Opinion
No. 54159-5-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Date first document (petition, etc) was filed in Court of Appeals: 04/27/2004.
Counsel for Petitioner(s), Joseph S. Brassy-Apodaca (Appearing Pro Se), #864086, Crowley County Correctional Facility, 6564 State Hwy 96, Olney Springs, CO 81062-8700.
Counsel for Respondent(s), Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Joseph Brassy-Apodaca was sentenced to 166 months of total confinement following his convictions by jury verdict of burglary in the first degree, robbery in the first degree, and possession of cocaine. No timely appeal was ever filed. Brassy-Apodaca now has filed this personal restraint petition seeking to enlarge the time for filing an appeal because his trial counsel failed to adequately advise him about his right of appeal. But based on the record before us, we are unable to determine whether Brassy-Apodaca should be granted an extension to file an otherwise untimely appeal. We accordingly remand for a reference hearing pursuant to RAP 16.11.
FACTS
A jury convicted Brassy-Apodaca of burglary in the first degree, robbery in the first degree, and possession of cocaine in King County Superior Court No. 03-1-05443-3 SEA. The jury also returned a special verdict that Brassy-Apodaca was armed with a firearm during the commission of the burglary and robbery. At sentencing on October 27, 2003, Brassy-Apodaca was sentenced within the standard range. No appeal was ever filed.
DECISION
Our state constitution grants an appeal as a matter of right. State v. Tomal, 133 Wn.2d 985, 988, 948 P.2d 833 (1997); In re Pers. Restraint of Frampton, 45 Wn. App. 554, 560, 726 P.2d 486 (1986). "[I]n criminal prosecutions all defendants have a constitutional right to appeal, and there can be no presumption in favor of waiver of a constitutional right." State v. Kells, 134 Wn.2d 309, 314, 949 P.2d 818 (1998). The State bears the burden of showing that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right of appeal. Tomal, 133 Wn.2d at 989. In other words, the State is required to "make some affirmative showing the Defendant understood his right to appeal and chose not to exercise it." Kells, 134 Wn.2d at 315. "It follows that if a defendant is deprived of his appeal because of ineffective assistance of counsel, then he or she has been denied due process of law." Frampton, 45 Wn. App. at 558 n. 3.
Brassy-Apodaca contends that his trial counsel failed to adequately consult with him about an appeal, and that such conduct entitles him to file an otherwise untimely appeal. According to Brassy-Apodaca, he Indicated to counsel that he wanted to appeal and his mother indicated to counsel that he wanted to pursue an appeal. . . . Petitioner was represented by counsel who did not inform him of the proper procedure to pursue his appeal.
Brassy-Apodaca argues that because he was misled and deceived by his attorney the time for filing his appeal should be enlarged.
When an appellant fails to timely perfect an appeal, the disposition of the case is governed by RAP 18.8(b). State v. Ashbaugh, 90 Wn.2d 432, 438, 583 P.2d 1206 (1978). That rules states:
The appellate court will only in extraordinary circumstances and to prevent a gross miscarriage of justice extend the time within which a party must file a notice of appeal, a notice for discretionary review, a motion for discretionary review of a decision of the Court of Appeals, a petition for review, or a motion for reconsideration. The appellate court will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section.
Despite this stringent standard, the strict application of that filing deadline must be balanced against a defendant's constitutional right to appeal. Kells, 134 Wn.2d at 314.
The gist of Brassy-Apodaca's argument is that his trial counsel effectively deprived him of his constitutional right to an appeal. An attorney who fails to timely comply with a client's request to file a notice of appeal is "professionally unreasonable." State v. Wicker, 105 Wn. App. 428, 431, 20 P.3d 1007 (2001). In such cases, prejudice is presumed. Wicker, 105 Wn. App. at 432-33.
[W]hen it is clear that a petitioner wished to pursue an appeal, but the appeal was either not timely perfected or was dismissed for failure to file an appellate brief, then the petitioner has suffered prejudice per se, and the appeal may be reinstated without a showing that the issues which could have been raised on appeal had a reasonable probability of success.
Frampton, 45 Wn. App. at 559 (emphasis added).
Brassy-Apodaca asserts defense counsel was deficient "by not consulting with [him] about his appeal process after sentencing, by not filing a notice of appeal when [Brassy-Apodaca's] family indicated to Counsel [Brassy-Apodaca's] desire to appeal, and by not being aware of and notifying [Brassy-Apodaca] about applicable deadlines." Based on the record before us, we are unable to determine whether Brassy-Apodaca knowingly, voluntarily, and intelligently relinquished the right to appeal his 2003 King County convictions for burglary, robbery, and simple possession. Therefore, the matter should be transferred to the superior court for a hearing to determine whether Brassy-Apodaca's trial counsel consulted with Brassy-Apodaca about his constitutional right to appeal and, if so, whether that advisement was constitutionally sufficient. See RAP 16.11(b). The hearing should also address allegations that Brassy-Apodaca's trial counsel failed to file a notice of appeal as requested. The reference hearing shall be conducted in accordance with the procedures set forth in RAP 16.12. Pursuant to that rule, the superior court shall enter findings of fact regarding the critical issues of material fact. Then those findings should be forwarded to this court for a determination of whether Brassy-Apodaca's right to appeal should be reinstated. See State v. Pilon, 23 Wn. App. 609, 612, 596 P.2d 664 (1979) (holding that "[t]he appellate court has exclusive jurisdiction to permit filing of an untimely notice of appeal."); 3 Karl B. Tegland, Washington Practice: Rules Practice RAP 18.8 author's cmts. at 447 (6th ed. 2004) ("The motion to extend time is determined by the appellate court to which the untimely notice, motion, or petition is directed.").
The personal restraint petition is remanded to King County Superior Court for a reference hearing, to be held within 60 days of the date of this order, on the material issues of fact set forth above; if the superior court determines that additional time is needed to prepare for the hearing, it may grant the parties additional time, but this court should be advised of any delay.
ELLINGTON, A.C.J., APPELWICK, J., COX, C.J.