Opinion
No. 21821-0-III
Filed: November 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 00-1-00449-5. Judgment or order under review. Date filed: 05/23/2000. Judge signing: Hon. Gregory D. Sypolt.
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, PO Box 20008, Spokane, WA 99204-0008.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
A timely notice of appeal must be filed within 30 days. RAP 5.2. James Gaut's notice of appeal of his conviction upon plea of guilty in 2000 is, then, untimely. He alleges no facts upon which an exception to this procedural rule could be based. And his challenge to the guilty plea proceedings is without merit. We therefore dismiss his appeal as untimely.
FACTS
Mr. Gaut pleaded guilty to sexual offenses against his children on April 11, 2000. He did not appeal the judgment and sentence which were entered on May 23, 2000. Several months later, Mr. Gaut filed a CrR 4.2(f) motion in the superior court to withdraw his guilty plea. He challenged the validity of the plea on three grounds: inadequacies in the presentence investigation report; some irregularity concerning the original Child Protective Services investigation; and prosecutorial pressure to rush the plea agreement. He did not, however, complain about the conduct of the plea hearing. The trial judge denied the motion. Mr. Gaut appealed that ruling. State v. Gaut, 111 Wn. App. 875, 46 P.3d 832 (2002) (Gaut I).
Mr. Gaut did not argue on appeal that the trial court abused its discretion in rejecting his grounds for withdrawing his plea. In fact, he did not mention those grounds or the CrR 4.2 hearing. Instead Mr. Gaut directly attacked the underlying judgment, contending for the first time that the colloquy between him and the judge at the plea hearing was defective. Gaut I, 111 Wn. App. at 878-79.
We agreed with the State's characterization of that appeal. It was an attempt to avoid the 30-day limit for filing a direct appeal. We published an opinion in which we noted that no error was assigned to the order appealed from (the CrR 4.2 ruling) and dismissed the appeal. Gaut I, 111 Wn. App. at 882. Mr. Gaut did not seek further review of Gaut I, and the case was mandated, terminating review.
Mr. Gaut then returned to the superior court with a petition for relief from judgment under CrR 7.8(b)(3), which permits relief from a judgment procured by fraud. He charged his lawyer with fraud for failing to seek direct review of the judgment on plea of guilty within 30 days. The superior court transferred this pleading to this court to be treated as a personal restraint petition (PRP). See CrR 7.8(c)(2). Our chief judge dismissed the PRP as untimely.
Mr. Gaut, acting pro se, petitioned the Supreme Court for discretionary review of the order dismissing the PRP. The Supreme Court denied review in a commissioner's ruling affirming that the PRP was properly dismissed. The commissioner acknowledged that the issue of the right to file an untimely direct appeal was not before the court. But the commissioner nevertheless went on to speculate that a direct appeal might not be foreclosed if Mr. Gaut were to allege lawyer neglect and if the State could not prove a voluntary waiver of the right to direct appeal. State v. Gaut, No. 73156-0, Ruling Denying Review at 2-3 (Wash. Dec. 11, 2002). A certificate of finality was filed on the PRP.
DISCUSSION
Mr. Gaut seized upon the Supreme Court commissioner's obiter dictum and filed notice of appeal of his judgment and sentence, citing the commissioner's ruling as authority. But in neither appellate counsel's brief nor Mr. Gaut's statement of additional grounds for review is lawyer neglect or fraud mentioned. Mr. Gaut does not allege that his waiver of a timely direct appeal was involuntary. His arguments, instead, go straight to the merits of his nonjurisdictional, nonconstitutional, and thus, in our judgment, nonreviewable challenges to the judgment. He alleges technical defects in the conduct of the plea hearing. But he claims no actual substantial prejudice. This court twice moved to dismiss this purported appeal on its own motion. And our commissioner has denied both motions. Mr. Gaut's assignments of error dictate our analysis and holding here. He claims that at his plea hearing he did not plead guilty, and that the court erred in entering a judgment absent his knowing, intelligent, and voluntary guilty plea. Appellant's Br. at 1.
Obiter dictum is any judicial pronouncement that is or could be qualified by the commissioner's words at page 3 of his ruling: 'But that issue is not before me.' Ruling Denying Review at 3. Dictum has no legal effect and should be disregarded. Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 977 P.2d 570 (1999).
