State v. Richey

• Decision Date: 18 December 2007
• Docket Number: 35433-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. THOMAS W. S. RICHEY, Appellant.

STATE OF WASHINGTON, Respondent, v. THOMAS W. S. RICHEY, Appellant.

No. 35433-1-II

Court of Appeals of Washington, Division 2

December 18, 2007

UNPUBLISHED

OPINION

Armstrong J.

Thomas Richey appeals the trial court's conclusion that he knowingly, voluntarily, and intelligently waived his right to appeal his 1987 guilty plea convictions of first degree murder and attempted first degree murder. We affirm.

FACTS

On April 23, 1987, the State charged Thomas Richey by amended information with one count of first degree murder and one count of attempted first degree murder. Richey pleaded guilty as charged, and as part of the plea agreement, the parties stipulated that the trial court should impose an exceptional sentence of 65 years on each count, to be served concurrently.

Richey's statement on plea of guilty informed him that by pleading guilty, he was giving up his right to appeal a determination of guilt after a trial. The statement also advised Richey that he maintained the right to appeal an aggravated exceptional sentence.

In presenting the plea, defense attorney Larry Nichols stated that he had gone over the statement on plea of guilty with his client. Richey confirmed that he had gone over the statement with Nichols and that he understood each sentence and the rights he was giving up by pleading guilty. The trial court accepted Richey's guilty plea, proceeded immediately to sentencing, and followed the joint recommendation. The court did not read Richey his appeal rights, including the time limit for filing an appeal, as set forth in CrR 7.2(b).

In 1991, Richey filed a personal restraint petition alleging that the trial court erred in imposing an exceptional sentence. We dismissed the petition as time-barred on April 6, 1992. In January 2005, Richey asked for an extension of time to file a notice of appeal; we denied his request. Richey then moved for discretionary review, arguing that he had pleaded guilty to attempted felony murder, a nonexistent crime, and that he was entitled to raise the issue on appeal because he was never properly notified of his right to appeal.^[1] On July 13, 2005, the Supreme Court granted discretionary review and issued an order remanding this case to the superior court

for a hearing to determine whether the Petitioner knowingly intelligently and voluntarily waived his right to appeal his conviction after his guilty plea. If after conducting a hearing, the Pierce County Superior Court determines the appeal should be reinstated, then said court shall entertain a motion for an order of indigency relative to appeal.

Clerk's Papers (CP) at 28.

On July 14, 2005, Richey filed a CrR 7.8 motion in the superior court "to vacate judgment and sentence, and to withdraw plea of guilty." CP at 205. This motion alleged that his judgment and sentence was invalid on its face because he had pleaded guilty to a nonexistent crime. The superior court transferred the motion here for consideration as a personal restraint petition, and we transferred it to the Supreme Court as a successive petition. The Supreme Court's consideration of the petition is pending.

Pursuant to the Supreme Court's order on remand, the same judge who sentenced Richey in 1987 conducted an evidentiary hearing on April 14 and 18, 2006. The judge acknowledged that he had failed to advise Richey of his appeal rights during sentencing but concluded that Richey had knowingly voluntarily, and intelligently waived his right to appeal. Richey now appeals from the court's written findings of fact and conclusions of law.

ANALYSIS I.

CrR 7.2(b) and Waiver

Richey argues initially that we must reinstate his appeal because the trial court did not comply with CrR 7.2(b) at sentencing.

Under article 1, section 22 of the Washington Constitution, a person who has been convicted of a crime has the right to appeal. State v. Tomal, 133 Wn.2d 985, 988, 948 P.2d 833 (1997). CrR 7.2(b) was adopted to safeguard that right. See Jones v. Rhay, 75 Wn.2d 21, 23, 448 P.2d 335 (1968). When Richey was sentenced in 1987, the rule read as follows:

(b) Procedure at Time of Sentencing. The court shall, at the time of sentencing, advise the defendant (1) of the right to appeal the conviction; (2) of the right to appeal a sentence outside the standard sentence range; (3) that unless a notice of appeal is filed within 30 days after the entry of the judgment or order appealed from, the right to appeal is irrevocably waived; (4) that the superior court clerk will, if requested by the defendant appearing without counsel, supply a notice of appeal form and file it upon completion by the defendant; and (5) of the right, if unable to pay the costs thereof, to have counsel appointed and portions of the trial record necessary for review of assigned errors transcribed at public expense for an appeal. These proceedings shall be made a part of the record.

