IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78448-0-I DIVISION ONE UNPUBLISHED OPINION

FILED: May 6, 2019 CHUN, J.

— In 2000, the trial court convicted Kevin Light-Roth offirst degree robbery based on his guilty plea. Atthe time, he was a minor. Eighteen years later, Light-Roth moved to extend the time to file a notice ofappeal ofthe judgment. A commissioner ofthis court remanded the case to the trial courtfor
an evidentiary hearing on whether Light-Roth voluntarily, knowingly, and intelligentlywaived his constitutional right to appeal. The State moved to modify the commissioner’s decision. Because ofthe ambiguity in the language of Light-Roth’s notice of rights ofappeal and his declaration attesting to his lack ofa voluntary, knowing, and intelligent waiver of his rightto appeal, we denythe State’s motion to modify and remand foran evidentiary hearing. BACKGROUND In March 2000, the State charged Light-Roth with robbery in the first degree and assault in the second degree all while armed with a handgun.

V. KEVIN LIGHT-ROTH, Respondent,

Appellant.No. 78448-0-1/2

Light-Roth was 16 years old atthe time. Due to the first degree robbery charge, Light-Roth automatically came underthejurisdiction ofthe adult court. Former RCW 13.04.030(1)(e)(v)(C) (2000). He pleaded guiltyto first degree robbery and the State agreed to dismiss the firearm enhancement. The court sentenced Light-Roth to 36 months oftotal confinement, the low end of his standard range.1 In May2018, Light-Roth filed a notice ofappeal ofthejudgment and sentence forfirst degree robbery entered in 2000 after his guilty plea. Atthe direction ofthe court, Light-Roth filed a motion to extend time for notice of appeal, which the State opposed. A commissionerofthis court remanded the
case to the trial courtfora hearing to determinewhether Light-Roth voluntarily, knowingly, and intelligentlywaived his limited right to appeal after he pleaded guilty. The State filed a motion to modifythe ruling, requesting denial ofthe motion to extend time without an evidentiary hearing. Athree-judge panel referred both motions for oral argument on the existing briefs. ANALYSIS Light-Roth requests an extension oftime to file an appeal under RAP 18.8(b), claiming he involuntarilyforfeited his right to appeal the declination of his case from juvenile court. The State contends the evidence shows Soon after release, the State charged Light-Roth with second degree murder. Upon conviction, the court sentenced him to 335 months ofconfinement. In re Pers. Restraint of LightRoth, 191 Wn.2d 328, 332, 422 P.3d 444 (2018). This court affirmed thejudgmentand sentence on direct appeal. State v. Light-Roth, noted at 139 Wn. App. 1093 (2007). Both the Washington Supreme Court and United States Supreme Court subsequently denied review. Light-Roth, 191 Wn.2d at 332; State v. Light-Roth, noted at 163 Wn.2d 1028 (2008); Light-Roth v. Washington, 555 U.S. 922, 129 S. Ct. 288, 172 L.Ed.2d 211 (Oct. 6,2008). The Washington State Supreme Court dismissed Light-Roth’s personal restraint petition as time barred in August2018. Light Roth, 191 Wn.2d at 338.

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Light-Roth knowinglywaived his right to appeal, requiring denial ofthe motion to extend time. We disagree. On the facts currently before us, we cannot determinewhether Light-Roth validlywaived his rightto appeal. Washington’s Constitution guarantees criminal defendants the rightto appeal in all cases. CONST. art I, 

### § 22 (amend. 10). This right exists in a limited capacityfollowing a guilty plea, only allowing defendants to raise collateral questions such asjurisdiction ofthe court. State v. Pritchard, 79 Wn. App. 14, 17, 900 P.2d 560 (1995). Declination ofa case fromjuvenile court is “appealable
as a matter of right, even after a plea ofguilty, because it raises a question of jurisdiction.” Pritchard, 79 Wn. App. at 17. Generally, defendants must invoke the rightto appeal within 30 days after entry ofthe decision for review. RAP 5.2(a). “The appellate courtwill ordinarily hold thatthe desirability offinalityofdecisions outweighs the privilege ofa litigant to obtain an extension oftime underthis section.” RAP 18.8(b). However, “the strict application offiling deadlines must be balanced against a defendant’s state constitutional right to appeal.” State v. Kells, 134 Wn.2d 309, 314, 949 P.2d 818 (1998). Therefore, an appellate court may extend the time for notice ofappeal “in extraordinary circumstances and to prevent a gross miscarriage ofjustice.” RAP 18.8(b). “[Am involuntaryforfeiture ofthe right to a criminal appeal is nevervalid.” Kells, 134 Wn.2d at 313. Before an appeal may be dismissed as untimely under RAP 18.8(b), the State bears the burden ofdemonstrating the defendant

