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2013 OCT 28 AH 10: 35

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF SEATTLE,

Respondent,

v.

ANDREA LISTER,

Petitioner.

DIVISION ONE

No. 67500-1-1

UNPUBLISHED OPINION

FILED: October 28, 2013

Dwyer, J. — In a criminal case, the defendant is entitled to be represented

by counsel at each critical stage ofthe proceeding. Oral argument in the

appellate court is one such stage. Here, the defendant was not represented by

counsel when her appeal as a matter of right was called for argument bythe

court. Although the appellate judge articulated his intention to decide this matter

without oral argument, a contested courtroom proceeding in fact took place.

Because the defendant did not validly waive her rightto counsel at this

proceeding—instead, insisting that she did not wantto proceed without an

attorney—we reverse.

Andrea Lister was convicted of false reporting and violation of a protection

order in the Seattle Municipal Court. She appealed her convictions to the King

County Superior Court. Her counsel submitted a brief and thereafter withdrew.

Lister was unable to obtain new counsel before her oral argument date arrived.
No. 67500-1-1

She appeared in the superior court without counsel and requested a

continuance, stating that she did not desire to represent herself.

Seeking to keep the matter on track, the city's counsel requested that the

court decide the case without oral argument, pursuant to applicable court rule.1

However, almost immediately, the city's counsel also handed the court a

photocopy of a recent Washington Supreme Court decision, City of Seattle v.

May, 171 Wn.2d 847, 256 P.3d 1161 (2011), which had not been cited in the

briefs submitted to the court and which directly pertained to one of the

substantive issues on appeal. The judge reviewed the May opinion and asked

both the city's counsel and Lister to comment on the opinion and the applicability

of RALJ 8.4. Ultimately, the court announced that it would decide the case

based only "on the briefs," pursuant to RALJ 8.4, and affirmed Lister's

convictions based on two cases previously cited in the briefing and the May

decision, newly introduced at the RALJ hearing.

Lister sought discretionary review in this court, which was granted. She

contends that she was denied her constitutional right to counsel at the RALJ

hearing and requests that we reverse the superior court's order affirming her

convictions.

We conclude that, although the superior court stated that itwould decide

the appeal based only "on the briefs" pursuant to RALJ 8.4, it did not in fact do

1Rule 8.4 of the Rules forAppeal of Decisions of Courts of Limited Jurisdiction (RALJ)

provides that"[t]he parties may, at any time, agree towaive oral argument and submit the matter

for consideration by the courton the briefs that have been submitted. The courtmay, on itsown

initiative, direct that there be no oral argument, once it has received the brief ofappellant and the

brief of respondent."

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No. 67500-1-1

so, given that it accepted new authority from the city, asked the city and Lister to

comment on the new authority, and then ruled, in part, based upon it. Thus,

Lister's right to counsel at the contested proceeding was denied. Accordingly,

we order reinstated Lister's right to direct appeal of the municipal court judgment

in the superior court and remand for further proceedings.

I

Lister was convicted of false reporting and violation of a protection order in

the Seattle Municipal Court. She appealed her convictions to the King County

Superior Court, and her appellate counsel submitted a briefon September 30,

2010. On April 27, 2011, the superior court granted her appellate counsel's

motion to withdraw, citing a breakdown in communication between the attorney

and Lister. The order stated: "[n]o further continuances will be granted with

respect to the oral argument date." The oral argument date was set for July 1,

2011.

On June 30, 2011, Lister's newly appointed counsel2 emailed the superior

court, stating that he wished to confirm that the oral argument date, which had

been scheduled for the following day, had been continued. The court's bailiff

replied tothis email, indicating thatthe oral argument had not been continued

and that it would proceed as scheduled on July 1, 2011. Counsel responded that

he had not received discovery materials and had not entered an appearance in

2The superior court was "not privy tothe . . . appointment process," but this counsel

never filed an appearance in Lister's case. The court characterized the situation at the RALJ

hearing: "Lister's counsel has withdrawn and obviously new counsel was not promptly appointed. The court noted later in the hearing that after the withdrawal of Lister's counsel, '^prompt application for assignment of counsel was made to the Office of Public Defense."
No. 67500-1-1

the matter and, given that the hearing would not be continued, he would not be

entering an appearance after all.

Lister appeared at court for her scheduled oral argument, without counsel.

She stated that she was "not. . . representing [herjself and that "forcriminal

stuff, [she was] allowed to have counsel." She went on to say that she was "not

a lawyer" and that she was "not prepared to [present] oral argument."

The court then asked the city's counsel "whether, this being a criminal

matter, and [without] Counsel. . . appearing here; can we go ahead? Are we

allowed to?" The city responded that "the RALJ rules certainly authorize [the

court] to decide the case without oral argument. .. [pursuant to] Rule 8.4. It

says that, either the parties can waive oral argument or [the court], on [its] own

initiative, can decide ... the case without oral argument." The court directed

Lister to "take a look at" the rule. The city then added:

Your Honor, in connection] with that, I'd like to actually hand

forward another case that I'd like you to consider. It's decided by

the Supreme Court on June 23rd, so a couple weeks ago. And

here's a copy.... It had to ... do with a similar. . .situation where

[the] Superior Court had issued ... a no-contact order, and the

defendant had been charged with violating that in Municipal Court

... and wanted to challenge that order in the criminal prosecution.

