FILED MARCH 16, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 38324-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) D.G.A.,† ) ) Appellant. )
LAWRENCE-BERREY, J. — D.G.A. appeals a juvenile court disposition order more
than 20 years after it was entered. We grant the State’s motion to modify the
commissioner’s ruling of September 24, 2021, and dismiss this appeal.
† To protect the privacy interests of D.G.A., we use his initials throughout this opinion. Gen. Ord. for Ct. of Appeals, In re Changes to Case Title (Wash. Ct. App. Aug. 22, 2018) (effective September 1, 2018), http://www.courts.wa.gov/appellate_trial_courts. No. 38324-5-III State v. D.G.A.
FACTS
On March 3, 2000, D.G.A., then a juvenile, was charged with possession of stolen
property in the first degree, a class B felony, and trafficking in stolen property in the
second degree, a class C felony. He pleaded guilty to trafficking in stolen property on
May 16, 2000, and the second charge was dismissed.
D.G.A.’s plea of guilty acknowledged that he is giving up the right to appeal a
finding of guilt after trial. It also stated that if the court sentenced him within the
standard range, “no one can appeal the sentence.” Clerk’s Papers (CP) at 63. The court
accepted D.G.A.’s plea of guilty and found that it was “knowingly, intelligently, and
voluntarily made.” CP at 68.
In its order of disposition, the court did not order any detention, community
supervision, community service, or a fine. It ordered a $100 assessment to be converted
to 15 hours of community service and required D.G.A. to pay $799.66 in restitution.
On July 15, 2021, D.G.A. filed a notice of appeal, more than 20 years after his
adjudication. By clerk’s letter, we notified the parties of this court’s motion to dismiss
for failure to timely file the notice of appeal. Letter from Tristen Worthen, Clerk of
Court, Wash. Ct. of Appeals Div. III, State v. D.G.A., No. 38324-5-III (Wash. Ct. App.
Aug. 6, 2021). The letter set the matter for consideration on our commissioner’s docket
2 No. 38324-5-III State v. D.G.A.
and invited D.G.A. and the State to file memoranda. Neither party filed a memorandum
or otherwise responded.
Our commissioner reviewed the record before it, which was limited to D.G.A.’s
notice of appeal, order of indigency, order of disposition, and an order authorizing
D.G.A.’s transport to juvenile court on March 20, 2000. The commissioner’s ruling
concluded the State had not met its burden to show that D.G.A. knowingly, intelligently,
and voluntarily waived his constitutional right to appeal and therefore extraordinary
circumstances existed under RAP 18.8(b) to support extending the period for filing the
notice of appeal. Comm’r’s Ruling, State v. D.G.A., No. 38324-5-III (Wash. Ct. App.
Sept. 24, 2021); see Notice of Appeal to Ct. of Appeals Div. Three, State v. D.G.A.,
No. 38324-5-III (Wash. Ct. App. July 15, 2021);. The State moved to modify the
commissioner’s ruling, and we deferred the decision to a panel to be determined at the
time set for a determination of the case on the merits. Ord. on Mot. to Modify Comm’r’s
Ruling, State v. D.G.A., No. 38324-5-III (Wash. Ct. App. Dec. 16, 2021).
ANALYSIS
In its motion to modify, the State argues the commissioner erred by granting
D.G.A. an extension of time to file this appeal. Based on our present record, which was
3 No. 38324-5-III State v. D.G.A.
not available to our commissioner, we agree. For the reasons explained below, we grant
the State’s motion to modify and dismiss this appeal as untimely.
