Opinion
No. 52129-2-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No. 90-1-00351-4. Judgment or order under review. Date filed: 12/21/1990. Judge signing: Hon. James H Allendoerfer.
Counsel for Appellant(s), Kenneth Evan Kanev, Attorney at Law, 1001 4th Ave Ste 2120, Seattle, WA 98154-1106.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 So. 3rd St. Mount Vernon, WA 98273-3867.
Miguel Mendoza asks us to review a recent superior court order denying his request to extend the time for filing a notice of appeal of his conviction for possession of cocaine, which was entered upon his plea of guilty in 1990. That ruling, however, is not subject to either direct or discretionary review under our rules, because this court has exclusive jurisdiction over extensions of time for filing appeals. Given the peculiar facts and circumstances of this case, however, we have elected to treat the proceedings as if properly brought before us. We conclude Mendoza should not be granted an extension of time permitting appeal of his 1990 conviction, and dismiss.
FACTS
In 1990, Mendoza was arrested after he and others were apprehended inside a residence in Skagit County where an undercover police officer had arranged to purchase a kilogram of cocaine for $22,500. Mendoza's brother was apparently a principal in the transaction, and Mendoza was identified as a lookout. In addition to the kilogram sold to the officer, police recovered over $22,000 in cash, and found three kilograms of cocaine in the residence.
Mendoza was initially charged with one count of delivery of cocaine and one count of conspiracy to deliver cocaine. Extensive plea negotiations followed. According to Mendoza's description in the proceedings below, the prosecutor made two plea offers (36 months, and then within the range of 20 to 27 months), both of which Mendoza rejected. Ultimately, Mendoza entered an Alford plea to one count of possession of cocaine, in exchange for the State's agreement to dismiss the conspiracy count, reduce the delivery count to simple possession, and to "recommend to Immigration Naturalization Service that they take no action regarding this offense." The sentencing range for one count of possession was 0 to 90 days. In exchange for the plea, Mendoza agreed to join the prosecutor in recommending an exceptional sentence upward of 12 months and 1 day.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Clerk's Papers at 21.
At the plea hearing, Mendoza indicated that he understood the ramifications of the joint sentencing recommendation. The court accepted the plea, finding it to be made knowingly, voluntarily, and intelligently. At sentencing, the court accepted the parties' joint recommendation and imposed an exceptional sentence of 12 months and 1 day. The judgment and sentence was filed on December 21, 1990. No timely appeal was ever filed. In the latter part of 2001, Mendoza was arrested for driving while intoxicated. This apparently triggered the interest of the Immigration and Naturalization Services (INS) and ultimately resulted in an order of deportation based upon the possession conviction.
On January 21, 2003, more than 12 years after being sentenced, Mendoza filed a "Motion for Order Authorizing Late Filing of Notice of Appeal to Court of Appeals" in Skagit County Superior Court. Following a hearing, at which Mendoza testified, the court denied the motion and entered written findings of fact and conclusions of law. Mendoza filed this appeal, and moved for accelerated disposition and to "consolidate appeal on the merits." The State resisted both requests and argued we should address only the extension of time, but did not argue that the order denying the motion for extension of time was not appealable. A commissioner of this court ordered briefing on all issues on an accelerated schedule.
DECISION
Mendoza contends the superior court improperly denied him an extension of time to appeal his 1990 conviction, and assigns error to several of the court's findings and conclusions. He argues that if the findings and conclusions were erroneous, we must "reinstate [his] right to appeal." When an appellant fails to timely perfect an appeal, disposition of the case is governed by RAP 18.8(b). That rules states:
Appellant's Opening Brief at 16.
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.
Mendoza and the State have both apparently overlooked the fact that the superior court could not possibly have granted Mendoza's motion, because we have exclusive jurisdiction:
[I]n the event that a notice of appeal is not filed within 30 days, as required by RAP 5.2(a), the superior court lacks jurisdiction to determine whether a party may appeal under RAP 18.8(b). The appellate court has exclusive jurisdiction to permit filing of an untimely notice of appeal.
