Opinion
No. 33225-6-II.
November 28, 2006.
Appeal from a judgment of the Superior Court for Clallam County, No. 95-1-00260-8, George L. Wood, J., entered April 1, 2005.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, Olympia, WA.
Manek R. Mistry, Backlund Mistry, Olympia, WA.
Counsel for Respondent(s), Carol L. Case, Clallam County Prosecutor's Office, Port Angeles, WA.
Affirmed in part and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
On April 1, 2005, the Clallam County Superior Court revoked Donald Ray Wollum, Jr.'s SSOSA sentence, which the court had imposed on Wollum's guilty pleas to two counts of second degree rape of a child. Wollum filed a notice of appeal from the revocation order but he actually attempts to appeal the validity of his 1995 guilty plea-based convictions. Wollum's 1995 judgment and sentence was final and appealable when filed in 1995, and the revocation of the suspended sentence imposed on that date does not revive Wollum's direct appeal rights regarding 1995 judgment and sentence. Accordingly, the issue of whether Wollum's 1995 pleas were valid is not properly before us.
Special Sex Offender Sentencing Alternative. Former RCW 9.94A.120(8) (1994) (presently RCW 9.94A.670).
We decline the State's invitation to consider this appeal as a personal restraint petition because Wollum did not bring this action as a collateral attack. In bringing his challenge as a direct appeal, he may not have relied on information outside the record to support his arguments or requested an evidentiary hearing regarding whether he waived his right to challenge the 1995 judgment and sentence; approaches he may have been entitled to use in a collateral attack.
Wollum also argues that the term of community placement stated in the revocation order should have been two rather than three years. Because the term of community placement required at the time Wollum committed his offenses was two rather than three years, Wollum is correct. He raises no other issues related to the revocation order. Accordingly, we affirm the revocation, but remand to the superior court to correct the community placement term to two years or up to the period of earned release, whichever is longer.
The State appears to have considered this argument to be part of Wollum's claim that he was not advised of the consequences of his plea, an issue we need not address because of our conclusion that the validity of the plea agreement is not properly before us. Although Wollum did raise the community placement issue in this way, he also argued that the two-year term of community placement itself was in error. The State did not address this issue.
FACTS
In 1995, Wollum pleaded guilty to two counts of second degree rape of a child. The trial court imposed a SSOSA sentence of 90-month concurrent sentences on each count, with all but 6 months suspended subject to numerous conditions. The trial court did not specify a term of community placement in the judgment and sentence.
After several failed attempts, the State successfully moved to revoke Wollum's SSOSA sentence on February 17, 2005. The trial court imposed the remainder of the suspended sentence and ordered that Wollum serve an additional 36-month term of community placement.
Wollum then filed a notice of appeal seeking review of "the trial court's Order Revoking Defendant's SSOSA Sentence entered on April 1, 2005." Clerk's Papers at 5. He did not designate the 1995 judgment and sentence in the notice of appeal and, prior to the revocation, he had not appealed the 1995 convictions or moved to withdraw the pleas. See RAP 5.2(a).
After filing his notice of appeal, Wollum moved to reverse the convictions for insufficient record, arguing that the record of the plea proceedings was insufficient to permit effective appellate review. A commissioner of this court denied Wollum's motion to reverse the convictions for insufficient record and instructed the parties that they could address the effect of the loss of the 1995 transcripts on the appeal in their briefing to this court. After the commissioner made his ruling, Wollum's counsel notified us that the court reporter responsible for the verbatim report of proceedings from the November 14, 1995, and December 15, 1995 hearings was "not able to locate any notes or materials that would allow her to produce a Verbatim Report of Proceedings" for those proceedings and that it would be unlikely any such records would be located. Cause No. 33225-6-II, Certificate of Counsel Re: Verbatim Report of Proceeings. Because we resolve this case on other grounds, we do not address the effect of the missing record here.
ANALYSIS Validity of Plea
Although Wollum designated the 2005 revocation order in his notice of appeal, other than challenging the term of community placement the revoking court imposed, he does not challenge the revocation. Instead, he attempts to appeal the validity of his 1995 guilty pleas.
