State v. Jackson
| Decision Date | 14 October 1976 |
| Docket Number | No. 44143,44143 |
| Citation | 87 Wn.2d 562,554 P.2d 1347 |
| Parties | STATE of Washington, Respondent, v. Deborah Faye JACKSON, Appellant. |
| Court | Washington Supreme Court |
Koenigsberg, Brown, Sinsheimer, Stone & Meltzer, Inc., P.S., Ronald J. Meltzer, Stephen J. Hillman, Seattle, John A. Strait, Tacoma, for appellant.
Christopher T. Bayley, Pros. Atty. for King County, Thomas Wolfendale, Deputy Pros. Atty., Seattle, for respondent.
This case presents the issue of whether the trial judge's denial of petitioner's motion for reimbursement of indigent appeal expenses operated in a constitutionally impermissible manner to totally preclude her from 'any means of getting adequate (appellate) review on the merits.' Draper v. Washington, 372 U.S. 487, 498, 83 S.Ct. 774, 780, 9 L.Ed.2d 899 (1963).
On October 16, 1975, petitioner was convicted of 2 counts of robbery and 1 count of attempted robbery in a nonjury trial, and was sentenced to 3 concurrent terms of not more than 20 years each. Subsequently, petitioner filed notice of appeal, together with a petition to proceed in forma pauperis pursuant to CAROA 46 and 47. 1 Attached to the in forma pauperis petition was a supporting affidavit by petitioner's trial attorney stating in part:
The only issues counsel is aware of at this time would be the sufficiency of the evidence to sustain the Judge's determination of guilty. I believe that review is sought in good faith, but I cannot make such assertion unqualifiably without reviewing the entire record of the trial. Trial in this matter took approximately one day. I have advised my client I believe it unlikely that the appellate court would overturn the finding of guilty. I have been instructed by my client to prosecute the appeal.
On March 2, 1976, the presiding judge of the Superior Court for King County denied the motion to proceed in forma pauperis on the ground that 'counsel's affidavit does not 'demonstrate that the appeal is in good faith and has probable merit." 2 Since the motion was not disposed of under CAROA 47(a) (2)(iii) the superior court referred the motion and supporting affidavits in this court and we accept review under CAROA 47(a)(2)(iv).
Petitioner cites the case of Draper v. Washington, supra, in support of her argument that CAROA 47 violates the equal protection clause of the fourteenth amendment to the United States Constitution if it is construed to require an advance showing of probable merit before a motion to proceed in forma pauperis on appeal can be granted. In Draper, the United States Supreme Court was concerned with the constitutional validity of a procedure developed in In re Woods v. Rhay, 54 Wash.2d 36, 44--45, 338 P.2d 332 (1959) for handling motions requesting preparation of a free transcript of the record and statement of facts for indigent criminal defendants. We held that the trial court had properly applied the principles of In re Woods when it found defendants' appeal to be patently frivolous in State v. Long, 58 Wash.2d 830, 365 P.2d 31 (1961). On appeal, the United States Supreme Court reversed and held in Draper v. Washington, supra, 372 U.S. at 499--500, 83 S.Ct. at 781:
(T)he conclusion of the trial judge that an indigent's appeal is frivolous is (an) inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves.
In reaching this conclusion, the Court reasoned at page 496, 83 S.Ct. at 779 that the State has a constitutional duty
to provide the indigent as adequate and effective an appellate review as that given appellants with funds--the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.
Petitioner contends that the current construction of CAROA 47 is unconstitutional because the trial judge's ruling that her motion does not demonstrate good faith and probable merit prevents her from as 'adequate and effective appellate review' as that available to nonindigents. 3 In Draper, however, the court, at pages 495--96, 83 S.Ct. at 779, left considerable leeway to the State for determining what is 'adequate and effective':
Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. . . . If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues.
(Italics supplied.)
Petitioner also argues that the trial court's ruling precludes counsel and the appellate court from fulfilling their respective duties as prescribed by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). At page 744, 87 S.Ct. at 1400, the Court set forth a procedure for counsel to withdraw from a case if he feels that his client's appeal would be wholly frivolous:
Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring...
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