Opinion
No. 88661–0.
2013-06-3
STATE of Washington, Respondent, v. Donald Laverne HAND, Petitioner.
RULING DENYING REVIEW
¶ 1 Donald Hand moves for discretionary review of a Court of Appeals opinion denying his motion for extension of time to file a notice of appeal.
¶ 2 In 1999 Mr. Hand was found guilty of first degree rape of a child. The court sentenced him to 123 months confinement, but pursuant to a special sex offender alternative it suspended the sentence on the condition that Mr. Hand serve six months confinement and undergo three years of outpatient sex offender treatment. Mr. Hand allegedly violated the terms of his SSOSA, and on April 28, 2008, the court revoked the sentence. Over three years later, on November 15, 2011, Mr. Hand filed a notice of appeal from the revocation, along with a motion for extension of time to file the notice.
¶ 3 The Court of Appeals dismissed the appeal in a published opinion. State v. Hand, 173 Wash.App. 903, 295 P.3d 828 (2013). The court acknowledged that article I, section 22 of the Washington Constitution provides a right to appeal in criminal proceedings, and that in such cases the State carries the burden of proving that the defendant has made a voluntary, knowing, and intelligent waiver of that right. But the court held that this constitutional right to appeal applies only to criminal prosecutions, and that revocation of a suspended sentence is not a criminal proceeding. Accordingly, an offender facing revocation of a suspended sentence has only minimal due process rights. Because appeal from a revocation order is not by constitutional right, the standard for demonstrating waiver of a constitutional right does not apply. Rather, such appeals are governed by the Rules of Appellate Procedure, which provide a right of appeal of all final orders in adjudicative proceedings. RAP 2.2. In order to initiate an appeal, the rules require that the party seeking review file a notice of appeal within 30 days from the entry of the order. RAP 5.1, 5.2. And extensions of time to file appeal notices are governed by RAP 18.8(b), which provides that 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 the notice. Because Mr. Hand failed to show that extraordinary circumstances justified an extension of time, the court denied an extension and dismissed the appeal.
¶ 4 Since the Court of Appeals denied an extension of time, and thus never accepted review, Mr. Hand may seek review by this court only by motion for discretionary review under RAP 13.5. SeeRAP 13.3; RAP 12.3. Review is appropriate under that rule only if the Court of Appeals (1) committed an obvious error which would render further proceedings useless; (2) committed probable error which either substantially alters the status quo or substantially limits the freedom of a party to act; or (3) so far departed from the accepted and usual course of proceedings as to call for exercise of this court's revisory jurisdiction. RAP 13.5(b).
Mr. Hand improperly relies on the review criteria of RAP 13.4(b), and thus does not mention the criteria of RAP 13.5(b), or suggest how any of them is met.
¶ 5 Mr. Hand urges that this court should grant review to determine if the right to appeal a SSOSA revocation is a minimum due process right due all revocation defendants, to set forth what circumstances meet the requirements of RAP 18.8 to reinstate a SSOSA revocation appeal, and to decide whether the right to appeal a SSOSA revocation requires a voluntary, knowing, and intelligent waiver.
¶ 6 But the Court of Appeals opinion is consistent with longstanding precedent of this court. The rights listed in article I, section 22 of the Washington Constitution, including the right to appeal, only apply to criminal prosecutions. State ex rel. Gray v. Webster, 122 Wash. 526, 530, 211 P. 274 (1922). The criminal proceeding that resulted in Mr. Hand's incarceration was terminated when the time for appealing the conviction expired. Summers v. Rhay, 67 Wash.2d 898, 902, 410 P.2d 608 (1966) (no constitutional right to counsel to prosecute appeal from order denying application for a writ of habeas corpus). A revocation or modification proceeding is not a criminal proceeding within the contemplation of the constitution entitling the defendant, as a matter of right, to the privileges conferred by article I, section 22. State v. Shannon, 60 Wash.2d 883, 888, 376 P.2d 646 (1962); State ex rel. Woodhouse v. Dore, 69 Wash.2d 64, 416 P.2d 670 (1966); State v. Riddell, 75 Wash.2d 85, 449 P.2d 97 (1968); see also Ludwick v. Webb, 23 Wash.2d 115, 160 P.2d 504 (1945) (dismissing appeal from habeas corpus ruling on grounds that habeas corpus is a civil proceeding and that appeal bond was required but not filed); Norris v. Webb, 23 Wash.2d 938, 160 P.2d 1021 (1945) (same). Thus, the revocation of a SSOSA is not a criminal proceeding, and an offender facing revocation has only minimal due process rights. State v. Dahl, 139 Wash.2d 678, 683, 990 P.2d 396 (1999). Minimal due process entails: (a) written notice of the claimed violations; (b) disclosure to the offender of the evidence against him; (c) the opportunity to be heard; (d) the right to confront and cross-examine witnesses (unless there is good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a statement by the court as to the evidence relied upon and the reasons for the revocation. Id. Contrary to Mr. Hand's suggestion, seemingly advanced for the first time in his motion to this court, there is no federal due process right to appeal, even in criminal cases. Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). And while the Washington Constitution grants a right to appeal in criminal cases, this court has stated that “there is no comparable right in civil cases, and none can be inferred.” In re Grove, 127 Wash.2d 221, 239, 897 P.2d 1252 (1995).