Our state constitution guarantees a criminal defendant the right to appeal in all
cases. WASH. CONST., art. I, § 22. Even a defendant who pleads guilty retains a limited
right to appeal. State v. Cross, 156 Wn.2d 580, 621, 132 P.3d 80 (2006), abrogated on
other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). A defendant can
waive the right to appeal, but the State must prove the waiver was knowing, intelligent,
and voluntary. State v. Sweet, 90 Wn.2d 282, 286, 581 P.2d 579 (1978). “[A]n
involuntary forfeiture of the right to a criminal appeal is never valid.” State v. Kells,
134 Wn.2d 309, 313, 949 P.2d 818 (1998). A criminal appeal may not be dismissed as
untimely unless the State demonstrates that the defendant knowingly, intelligently, and
voluntarily abandoned their appeal right. Id. A hearing may be necessary to determine
whether a defendant effectively waived their right to appeal. Id. at 315; State v. Tomal,
133 Wn.2d 985, 991, 948 P.2d 833 (1997).
A voluntary guilty plea, however, acts as a waiver of the right to appeal. State v.
Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). “When a defendant completes a plea
statement and admits to reading, understanding, and signing it, this creates a strong
4 No. 38324-5-III State v. D.G.A.
presumption that the plea is voluntary.” Id. This presumption can be rebutted by
evidence the plea was not knowing, intelligent, and voluntary. Id.
As an initial matter, the State objects to our commissioner deciding the case based
on an issue not raised by the parties. The State relies on RAP 12.1. Subject to
RAP 12.1(b), the rule requires courts to decide cases on the basis of the issues briefed by
the parties. RAP 12.1(b) provides: “If the appellate court concludes that an issue which is
not set forth in the briefs should be considered to properly decide a case, the court may
notify the parties and give them an opportunity to present written argument on the issue
raised by the court.” By its clear terms, the rule applies to cases, not motions.
Nevertheless, as explained below, there are reasons to incorporate the procedure outlined
in RAP 12.1(b) when deciding whether to dismiss a criminal appeal for untimeliness.
“Sweet establishes that the State has the burden to demonstrate a defendant
understood his right to appeal and consciously gave up that right before a notice of appeal
may be dismissed as untimely.” Kells, 134 Wn.2d at 314 (citing Sweet, 90 Wn.2d at 287).
Thus, when deciding a court’s motion to dismiss for untimeliness, the commissioner must
review the record to ensure the defendant understood and consciously abandoned their
right of appeal. Because the appellate record was undeveloped at the time the
commissioner is called on to make a ruling, it would be a good practice for the clerk’s
5 No. 38324-5-III State v. D.G.A.
letter to direct counsel to brief the issue. The letter should set a briefing schedule and
expressly remind the parties that under Kells, the State has the burden to demonstrate the
defendant effectively waived their right to appeal and, absent an affirmative showing, the
commissioner may be compelled to sua sponte extend time under RAP 18.8(b) to file the
appeal. In this manner, either party can incorporate portions of the trial court record in
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FILED MARCH 16, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 38324-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) D.G.A.,† ) ) Appellant. )
LAWRENCE-BERREY, J. — D.G.A. appeals a juvenile court disposition order more
than 20 years after it was entered. We grant the State’s motion to modify the
commissioner’s ruling of September 24, 2021, and dismiss this appeal.
† To protect the privacy interests of D.G.A., we use his initials throughout this opinion. Gen. Ord. for Ct. of Appeals, In re Changes to Case Title (Wash. Ct. App. Aug. 22, 2018) (effective September 1, 2018), http://www.courts.wa.gov/appellate_trial_courts. No. 38324-5-III State v. D.G.A.
FACTS
On March 3, 2000, D.G.A., then a juvenile, was charged with possession of stolen
property in the first degree, a class B felony, and trafficking in stolen property in the
second degree, a class C felony. He pleaded guilty to trafficking in stolen property on
May 16, 2000, and the second charge was dismissed.
D.G.A.’s plea of guilty acknowledged that he is giving up the right to appeal a
finding of guilt after trial. It also stated that if the court sentenced him within the
standard range, “no one can appeal the sentence.” Clerk’s Papers (CP) at 63. The court
accepted D.G.A.’s plea of guilty and found that it was “knowingly, intelligently, and
voluntarily made.” CP at 68.
