### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
CITY OF LAKEWOOD , No. 46354

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v. NATHAN M. SAVAGE, UNPUBLISHED OPINION Appellant.
W ORSWICK , P. J.

— Nathan Savage appeals the superior c ourt’s d ismissal of his appeal from a municipal court conviction of o bstructing a l aw e nforcement o fficer

. Savage argues that the superior c ourt erred because it failed to determine that he knowingly, voluntarily , and intentionally waived his right to a ppeal. The c ity of Lakewood concedes th at the superior court erred

. We accept the c ity’s concession and hold that the superior court erred when it dismissed Savage’s appeal without determining that Savage knowingly, voluntarily, and intentionally waived his right to appeal

. Accordingly, we reverse the superior court’s ruling and remand to determine whether Savage made a knowing, voluntary, and intentional wa iver of his right to appeal.
FACTS Nathan Savage was convicted in the Lakewood Municipal Court of obstructing a law enforcement officer , RCW 9A.76.020(1), and was sentenced on August 23, 2013

. Savage timely filed a notice of appeal to Pierce County Superior Court on September 1 1 , 2013. During a mandatory court review of Savage’s appeal on February 28, 2014, the superior c ourt issued a Rules f or Appeal of Decision of Courts of Lower Jurisdiction Filed Washington State Court of Appeals Division Two October 27, 2015No. 46354

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( RALJ ) schedule that ordered Savage to serve his appeal brief on the c ity by April 1,
2014

. Neither Savage nor his attorney attended the February 28 RALJ mandatory hearing. On March 28, Savage’s lawyer filed a notice of intent to withdraw to be effective April 10. Savage failed to file his appeal brief by the April 1 deadline

. On April 4, t he c ity moved the superior court to dismiss Savage’s appeal for failure to comply with RALJ 7.2
and 10.2. On April 8, Savage moved the court to extend time so that he could file his transcripts and appeal brief. Savage appeared pro se in superior c ourt on May 2 and asserted that he had been exploring how to obtain a public defender

. Savage also provided the court with a l etter that he had submitted to Lak ewood Municipal Court requesting that assigned counsel represent him dur i n g his appeal. The court noted th at Savage’s attorney had withdrawn in a timely manner, that the time to respond was laid out in the court’ s February order , and that Savage failed to comply with the RALJ s cheduling o rder entered February 28 because he did not file his appeal brief by April 1

. The superior court did not find that Savage knowingly, voluntarily, and intentionally waived his right to appeal. Nonetheless, t he court d enied Savage’s RALJ appeal to extend time and dismissed the case without prejudice. Savage then moved for discretionary review, which this court granted under RALJ 2.1

. ANALYSIS
S TANDARD OF R EVIEW Savage argues and the c ity concedes that the appropriate remedy in this case is a remand to th e superior court to determine whether Savage knowingly, voluntarily , and intentional ly waived his right to appeal. We accept the c ity’s concession.No. 46354

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3 C riminal conviction appeals from district court decision s are governed by R ALJ
1.1. T he “right to appeal in all cases” is expressly guaranteed by the Washington State Constitution. W ASH
. C ONST
. art. I, § 22

. A n individual may relinquish his right to appeal a conviction only by a voluntary, knowing, and intelligent waiver. See State v. Tomal , 133 Wn.2d 985, 988, 948 P.2d 833 (1997)

. There can be no presumption of the waiver of the right to appeal in a criminal case. Tomal , 133 Wn.2d at 989. The c ity carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver

. Tomal , 133 Wn.2d at 989. The right must be made knowingly by the person convicted and not result from the negligence of his attorney. Tomal , 133 Wn.2d at 990. RALJ 10.2(a)(2) provides that the superior court will dismiss an appeal of a case for want of prosecution if the party appealing has abandoned his or her right to appeal. Tomal , 133 Wn.2d at 989. Unless the appellant shows good cause , an appeal will be deemed abandoned if there has been no action of record for 90 days. Tomal , 133 Wn.2d at 98 9

. Where the delay has been caused by the defense attorney , t he trial court may impos e sanctions against the attorney rather than the defendant

. Tomal , 133 Wn.2d at 991.
Here , the record shows that Savage ’s attorney filed a notice of appeal to Pierce County Superior Court on September 11, 2013. The attorney then failed to appear at a mand atory RALJ hearing. The attorney then failed to file transcripts or a brief by the April 1, 2014 deadline, despite his April 10 withdrawal date. Savage further provided testimony and evidence that he had been explor ing how to obtain a public defender toNo. 46354

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represent him in his appeal. Significantly , the superior court did not find that Savage knowingly, voluntarily, and intentionally abandoned his right to appeal.
C ONCLUSION We accept the c ity’s concession and hold that the superior court erred by dismissing Savage’s appeal without finding that Savage knowingly, voluntarily, and intentionally waived his right to appeal. Because the c ity concedes that the presumptive remedy under Tomal is not dismissal, we reverse the superior court’s decis ion. Unless the court finds that Savage waived his right to appe al, his appeal should proceed

. Accordingly, we reverse the superior court’s ruling and remand to determine whether Savage made a knowing, voluntary, and intentional waiver of his right to app eal. A majority of this panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Worswick, P.J. We concur:

Maxa, J.

Melnick, J.