City of Seattle v. Klein

• Court: Washington Supreme Court
• Writing for the Court: J. Johnson
• Citation: City of Seattle v. Klein, 166 P.3d 1149, 161 Wash.2d 554 (Wash. 2007)
• Decision Date: 13 September 2007
• Docket Number: No. 79973-3.
• Parties: CITY OF SEATTLE, Petitioner, v. Stephen KLEIN, Respondent. City of Seattle, Petitioner, v. Melissa Deibert, Respondent.

166 P.3d 1149

CITY OF SEATTLE, Petitioner, v. Stephen KLEIN, Respondent.

City of Seattle, Petitioner, v. Melissa Deibert, Respondent.

No. 79973-3.

Supreme Court of Washington.

Argued June 28, 2007.

Decided September 13, 2007.

Richard Edward Greene, Seattle City Attorney Public & Community, Seattle, for Petitioner.

Christine Anne Jackson, Public Defender, Seattle, for Respondents.

J.M. JOHNSON, J.

¶ 1 The "right to appeal in all cases" is expressly guaranteed by our Washington Constitution. WASH. CONST. art. I, § 22.¹ The only means by which such an individual constitutional right in Washington may be relinquished is by a voluntary, knowing, and intelligent waiver. In this case, the City of Seattle (City) claims the fugitive disentitlement doctrine (FDD) serves to abrogate the respondents' constitutionally guaranteed right to appeal. The FDD is a doctrine that presumes forfeiture rather than requiring a knowing waiver of the important right of appeal. We reject this doctrine insofar as it purports to substitute involuntary forfeiture for the well-established waiver principles found in our previous decisions. See State v. Sweet, 90 Wash.2d 282, 286, 581 P.2d 579 (1978); State v. Kells, 134 Wash.2d 309, 313, 949 P.2d 818 (1998); State v. Tomal, 133 Wash.2d 985, 988, 948 P.2d 833 (1997). Thus we affirm the trial court's decision and emphasize the sanctity of the right to appeal.

NATURE OF THE CASE

¶ 2 The City moved to dismiss respondents' right to appeal their underlying convictions due to subsequent arrest warrants issued after each failed to appear at their respective review hearings after appealing their convictions. The respondents argued that their appeals may not be dismissed because they had not made a voluntary, knowing, and intelligent waiver of their constitutional right to appeal.

¶ 3 The King County Superior Court agreed with the respondents and denied the City's motion in both cases. The court held that an arrest warrant for failure to appear, by itself, did not establish a voluntary, knowing, and intelligent waiver of the constitutional right. The City sought discretionary review. Division One of the Court of Appeals granted review on the dismissal question and stayed the appeal of a final decision of a court of limited jurisdiction (RALJ). Review of the dismissal issue was then consolidated and transferred to this court.

FACTUAL AND PROCEDURAL HISTORY²

¶ 4 On December 30, 2005, Stephen Klein was charged in Seattle Municipal Court for an incident of assault that had occurred that day. Clerk's Papers Klein (CP-K) at 10-18. He was convicted of the assault charge on March 29, 2006, in Seattle Municipal Court. Klein filed a timely appeal of the conviction. CP-K at 17, 26-57. A condition of his suspended sentence was that he was to have no further criminal law violations. Id. at 3.

¶ 5 The sentence was not stayed pending the appeal. Id. On August 3, 2006, a review hearing was held, and Klein admitted he had been convicted of a new violation; thus, 10 days of his suspended sentence was revoked and he was ordered to serve his sentence on a work crew. Id. at 3-4, 17. A review hearing was set for September 18, 2006, to determine whether Klein had completed the work crew sentence. Id. at 4, 18. Klein did not appear at the review hearing, and his work crew sentence had not been completed, so the court continued the case for one week. Id. On September 25, 2006, the court received a probation report indicating that Klein had still not completed the work and then issued a warrant for his arrest. Id. at 4, 18, 20. On October 20, 2006, the City moved to dismiss Klein's RALJ appeal because of the outstanding warrant for his arrest. Id. at 3-9. On December 8, 2006, the King County Superior Court denied the City's motion, holding that the warrant, by itself, did not establish a "knowing, intelligent, and voluntary waiver of his constitutional right to appeal." Id. at 23.

¶ 6 Melissa Deibert was charged in Seattle Municipal Court for an incident of misdemeanor theft that had occurred on or about September 27, 2005. Clerk's Papers Deibert (CP-D) at 52. On February 23, 2006, she was convicted of the misdemeanor theft charge after a jury trial. CP-D at 10. As a result of the theft conviction, Deibert's deferred sentence on a prior conviction of prostitution was revoked. Id. at 21. As part of her suspended sentences, she was ordered to perform a total of six days on a work crew. Id. at 22. Deibert appealed both judgments. Id. at 14, 21.