State v. Pilon, 23 Wn. App. 609, 612, 596 P.2d 664 (1979).
The superior court lacked jurisdiction to grant Mendoza's motion. Under these circumstances, the superior court's order does not meet the criteria for either direct or discretionary review under RAP 2.2(a) and RAP 2.3(b). Because of the odd procedural history of this case, however, and the fundamental rights at stake, we have independently considered whether Mendoza should be granted an extension, and will consider the superior court's findings as though entered after a reference hearing.
As indicated above, an extension of time to appeal is granted only in extraordinary circumstances and to prevent a miscarriage of justice.
RAP 18.8(b).
Mendoza contends that he did not knowingly waive his right to appeal the exceptional sentence, that no one advised him of his right to appeal, and that if properly advised, he would have appealed on the basis that he did not understand the terms of his plea. Specifically, he contends that he did not understand he was agreeing to a stipulated sentencing recommendation, and that the plea was involuntary because the record does not contain a factual basis for it.
Counsel has a constitutional duty to consult with the defendant about an appeal "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." In Roe v. Flores-Ortega, the court considered an ineffective assistance of counsel claim based on counsel's alleged failure to consult with his or her client about an appeal. The court held that to show prejudice in these circumstances, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed."
Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
Id.
Id. at 484.
Assuming Mendoza was not advised of his right to appeal, he fails to demonstrate a reasonable probability that, properly advised, he would have done so. First, the record of the plea hearing shows he understood he was agreeing to an exceptional sentence upward of 12 months and 1 day. Second, in the hearing on his motion for an order extending time, he testified that he agreed to the joint sentence recommendation of an exceptional sentence in exchange for the reduced charge and the State's intercession with INS. By agreeing to the exceptional sentence upward, Mendoza waived his right to appellate review of the sentence imposed.
In re Personal Restraint of Breedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999).
Mendoza argues, however, that while he agreed the prosecutor could recommend the exceptional sentence, he did not understand that the agreement prevented his own counsel from arguing for a sentence within the standard range. But at the hearing below, the court found Mendoza did understand that, and the evidence supports that finding. While there was some initial confusion at the plea hearing, the plea judge insisted upon clarification, and Mendoza twice indicated he understood his plea. Further, he made no objection to his counsel's statements at sentencing, and made no effort to challenge his sentence for the next 12 years. Mendoza's only other challenge to the plea is that the plea record does not establish a sufficient factual basis for a finding of guilt, rendering the plea involuntary. But this argument is grounded primarily on the procedural requirements of CrR 4.2, not upon constitutional principles, and is not an argument that can be raised for the first time on appeal. Further, while the plea record is sketchy, the record at the sentencing hearing reveals the court's familiarity with the facts and circumstances of the crime, apparently owing to the court's involvement in the cases of Mendoza's several codefendants; the sentencing record, particularly the findings supporting the exceptional sentence, establishes a clear basis for a finding of guilt. There is thus no showing of any miscarriage of justice to support an extension of time.
See CrR 4.2(d) ("The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."); see also In re Personal Restraint of Hilyard, 39 Wn. App. 723, 726-27, 695 P.2d 596 (1985) ("CrR 4.2 is not the embodiment of a constitutionally valid plea; strict adherence to the rule is `not a constitutionally mandated procedure.'") (quoting In re Vensel, 88 Wn.2d 552, 554, 564 P.2d 326 (1977)).
Nothing in the record suggests that Mendoza would have timely appealed if advised of his right to do so. He thus demonstrates no prejudice from any failure to advise him of his right to appeal. And because he does not identify any potentially meritorious issues, Mendoza does not establish that a gross miscarriage of justice would result if a 12-year extension is not granted. To the extent a miscarriage of justice may occur, it flows from federal immigration policies, not from Mendoza's 1990 plea. Our compassion is aroused, but Mendoza gives us no basis for abandoning the preference for finality of decisions in our courts.
The appeal is dismissed.
COX and BAKER, JJ., concur.