In its order of disposition, the court did not order any detention, community
supervision, community service, or a fine. It ordered a $100 assessment to be converted
to 15 hours of community service and required D.G.A. to pay $799.66 in restitution.
On July 15, 2021, D.G.A. filed a notice of appeal, more than 20 years after his
adjudication. By clerk’s letter, we notified the parties of this court’s motion to dismiss
for failure to timely file the notice of appeal. Letter from Tristen Worthen, Clerk of
Court, Wash. Ct. of Appeals Div. III, State v. D.G.A., No. 38324-5-III (Wash. Ct. App.
Aug. 6, 2021). The letter set the matter for consideration on our commissioner’s docket
2 No. 38324-5-III State v. D.G.A.
and invited D.G.A. and the State to file memoranda. Neither party filed a memorandum
or otherwise responded.
Our commissioner reviewed the record before it, which was limited to D.G.A.’s
notice of appeal, order of indigency, order of disposition, and an order authorizing
D.G.A.’s transport to juvenile court on March 20, 2000. The commissioner’s ruling
concluded the State had not met its burden to show that D.G.A. knowingly, intelligently,
and voluntarily waived his constitutional right to appeal and therefore extraordinary
circumstances existed under RAP 18.8(b) to support extending the period for filing the
notice of appeal. Comm’r’s Ruling, State v. D.G.A., No. 38324-5-III (Wash. Ct. App.
Sept. 24, 2021); see Notice of Appeal to Ct. of Appeals Div. Three, State v. D.G.A.,
No. 38324-5-III (Wash. Ct. App. July 15, 2021);. The State moved to modify the
commissioner’s ruling, and we deferred the decision to a panel to be determined at the
time set for a determination of the case on the merits. Ord. on Mot. to Modify Comm’r’s
Ruling, State v. D.G.A., No. 38324-5-III (Wash. Ct. App. Dec. 16, 2021).
ANALYSIS
In its motion to modify, the State argues the commissioner erred by granting
D.G.A. an extension of time to file this appeal. Based on our present record, which was
3 No. 38324-5-III State v. D.G.A.
not available to our commissioner, we agree. For the reasons explained below, we grant
the State’s motion to modify and dismiss this appeal as untimely.
Our state constitution guarantees a criminal defendant the right to appeal in all
cases. WASH. CONST., art. I, § 22. Even a defendant who pleads guilty retains a limited
right to appeal. State v. Cross, 156 Wn.2d 580, 621, 132 P.3d 80 (2006), abrogated on
other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). A defendant can
waive the right to appeal, but the State must prove the waiver was knowing, intelligent,
and voluntary. State v. Sweet, 90 Wn.2d 282, 286, 581 P.2d 579 (1978). “[A]n
involuntary forfeiture of the right to a criminal appeal is never valid.” State v. Kells,
134 Wn.2d 309, 313, 949 P.2d 818 (1998). A criminal appeal may not be dismissed as
untimely unless the State demonstrates that the defendant knowingly, intelligently, and
voluntarily abandoned their appeal right. Id. A hearing may be necessary to determine
whether a defendant effectively waived their right to appeal. Id. at 315; State v. Tomal,
133 Wn.2d 985, 991, 948 P.2d 833 (1997).
A voluntary guilty plea, however, acts as a waiver of the right to appeal. State v.
Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). “When a defendant completes a plea
statement and admits to reading, understanding, and signing it, this creates a strong
4 No. 38324-5-III State v. D.G.A.
presumption that the plea is voluntary.” Id. This presumption can be rebutted by
evidence the plea was not knowing, intelligent, and voluntary. Id.
As an initial matter, the State objects to our commissioner deciding the case based
on an issue not raised by the parties. The State relies on RAP 12.1. Subject to
RAP 12.1(b), the rule requires courts to decide cases on the basis of the issues briefed by
the parties. RAP 12.1(b) provides: “If the appellate court concludes that an issue which is
not set forth in the briefs should be considered to properly decide a case, the court may
notify the parties and give them an opportunity to present written argument on the issue
raised by the court.” By its clear terms, the rule applies to cases, not motions.
