STATE v. BOSTON, 132 Wn. App. 1054 (2006)

Nos. 55213-9-I; 55215-5-I.The Court of Appeals of Washington, Division One.
May 8, 2006.

Appeals from a judgment of the Superior Court for Snohomish County, No. 01-8-00973-7, Charles S. French, J., entered November 13, 2001.

Dismissed by unpublished per curiam opinion.

Counsel for Appellant(s), Jeffrey Erwin Ellis, Ellis Holmes Witchley PLLC, 705 2nd Ave Ste 401, Seattle, WA 98104-1718.

Juanita E. Holmes, Ellis Holmes Witchley PLLC, 705 2nd Ave Ste 401, Seattle, WA 98104-1718.

Counsel for Respondent(s), Christopher John Dickinson, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.

Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.

PER CURIAM.

Kyle Boston moves for an 18-month extension of time to file a notice of appeal from an order declining juvenile court jurisdiction and transferring his murder prosecution to adult court. Because Boston waived his right to appeal that order, and because he cannot demonstrate prejudice, he is not entitled to an extension of time. Accordingly, we deny his motion and dismiss the appeal.

FACTS
Based on evidence that 14-year-old Kyle Boston participated in the brutal murder of Jerry Heimann, the State charged him in juvenile court with first degree murder. The juvenile court declined jurisdiction.

Boston moved for discretionary review of the declination order. While that motion was pending, he pleaded guilty to second-degree felony murder predicated on assault. The plea agreement stated in part that `[t]he defendant agrees not to challenge the conviction for this crime, whether by moving to withdraw the plea, appealing the conviction, filing a personal restraint petition, or in any other way.’[1] Based on this language, the prosecutor informed Boston’s counsel that his motion for discretionary review of the declination order violated the plea agreement. Boston then voluntarily withdrew his motion for discretionary review and made the following statements in an attached declaration:

1. I am withdrawing the Petition for Discretionary Review to the Court of Appeals in order to comply with the plea bargain agreement.
2. I am aware that I have the right to appeal the declination order from the juvenile [c]ourt and I give up that right voluntarily.[2]

On October 24, 2002, the Washington State Supreme Court held in Andress[3] that the version of felony murder to which Boston had pleaded guilty was not a crime. On November 21, 2002, Boston turned 16.

On April 16, 2003, the State filed an amended information charging Boston with intentional second degree murder. That same day, Boston entered a new guilty plea to the amended information. Other than the amended charge, the new plea agreement was identical to the original.

On April 25, 2003, the superior court entered an agreed order vacating Boston’s first guilty plea in light of Andress and affirming his plea to intentional murder. The court sentenced Boston to 220 months of confinement. The portion of the judgment and sentence advising of the right to appeal was crossed out. Boston did not appeal.

In October 2004, 18 months after entry of the judgment and sentence, Boston filed a notice of appeal seeking review of the November 13, 2001 order declining jurisdiction. Boston then moved this court for an extension of time to file the notice of appeal. A commissioner of this court referred Boston’s motion to this panel.

DECISION
Boston contends this court should grant an extension of time for him to appeal the declination order because he `did not understand, much less intelligently waive, his right to appeal that decision.’ Alternatively, he argues that, `[t]o the extent that the record is not sufficiently clear, this Court should remand this issue to the trial court for an evidentiary hearing.’[4]

Under RAP 5.2(a), a notice of appeal must be filed within thirty days of the decision appealed. Extensions of time are normally granted `only in extraordinary circumstances and to prevent a gross miscarriage of justice.’ RAP 18.8(b). Our Supreme Court has made it clear, however, `that the strict application of filing deadlines must be balanced against a defendant’s state constitutional right to appeal.’[5] A defendant has a right to appeal a declination order following his or her conviction.[6]
And, `although a guilty plea cuts off a defendant’s right to appeal a determination of guilt, a guilty plea does not terminate the right to appeal the declination order.’[7] The right to appeal a declination order can be waived, but the State must demonstrate that the `defendant understood his right to appeal and consciously gave up that right.’[8]
The State has carried that burden here.

Both plea agreements state that Boston agrees not to challenge his conviction by direct appeal, personal restraint petition, or `in any other way.’ The meaning of the latter phrase, while perhaps debatable in the abstract, was established in this case by the parties’ course of dealing. When he withdrew his petition for discretionary review of the declination order Boston acknowledged that, while he had a right to appeal that order, doing so would violate the plea agreement. Thus, when he signed the second plea agreement containing identical language, he plainly understood that he was waiving his right to appeal the declination order.

In his motion to extend time and supporting declaration, Boston claims he did not knowingly waive his right to appeal the declination order because, prior to withdrawing his motion for discretionary review of that order, his counsel misinformed him that he had waived his right to appeal the order `by virtue of the simple fact that he pled guilty, as opposed to going to trial.’[9] Such advice would be erroneous under the holding in Pritchard.[10] Boston alleges he signed the declaration supporting withdrawal of discretionary review only because of his counsel’s erroneous advice and that, but for that advice, he would have timely appealed the declination order. These self-serving allegations are belied by the record.

In his sworn declaration below, Boston stated he was withdrawing his petition for discretionary review `in order to comply with the plea bargain agreement.’ That statement was made in response to the prosecutor’s observation that the specific language of the plea agreement prohibited any challenge to the declination order. Thus, contrary to his current claims, Boston withdrew the petition for review because it was prohibited by the terms of the plea agreement, not because of any misinformation regarding the effect of guilty pleas generally on the right to appeal.

Accordingly, we conclude that Boston voluntarily, intelligently, and knowingly waived his right to appeal the declination order. His motion for an extension of time is therefore denied.

We would deny the motion for an extension of time even had Boston not waived his right to appeal because he cannot demonstrate prejudice from any error in the declination proceedings. As the State correctly points out, the amended information underlying Boston’s second guilty plea was filed after he turned 16. Because that information charged a serious violent offense, jurisdiction was automatically declined by operation of former RCW 13.04.030(1)(e)(v)(A) (2000).[11] Thus, by the time Boston entered his second guilty plea, the superior court had jurisdiction to try him as an adult regardless of whether the juvenile court had properly declined jurisdiction.[12] Boston has not been prejudiced by any infirmity in the declination proceedings.[13]

When questioned by this court’s commissioner on this point, counsel for Boston simply stated that the merits of Boston’s ultimate appeal are immaterial to whether he is entitled to have an appeal. But counsel’s response ignores the fact that an extension of time will be granted only upon a showing that an extension will prevent `a gross miscarriage of justice.’ RAP 18.8(b). Boston seeks only to appeal the declination order and, as a matter of law, he cannot demonstrate prejudice from that order. Therefore, he cannot demonstrate that an extension of time is necessary to prevent a miscarriage of justice.

Finally, although we do not reach the merits of Boston’s challenge to the hearsay admitted at the declination hearing, we note that both his confrontation and due process claims appear to be controlled by In re Harbert.[14] As Boston himself recognizes, his claim that the decision to decline jurisdiction violated his right to a jury under Blakely[15]
is foreclosed by our decision in State v. Tai N.[16]

The motion for an extension of time is denied; the appeal is dismissed.

DWYER, SCHINDLER and COLEMAN, JJ.