State v. Wade
| Decision Date | 05 July 2006 |
| Docket Number | No. 22904-8-II.,22904-8-II. |
| Citation | 133 Wn. App. 855,138 P.3d 168 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Steven O'Neal WADE, Appellant. |
Eric J. Nielsen, Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.
Michelle L. Shaffer, Cowlitz Co. Pros. Attorney Office, Kelso, WA, for Respondent.
¶ 1 Steven Wade was convicted of multiple offenses and was appointed counsel for appeal. Counsel filed an Anders1 brief requesting that he be allowed to withdraw because there were no arguable issues to appeal. We conducted our own review of the record, agreed with counsel's assessment, affirmed Wade's convictions, and permitted Wade's counsel to withdraw. Wade's judgment and sentence became final in 2000.
¶ 2 In 2003, Wade found a ministerial error in his judgment and sentence — the document did not specify the precise term of his community placement. This error was corrected.
¶ 3 Wade now maintains that because his appellate counsel erroneously filed an Anders brief, he was denied the right to assistance of counsel in his direct appeal. Therefore, according to Wade, he is entitled to a new direct appeal without the limits of collateral review. We disagree. We hold that, when the appellate court and defense counsel complied with Anders on direct review, RCW 10.73.090 and .100 apply and limit the issues that may be raised in a collateral attack filed more than one year after the judgment and sentence became final. Because Wade raises no meritorious issues allowed under those statutes, we again affirm.
¶ 4 In July 1997, Wade and two female accomplices unlawfully entered Ben and Jennifer Dobbe's home and demanded money the women claimed they were owed for their services at a bachelor party. At the time of the break-in, the Dobbes and Christopher and Nicolette Wakefield were in the home. Wade displayed a gun and asked where the bachelor was. When Ben said he did not know, Wade hit Ben in the head with the gun. Wade then asked where the money was. Wade again hit Ben in the head and shoulder with the gun when Ben replied, "What money?" 1 Report of Proceedings at 54. Wade pointed the gun at Jennifer, Christopher, and Ben, in that order, and demanded money and jewelry from each. Wade and the women fled but were apprehended after a high-speed police chase during which Wade threw the gun from the car.
¶ 5 A jury found Wade guilty of the first degree robberies of Ben, Jennifer, and Christopher (counts I, II, and III, respectively), first degree burglary (count IV), and the second degree assault of Ben (count V). However, the court dismissed the firearm enhancements and the unlawful possession of a firearm count, finding the evidence insufficient to prove that the gun was operable at the time of the crime.
¶ 6 The court calculated Wade's offender score at 13, including four points for two 1989 juvenile adjudications. The court imposed exceptional sentences on counts I, II, and III, but ran all counts concurrently. The exceptional sentences were based on Wade's uncounted misdemeanor convictions and his offender score of 13, which exceeded the high end of the standard sentencing range and resulted in Wade going unpunished for two of his robbery convictions. The court considered each justification sufficient to impose the exceptional sentences.
¶ 7 Wade appealed and was appointed counsel. Wade's counsel filed an Anders brief asserting that there were no arguable issues to appeal and requesting that he be permitted to withdraw. Counsel briefed the procedural and factual history of the case, with citations to the record, and encouraged this court to review the sufficiency of the evidence supporting Wade's convictions. Wade was informed of counsel's request to withdraw and he filed a pro se supplemental brief raising six assignments of error.
¶ 8 After an independent review of the record, a court commissioner affirmed Wade's convictions and sentences. The commissioner addressed the issues counsel and Wade raised and granted counsel's motion to withdraw. We denied Wade's motion to modify the commissioner's ruling. The Washington Supreme Court denied Wade's petition for review. State v. Wade, 140 Wash.2d 1011, 999 P.2d 1261 (2000). Wade's convictions became final when the mandate was issued on April 12, 2000. See RCW 10.73.090(3)(b).
¶ 9 In 2003, Wade filed a CrR 7.8 motion in superior court. Wade maintained that under State v. Broadaway, 133 Wash.2d 118, 135-36, 942 P.2d 363 (1997), his judgment and sentence was facially invalid because it did not set a precise term of community placement. The superior court denied Wade's motion as untimely, but we reversed. State v. Wade, No. 31133-0-II, 2005 Wash.App. LEXIS 127, 125 Wash.App. 1016 (Jan. 19, 2005). We ordered the superior court to set Wade's community placement and to amend the judgment and sentence accordingly.
¶ 10 In January 2005, Wade filed a motion to recall the mandate. Wade maintained that in light of the community placement issue, the court commissioner had erred in the initial appeal in concluding that there were no arguable issues to appeal. Wade asserted that because of this error, he was entitled to a new direct appeal with appointed counsel. Without addressing the merits of Wade's argument, we granted the motion to recall the mandate, appointed counsel, and ordered briefing on this issue and other potential assignments of error.
¶ 11 Once a defendant has exhausted all direct appeal remedies, his judgment and sentence becomes final and his right to relief narrows. Even claims that may have resulted in a favorable ruling if raised on direct appeal must usually be rejected in deference to the strong societal need for finality in criminal judgments. Wade acknowledges the necessary balance courts must strike between providing relief and requiring timely objections, but he maintains that the flaws in his direct appeal and our decision to recall the mandate wiped his slate clean and require us to grant him a fresh direct review of his trial and sentencing. We disagree.
¶ 12 Although a defendant has a constitutional right to effective assistance of counsel in his first appeal, he has no right to counsel for a frivolous appeal. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); State v. Hairston, 133 Wash.2d 534, 537 n. 2, 946 P.2d 397 (1997). In Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Court set forth the following "prophylactic framework"2 for an appellate counsel to follow when he concludes that an appeal would be frivolous:
[I]f 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 to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal.
Because the Anders procedure is prophylactic in nature, states may craft different procedures that sufficiently protect the defendant's right to appellate counsel. Smith v. Robbins, 528 U.S. 259, 276, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 442-44, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (). Washington follows the Anders procedure. State v. Jackson, 87 Wash.2d 562, 566, 554 P.2d 1347 (1976); see also RAP 18.3(a) ().
¶ 13 In Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), the Court struck down a procedure allowing counsel to withdraw before the court had determined whether counsel's evaluation of the case was accurate, and, in addition, allowed a court to decide the appeal without counsel even if the court found arguable issues. The Court concluded that allowing a court to decide a nonfrivolous appeal without counsel was particularly significant because "once a court determines that the trial record supports arguable claims, there is no basis for the [Anders] exception and . . . the criminal appellant is entitled to representation." Penson, 488 U.S. at 84, 109 S.Ct. 346. The Court explained that Penson, 488 U.S. at 88, 109 S.Ct. 346 () (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
¶ 14 In State v. Nichols, 136 Wash.2d 859, 968 P.2d 411 (1998) (per curiam), counsel filed an Anders brief, but Division One discovered one nonfrivolous issue. The issue was the same as in Wade's judgment and sentence, namely, the sentencing court failed to set the period of community placement. Division One affirmed Nichols's conviction and permitted counsel to withdraw, but it remanded to the superior court only to correct the sentencing error it identified. The Washington Supreme Court reversed. The court cited Penson and held that once an appellate court identifies a nonfrivolous issue, it "must appoint counsel to pursue the appeal and direct that counsel to prepare an advocate's brief before deciding the merits." Nichols, 136 Wash.2d at 861, 968 P.2d 411 (quoting McCoy, 486 U.S. at 444, 108 S.Ct. 1895).
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