A notice of appeal must be filed within 30 days of the entry of judgment. RAP 5.2(a). We may lengthen the time for filing a notice of appeal, either on our own motion, or upon the motion of a party. RAP 18.8(a). We will do so only in extraordinary circumstances to prevent a gross miscarriage of justice. RAP 18.8(b).
The judgment appealed from here was entered on May 23, 2000. Mr. Gaut filed his notice of appeal on February 19, 2003. Neither this court nor Mr. Gaut moved to extend the time. His appeal is, therefore, untimely.
Mr. Gaut invokes State v. Kells in which the Court of Appeals dismissed as untimely an appeal filed 15 months after the judgment. State v. Kells, 134 Wn.2d 309, 949 P.2d 818 (1998). The Supreme Court remanded for a hearing to determine whether the right to appeal had been voluntarily and intelligently waived. Id. at 315. Relying on Kells, our commissioner denied this court's motion to dismiss Mr. Gaut's untimely appeal.
Kells is distinguishable, however. The juvenile defendant in that case was prosecuted as an adult for second degree murder and pleaded guilty in the superior court after the juvenile court declined jurisdiction. Fifteen months later, he filed notice of appeal. Id. at 312. The untimely notice was supported by trial counsel's memorandum explaining that he had just discovered a case holding for the first time that an order declining juvenile jurisdiction is appealable even after a guilty plea. State v. Pritchard, 79 Wn. App. 14, 17, 900 P.2d 560 (1995). Before Pritchard, the last word was the holding of In re Welfare of Lewis that a juvenile decline decision could be appealed only with the eventual conviction. In re Welfare of Lewis, 89 Wn.2d 113, 115, 569 P.2d 1158 (1977). This was generally taken to mean that the decline order was not appealable if the conviction was not appealable, for example, because of a guilty plea.
The parties in Kells did not argue Pritchard. The court therefore accepted, without deciding, the proposition that a juvenile decline order was appealable after a guilty plea. Kells, 134 Wn.2d at 313 n. 3. Whether Mr. Kells had voluntarily and intelligently waived his right to appeal was thus in question.
Here, by contrast, the basis for Mr. Gaut's most recent challenge to his conviction has been well-established law for at least 70 years. A conviction upon plea of guilty is appealable on an issue of due process in the manner of taking the plea. See, e.g., State v. Haddon, 179 Wash. 669, 671, 38 P.2d 227 (1934); State v. Rose, 42 Wn.2d 509, 514, 256 P.2d 493 (1953). Mr. Gaut does not claim that his own right to appeal was only lately discovered.
An even more compelling distinction is that the matter of Kells presented the court with a manifest injustice. At 15 months postjudgment, no other avenue of review was available to Mr. Kells. His lawyer had misapprehended an unsettled point of law. And so the grounds for appeal were not discovered until after RCW 10.73.090's one-year statute of limitations for obtaining collateral review had run.
Mr. Gaut, by contrast, has already taken advantage of the opportunity to challenge his conviction. He filed a timely motion to withdraw his plea under the manifest injustice provisions of CrR 4.2(f), albeit with no mention of any due process deficiency in the manner of taking his plea. Mr. Gaut cites to no case in which an untimely appeal has been accepted on grounds that could have been, but were not, raised in previous postconviction proceedings.
This court observed in Gaut I that Mr. Gaut's assignment of error to alleged defects in the plea hearing, on appeal of a CrR 4.2(f) hearing at which those issues were not raised, is analogous to multiple petitions for collateral relief. 'A motion to vacate a judgment is inherently a collateral action.' Gaut I, 111 Wn. App. at 881. Repeat petitions will not be accepted without good cause shown. RAP 16.4(d).
Here, Mr. Gaut seeks to attack the judgment on grounds extraneous to his guilt or innocence. The superior court heard a previous collateral attack, ruling on the merits of the claims presented at that time. The superior court decision was appealable as of right. An adequate available remedy has, therefore, been provided and pursued. No manifest injustice will result from dismissing Mr. Gaut's belated attempt to obtain review upon well-settled grounds that have been available from the outset and were not raised in a previous collateral action.
Even if the Supreme Court commissioner's comment were not dictum, it would still not require or permit expanding the rules in this case. The commissioner had in mind two cases in which untimely direct appeals were allowed. But neither is on point here.
