State v. Cruz-Yon

• Decision Date: 15 November 2021
• Docket Number: No. 81418-4-I,81418-4-I
• Citation: 498 P.3d 533
• Parties: STATE of Washington, Respondent, v. Roberto Alexander CRUZ-YON, Appellant.
• Court: Washington Court of Appeals

498 P.3d 533

STATE of Washington, Respondent,

v.Roberto Alexander CRUZ-YON, Appellant.

No. 81418-4-I

Court of Appeals of Washington, Division 1.

FILED November 15, 2021

Eric J. Nielsen, Kevin Andrew March, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, Lucie R. Bernheim, Lucie R. Bernheim, Attorney At Law, 512 Bell St., Edmonds, WA, 98020-3147, for Appellant.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Nathaniel Sugg, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Respondent.

PUBLISHED OPINION

Smith, J.

¶1 At the behest of the Supreme Court, we address Roberto Cruz Yon's request for the appointment of an interpreter to assist him with filing a statement of additional grounds for review (SAG). Cruz Yon, who does not speak English, moved for an interpreter to translate his attorney's brief and the trial report of proceedings into Spanish and to translate his SAG from Spanish to English. We conclude that Cruz Yon has the right to have these materials translated. Therefore, upon motion by Cruz Yon, we will authorize these expenses, and we will determine the substantive issues raised in Cruz Yon's appeal following the filing of his SAG.

FACTS

¶2 On March 6, 2020, a jury convicted Cruz Yon of rape of a child in the second degree and one count of first degree child molestation. In April 2020, the trial court entered an order of indigency permitting Cruz Yon to appeal his conviction at public expense, and Cruz Yon did so.

¶3 On August 21, 2020, we sent a letter informing Cruz Yon of his right to submit a statement of additional grounds for review (SAG). We noted that the deadline for submission was 30 days. On October 7, 2020, we notified defense counsel that no SAG had been filed by the appellant and that we considered him to have waived his right to submit a SAG.

¶4 On October 21, 2020, Cruz Yon's counsel filed a motion to extend time to file a SAG. Cruz Yon's counsel explained that Cruz Yon was having difficulty contacting counsel due to Department of Corrections Covid-19 restrictions. Cruz Yon's counsel also informed the court that "Cruz Yon is fluent only in the Spanish language" and that, therefore, he could not read or understand his counsel's brief. The court administrator/clerk granted the motion, extending the due date to December 7, 2020 with "no further extensions."

¶5 On December 9, 2020, Cruz Yon moved for this court to appoint an interpreter under chapter 2.43 RCW to translate the opening brief and report of proceedings into Spanish and to then translate Cruz Yon's SAG into English. In a supporting declaration, Cruz Yon's counsel stated that Cruz Yon "speaks Spanish and does not read, write or understand the English language." He said that Cruz Yon "explicitly stated many times that he could not follow the [SAG] procedure and prepare a [SAG] unless he received Spanish translations of the opening brief and of the verbatim report of proceedings, and an English translation of the Spanish [SAG] he ultimately prepares."

¶6 On December 11, 2020, our court administrator/clerk denied Cruz Yon's motion for an interpreter "without prejudice to pursue appointment of an interpreter through the Office of Public Defense." Cruz Yon moved to void the ruling and the clerk denied the motion on procedural grounds. Cruz Yon's counsel then moved to modify both of the rulings, contending that "the clerk has no authority to rule on a chapter 2.43 interpreter appointment." A panel of judges determined that the motions should be addressed simultaneously with Cruz Yon's direct appeal and referred the motions to this panel.

¶7 In the meantime, Cruz Yon filed a motion for discretionary review with the Washington Supreme Court. A court commissioner denied his motion, concluding that although the issue "touches on debatable issues of first impression concerning the appropriate means of seeking interpreter services in support of a direct appeal," the better use of judicial resources was for this court to decide the issue first. A department of the Supreme Court subsequently denied Cruz Yon's motion to modify the commissioner's ruling.

ANALYSIS

¶8 Cruz Yon contends that he has a right to have the opening brief, report of proceedings, and SAG translated, and that this right is governed by chapter 2.43 RCW. We agree that Cruz Yon has this right but disagree as to the rules governing his request.

Timeliness

¶9 As an initial matter, we note that Cruz Yon's request for an interpreter to assist in filing his SAG came after the SAG deadline. RAP 10.10(d). However, the RAPs must "be liberally interpreted to promote justice and facilitate the decision of cases on the merits." RAP 1.2(a). Because there are no compelling circumstances which preclude us from deciding Cruz Yon's motion on the merits, and given the important issues raised, we address the substance of Cruz Yon's request.

