[No. 79973-3. En Banc.]
Argued June 28, 2007. Decided September 13, 2007.
[1] Criminal Law — Review — Right of Appeal — Constitutional Right. Const. art. I, § 22 guarantees citizens accused of crimes "the right to appeal in all cases." [2] Waiver — What Constitutes — In General. Waiver is the act of intentionally relinquishing or abandoning a known right or privilege. [3] Criminal Law — Waiver — Constitutional Rights — Burden of Proof. An accused will not be deemed to have waived a constitutional right absent proof of intentional relinquishment or abandonment of the right. The State has the burden of proof. [4] Criminal Law — Waiver — Constitutional Rights — Presumption. It may not be presumed that an accused has waived a constitutional right. [5] Criminal Law — Review — Right of Appeal — Waiver — Validity — Test. A convicted offender does not waive the constitutional right to appeal the conviction absent a voluntary, knowing, and intelligent expression of an intent to waive. When the issue is disputed, the State bears the burden of proving a valid waiver. Waiver of the constitutional right to appeal will not be presumed; nor may the appeal right be waived by mere inadvertence if no notice or warning was given of such consequence. [6] Criminal Law — Review — Right of Appeal — Waiver — Appeal Filed — Failure To Appear at Subsequent Review Hearing. A convicted offender who has filed an appeal of the conviction does not voluntarily, knowingly, and intelligently waive the right to pursue the appeal by failing to appear at a subsequent review hearing before the trial court. [7] Criminal Law — Waiver — Constitutional Rights — Fugitive Disentitlement Doctrine — Effect. The fugitive disentitlement doctrine is a judicially created rule that may not be applied to presumptively deprive an accused of a constitutionally guaranteed right. [8] Criminal Law — Review — Right of Appeal — Status at Law. The Const. art. I, § 22 right to appeal a criminal conviction is accorded the highest respect. Nature of Action: A city that sought and obtained the convictions of two defendants in separate proceedings in municipal court moved to dismiss the defendants' previously filed appeals of their convictions to superior court after they failed to appear at review hearings before the municipal court. Superior Court: The Superior Court for King County, Nos. 06-1-04016-0, 06-1-03187-0, and 06-1-03186-1, J. Wesley Saint Clair, J., denied the motions on December 8, 2006. Supreme Court: Holding that the fugitive disentitlement doctrine does not apply to abrogate the defendants' constitutionally guaranteed right to appeal their convictions, the court affirms the superior court's denial orders. Thomas A. Carr-, City Attorney, and Richard E. Greene-, Assistant, for petitioner. Christine A. Jackson- (of The Public Defender), for respondents. ¶1 J.M. JOHNSON, J. — The "right to appeal in all cases" is expressly guaranteed by our Washington Constitution. WASH. CONST. art. I, § 22. NATURE OF THE CASE ¶2 The City moved to dismiss respondents' right to appeal their underlying convictions due to subsequent arrest warrants issued after each failed to appear at their respective review hearings after appealing their convictions. The respondents argued that their appeals may not be dismissed because they had not made a voluntary, knowing, and intelligent waiver of their constitutional right to appeal. ¶3 The King County Superior Court agreed with the respondents and denied the City's motion in both cases. The court held that an arrest warrant for failure to appear, by itself, did not establish a voluntary, knowing, and intelligent waiver of the constitutional right. The City sought discretionary review. Division One of the Court of Appeals granted review on the dismissal question and stayed the appeal of a final decision of a court of limited jurisdiction (RALJ). Review of the dismissal issue was then consolidated and transferred to this court. FACTUAL AND PROCEDURAL HISTORY ¶4 On December 30, 2005, Stephen Klein was charged in Seattle Municipal Court for an incident of assault that had occurred that day. Clerk's Papers Klein (CP-K) at 10-18. He was convicted of the assault charge on March 29, 2006, in Seattle Municipal Court. Klein filed a timely appeal of the conviction. CP-K at 17, 26-57. A condition of his suspended sentence was that he was to