In State v. Sweet, the defendant was convicted and did not perfect a direct appeal. State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978). He did, however, file a timely PRP alleging that ineffective assistance of counsel had deprived him of his constitutional right to a direct appeal. Id. at 284. Under the rules governing PRPs, the Court of Appeals transferred the matter to the trial court for an evidentiary hearing on the issue of lawyer negligence. See RAP 16.11(a); RAP 16.12. At that hearing, the defendant claimed he had instructed his retained counsel to file an appeal and believed an appeal was being filed. Instead, the lawyer withdrew without informing his then indigent client how to perfect an appeal pro se. Sweet, 90 Wn.2d at 284. Following bad advice from a jailer, Mr. Sweet missed the appeal deadline. Retained trial counsel testified at the hearing that the appeal was meritorious. Id. at 285. The Court of Appeals denied postconviction relief, based on the superior court's finding that Mr. Sweet received adequate appeal information, did not instruct his lawyer to file, and did not reasonably rely on the jailer. Id. at 285-86.
The Supreme Court reversed and reinstated Mr. Sweet's right to direct appeal. The issue before the court was whether to adopt a blanket rule that a defendant is presumed to have knowingly waived the right to appeal unless the defendant proves otherwise. Sweet holds that the burden is on the State to prove a knowing and intelligent waiver. Id. at 286. As with other constitutional rights, there exists no presumption in favor of waiver of the right to appeal. Id.
But Sweet is not helpful here. Unlike Mr. Gaut, Mr. Sweet alleged the lawyer misconduct in a timely petition for postconviction relief. A transfer to the trial court for additional fact finding was, therefore, possible under the RAPs. Mr. Gaut first raised his lawyer misconduct theory in an untimely PRP. Consequently, as distinct from the matter of Sweet, no evidentiary hearing has been held and no facts or argument have been adduced on the issue of whether Mr. Gaut waived his right to direct appeal.
In fact, no such hearing was ever sought, which brings us to the second distinction between the Sweet case and Mr. Gaut's. In Sweet, the defendant presented evidence in the form of sworn testimony by counsel that his appeal presented meritorious issues. Id. at 285. Mr. Gaut has not alleged facts to justify any fact-finding hearing.
The second case mentioned in the Supreme Court commissioner's ruling is State v. Tomal. There, the defendant was convicted in district court in 1989 of driving while under the influence. Two days later, he filed a timely appeal in the superior court. But he neither perfected nor prosecuted the appeal. In 1993, the State moved to dismiss. Defense counsel then filed a brief, and the State withdrew its motion. Four months later, the State again moved to dismiss because no transcript had been filed. State v. Tomal, 133 Wn.2d 985, 987, 948 P.2d 833 (1997). The superior court held a hearing on the motion to dismiss. The court found that the cause of the delay was attorney error and that Mr. Tomal had not contributed to it. Accordingly, the court refused to dismiss the appeal. The State appealed that ruling, arguing that the State's right to finality outweighed its obligation to prove waiver. The Court of Appeals agreed and dismissed the appeal. Id. at 987-88. The Supreme Court reinstated the appeal.
State v. Tomal, 133 Wn.2d 985, 948 P.2d 833 (1997).
Mr. Tomal's timely appeal was before the court together with a motion upon which the rules permit the superior court to conduct a fact-finding hearing. In both Tomal and Sweet, an evidentiary hearing was held in the superior court under the applicable appellate rules pursuant to a timely postconviction challenge (either a PRP or a direct appeal). That did not happen here.
Mr. Gaut next argues that the Division III commissioner's ruling denying this court's motion to dismiss became the law of the case because the State did not file a timely motion to modify. He contends, therefore, that dismissal is not an option available to the judges.
The RAP provides that a person aggrieved by a commissioner's ruling may obtain relief solely by a motion to modify. RAP 17.7. The court itself has an alternative remedy at hand. It simply sets the matter before a panel of judges and proceeds to adjudicate the case. The court's first order of business in every case is to determine that the matter is properly before it. Barnett v. Hicks, 119 Wn.2d 151, 154, 829 P.2d 1087 (1992). A commissioner's ruling denying a motion — any motion — does not divest the judges of the power to perform any action necessary to resolve a case. The notice of appeal is untimely. We therefore dismiss the appeal.
A majority of the panel has determined that 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.
SCHULTHEIS, J. and KURTZ, J., Concur.