¶ 7 It follows that cases governing the waiver of the constitutional right to appeal are inapposite, and that Mr. Hand's motion for extension of time is governed by RAP 18.8(b), Under that rule the time for filing a notice of appeal will be extended only in extraordinary circumstances and to prevent a gross miscarriage of justice. The rule will not be waived. RAP 1.2(c). “Extraordinary circumstances” include instances in which “the filing, despite reasonable diligence, was defective due to excusable error or circumstances beyond the party's control.” Reichelt v. Raymark Indus., Inc., 52 Wash.App. 763, 765, 764 P.2d 653 (1988); Shumway v. Payne, 136 Wash.2d 383, 395, 964 P.2d 349 (1998). Negligence, or lack of “reasonable diligence,” does not amount to “extraordinary circumstances.” Beckman, 102 Wash.App. at 695, 11 P.3d 313. Application of this rule does not turn on prejudice to the opposing party, since if it did the court would rarely deny a motion for extension of time. Reichelt, 52 Wash.App. at 766, 764 P.2d 653. Even if the appeal raises important issues, it would be improper to consider those issues absent sufficient grounds for granting an extension of time, Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wash.2d 366, 368, 849 P.2d 1225 (1993). The court will ordinarily hold that the interest in finality of decisions outweighs the privilege of a litigant to obtain an extension of time. RAP 18.8(b). In light of this policy, the standard set forth in RAP 18.8(b) is rarely satisfied. Shumway, 136 Wash.2d at 395, 964 P.2d 349;Reichelt, 52 Wash.App. at 765, 764 P.2d 653.
¶ 8 Mr. Hand suggests that extraordinary circumstances are shown here because he was not advised that he had a right to appeal the revocation order. He cites City of Seattle v. Braggs, 41 Wash.App. 646, 705 P.2d 303 (1985), where the Court of Appeals found “compelling circumstances” permitting a late appeal (by seven days) to superior court based on the failure to tell the defendant, as required by court rule, that he could appeal his misdemeanor conviction. See former RALJ 2.7. (A similar notice requirement is now set out in CrRLJ 7.2(b).) But as the Court of Appeals recognized, Braggs involved the appeal of a conviction, while this case involves the appeal of a SSOSA revocation. And unlike the situation in Braggs, there was and is no court rule requiring a court to notify a defendant of his right to appeal a probation revocation. Where no rule requires such notice, it would make no sense to hold that lack of notice always provides an excuse for failure to timely file an appeal. Indeed, to do so would reverse the preference stated in RAP 18.8(b) for the finality of decisions over the privilege of a litigant to obtain an extension of time.
Also inapposite is State v. Chetty, 167 Wash.App. 432, 272 P.3d 918 (2012), where the court held that defense counsel's failure to warn the defendant of the deportation consequences of his guilty plea was a factor in determining whether the defendant's waiver of the right to appeal was knowing, voluntary, and intelligent. The court there ordered a reference hearing to determine whether there was a valid waiver under this standard. Chetty plainly involved the constitutional right to appeal, whereas this case does not.
¶ 9 Finally, the record provided by Mr. Hand does not establish that his failure to timely appeal was the product of excusable error or circumstances beyond his control. The Court of Appeals did not err or depart from accepted practice by denying an extension of time and dismissing the appeal. RAP 13.5(b). Accordingly, the motion for discretionary review is denied.