The current version of the rule is almost identical and adds that the court shall advise the defendant of the time limits on the right to collateral attack set out in RCW 10.73.090 and .100. CrR 7.2(b)(6).

The State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right to appeal. Tomal, 133 Wn.2d at 989. Richey contends that the State cannot meet that burden where the sentencing court did not inform him of his appeal rights on the record as CrR 7.2(b) required. He argues further that the sentencing court's failure to follow CrR 7.2(b) constitutes an extraordinary circumstance sufficient to justify extending the 30-day deadline for filing a notice of appeal. See RAP 18.8(b) (appellate courts will extend the time for filing a notice of appeal only in extraordinary circumstances and to prevent a gross miscarriage of justice).

According to Richey, the case law makes it clear that strict compliance with CrR 7.2(b) is a prerequisite for establishing a knowing voluntary, and intelligent waiver of the right to appeal. See, e.g., Tomal, 133 Wn.2d at 990 ("In a case where the judge informs the defendant at the time of sentencing of the right to appeal and the timing requirements, then the defendant's failure to timely pursue an appeal may be found to be a valid waiver."); State v. Sweet, 90 Wn.2d 282, 286-87, 581 P.2d 579 (1978) (State may show defendant waived right to appeal if "in addition to showing strict compliance with CrR 7.1(b) [now CrR 7.2(b)] by reading appeal rights to a defendant," it shows that circumstances "reasonably give rise to an inference the defendant understood the import of the court rule and did in fact willingly and intentionally relinquish a known right."); Jones, 75 Wn.2d at 23-24 (finding strict compliance with predecessor to CrR 7.2(b) a mandatory duty of the sentencing judge, and remanding for reentry of judgment and sentence in compliance therewith); and State v. Lewis, 42 Wn. App. 789 794, 715 P.2d 137 (1986) (where record does not clearly indicate that judge advised defendant of his appeal rights and the appeal notice was untimely filed, filing period must be extended so defendant is not unjustly deprived of the right of appeal) (citing City of Seattle v. Braggs, 41 Wn. App. 646, 651, 705 P.2d 303 (1985)).

Richey also argues that reinstating his appeal is dictated by cases holding that a failure to notify a prisoner of the deadline for filing a collateral attack waives the filing deadline. See, e.g., In re Pers. Restraint of Vega, 118 Wn.2d 449, 451, 823 P.2d 1111 (1992) (waiving one-year deadline for filing personal restraint petition because there was neither actual nor attempted notification thereof).

The State responds that this argument is not properly before us because the Supreme Court rejected it. The State reasons that had the CrR 7.2(b) issue been dispositive, the Supreme Court would not have referred the matter to the trial court to determine the issue of waiver. Richey replies that an order granting a motion for discretionary review does not amount to a binding decision on the merits of the case and that the law of the case doctrine does not apply to preclude us from deciding the merits of a legal theory that the Supreme Court neither addressed nor decided in its order.

An appellate court generally will not re-determine the rules of law that it announced in a prior determination in the same case or that were necessarily implicit in the prior determination. State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104 (2003); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992). This law of the case doctrine promotes "the finality and efficiency of the judicial process by 'protecting against the agitation of settled issues.'" Harrison, 148 Wn.2d at 562 (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct 2166, 100 L.Ed.2d 811 (1988)). Courts apply the doctrine "'to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.'" Harrison, 148 Wn.2d at 562 (quoting 5 Am. Jur. 2d, Appellate Review § 605 (2d ed. 1995)). In cases where a legal theory is not discussed in the opinion, however, that case is not controlling on a future case where the theory is properly raised. State v. Reinhart, 77 Wn. App. 454, 458-59, 891 P.2d 735 (1995) (citing Berschauer/Phillips Const. Co. v. Seattle Sch. Dist., 124 Wn.2d 816, 824, 881 P.2d 986 (1994)).

Here neither party has argued nor has a court decided the CrR 7.2(b) issue. Even though the Supreme Court's remand for an evidentiary hearing would implicitly suggest that the trial court's failure to read Richey his appeal rights did...