Opinion
No. 54159-5-I
Filed: May 31, 2005 UNPUBLISHED OPINION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 Unit 8-F-15, Wa State Penitentiary, 1313 N. 13th, Walla Walla, WA 99362.
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 convicted by jury verdict of burglary in the first degree, robbery in the first degree, and possession of cocaine. 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 to 166 months of total confinement. No appeal was ever filed. Brassy-Apodaca now has filed this personal restraint petition contending his trial counsel failed to adequately advise him about his right to appeal. Based on the record before us, we agree that the State failed to show Brassy-Apodaca voluntarily, knowingly, and intelligently waived his right of appeal. We accordingly grant the petition and reinstate Brassy-Apodaca's right to appeal his convictions.
Brassy-Apodaca contends that his constitutional rights were violated when defense counsel failed to adequately consult with him about an appeal. 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 file a notice of appeal from Brassy-Apodaca's conviction as he requested, and that such conduct effectively deprived him of his constitutional right to an appeal. The State sought a reference hearing pursuant to RAP 16.11 and 16.12, asserting that the evidence submitted did not clearly establish that trial counsel disregarded specific instructions to file a notice of 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).
Upon reviewing the facts asserted by the respective parties in this case, our court transferred the matter for a reference hearing to resolve the disputed issues of whether Brassy-Apodaca's trial counsel, Mr. Terry, consulted with Brassy-Apodaca about his constitutional right to appeal, and whether trial counsel failed to file a notice of appeal as requested. Following the reference hearing, the Superior Court entered written findings of fact as required by RAP 16.12. The court specifically found as follows:
Prior to sentencing, discussion between the defendant and Mr. Terry was focused on the issue of concurrent versus consecutive sentences. Any conversation about an appeal was likely very general.
At sentencing, the defendant was given a written copy of his full rights on appeal, which he signed. He was verbally advised of his appeal rights by the sentencing judge. Mr. Terry advised the defendant that he had to file an appeal within thirty days but did not discuss with him that failure to do so would result in an `irrevocable waiver' of that right.
Mr. Terry testified to only one substantive comment to the defendant about an appeal — that he had a right to appeal on the issue of ineffective assistance of counsel, which he tells every client. This lends credence to the family's testimony that Mr. Terry seemed concerned only with his job performance, to the exclusion of other issues that might be appealed.
There was no contact directly between the defendant and Mr. Terry after sentencing until the defendant wrote him a letter the following February, although Mr. Terry did have phone contact with the mother within a few days after sentencing. In that phone call there was minimal discussion of the appeal process, including the fact that the mother would have difficulty paying the costs of an appeal. There may have been reference to the possibility of using a public defender for the appeal in that conversation.
Mr. Terry's response letter of February 11 begins his comments about the appeal issue with a statement that he is `certainly not upset or concerned about your exercising your right to an appeal.' He follows that statement with a reminder to the defendant that it is important to consider the `cost associated with an appeal.' Although he reassures the defendant in the next paragraph that he is `more than for' an appellate attorney winning on appeal, the tone of the statements suggests that Mr. Terry would take an appeal personally. This corroborates the family's testimony that Mr. Terry either did not discuss or discouraged the appeal process.
Given what every witness said about the defendant wanting to contest the charges, Mr. Terry's claim that the defendant never said anything to him about wanting to file an appeal after the conviction is not credible. That is possible only if Mr. Terry did not make himself accessible to the defendant once the sentencing had been accomplished.
Mr. Terry did not regard himself as an appellate attorney and did not see any issues which were meritorious for appeal. The testimony from the family that Mr. Terry instead encouraged the defendant to just `do his time' is credible.
Given these findings, we conclude Brassy-Apodaca did not knowingly, voluntarily, and intelligently relinquish his right to appeal the convictions for burglary, robbery, and possession of cocaine. See Frampton, 45 Wn. App. at 559; see also Tomal, 133 Wn.2d at 990 (more than attorney's inaction is required to show defendant waived right to appeal).
The personal restraint petition is granted, and Brassy-Apodaca's right to appeal is reinstated. Brassy-Apodaca will be afforded 30 days from the date this opinion is filed to pursue his appeal.
COLEMAN, ELLINGTON and APPELWICK, JJ., concur.