Specifically, he argues that (1) he was not fully informed of the direct consequences of his plea, and (2) the record does not show that he understood the plea in light of his developmental disabilities.
Wollum contends that his direct appeal from his revocation proceedings encompasses the pleas underlying the 1995 judgment and sentence. But it is well established law that, absent a statute providing otherwise, a judgment and sentence pronouncing the sentence is a final appealable order at the time it is entered, regardless of whether the trial court suspends the execution of the sentence. State v. Liliopoulos, 165 Wash. 197, 5 P.2d 319 (1931) (rejecting State's argument that when a sentence was suspended there was no final judgment from which the defendant could appeal; a suspended sentence only suspends the execution of the sentence, not the judgment itself). As in Liliopoulos, the judgment and sentence here terminated the State's prosecution and pronounced sentence. Thus, it was a final determination of the rape charges, and Wollum was required to appeal his plea-based conviction within 30 days.
In a criminal proceeding, a final judgment "`ends the litigation, leaving nothing for the court to do but execute the judgment.'" In re Detention of Petersen, 138 Wn.2d 70, 88, 980 P.2d 1204 (1999) (quoting Anderson Middleton Lumber Co. v. Quinault Indian Nation, 79 Wn. App. 221, 225, 901 P.2d 1060 (1995), aff'd, 130 Wn.2d 862 (1996)); see also State v. Siglea, 196 Wash. 283, 285, 82 P.2d 583 (1938) ("As a prerequisite to an appeal in a criminal case, there must be a final judgment terminating the prosecution of the accused and disposing of all matters submitted to the court for its consideration and determination."); State v. Liliopoulos, 165 Wash. 197, 199, 5 P.2d 319 (1931).
Wollum appears to rely on State v. Kells, 134 Wn.2d 309, 313, 949 P.2d 818 (1998), to establish that this appeal "should encompass his conviction and original sentence, as well as the revocation and the imposition of his suspended sentence." Br. of Appellant at 4. In Kells, the defendant, who was 15 at the time of the offense, attempted to file an untimely notice of appeal of a declination order after he entered a plea of guilty and was sentenced in adult court. 134 Wn.2d at 312. He argued that the appellate court should consider this otherwise untimely appeal because he was unaware that he could appeal the declination order, even though he had pleaded guilty to the charge, until several months after he entered his guilty plea when an appellate court issued an opinion clarifying appealability of the declination order. Kells, 134 Wn.2d at 312. The Court of Appeals dismissed the appeal as untimely. Kells, 134 Wn.2d at 314. Our Supreme Court reversed, holding that the appeal should not have been dismissed without first determining whether the defendant voluntarily, knowingly, and intelligently waived his right to appeal. Kells, 134 Wn.2d at 315. The Supreme Court remanded the case for further proceedings regarding the validity of the order declining juvenile court jurisdiction. Kells, 134 Wn.2d at 315.
See State v. Pritchard, 79 Wn. App. 14, 900 P.2d 560 (1995), review granted in part, cause remanded by State v. Cobabe, 128 Wn.2d 1016 (1996).
But, unlike the defendant in Kells, Wollum does not challenge the jurisdiction of the sentencing court. Moreover, he did not designate the 1995 judgment and sentence or any other plea-related ruling or order in his notice of appeal. Accordingly, any issues related to his 1995 convictions are not properly before us unless Wollum can show that the 1995 judgment and sentence falls under RAP 2.4(c), which provides for review of "final judgments" not designated in the notice of appeal under specific circumstances.
Generally, we will review only "the decision or parts of the decision" the appellant designates in the notice of appeal, RAP 2.4(a), unless the challenged decision also falls under RAP 2.4(c). RAP 2.4(c) provides for review of "final judgments" not designated in the notice of appeal under specific circumstances:
Except as provided in rule 2.4(b), the appellate court will review a final judgment not designated in the notice only if the notice designates an order deciding a timely posttrial motion based on (1) CR 50(b) (judgment as a matter of law), (2) CR 52(b) (amendment of findings), (3) CR 59 (reconsideration, new trial, and amendment of judgments), (4) CrR 7.4 (arrest of judgment), or (5) CrR 7.6 (new trial).