have no further criminal law violations. Id. at 3. ¶5 The sentence was not stayed pending the appeal. Id. On August 3, 2006, a review hearing was held, and Klein admitted he had been convicted of a new violation; thus, 10 days of his suspended sentence was revoked and he was ordered to serve his sentence on a work crew. Id. at 3-4, 17. A review hearing was set for September 18, 2006, to determine whether Klein had completed the work crew sentence. Id. at 4, 18. Klein did not appear at the review hearing, and his work crew sentence had not been completed, so the court continued the case for one week. Id. On September 25, 2006, the court received a probation report indicating that Klein had still not completed the work and then issued a warrant for his arrest. Id. at 4, 18, 20. On October 20, 2006, the City moved to dismiss Klein's RALJ appeal because of the outstanding warrant for his arrest. Id. at 3-9. On December 8, 2006, the King County Superior Court denied the City's motion, holding that the warrant, by itself, did not establish a "knowing, intelligent, and voluntary waiver of his constitutional right to appeal." Id. at 23. ¶6 Melissa Deibert was charged in Seattle Municipal Court for an incident of misdemeanor theft that had occurred on or about September 27, 2005. Clerk's Papers Deibert (CP-D) at 52. On February 23, 2006, she was convicted of the misdemeanor theft charge after a jury trial. CP-D at 10. As a result of the theft conviction, Deibert's deferred sentence on a prior conviction of prostitution was revoked. Id. at 21. As part of her suspended sentences, she was ordered to perform a total of six days on a work crew. Id. at 22. Deibert appealed both judgments. Id. at 14, 21. ¶7 The sentences were not stayed pending appeal. Id. at 3-4. She did not complete the work crew sentence, so the court scheduled a review hearing for October 27, 2006. Id. at 15, 22. The record does not indicate that Deibert was given notice that a subsequent bench warrant or failure to appear would constitute a waiver of her right to appeal. Id. at 25. Deibert failed to appear at the review hearing, and the Seattle Municipal Court issued a warrant for her arrest. Id. at 15, 22-23. The City moved to dismiss her RALJ appeal because of the outstanding warrant. On December 8, 2006, the King County Superior Court denied the City's motion, holding that the warrant, by itself, did not establish a "knowing, intelligent, and voluntary waiver of her constitutional right to appeal." Id. at 26. ¶8 We note that respondent Klein filed a request for judicial notice on June 27, 2007. See ER 201. The notice informs this court that Mr. Klein was booked into the King County Jail on May 1, 2007, pursuant to an outstanding warrant issued in the current case. Thus, Mr. Klein is now properly within the jurisdiction of the appropriate court; meanwhile, his appeal has not yet been dismissed. ANALYSIS A. Did the Respondents Waive or Forfeit Their Right To Appeal? ¶10 The FDD's underlying rationale is explained in State v. Johnson, 105 Wn.2d 92, 97, 711 P.2d 1017 (1986) (quoting Eisler v. United States, 338 U.S. 189, 192, 69 S. Ct. 1453, 93 L. Ed. 1897 (1949) (Frankfurter, J., dissenting)), where the court said: Defendants who affirmatively avoid the court's jurisdiction waive their appeal and cannot claim a violation of Const. art. 1, § 22 (amend. 10). State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978). As observed by Justice Frankfurter: . . . When he [defendant] withdraws himself from the power of the Court to enforce its judgment, he also withdraws the questions which he had submitted to the Court's adjudication. Based on this reasoning, the City argues that missing the review hearings forfeits the respondents' right to appeal, per the FDD, in this matter. ¶11 Sweet is controlling on this point. We previously explained that a constitutional right to appeal can be waived only voluntarily, knowingly, and intelligently. See, e.g., Sweet, 90 Wn.2d at 287. ". . . 