State v. Murphy
| Decision Date | 10 August 1967 |
| Citation | 35 Wn.App. 658,669 P.2d 891 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Michael L. MURPHY, B.D. 0 |
Raymond H. Thoenig, Washington Appellate Defender, Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., E. Inkley, Reba Weiss, Deputy Pros. Attys., Seattle, for respondent.
Michael L. Murphy, a juvenile, appeals a trial court finding that to impose a sentence within the standard range of punishment would be a clear danger to society and that such a disposition would be a manifest injustice.
The issues presented are:
(1) Should the State's motion to supplement the record be granted?
(2) Was Murphy denied his right to accelerated appeal?
(3) Did the trial court err when it considered the probation officer's unsworn testimony during the disposition hearing?
(4) Was Murphy given adequate notice of the possibility of a "manifest injustice" finding?
(5) Does RCW 13.40.150 limit the parties who may submit disposition recommendations solely to the prosecution and the defense?
(6) Did the trial judge err when he failed to read the juvenile's entire social file before making a "manifest injustice" finding?
(7) Does the record support the trial court's finding of a "manifest injustice"?
(8) Must the trial court find beyond a reasonable doubt that the juvenile constitutes a clear threat of bodily harm or injury to society before a "manifest injustice" finding can be made?
On November 3, 1982, a disposition hearing was held regarding Michael L. Murphy, a juvenile, for the charges of third degree theft, third degree malicious mischief and vehicle prowling. Michael's criminal record was as follows:
Criminal Trespass 1 degrees 8/01/79 pled guilty 12/15/79
Burglary 2 degrees 3/04/82 pled guilty 9/14/82
Burglary 2 degrees 8/07/82 pled guilty 9/14/82
Murphy committed the following offense in addition to those noted in his criminal history:
Malicious Mischief 3 degrees 9/01/79 pled guilty 12/15/79
Murphy pled guilty to the charges of third degree theft and third degree malicious mischief. The trial court dismissed the charge of vehicle prowling, declined to impose sanctions for third degree malicious mischief, and made a manifest injustice finding of 52 weeks detention for third degree theft. The manifest injustice finding was made partially on the basis of the probation officer's recommendation. The State and defense counsel recommended a disposition within the standard range. The standard range of disposition for a third degree theft middle offender is 9 months supervision, 48-72 hours community service, $75 fine, and 8-15 days detention.
Murphy filed a timely notice for accelerated review of the trial court's manifest injustice finding on November 5, 1982. However, he failed to file a motion for accelerated review pursuant to RAP 18.13 and did not perfect the record for review in a timely manner. On December 27, 1982, this court ordered Murphy to file a motion for accelerated review and to perfect the record. In the event Murphy failed to comply with the court's order, a court's motion to dismiss was to be heard before a commissioner on January 7, 1983. On December 28, 1982, Murphy withdrew his motion for accelerated review and requested that the appeal be given the same status as a regular appeal. During the course of the appeal, the State moved to supplement the record with additional clerk's papers and exhibits. This motion was referred for consideration at the hearing on the merits.
First, should the State's motion to supplement the record be granted?
The State claims the record is insufficient to permit a proper review and requests it be allowed to supplement the record with additional clerk's papers and exhibits, pursuant to RAP 9.10. Murphy opposes the State's motion to supplement the record and claims none of the material with which the State seeks to supplement the record was part of the record below. The State filed supplemental clerk's papers on April 29, 1983, which contained six of the documents proffered to supplement the record. The State also wishes to supplement the record with the predisposition report, which is already part of the record on appeal.
The remaining document is an affidavit by Murphy's probation officer attesting to Murphy's notification of her intent to recommend a manifest injustice finding and was not part of the record below. Because the affidavit was not part of the record in the trial court, we will not consider it. State v. Armstead, 13 Wash.App. 59, 66, 533 P.2d 147 (1975). The State's motion to supplement the record is granted in regards to the seven other documents that were part of the record before the juvenile court.
The second issue is whether Murphy was denied his right to accelerated appeal.