(Emphasis added). None of the post-trial motions enumerated in RAP 2.4(c) apply here. Thus, we can reach Wollum's plea claim only if RAP 2.4(b) applies.
RAP 2.4(b) provides in part:
The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.
(Emphasis added). The trial court entered the judgment and sentence in 1995, well before Wollum appealed his revocation. Thus, we must determine whether the judgment and sentence "prejudicially affects" the revocation order. Because the Rules of Appellate Procedure do not define what amounts to prejudicial effect, we turn to the case law and policies underlying RAP 2.4 for guidance on this issue.
Wollum generally asserts that "but for" the acceptance of his pleas, which led to the imposition of the suspended SSOSA sentence and the conditions in the 1995 judgment and sentence, there would not have been a revocation proceeding. Although there are cases suggesting that if a later designated order could not have existed "but for" a prior undesignated order, the prior order "prejudicially affects" the designated order and the undesignated order is properly before the court under RAP 2.4(b). But these cases are distinguishable. Here, the 1995 judgment and sentence (1) is a final order resolving all issues; (2) does not involve factual determinations necessary to decide the revocation issue; and, most importantly, (3) it does not determine the trial court's authority or jurisdiction to decide the issues before it.
These cases fall into three categories: (1) appeal of a prior undesignated order or ruling that preceded the final judgment or order in the case, see Brown v. Dep't of Soc. Health Servs., 149 Wn.2d 836, 840 n. 2, 72 P.3d 757 (2003) (commenting that previous dependency finding would have been reviewable even if the dependency order had not been designated in the notice of appeal because the later dispositional order could not have been entered absent the dependency finding and the final dispositional order depended on the validity of the dependency finding); Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 46 P.3d 789 (2002) (allowing appeal of earlier undesignated denial of motion to dismiss and continuance of summary judgment motion); Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 133, 750 P.2d 1257, 756 P.2d 142 (1988) (allowing appeal of earlier undesignated order granting mistrial in first trial following verdict in second trial); see also Kemmer v. Keiski, 116 Wn. App. 924, 68 P.3d 1138 (2003) (although cases establish that a party need not immediately appeal all appealable orders made prior to final order in case, these same cases do not excuse a party from timely appealing from "a judgment that leaves nothing unresolved.") (citing Franz v. Lance, 119 Wn.2d 780, 836 P.2d 832 (1992); Wlasuik v. Whirlpool Corp., 76 Wn. App. 250, 259, 884 P.2d 13 (1994)); (2) appeal of a prior undesignated final order necessary to resolve factual issues raised in the later designated order, see Franz, 119 Wn.2d at 781-82 (review of undesignated underlying judgment proper when reviewing later designated CR 11 sanctions when the CR 11 order "must stand or fall based on the findings and conclusions the trial court entered in support of the . . . judgment."); Wlasuik, 76 Wn. App. at 259-61 (holding that under Franz the appellate court could review a judgment entered more than 30 days before notice of appeal was filed when the notice of appeal was filed within 30 days of order awarding attorney fees, but criticizing the expansive nature of Franz); and (3) appeal of a prior undesignated order or ruling establishing the trial court's authority or jurisdiction to enter the later designated order, see State v. Rosenbaum, 56 Wn. App. 407, 784 P.2d 166 (1989) (allowing review of undesignated order that extended jurisdiction of juvenile court, enabling it to impose the challenged restitution order). None of these circumstances exist in this case.
