State v. Sweet

• Decision Date: 13 July 1978
• Docket Number: No. 44827,44827
• Citation: 90 Wn.2d 282,581 P.2d 579
• Parties: STATE of Washington, Respondent, v. Norman Earl SWEET, Appellant.
• Court: Washington Supreme Court

Page 282

90 Wn.2d 282

581 P.2d 579

STATE of Washington, Respondent, v. Norman Earl SWEET, Appellant.

No. 44827.

Supreme Court of Washington, En Banc.

July 13, 1978.

Institutional Legal Services Project John B. Midgley, Monroe, Allen M. Ressler, Seattle, for appellant.

Don F. Herron, Pierce County Pros. Atty., Joseph D. Mladinov, Sr. Deputy Pros. Atty., Tacoma, for respondent.

HAMILTON, Justice.

This is an appeal from a superior court order denying an application for post-conviction relief. The issue raised is whether the State has the burden of demonstrating waiver of the constitutional right to appeal. We hold that it is the State's burden to affirmatively demonstrate waiver. On these facts the State has not met that burden. We set aside the court's order and reinstate the appeal.

The appellant, Norman Earl Sweet, was convicted by a jury of the crime of the unlawful possession of a controlled substance. At trial and the subsequent sentencing he was represented by a retained attorney. Sweet did not perfect an appeal after judgment and sentence, but later filed an application for post-conviction relief with the Court of Appeals, Division Two, alleging deprivation of the constitutionally guaranteed right to appeal and denial of the effective assistance of counsel.

An evidentiary hearing on the factual matters raised by the application was ordered. The testimony adduced at the hearing established that at the time of Sweet's sentencing, January 16, 1975, he was read the substance of CrR 7.1(b) by the court. ¹ Sweet, who had never appealed a criminal conviction, recalled the judge told him that he had a right to appeal and to have counsel appointed for him. He did not recall that the judge indicated he could file a notice of appeal pro se. Sweet testified that after sentencing he spoke with his trial attorney and told him he would like to file an appeal. At the time of sentencing, Sweet was of the belief his attorney would file the notice of appeal. Several days later, however, while he was in the Pierce County jail, Sweet received a notice of withdrawal from the attorney. This notice indicated the attorney would not represent Sweet for purposes of appeal. Sweet, now without funds, testified he did not receive any information from the attorney relative to the procedure for perfecting an appeal.

After receiving the notice of withdrawal, Sweet, in an apparent effort to preserve his appeal, inquired of a jailer what he might do to secure the services of another attorney. According to his testimony, a jailer told him to contact legal services after his transfer to the Washington Corrections Center in Shelton, which was to take place within a few days. As it turned out, Sweet was not transferred to Shelton in a few days, but remained in the Pierce County jail for over 30 days. By the time the transfer to Shelton took place, the period for filing a notice of appeal had expired.

Sweet's retained trial attorney also testified at the hearing. He could not recall any conversation subsequent to sentencing regarding the appeal. He may have told Sweet he should seek the services of another attorney, because Sweet was unable to pay for past legal services.

In an effort to determine what knowledge Sweet had about his appeal rights other than that imparted by the court, both the prosecutor and the hearing judge asked the trial attorney about the information he had personally conveyed to Sweet. When asked by the prosecutor whether he had advised Sweet how to fill out a notice of appeal on his own behalf, the attorney replied, "No, I did not." When asked by the hearing judge whether he had personally explained to Sweet at any time his rights on appeal, he replied, "I believe I did prior to sentencing, yes, but not after sentencing." The attorney did not recall exactly what he told Sweet. He testified he didn't believe he'd been very specific in discussing the appeal because the trial court judge read appeal rights to Sweet. Finally, he testified that he was of the belief Sweet's appeal was meritorious.

The post-conviction hearing judge entered findings and conclusions of law based upon this evidence. He first found that Sweet was advised of the provisions of CrR 7.1(b) understood his attorney would not file an appeal, did not direct the attorney to file an appeal, and did not reasonably rely on the advice of the jailer. He therefore concluded the record reflected no basis for excusing Sweet's failure to file a notice of appeal. The application for post-conviction relief was denied, and this appeal followed.