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." Sweet, 90 Wn.2d at 287. ¶12 The City argues that Sweet is distinguishable because these respondents had already filed their appeals, then forfeited their right by later action or failure to act, unlike in Sweet where the defendant had no opportunity to file at all. Br. of Pet'r at 8. This distinction makes no difference because in either case, a procedural defect (failure to file or failure to appear), without notice that the right to appeal may be lost, does not constitute knowing waiver of the core constitutional right. ¶13 The right to appeal is not waived unless the State proves that the appellant made a voluntary, knowing, and intelligent waiver. In a criminal appeal of right, knowing waiver by the defendant is required to dismiss an appeal. . . . However, there can be no presumption in favor of the waiver of the right to appeal in a criminal case. Rather, the State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right to appeal. (Emphasis added.) ¶14 The Tomal court also noted that inaction by the appellant may establish a valid waiver only when the appellant has been informed of the consequences of his or her conduct. See id. at 990. A trial judge may give notice to the defendant that absence or failure to comply with procedures may constitute a waiver of the appeal, but that was not done here. In short, there is no presumption of waiver. In fact, our case law mandates that waiver must be affirmatively proved by the State. Id. ¶15 The knowledge component of waiver was also explored in Kells, 134 Wn.2d at 314. In Kells, the defendant was not informed of his right to appeal the declination order transferring him to superior court. Id. at 311. This court held that the State did not affirmatively demonstrate that Kells understood his right to appeal, and he did not "consciously [give] up that right." Id. at 314. This court explained that "an involuntary forfeiture of the right to a criminal appeal is never valid." Id. at 313. Thus, knowledge is a crucial component of the waiver of appellate rights. See also State v. French, ¶16 Finally, we turn to the City's argument that respondents intentionally waived their right to appeal by conduct. "Waiver by conduct" cases in Washington give us excellent guidance on this issue. See, e.g., City of Tacoma v. Bishop, 82 Wn. App. 850, 859, 920 P.2d 214 (1996). Case law in the appellate courts has allowed waiver by either conduct or forfeiture. However, waiver of the constitutional right to counsel requires a clear showing that the accused has affirmatively requested to proceed pro se and has been adequately warned of the risks of self-representation. Id. at 858. In rare circumstances, "forfeiture" has been found where the conduct of the accused was "extremely dilatory." Id. at 859. Relinquishment by conduct is only constitutional once a defendant has been warned that he or she will waive this right if he or she engages in dilatory tactics. Any misconduct thereafter may be held to include an implied request to proceed pro se and a waiver of counsel. Id. ¶17 We briefly address whether the respondents here lost their right to appeal due to waiver by conduct. In Bishop, even though the defendant's conduct could have been an "implied request" to proceed pro se, such a request was not a valid waiver because the party did not clearly have knowledge of the consequences; the court did not warn him of the risks of self-representation. Id. Here, the record shows respondents were not warned that the failure to appear in the trial court to comply with the terms of the prior orders might be argued to waive the right to appeal. Br. of Resp'ts at 29-30. There could be no implied request for waiver under these facts. ¶18 Moreover, the court did not make any findings of "extremely dilatory" conduct. This also distinguishes In re Dependency of E.P., 136 Wn. App. 401, 149 P.3d 440 (2006) from the current case. See supra note 4. In E.P., the mother had forfeited her statutory right to counsel by failing to appear at court hearings, of which she had notice, and failing to have any contact with her trial counsel. E.P., 136 Wn. App. at 404-06. The court found this conduct to be "extremely dilatory," thereby constituting forfeiture. Id. at 406. Here, there is no record that the respondents' behavior impaired the criminal appellate process that is handled by their counsel. The respondents' presence is not required at any hearing for their appeal. Br. of Resp'ts at 30. In sum, the respondents did not knowingly waive their right to appeal. B. The Fugitive Disentitlement Doctrine ¶19 Our most recent case, which analyzed the FDD, French, ¶20 The City argues that the trial court's reliance on