RAP 2.4(b) was adopted in 1976, to eliminate a trap for the unwary. Under prior rules, a failure to appeal an appealable order could prevent its review upon appeal from a final judgment. RAP 2.4(b) removed this trap, which required filing multiple notices of appeal and then moving to consolidate them, by "including prior appealable orders within the scope of review" of the final order. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 134, 750 P.2d 1257, 756 P.2d 142 (1988) (citations omitted); see also Fox v. Sunmaster Prod., Inc., 115 Wn.2d 498, 505, 798 P.2d 808 (1990). Although our Supreme Court may have expanded the scope of RAP 2.4(b) to include at least some post-judgment orders or rulings, see Wlasuik v. Whirlpool Corp., 76 Wn. App. 250, 259-61, 884 P.2d 13 (1994) (discussing Franz v. Lance, 119 Wn.2d 780, 836 P.2d 832 (1992)), the risk which RAP 2.4(b) was intended to address was that the parties may not always recognize an appealable order entered prior to a final judgment and inadvertently waive their right to challenge it in an otherwise timely appeal. The rule was also intended to potentially conserve judicial resources by allowing the case to go forward to determine whether the earlier appealable order would later become moot given the ultimate resolution of the case. See Fox, 115 Wn.2d at 505.
Here, however, the judgment and sentence was clearly appealable when the trial court entered it. Additionally, whether Wollum's plea was knowingly or intelligently made was clearly not moot once the judgment and sentence was issued.
We agree with our colleagues in Division One who noted in Wlasuik that to hold that any "but for" relationship between the designated and undesignated orders or rulings, no matter how superficial, is sufficient to establish the necessary prejudicial effect and allow for review, would greatly undermine the public's strong interest in the finality of criminal judgments. Wlasuik, 76 Wn. App. at 259-61. This is particularly true where, as here, the undesignated order is clearly a final order determining all the issues that were before the trial court, the order was issued nearly a decade before the designated order was entered, and the appellant's argument relates solely to matters that could have been raised in a timely direct appeal of the earlier final order. Such a broad interpretation of prejudicial effect would potentially allow a defendant to reopen issues that were believed to have been resolved long before the order actually at issue was entered without having to justify the delay.
Accordingly, we conclude that in order to establish the previous, non-designated judgment and sentence prejudicially affected the later revocation order designated in Wollum's notice of appeal, Wollum was required to show more than that had the judgment and sentence not existed it would not have been possible for the court to revoke the suspended sentence it imposed. Because he fails to show the necessary prejudice, RAP 2.4(b) does not apply and the judgment convicting him of child rape that was entered on his 1995 guilty pleas is not properly before us.
We note that if Wollum had designated the 1995 judgment and sentence in his notice of appeal and moved for permission to file an untimely appeal, he could have potentially established that he did not waive his right to appeal and the plea issue would have been properly before us. But Wollum did not designate the 1995 judgment and sentence or any other order or ruling related to the validity of his plea. Moreover, apart from presenting an absence of waiver argument in his brief, he never moved for permission to file a late appeal.
Community Placement
Wollum does raise one issue related to the revocation order appealed from. Although he does not challenge the revocation proceeding itself, he contends that the trial court erred by imposing community placement for a three-year term rather than the two-year term required at the time he committed the offenses. We agree that the law in effect at the time Wollum committed his offenses applies.
Wollum's 1995 judgment and sentence indicates that he committed count I between June 1 and June 30, 1995, and count II between December 1, 1994 and February 28, 1995. During those time periods former RCW 9.94A.120(8)(b) provided in relevant part:
When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense or serious violent offense committed on or after July 1, 1990, the court shall in addition to the other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned early release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.
Furthermore, at the time of the revocation hearing RCW 9.94A.700(2) provided in part that:
The court shall sentence the offender to a term of community placement of two years or up to the period of earned release awarded pursuant to RCW 9.94A.728, whichever is longer, for:
(a) An offense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, including those sex offenses also included in other offense categories.
The record does not establish that Wollum's period of earned release under RCW 9.94A.728 was 36 months. Thus, the trial court erred in imposing a three-year term of community placement and the revocation order is remanded for entry of the proper term of community placement. Because Wollum fails to raise any other issues related to the revocation, the revocation order is otherwise affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and PENOYAR, J., concur.