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voluntarily, knowingly, and intelligentlywaived the rightto appeal. Kells, 134 Wn.2d at 315; State v. Cater, 186 Wn. App. 384, 392, 345 P.3d 843 (2015). This requires an affirmative showing thatthe defendant “understood [their] right to appeal and chose notto exercise it.” Kells, 134 Wn.2d at 315. Courts do not presume a waiver ofthe rightto appeal. State v. Sweet, 90 Wn.2d 282, 286, 581 P.2d 579 (1978); Kells, 134 Wn.2d at 314; Cater, 186 Wn. App. at 392. Here, Light-Roth relies on Kelis, 134 Wn.2d at 313, to support his request foran extension oftime to file his notice ofappeal. In Kells, a commissionerof thejuvenile division ofthe trial court declinedjuvenilejurisdiction over a 15 yearold defendant accused of killing his friend. 134 Wn.2d at 311-12. The defendant pleaded guiltyto second degree murder in Superior Court. Kells, 134 Wn.2d at 312. The court did not inform the defendant he had a right to appeal the order of declination. Kells, 134 Wn.2d at 312. Fifteen months after sentencing, the defendantfiled a notice ofappeal ofthe order ofdeclination. Kells, 134 Wn.2d at 312. The Washington Supreme Court determined the State did not need to inform the defendant of his rightto appeal a declination order. Kells, 1 34 Wn.2d at 315. However, the court also explicitly established thatthe State must affirmatively demonstrate the defendantvoluntarily, knowingly, and intelligently waived his rightto directly appeal the declination order before an appellate court may dismiss the appeal as untimely. Kells, 134 Wn.2d at 311. Light-Roth contends he did not properlywaive his right to appeal because ofa misleading notice of rights on appeal. Light-Roth received and signed a

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notice of his rights to appeal specifying, “You have a right to appeal your conviction ifyou were found guiltyfollowing a trial” and “You have the right to appeal a sentence outside the standard sentence range.” This notice suggested Light-Roth lacked any rightto appeal because he did notfall within the described parameters—he pleaded guilty instead ofgoing to trial and received a standard sentence. Furthermore, the notice failed to advise Light-Roth of his limited rights ofappeal after a plea ofguilty, including adult courtjurisdiction. Thus, the notice created potential for confusion as to Light-Roth’s rights. However, “the mere existence ofa potentially confusing advisement without a declaration” from the defendant does not merit a hearing forevidence ofwaiver ofthe rightto appeal. Cater, 186 Wn. App. at 396. In Cater, the defendantfailed to provide a declaration asserting that he lacked awareness of his limited rightto appeal following a guilty plea orthat he would have directed his attorney to file an appeal. 186 Wn. App. at 395-96. Additional circumstances led this courtto conclude the defendant had properlywaived his rightto appeal: The unique circumstances, including the presumption of a voluntary plea, the exceptionally favorable plea agreement, the unexplained 34-year delay in filing a notice of appeal, and [the defendant’s] complete failure to assert any facts suggesting he was unaware of his limited right to appeal, support the strong inference that he knowingly, intelligently, and voluntarily waived his limited right to appeal following a guilty plea. Cater, 186 Wn. App. at 397. Here, unlike Cater, Light-Roth provided a declaration with his motion to extend time. In an unsworn declaration Light-Roth asserted:

5No. 78448-0-116 2. When I was convicted and sentenced, I was not informed and did not knowthat I had a right to appeal issues such as the jurisdiction ofadult courtfora crime committed when I was a juvenile. 3. If I had been informed or known, I would have asked my attorney to file an appeal for me. 4. I did not knowingly, intelligently, and voluntarilywaive my right to appeal. This declaration casts doubt upon whether he validly waived his limited right to appeal after his plea.2 Furthermore, the notice of rights ofappeal essentially informed Light-Roth that he lacked any rightto appeal, despite the appealability ofa declination ordereven after a plea ofguilty. The State must affirmatively demonstrate Light-Roth waived his right to appeal the declination order before the appeal may be dismissed as untimely. KelIs, 134 Wn.2d at 311. Atthis stage in the proceedings, the State fails to satisfythis burden. The facts before
us do not establish properwaiver, necessitating an evidentiary hearing to determine whether Light-Roth voluntarily, knowingly, and intelligentlywaived his rightto appeal. Therefore, we denythe State’s motion to modify. As perthe commissioner’s ruling, we remand the case to the trial courtfor
an evidentiary hearing to address whether Light-Roth voluntarily, knowingly, and intelligentlywaived his limited rightto appeal. The evidentiary hearing shall
occurwithin 60 days, unless the trial court requires additional time. In that event, Light-Roth’s counsel shall advise this court ofthe status ofthe hearing. Afterthe

2We do notconclude that such an unsworn statement—serving as a written offerof proof—necessarily suffices to demonstrate the lack ofawareness ofthe rightto appeal. We understand, based on the representation ofcounsel, that Light-Roth will adopt his statements under oath and perfect his declaration at the beginning ofthe evidentiary hearing.

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hearing, counsel shall promptlyforward to this court copies ofthe written findings and conclusions with anytranscript ofthe hearing.

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WE CONCUR: 

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