Right to an Interpreter/Translator

¶10 Cruz Yon asserts that he has a constitutional right to receive translated copies of his attorney's brief and the Report of Proceedings and to have his SAG translated to English. We agree.

¶11 In a criminal trial, the defendant has a constitutional right to an interpreter extending from the Sixth Amendment rights to confront witnesses and to be present at trial. State v. Gonzales-Morales, 138 Wash.2d 374, 379, 979 P.2d 826 (1999). Unlike the federal constitution, the Washington constitution also guarantees criminal defendants the right to an appeal. WA. CONST. art. 1, § 22 ; State v. Atteberry, 87 Wash.2d 556, 558 n.2, 554 P.2d 1053 (1976). "It is well established that ‘[t]he State must provide indigent criminal defendants with means of presenting their contentions on appeal which are as good as those available to nonindigent defendants with similar contentions,’ " including represented defendants filing pro se SAGs. State v. Harvey, 175 Wash.2d 919, 921, 288 P.3d 1111 (2012) (alteration in original) (quoting State v. Giles, 148 Wash.2d 449, 450, 60 P.3d 1208 (2003) ); see also State v. Thomas, 70 Wash. App. 296, 298-99, 852 P.2d 1130 (1993) (linking guarantee of an adequate defense for indigent defendants on appeal to Washington constitutional right to appeal). This right includes a record of sufficient completeness to allow the court to properly consider the defendant's claims. Harvey, 175 Wash.2d at 921-22, 288 P.3d 1111.

¶12 In Harvey, an indigent defendant appealed his conviction through counsel, but also moved to have the jury voir dire transcribed at public expense to provide a complete record for his SAG. Harvey, 175 Wash.2d at 920, 288 P.3d 1111. The Supreme Court held that the defendant was entitled to this transcription so that the arguments in his SAG could be properly considered. Harvey, 175 Wash.2d at 922, 288 P.3d 1111.

¶13 We conclude that indigent non-English-speaking defendants must have a right to have certain documents translated in order to have a meaningful right to engage in their appeal and file a SAG. A defendant has the right to prepare a SAG to address issues that their counsel's brief did not adequately address, and they may request a copy of the report of proceedings to do so. RAP 10.10(a), (e). It follows that a non-English-speaking defendant requires the translation from English of their attorney's brief and the report of proceedings, as well as the translation to English of their SAG, to adequately inform the court of the issues that they wish to raise. The State must provide indigent defendants "with the basic tools of an adequate defense when those tools are available to others for a price," and the requested translations are such tools. State v. Cirkovich, 35 Wash. App. 134, 136, 665 P.2d 440 (1983). Therefore, Cruz Yon's request to translate his attorney's opening brief, the report of proceedings,¹ and his SAG must be granted.

Procedure for Providing Interpreter/Translating Services

¶14 Because we have concluded that Cruz Yon has the right to have his request granted, we must determine the proper procedure for providing these translations. Cruz Yon contends that his request is governed by chapter 2.43 RCW, which provides for the appointment of a qualified interpreter when a non-English-speaking person is involved in a legal proceeding. RCW 2.43.030(1)(c). We disagree.

1. Statutory Provisions for Interpreters

¶15 Our "fundamental objective in construing a statute is to ascertain and carry out the legislature's intent." Arborwood Idaho, LLC v. City of Kennewick, 151 Wash.2d 359, 367, 89 P.3d 217 (2004). " ‘The legislature is presumed to intend the plain meaning of its language.’ " State v. Garcia, 179 Wash.2d 828, 836, 318 P.3d 266 (2014). "In determining the plain meaning of a provision, we look to the text of the statutory provision in question, as well as ‘the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’ " State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005) ).

¶16 In the context of translating materials for a SAG, which is at issue here, chapter 2.43 RCW does not appear to control. RCW 2.43.030 requires the appointment of an interpreter in a "legal proceeding," which is defined as "a proceeding in any court in this state, grand jury hearing, or hearing before an inquiry judge, or before an administrative board, commission, agency, or licensing body of the state or any political subdivision thereof." RCW 2.43.020(3). As relevant here, a "proceeding" could mean "[a]ny procedural means for seeking redress from a tribunal or agency," which would include the filing of a SAG, or "[t]he business conducted by a court or other official body; a hearing," which would likely exclude a written appeal to a court. BLACK'S LAW DICTIONARY 1457 (11th ed. 2019). In looking to related provisions of this chapter, it appears that the latter meaning...