French is misplaced because nothing in its language purports to overrule any of the cases applying the FDD to a defendant who has already been sentenced and has filed a notice of appeal before fleeing the court's jurisdiction. Br. of Pet'r at 10-11. However, the French court also endorsed the holding in Sweet, which says "that the State bears the burden to show a defendant made a knowing, intelligent, and voluntary waiver of his or her right to appeal." ¶21 Respondents cite similarities between the FDD analysis in French and the instant case, particularly emphasizing that reasons for the doctrine "become attenuated when applied in the context of a convicted but unsentenced defendant." Id. Here, the FDD rationales are inapplicable where a criminal appellant has asserted the constitutional right to challenge a potentially erroneous conviction on appeal. ¶23 The right to appeal a criminal conviction is expressly guaranteed by the Washington Constitution. Wash. Const. art. I, § 22. We apply this protection as it is written and also rely heavily on our holding from Sweet: We have held there exists no presumption in favor of waiver of constitutional rights. State v. Emmett, 77 Wn.2d 520, 463 P.2d 609 (1970). This principle applies equally well to the constitutional right to 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. Sweet, 90 Wn.2d at 286-87 (first and second emphasis added). The government must carry the burden of demonstrating that the right to appeal was knowingly waived by either respondent and it failed to do so. Id. at 286. ¶24 Clearly, the FDD is a judicially created doctrine that cannot assume the authority to repeal a constitutional mandate. ¶25 Finally, we recognize the separate constitutional guaranty of due process that no person may be deprived of "life, liberty, or property, without due process of law." U.S. CONST. amends. V & XIV, § 1; WASH. CONST. art. I, § 3. In the criminal context, due process requires that a criminal defendant be given notice prior to deprivation of a substantial right. City of Seattle v. Agrellas, 80 Wn. App. 130, 136-37, 906 P.2d 995 (1995) (citing State v. Fleming, 41 Wn. App. 33, 35-36, 701 P.2d 815 (1985)). The right to appeal is a fundamental constitutional right that applies in "all cases" and may be waived only by a voluntary, knowing, and intelligent waiver. WASH. CONST. art. I, § 22; see, e.g., Kells, 134 Wn.2d at 315. Due process requires notice of proscribed conduct so that there is a fair warning of potential penalties from a chosen course of action. See, e.g., In re Pers. Restraint of Powell, 92 Wn.2d 882, 888, 602 P.2d 711 (1979). ¶26 Here, the respondents were not given notice, beyond the normal filing deadlines, that any failure to appear for hearings or any noncompliance with probation could result in forfeiture, waiver, or relinquishment of their right to appeal. Br. of Resp'ts at 32. A court may fine, sanction, hold in contempt, or otherwise discipline a defendant for delaying or disruptive behavior. However, it may not dismiss a criminal appeal merely because the defendant does not comply with the court's orders on tangential matters. CONCLUSION ¶27 The right to appeal is guaranteed by Washington Constitution article I, section 22, and the importance of this right has been reiterated in numerous cases by this court. E.g., Tomal, Kells, Sweet, and French. The FDD cannot deprive someone of his or her constitutionally guaranteed right to appeal, even if applied after the appeal has been filed. Admittedly, the respondents did not attend later review hearings. There is, however, no evidence that the respondents made a voluntary, knowing, and intelligent waiver of their right to appeal their convictions, which had been timely filed. ¶28 Here, the State did not even inform the respondents that it could ask—as sanction for nonattendance at court hearings—the court ordered loss of their appellate rights. Indeed, we have never held this could be an appropriate sanction. The State failed to satisfy the strict burdens necessary to prove waiver of this important right. We hold that dismissing the respondents' appeals based on their absence from a review hearing, without notice, would violate their constitutional right to appeal. We affirm the trial court's ruling. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, OWENS, and FAIRHURST, JJ., concur.