And the Supreme Court said, you cannot do that.

The superior court again directed Lister to "[t]ake a moment to read . . .that rule."

Lister stated, "I've read the rule, and while it is set for oral argument, I

guess the choice to waive it.. . you're the Judge and you can do whatever you

please." However, Lister stated her belief that the brief submitted by her former

appellate counsel did not contain all necessary arguments. She reiterated that
No. 67500-1-1

she was not representing herself and asked the court for a continuance "fordue

process reasons."

The court asked Lister ifthe brief submitted by her former appellate

counsel addressed the jury instruction issue, but Lister responded, "Your Honor, I

don't even have the copies of the documents." The court then asked the city

whether Lister's brief contained argument on the issue, and the city responded

that "[y]es, she raised two issues. One . .. concerned the validity of the

restraining order and, which again, Ithink is . . . controlled by this May case. And

the second was . . . the jury instruction regarding actual modus . . . which, as I

put in our brief, Ithink . . .that's controlled by the Van Tuvl[31 case."

The court turned its attention to the collateral attack issue regarding the

underlying protection order, stating that it was going to take "a moment... to

take a look at this case" and that Lister "should take a look at ittoo"; to which

Lister replied that she did not "have any documents at all because [she had] not

been supplied with any of those things." The court responded, "Ms. Lister

I'm going to read this case. You might want to look at this case. This is the case

of City of Seattle v. Robert May. Ithink [the city's counsel]. . . just gave you ... a

copy ofthat I'm going to take a look at it right now."

The superior court then asked the city whether "there [was] any relevance

to the City v. May case other than the issue of a collateral attack on ... an order

that may be improperly entered but not void?" The city responded that the case

only applied to the collateral attack issue. The court continued: "[c]ertainly

3State v. Van Tuvl. 132 Wn. App. 750, 133 P.3d 955 (2006).

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No. 67500-1-1

without waiving any objection to your being here without a lawyer, Ms. Lister,. ..

I'm going to give you an opportunity to speak again, but I'm going to ask [the

city's counsel] again if he . . . has anything to add to the reference to RALJ 8.4?"

The city's counsel stated that he had nothing to add, so the court turned to Lister,

who stated that the brief submitted by her former appellate counsel did not

address an issue concerning her false reporting conviction.

The superior court stated that itwould "exercise [its] discretion in this case

and decide this case based upon the briefs that have been provided. And, [it

would] address those issues at this time. So,. . . [y]ou're not allowed to argue."

Regarding the collateral attack issue, the court determined that Lister "had a

legal duty to obey the order even though it may have been . .. erroneously

entered." The court relied on the briefs and "two particular cases:" State v. Noah4

and May, "a case that[the court has] looked at today, perhaps for the first time."

Regarding the jury instruction issue, the court relied on Van Tuvl and determined

that the municipal court "properly instructed the jury." The superior court affirmed

Lister's convictions.

In its decision on RALJ appeal, issued the next day, the court recited that

the "appeal was decided by the court without oral argument, pe[r] RALJ 8.4." It

affirmed the municipal court'sjudgment, stating that "the restraining order against

defendant cannot be challenged in the criminal action for violation ofthat order;

Seattle v. May; State v. Noah"; and, that "the trial court did not abuse its

discretion or err by instructing the jury using the statutory language regarding

4State v. Noah. 103 Wn. App. 29, 9 P.3d 858 (2000).

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No. 67500-1-1

knowledge; State v. Van Tuyl."

Lister sought discretionary review of the decision in this court, which was

granted.

II

Lister contends that the superior court erred by proceeding with her RALJ

hearing when she did not have counsel present. This is so, she asserts,

because her RALJ hearing was a criticalstage in the proceedings, given that,

despite its statement to the contrary, the court did not rule based only "on the

briefs," as required by RALJ 8.4. We agree. Although the superior court stated

that itwould decide Lister's case based only "on the briefs," it did not do so. To

the contrary, itconsidered authority newly submitted at the hearing, asked both

the city and Lister to comment on that authority, and then based its decision, in

part, upon that authority. Because the court did notdecide the case based only

"on the briefs," Lister's RALJ hearing was a critical stage in the proceedings.

Therefore, Lister had a right to counsel at the hearing. Because counsel was not

provided, we mustvacate the superior court's decision and reinstate her right to

direct appeal of the municipal court ruling in the superior court.

Pursuant to the United States and Washington Constitutions, criminal

defendants have a right to counsel at all "critical stages in the litigation." State v.

