the public, which he
contends was required by RCW 13.40.110(4). He argues that "[a] transfer ofjuvenile
jurisdiction to adult court is not valid until the juvenile court has fulfilled its solemn
responsibility to independently detennine that a decline ofjurisdiction is in the best
interest of the juvenile or the public and entered written fmdings to that effect before
transferring the case." Saenz, 175 Wn.2d at 179.
Here, however, the superior court was not going to be transferring jurisdiction of
Mr. Dalluge's charges to adult court. It was not conducting a decline hearing under
RCW 13.40.110. It was conducting a different sort of hearing, required by court order
and to be conducted in accordance with the procedure prescribed by Dillenburg. The
Dillenburg procedure is not identical to a decline hearing. While the statutes providing
for decline hearings inform the court's task, the Dillenburg decision requires different
fmdings and a different result.
Dillenburg requires "a de novo hearing before the superior court as to the
propriety of the challenged transfer, i.e., whether the facts before the juvenile 'session' of
the superior court in the ftrst instance warranted and justifted the transfer for criminal
prosecution." Dillenburg, 70 Wn.2d at 355. At the conclusion of the hearing, Dillenburg
requires only that the court "make ftndings of fact and conclusions of law relative to any
relevant and disputed issue between the prosecuting offtcials and the convicted person."
ld. "In the event it be determined, as a result of such hearing, that the initiating juvenile
court transfer for criminal prosecution was appropriate under all of the circumstances,
then the challenged conviction will stand unless intervening events have so prejudiced the
constitutional rights ofthe convicted person as to compel a different result." ld.
These are the requirements of Dillenburg, and the superior court's decision
satisfted them. The court concluded, based on the parties' stipulation, that the facts
would have warranted and justifted the transfer for criminal prosecution. It was not
required to make ftndings or conclusions on relevant and disputed issues other than the
parties' legal disputes, because there were no others. It ruled that the conviction would
stand. There were no ftndings or conclusions required of a Dillenburg hearing that the
court failed to make.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Dalluge argues that he is
unable to raise any meritorious issues for the court to review because he was not provided
adequate access to the prison's law library. The State responds that it is unable to
ascertain the nature or occurrence of any error and is unable to adequately respond. We,
too, are unable to consider a matter as to which evidence is outside the record. See State
v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). A personal restraint petition
is the appropriate vehicle for bringing such a matter before the court.
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.
Si~~1 (J WE CONCUR:
Brown, J.