Opinion
No. 53063-1-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-01124-8. Judgment or order under review. Date filed: 07/18/2003. Judge signing: Hon. Kenneth Mark Comstock.
Counsel for Appellant(s), Eric D Noland (Appearing Pro Se), 9315 NE 118th Lane, #202, Kirkland, WA 98034.
Counsel for Respondent(s), Rhonda Giger, City of Bothell, 18410 101st Ave NE, Bothell, WA 98011-3455.
Eric Noland appeals a superior court order dismissing his appeal of a municipal court conviction for disorderly conduct. He contends that in light of State v. Tomal, 133 Wn.2d 985, 948 P.2d 833 (1997), the summary dismissal of his RALJ (Rules for Appeal of Decisions of Courts of Limited Jurisdiction) appeal was improper. Because there is no showing that Noland intended to waive his constitutional right to appeal, we reverse and remand for further proceedings.
FACTS
The City of Bothell cited Noland for disorderly conduct in October 2001. Noland was found not to be indigent and he represented himself at his trial in Bothell Municipal Court. A jury found him guilty. Noland initiated review by the superior court under the Rules for Appeal of Decisions of Courts of Limited Jurisdiction by filing a notice of appeal on May 14, 2002. Noland was granted a number of continuances to allow him to prepare an approved brief and transcribe the record of the municipal court proceedings. At some point, the City objected when Noland failed to transcribe all of the proceedings. Noland was ordered to deliver a `full' report of proceedings to the City no later than June 20, 2003. When Noland failed to meet that deadline, the RALJ court granted the City's motion to dismiss Noland's appeal for want of prosecution. A motion for reconsideration was denied. This court then granted discretionary review of the order dismissing Noland's RALJ appeal for want of prosecution.
DECISION
Noland contends that his appeal was dismissed in violation of his constitutional rights. RALJ 10.2(a)(2) authorizes the court to involuntarily dismiss an appeal `for want of prosecution if the party appealing has abandoned the appeal.' This rule, however, must be interpreted consistently with a criminal defendant's constitutional right to appeal. Our state constitution grants an appeal as a matter of right. Tomal, 133 Wn.2d at 988; In re Personal Restraint of Frampton, 45 Wn. App. 554, 560, 726 P.2d 846 (1986). `In a criminal appeal of right, knowing waiver by the defendant is required to dismiss an appeal.' Tomal, 133 Wn.2d at 989. 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.
Noland relies on Tomal to support his argument that his appeal was improperly dismissed on procedural grounds. According to Noland, his appeal should be heard on the merits.
In Tomal, the defendant was convicted in district court of driving while intoxicated. Counsel for defendant filed a notice of appeal, but then took no action for more than four years. The RALJ court thereafter denied the State's motion to dismiss the appeal for want of prosecution, finding that the defendant had not contributed to the delay and that the delay was the result of pure `attorney error.'
The State sought review in the Court of Appeals, arguing that the defendant's appeal should have been dismissed as abandoned. The Court of Appeals agreed with the State, reversed the RALJ court's decision, and dismissed the appeal. The court concluded that the `attorney's `oversight' fails to demonstrate good cause for not deeming Tomal's appeal abandoned.' State v. Tomal, 82 Wn. App. 415, 421, 918 P.2d 180 (1996). In reversing that decision, our Supreme Court held that a criminal defendant's appeal cannot be dismissed as abandoned without a showing that the defendant made a voluntary, knowing, and intelligent waiver of the right to appeal. Tomal, 133 Wn.2d at 990-91.
Here, as in Tomal, there is no affirmative showing that Noland knowingly and voluntarily waived his right to appeal. And while Noland is pro se, so that any delay must be attributed to Noland rather than counsel, nothing suggests that his actions manifested an intent to abandon his appeal. As far as the record reveals, Noland never wavered in his pursuit of an appeal.
Indeed, the report of proceedings the superior court ordered Noland to provide to the City has been provided to this court as part of the record.
And while we can certainly sympathize with the court's desire to maintain an orderly process and have its orders followed, steps short of dismissal can be taken whenever there are deficiencies in the briefing or record on appeal. If the appellant fails to provide a record sufficient to review an assignment of error, the reviewing court need not address the issue. `A party seeking review has the burden of perfecting the record so that the appellate court has before it all the evidence relevant to the issue.' State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986). Because it appears Noland was not afforded his constitutional right of appeal, we reverse the RALJ order dismissing the appeal and remand the matter to King County Superior Court for further proceedings.
We find it noteworthy that the City has not filed a responsive brief, particularly since it was the City who moved to dismiss Noland's appeal for want of prosecution.
Reversed and remanded.
COLEMAN, SCHINDLER and APPELWICK, JJ.