¶ 7 The sentences were not stayed pending appeal. Id. at 3-4. She did not complete the work crew sentence, so the court scheduled a review hearing for October 27, 2006. Id. at 15, 22. The record does not indicate that Deibert was given notice that a subsequent bench warrant or failure to appear would constitute a waiver of her right to appeal. Id. at 25. Deibert failed to appear at the review hearing, and the Seattle Municipal Court issued a warrant for her arrest. Id. at 15, 22-23. The City moved to dismiss her RALJ appeal because of the outstanding warrant. On December 8, 2006, the King County Superior Court denied the City's motion, holding that the warrant, by itself, did not establish a "knowing, intelligent, and voluntary waiver of her constitutional right to appeal." Id. at 26.

¶ 8 We note that respondent Klein filed a request for judicial notice on June 27, 2007. See ER 201. The notice informs this court that Mr. Klein was booked into the King County Jail on May 1, 2007, pursuant to an outstanding warrant issued in the current case. Thus, Mr. Klein is now properly within the jurisdiction of the appropriate court; meanwhile, his appeal has not yet been dismissed.

ANALYSIS

A. Did the Respondents Waive or Forfeit Their Right to Appeal

¶ 9 In Washington, our constitution guarantees citizens accused of a crime "the right to appeal in all cases." WASH. CONST. art. I, § 22. However, the City argues that the respondents forfeited their right to appeal after the appeal had already been filed, when respondents avoided the trial court's jurisdiction by failure to appear at later hearings.³ Br. of Pet'r at 5. "[W]aiver" is the "act of waiving or intentionally relinquishing or abandoning a known right... or privilege." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2570 (2002). When constitutional rights are involved, we require the government to bear the burden to prove "an intentional relinquishment or abandonment." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). However, forfeiture through the FDD presumes rather than proves constitutional waiver.

¶ 10 The FDD's underlying rationale is explained in State v. Johnson, 105 Wash.2d 92, 97, 711 P.2d 1017 (1986) (citing Eisler v. United States, 338 U.S. 189, 192, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949) (Frankfurter, J., dissenting)), where the court said:

Defendants who affirmatively avoid the court's jurisdiction waive their appeal and cannot claim a violation of Const. art. 1, § 22 (amend.10). State v. Sweet, 90 Wash.2d 282, 581 P.2d 579 (1978). As observed by Justice Frankfurter:

... When he [defendant] withdraws himself from the power of the Court to enforce its judgment, he also withdraws the questions which he had submitted to the Court's adjudication.

Based on this reasoning, the City argues that missing the review hearings forfeits the respondents' right to appeal, per the FDD, in this matter.⁴ Br. of Pet'r at 6. The City is incorrect.

¶ 11 Sweet is controlling on this point. We previously explained that a constitutional right to appeal can be waived only voluntarily, knowingly, and intelligently. See, e.g., Sweet, 90 Wash.2d at 287, 581 P.2d 579.⁵ It follows that we do not embrace an inadvertent waiver without notice. In Sweet, the defendant was convicted of unlawful possession of a controlled substance. Id. at 284, 581 P.2d 579. The defendant then told his attorney he would like to file an appeal, but his attorney withdrew. Id. The defendant received no information detailing the steps for filing his appeal, and the time for appeal expired. Id. This court affirmed Sweet's right to appeal because he had not consciously waived it.⁶

¶ 12 The City argues that Sweet is distinguishable because these respondents had already filed their appeals, then forfeited their right by later action or failure to act, unlike in Sweet where the defendant had no opportunity to file at all. Br. of Pet'r at 8. This distinction makes no difference because in either case, a procedural defect (failure to file or failure to appear), without notice that the right to appeal may be lost, does not constitute knowing waiver of the core constitutional right.

¶ 13 The right to appeal is not waived unless the State proves that the appellant made a voluntary, knowing, and intelligent waiver.⁷ Br. of Resp'ts at 8; Sweet, 90 Wash.2d at 286, 581 P.2d 579. The Sweet standard rejects the notion that a criminal appellant abandoned or forfeited the right to appeal because of the manner in which the appeal was prosecuted. See also Tomal, 133 Wash.2d 985, 948 P.2d 833; Kells, 134 Wash.2d 309, 949 P.2d 818. In Tomal, 133 Wash.2d at 989, 948 P.2d 833, this court held that:

In a criminal appeal of right, knowing waiver by the defendant is required to dismiss an appeal.... However, there can be no presumption in favor of the waiver of the right to appeal in a criminal case. Rather, the State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right to appeal.⁸

(Emphasis added.)

¶ 14 The Tomal court also noted that inaction by the appellant may establish a valid waiver only when the appellant has been informed of the consequences of his or her conduct. See id. at 990, 948 P.2d 833. A trial judge may give notice to the defendant that absence or failure to comply with procedures may constitute a waiver of the appeal, but that was not done here. In short, there is no...