Sweet seeks review of the order denying post-conviction relief. He contends that the hearing judge erroneously charged him with the burden of demonstrating lack of waiver.

Under the federal constitution, as respondent notes, it is permissible to grant the right to appeal on whatever terms a state deems proper. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The respondent therefore suggests we should begin by adopting a rule which requires the defendant to show lack of waiver. We cannot agree with respondent's suggestion. Washington's Const. art. 1, § 22 (amendment 10) grants not a mere privilege but a "right to appeal in all cases". State v. Schoel, 54 Wash.2d 388, 341 P.2d 481 (1959). The presence of the right to appeal in our state constitution convinces us it is to be accorded the highest respect by this court. Hence, we decline to dilute the right by application of an analysis which differs in any substantial respect from that which is applicable to other constitutional rights. We have held there exists no presumption in favor of waiver of constitutional rights. State v. Emmett, 77 Wash.2d 520, 463 P.2d 609 (1970). This principle applies equally well to the constitutional right of appeal.

We hold there is no presumption in favor of the waiver of the right to appeal. The State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right to appeal.

Waiver is the intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); State v. Schoel, supra. The simple reading of CrR 7.1(b) to a defendant may well be insufficient in itself to give rise to a conclusion of waiver. Compare State v. Taylor, 83 Wash.2d 594, 521 [581 P.2d 582] P.2d 699 (1974), And CrR 4.2 (guilty pleas). ² Thus, in addition to showing strict compliance with CrR 7.1(b) by reading appeal rights to a defendant, the circumstances must at least 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.

It would seem to us a Conscious, intelligent, and willing failure to appeal could be shown to constitute waiver. For example, if a convicted individual is clearly advised of the right to appeal and the procedure necessary to vindicate that right in the manner prescribed by CrR 7.1(b), demonstrates understanding, and is under no unfair restraint preventing vindication, failure to act can be said to be waiver the intentional relinquishment of a known right. See, e. g., State v. Huston, 15 Wash.App. 468, 550 P.2d 20 (1976), Petition for review denied, 87 Wash.2d 1011 (1976), and State v. Hall, 18 Wash.App. 844, 573 P.2d 802 (1977). Waiver could most clearly be shown by a demonstration in the record that the trial judge questioned the defendant about his understanding of the appeal procedure and his intentions with regard to an appeal. See, e. g., Koehn v. Pinnock, 80 Wash.2d 338, 494 P.2d 987 (1972).

We turn now to a consideration of Sweet's contention that the hearing judge indulged in a presumption in favor of waiver and, in so doing, erroneously shifted the burden of proof. After a careful review of the case, we are constrained to agree with this contention. First, portions of the hearing judge's oral opinion, which we have set out below, reflect an indulgence in a presumption in favor of waiver. It appears the hearing judge felt that on the mere reading of the criminal rule a presumption of waiver arose. The judge then shifted the burden of proof to the defendant and required a "substantial" or "majority" burden be met by him. Under this analysis, the sole testimony that the rule was read justified the finding of waiver. The hearing judge said:

That the effort in the promulgation of the criminal rules was to fill that deficiency and that when those rules have been followed there is sort of a presumption that the defendant has been properly dealt with and He's got a substantial burden to overcome when he contends to the contrary.

The judge then went on to add:

It would appear to me that rule 7.1(b) supersedes prior rules on this subject. It may be that it wasn't as well drafted as the prior rules but it is there and I think this is the rule we now are required to read to a defendant who has a right of appeal following conviction and I think the majority burden here on the defendant is to show that there is a very good reason why he didn't do what the judge told him and didn't understand what the judge told him at the time those rights were read to him.

As we have stated, there is no presumption in favor of waiver of the right to appeal, and the reading of CrR 7.1(b) to a convicted defendant may not in itself give rise to such a presumption. Thus, it was error for the judge to indulge in any presumption of waiver.

The conclusions of law in this case also indicate that the hearing judge indulged in a presumption of waiver. They contain No reference to a knowing waiver. On the contrary, the conclusions carry through the erroneous presumption reflected in the judge's oral opinion. Conclusion No. 3 states:

The findings of fact entered by this court and record of proceedings held in this matter reflect no basis for Excusing the defendant for his failure to...