Murphy claims the failure of this court to decide his appeal within 45 days, pursuant to RCW 13.40.230, violated his constitutional and statutory right to appeal. He contends the manifest injustice finding should be vacated and the case remanded for sentencing within the standard range.
RCW 13.40.160 permits the trial court to make a finding of manifest injustice. A manifest injustice finding is a sentence outside the standard range of disposition. RCW 13.40.230 governs the appeal of a manifest injustice finding and provides in part:
(1) Dispositions reviewed pursuant to RCW 13.40.160, as now or hereafter amended, shall be reviewed in the appropriate division of the court of appeals.
An appeal under this section shall be heard solely upon the record that was before the disposition court. No written briefs may be required, and the appeal shall be heard within thirty days following the date of sentencing and a decision rendered within fifteen days following the argument. The supreme court shall promulgate any necessary rules to effectuate the purposes of this section.
....
(5) Pending appeal, a respondent may not be committed or detained for a period of time in excess of the standard range for the offense(s) committed or sixty days, whichever is longer. The disposition court may impose conditions on release pending appeal as provided in RCW 13.40.040(4) and 13.40.050(6). Upon the expiration of the period of commitment or detention specified in this subsection, the court may also impose such conditions on the respondent's release pending disposition of the appeal.
(Emphasis added.) This statute became effective July 1, 1978 and has since been amended twice. None of the amendments, however, changed the time limitations for expedited appeals.
On July 18, 1978, the Supreme Court adopted RAP 18.13 to effectuate the purposes of RCW 13.40.230(1). RAP 18.13 provides:
(a) Generally. A disposition in a juvenile offense proceeding which is beyond the standard range for that offense may be reviewed in the manner provided in the rules for other decisions or by accelerated review as provided in this rule.
(b) Accelerated Review by Motion. A party seeking accelerated review of the disposition shall do so by motion. The motion must include (1) the name of the party filing the motion; (2) the offense; (3) the disposition of the trial court; (4) the standard range for the offense; (5) a statement of the disposition urged by the moving party; (6) copies of the clerk's papers and a written verbatim report of those portions of the disposition proceeding which are material to the motion; (7) an argument for the relief the party seeks; and (8) a statement of any other issues to be decided in the review proceeding.
(c) Motion Procedure Controls. The motion procedure, including a party's response, is governed by Title 17.
(d) Accelerated Review of Other Issues. The decision of issues other than those relating to the juvenile offense disposition may be accelerated only pursuant to Rules 18.8 and 18.12.
(Emphasis added.)
RAP 18.13, effective July 1, 1978, differs from RCW 13.40.230 insofar as the rule provides for an appeal through normal channels in addition to an accelerated review. In the event of a conflict, a court rule will supersede a procedural statute, State ex rel. Dept. of Ecology v. Anderson, 94 Wash.2d 727, 620 P.2d 76 (1980); RCW 2.04.200, but court rules and statutes should be harmonized whenever possible. "[A]n interpretation which gives effect to both provisions is the preffered interpretation." Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981).
RCW 2.04.190 grants the Supreme Court the power to regulate and prescribe "by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts and justices of the peace of the state." Not only are the court's rule-making powers derived from statute, "[i]ts inherent power to govern court procedures stems from Const. art. 4, § 1, vesting the judicial power in the Supreme Court and other courts designated in the constitution." Seattle v. Hesler, 98 Wash.2d 73, 80, 653 P.2d 631 (1982).
Because the time limitations of RCW 13.40.230 are primarily procedural, RAP 18.13, which provides that a manifest injustice finding "may be reviewed in the manner provided in the rules for other decisions or by accelerated review," prevails over the 45-day limit enunciated in RCW 13.40.230(1). RAP 18.13 was adopted to effectuate the legislative objectives of RCW 13.40.230 and is consistent with the statute.
Murphy, after failing to perfect his record on appeal and failing to move for accelerated review, withdrew his request for speedy review. A juvenile respondent is entitled to an expedited appeal of his manifest injustice disposition only if he seeks review pursuant to RAP 18.13. He cannot now claim the appeal was not decided in a timely manner.
The third issue is whether the trial court erred when it considered the probation...
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