Heddrick, 166 Wn.2d 898, 909-10, 215 P.3d 201 (2009) (citing U.S. Const.

amend. VI; Wash. Const, art. I, § 22). The constitutional right to counsel also

exists on appeal. Evitts v. Lucev. 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed.

2d 821 (1985); State v. Rafav, 167 Wn.2d 644, 652, 222 P.3d 86 (2009); State v.

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No. 67500-1-1

Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005); State v. Rolax, 104Wn.2d

129, 135, 702P.2d 1185(1985).

"A complete denial of counsel at a critical stage of the proceedings is

presumptively prejudicial and calls for automatic reversal." Heddrick, 166Wn.2d

at 910 (citing United States v. Cronic, 466 U.S. 648, 658-59, 659 n. 25, 104 S.

Ct. 2039, 80 L. Ed. 2d 657 (1984) (The United States Supreme Court "has

uniformly found constitutional errorwithout any showing of prejudice when

counsel was eithertotally absent or prevented from assisting the accused during

a critical stage ofthe proceeding."^: accord Wright v. Van Patten, 552 U.S. 120,

124-25, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008). "A critical stage is one 'in

which a defendant's rights may be lost, defenses waived, privileges claimed or

waived, or in which the outcome of the case is otherwise substantially affected.'"

Heddrick, 166 Wn.2d at 910 (quoting State v. Aqtuca, 12 Wn. App. 402, 404, 529

P.2d 1159 (1Q74)): accord Garrison v. Rhav, 75 Wn.2d 98, 102, 449 P.2d 92

(1968) ("The constitutional right to have the assistance of counsel arises at any

critical stage of the proceedings, and a critical stage is one in which there is a

possibility that a defendant is or would be prejudiced in the defense of his

case.").

Accordingly, if Lister's RALJ hearing was a critical stage in the

proceedings, she had a right to counsel. Robinson, 153 Wn.2d at694. If she

had a right to counsel and counsel was not provided, prejudice is presumed.

Heddrick, 166 Wn.2d at 910.

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No. 67500-1-1

Lister's RALJ hearing was a critical stage in the proceedings because it

substantially affected the outcome of her case; therefore, she had a right to

counsel. Heddrick, 166 Wn.2d at 910; Robinson, 153 Wn.2d at 694. The

superior court stated that it would decide Lister's appeal based only on the briefs.

However, in fact, the court explicitly relied upon authorities that were not cited in

the briefing in reaching its decision. The city's brief to the superior court included

discussion of the Noah and Van Tuvl cases, but not the May decision. May was

introduced for the first time at oral argument. The court discussed this case at

Lister's RALJ hearing and relied upon it in affirming her convictions. The city

also asked the court to consider RALJ 8.4 at the hearing, which allowed the court

to decide the appeal based only "on the briefs." However, the court then asked

Lister to read and comment on the rule. Asking Lister to read both RALJ 8.4 and

the May decision and to formulate legal arguments based upon them at her RALJ

hearing required Lister to perform the duties of an attorney.

Because the court accepted new authority from the City and allowed both

parties to comment upon it, it is not true that the court decided the appeal based

only on the briefs. Inasmuch asthe court did not rely solely on the briefs in

ruling, Lister's RALJ hearing was a critical stage in the proceedings. Heddrick,

166Wn.2d at 910. Therefore, Lister was constitutionally entitled to an attorney at

her RALJ hearing. Heddrick, 166 Wn.2d at 910; Robinson, 153 Wn.2d at 694.

The city is correct that oral argument of appellate issues is not a matter of

right. See Citv of Coll. Place v. Staudenmaier, 110 Wn. App. 841, 845-46, 43

P.3d 43 (2002). Acase may properly be decided without oral argument. RAP

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No. 67500-1-1

11.4(j); RALJ 8.4. However, in criminal proceedings, when a hearing that

substantially affects the outcome of the case is held, that hearing is a critical

stage ofthe proceedings.5 Heddrick, 166Wn.2d at 910; Robinson, 153Wn.2d at

694. Thus, the right to counsel attaches to that hearing. Heddrick, 166 Wn.2d at

910; Robinson, 153 Wn.2d at 694.

Here, Lister's right to counsel was denied. Accordingly, prejudice is

presumed. Heddrick. 166 Wn.2d at 910. The superior court's decision affirming

her convictions must therefore be reversed. Heddrick. 166 Wn.2d at 910.

Lister's right to direct appeal of the municipal court judgment in the superior court

is reinstated.

We remand for further proceedings in the superior court, consistent with

this opinion.

•I Ir^-^A)

We concur:

t^ec^,

5See, e.g.. State v. Davenport. 140 Wn. App. 925, 932, 167 P.3d 1221 (2007) (Although

the "defendant need notbe presentwhen his presencewould be useless," because "the trial

court exercised its discretion" and the matters discussed had "substantialrelation" to the court's

ability to correctly determine the defendant's resentencing, the hearing "involved more than the

court's perform[ance of] a ministerial act and was a critical stage in [the defendant's]

prosecution.").

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