Nevertheless, as explained below, there are reasons to incorporate the procedure outlined
in RAP 12.1(b) when deciding whether to dismiss a criminal appeal for untimeliness.
“Sweet establishes that the State has the burden to demonstrate a defendant
understood his right to appeal and consciously gave up that right before a notice of appeal
may be dismissed as untimely.” Kells, 134 Wn.2d at 314 (citing Sweet, 90 Wn.2d at 287).
Thus, when deciding a court’s motion to dismiss for untimeliness, the commissioner must
review the record to ensure the defendant understood and consciously abandoned their
right of appeal. Because the appellate record was undeveloped at the time the
commissioner is called on to make a ruling, it would be a good practice for the clerk’s
5 No. 38324-5-III State v. D.G.A.
letter to direct counsel to brief the issue. The letter should set a briefing schedule and
expressly remind the parties that under Kells, the State has the burden to demonstrate the
defendant effectively waived their right to appeal and, absent an affirmative showing, the
commissioner may be compelled to sua sponte extend time under RAP 18.8(b) to file the
appeal. In this manner, either party can incorporate portions of the trial court record in
their response so the commissioner can better decide whether to dismiss the appeal or to
extend time pursuant to RAP 18.8(b).
Having addressed the State’s objection, we now address its motion to modify.
Although our record is imperfect, it is more complete than when our commissioner ruled
on the motion to dismiss. Due to the length of time that has passed since D.G.A.’s plea
and sentencing, there is no recording or transcript of the hearing. But there is a statement
on plea of guilty and, in that statement, the trial court found that D.G.A. entered into the
plea knowingly, intelligently, and voluntarily. This creates “a strong presumption” that
his plea was voluntary and that D.G.A. validly waived his right to appeal. Smith, 134
Wn.2d at 852.
D.G.A. provides nothing to rebut this presumption. He does not assert that he was
not advised of the consequences of his guilty plea or his limited right to appeal. Nor does
6 No. 38324-5-III State v. D.G.A.
the record establish any irregularity in the proceedings below that suggests D.G.A. was
not fully apprised of his rights before pleading guilty.
D.G.A.’s situation is much like that of the defendant in State v. Cater, 186 Wn.
App. 384, 345 P.3d 843 (2015). There, the defendant appealed an arson conviction 34
years after he had entered a guilty plea and had been sentenced to probation. Id. at 391.
He relied on the presumption he did not waive his right to appeal and on language in his
statement on plea of guilty, which he alleged misadvised him about his limited right to
appeal. Id. at 393. We denied his motion to extend time to file a notice of appeal,
reasoning that the
circumstances, including the presumption of a voluntary plea, the exceptionally favorable plea agreement, the unexplained 34-year delay in filing a notice of appeal, and [the defendant’s] complete failure to assert any facts suggesting he was unaware of his limited right to appeal, support the strong inference that he knowingly, intelligently, and voluntarily waived his limited right to appeal following a guilty plea.
Id. at 397. We noted that while the language in the statement on plea of guilty “was
potentially misleading,” without a declaration from the defendant or his original defense
attorney establishing the defendant was affirmatively misled, it was not appropriate to
hold an evidentiary hearing on whether the defendant knowingly, intelligently, and
voluntarily waived his right to appeal. Id. at 396-97.
7 No. 38324-5-III State v. D.G.A.
We find Cater persuasive and conclude that D.G.A. has failed to rebut the strong
presumption that his plea was knowing, intelligent, and voluntary. We thus grant the
State’s motion to modify and dismiss this appeal as untimely.
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.
_________________________________ Lawrence-Berrey, J.
WE CONCUR:
______________________________ _________________________________ Siddoway, C.J. Pennell, J.