Opinion
No. 51294-3-I.
Filed: February 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-1-01272-9. Judgment or order under review. Date filed: 01/01/1800.
Counsel for Petitioner(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Steven A. Hill (Appearing Pro Se), #202022424, 500 5th Ave, Seattle, WA 98104.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Julie Dee Cook, Attorney at Law, W 554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Ann Marie Summers, King Co Pros Ofc, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104-5002.
On June 28, 1999, the superior court entered its judgment and sentence following Steven Hill's conviction of felony harassment, unlawful imprisonment, and fourth degree assault. Hill never filed a notice of appeal. Hill now seeks to enlarge the time for filing an appeal, contending that he was denied effective assistance of counsel because his trial counsel failed to file a notice of appeal as Hill requested. The record before us is inadequate to allow us to determine whether we should grant an extension. We accordingly remand for a reference hearing.
FACTS
Hill was convicted of felony harassment, unlawful imprisonment, and fourth degree assault in King County Superior Court. At sentencing on June 25, 1999, the trial court imposed standard range sentences of 22 months for the two felony convictions and a suspended sentence of 6 months' confinement and 24 months' probation for the misdemeanor assault conviction. No appeal was ever filed from the judgment and sentence entered on June 28, 1999.
After serving his sentence less credit for good behavior and good performance, Hill was released from total confinement in March 2000. The trial court issued a bench warrant for Hill's arrest on October 16, 2000 because Hill `ha[d] absconded from supervision, failed to report, an[d]/or otherwise violated the terms of his or her sentence imposed.' Hill was eventually apprehended. On October 3, 2001, the trial court ordered Hill to serve 60 days in jail after finding that he had violated several conditions of his probation and terminated any further supervision by the Department of Corrections.
In September 2002, Hill filed a `Motion and Declaration to Enlarge Time and to Direct Defense Counsel to Perfect and File an Appeal' in King County Superior Court. The matter was transferred to this court for consideration as a personal restraint petition.
DECISION
Hill asks us to grant his request to extend the time for filing a notice of appeal of his 1999 convictions. While the superior court transferred the matter to us for consideration as a personal restraint petition, we are not bound to that characterization. We treat the motion as one to enlarge the time for filing a notice of appeal in this court. 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 Lewis H. Orland Karl B. Tegland, Washington Practice: Rules Practice 18.8, at 606 (5th ed. 1998) (`The motion to extend time is determined by the appellate court to which the untimely notice, motion, or petition is directed.').
Neither Hill nor the State asserts that the motion should be treated as a personal restraint petition. The State properly concedes that the matter is not subject to either the limitations period of RCW 10.73.090 or other procedures dealing with collateral relief.
When an appellant fails to timely perfect an appeal, the disposition of the case is governed by RAP 18.8(b). That rules states in part:
State v. Ashbaugh, 90 Wn.2d 432, 438, 583 P.2d 1206 (1978).
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.
(Emphasis added.)
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.
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 Personal 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.
The gist of Hill's argument is that he was denied effective assistance of counsel. Hill contends that his trial counsel failed to file a notice of appeal from the judgment and sentence entered in this case as Hill requested, and that such conduct entitles him to file an otherwise untimely appeal. Hill argues that because he was misled and deceived by his attorney the time for filing his appeal should be enlarged. 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.
The State asserts that Hill waived his right to pursue an appeal pursuant to the `fugitive from justice doctrine.' Under that doctrine, criminal defendants who affirmatively avoid the court's jurisdiction waive the right to pursue or prosecute their appeal. State v. Ortiz, 113 Wn.2d 32, 33, 774 P.2d 1229 (1989).
In criminal cases the rule is well settled that where the defendant flees from the jurisdiction pending the appeal, he thereby waives his right to prosecute the appeal, unless within a time fixed he returns and surrenders himself into the custody of the proper officer or gives bail for his appearance.
State v. Mosley, 84 Wn.2d 608, 609, 528 P.2d 986 (1974).
The State fails to cite to any case where this doctrine has been applied to facts similar to those before us. Here the record reflects that Hill is no longer on abscond status and has in fact served his entire sentence. Perhaps more importantly, had an appeal actually been filed as Hill alleges he requested, the appeal would likely have been heard prior to the issuance of the bench warrant. While we do not condone Hill's failure to report and other probation violations, we decline to extend the fugitive from justice doctrine to this case . See State v. Schrader, 135 Wn. 650, 660, 238 P. 617 (1925) (refusing to dismiss appeal where defendant, who had either escaped or been discharged from state mental hospital, had returned to jurisdiction of State before sentence was pronounced and initial steps of appeal were taken).
The record before us is inadequate to determine whether Hill knowingly, voluntarily, and intelligently relinquished the right to appeal his 1999 King County convictions for felony harassment, unlawful imprisonment, and fourth degree assault. We agree with Hill that the matter must be remanded to the superior court for a hearing to explore and resolve the allegations contained in his declaration. The court shall conduct the hearing and enter its written findings on these material issues of fact. Thereafter, counsel shall promptly forward to this court copies of those written findings together with any and all transcripts of the hearing. This court shall then make a determination of whether or not Hill's pending motion for extension of time for filing notice of appeal should be granted, and issue its decision.
This matter is remanded to King County Superior Court for a reference hearing, to be held within 60 days of the date this opinion is filed, 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, provided the court or the parties shall advise this court of any delay and the reasons.