ilATc OF V/ASMfNGTH'-' 

### 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 DIVISION ONE No. 67500-1-1 UNPUBLISHED OPINION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 ofright was called for argument bythe 

### court. Although the appellatejudgearticulated his intention to decidethis matter without oral argument, a contested courtroom proceeding in facttook 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 Listerwas convicted of false reporting and violation of a protection orderin the Seattle Municipal Court. She appealed her convictions to the King 

### County Superior Court. Her counsel submitted a briefand thereafterwithdrew. Listerwas 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 toapplicable 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 ofRALJ 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 orderaffirming 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 notin fact do
1Rule 8.4 of the Rules forAppeal ofDecisions of Courts ofLimited Jurisdiction (RALJ) provides that"[t]he parties may, atany time, agree towaive oral argument andsubmitthematter for consideration by the courton the briefs that have been submitted. The courtmay, on itsown initiative, direct that there be nooral argument, once it has received the briefofappellant and the briefof respondent." -2-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 ofthe municipal courtjudgment in the superior court and remand for further proceedings.
I Lister was convicted offalse reporting and violation of a protection order in the Seattle Municipal Court. She appealed her convictions to the King County SuperiorCourt, and her appellate counsel submitted a briefon September 30, 2010. OnApril 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 furthercontinuances will be granted with 

### respect to the oral argument date." Theoral argument date was set for July 1,
2011. 

### On June30, 2011, Lister's newly appointed counsel2 emailed thesuperior court, stating that hewished toconfirm that the oral argument date,which had been scheduled for the following day, had been continued. The court's bailiff 

### replied tothis email, indicating thattheoral argument had not been continued and thatit would proceed as scheduled onJuly 1, 2011. Counsel responded that he had notreceived discovery materials and had not entered an appearance in 2The superiorcourt was "not privy tothe . . . appointment process," butthis counsel neverfiled anappearance in Lister's case. The courtcharacterized the situation atthe RALJ hearing: "Lister's counsel has withdrawn and obviously new counsel was not promptly appointed. 

### The court noted later in the hearing that afterthe withdrawal ofLister's counsel, '^prompt application for assignmentofcounsel was made to the Office ofPublic 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, [shewas] 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?" Thecity responded that "the RALJ rules certainly authorize [the 

### court] to decide the casewithout oral argument. .. [pursuantto] Rule 8.4. It 

### says that, eitherthe parties can waive oral argument or [the court], on [its] own initiative, can decide
... the case without oral argument." Thecourt 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 ... dowith a similar.
. . situation where 

### [the] Superior Court had issued
... a no-contact order, and the defendant had been chargedwith violating that in Municipal Court

... and wanted to challenge that orderin the criminal prosecution. And the Supreme Court said, you cannot do that. 

### The superiorcourt again directed Listerto "[t]ake amomentto 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 whateveryou 

### please." However, Lister stated herbeliefthatthe briefsubmitted by herformer appellate counsel did not contain all necessary arguments. She reiterated thatNo. 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 juryinstruction 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 cityresponded that "[y]es, she raisedtwo issues. One .
.. concerned the validity of the 

### restraining order and, which again, Ithink is . . . controlled by this May case. And the second was . . . thejury instruction regarding actual modus . . . which, as I 

### put in ourbrief, 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 thatit was going to take "amoment... to take a look at this case" and that Lister "should take a look at ittoo"; to which 

### Lister replied that shedid not "have any documents atall because [she had] not been supplied with any ofthosethings." The court responded, "Ms. Lister 

### I'm going toread this case. You might wantto look atthis case. This is the case ofCityofSeattle 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 courtthen asked thecity whether "there [was] any relevance to the City v. May case other than the issue of a collateral attack on
... an order 

### that may beimproperly entered but not void?" The city responded thatthe case 

### only applied to the collateral attack issue. The court continued: "[c]ertainly 3State v. Van Tuvl. 132Wn. App. 750, 133 P.3d 955 (2006). -5-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 notallowed 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 attoday, perhaps for thefirst time." Regarding thejury instruction issue, thecourt relied on Van Tuvl and determined that the municipal court "properly instructed thejury." The superiorcourt affirmed
Lister's convictions. In its decision on RALJ appeal, issued the next day, the court recited that 

### the "appeal was decided by thecourt 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 forviolation ofthat order; Seattle v. May; State v. Noah"; and, that "the trial court did not abuse its 

### discretion or errby instructing thejury using the statutory language regarding 4State v. Noah. 103 Wn. App. 29, 9 P.3d 858 (2000).
-6-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 critical stage 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 thatauthority. 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 herright 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. 

### 2d821 (1985); Statev. Rafav, 167 Wn.2d 644, 652, 222 P.3d 86 (2009); Statev.
-7-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, 104S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (The United States Supreme Court "has 

### uniformly found constitutional errorwithout anyshowing ofprejudice when counsel was eithertotally absent orprevented from assisting the accused during 

### a critical stage oftheproceeding."^: 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, defenseswaived, privileges claimed or 

### waived, or in which the outcome ofthe caseis otherwise substantially affected.'" Heddrick, 166 Wn.2d at910 (quoting Statev. 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 ofcounsel arises atany critical stage ofthe proceedings, and acritical stage is one in which there is a 

### possibilitythat adefendant is orwould be prejudiced in the defense ofhis case."). 

### Accordingly, if Lister's RALJ hearing was a critical stagein the 

### proceedings, she had arightto counsel. Robinson, 153 Wn.2d at694. Ifshe had arightto counsel and counsel was not provided, prejudice is presumed. Heddrick, 166 Wn.2d at 910.

8No. 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. Thecity's briefto 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 herconvictions. Thecity also asked the court to consider RALJ 8.4 at the hearing, which allowed the court 

### todecide theappeal basedonly "on thebriefs." However, thecourtthen asked Lister to read and comment on the rule. Asking Lister to read bothRALJ 8.4 and 

### the Maydecision and to formulate legal arguments based upon them ather 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 nottrue thatthe court decided the appeal based only on the briefs. Inasmuch asthe courtdid not rely solely on the briefs in 

### ruling, Lister's RALJ hearing was acritical stage in the proceedings. Heddrick, 166Wn.2d at 910. Therefore, Listerwas constitutionally entitled to an attorney at 

### her RALJ hearing. Heddrick, 166Wn.2d at910; Robinson, 153 Wn.2d at694. 

### The city is correctthatoral argumentofappellate issues is not amatter of right. See Citv ofColl. Place v. Staudenmaier, 110Wn. App. 841, 845-46, 43 P.3d 43 (2002). Acase may properly be decided without oral argument. RAP
-9-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 judgmentin 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. 140Wn. App. 925, 932, 167 P.3d 1221 (2007) (Although the "defendant need notbe presentwhen his presencewould be useless," because "the trial court exercised itsdiscretion" 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 actand was acritical stagein [the defendant's] prosecution."). -10-