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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 91531-8 Respondent, 

### v. ENBANC CURTIS GUY STUMP, Petitioner. Filed 

### APR 28 

### 2016

GORDON McCLOUD, J.--Curtis Guy Stump was convicted ofpossession ofheroin following a benchtrial. He filed a notice ofappeal. Clerk's Papers (CP) at 27. The trial court then appointed a lawyer to represent Stump on the appeal at public expense. That lawyer, however, did not file a brief in support of Stump's appeal. Instead, Mr. Stump's appointed lawyer moved to withdraw and filed an Anders 1 brief, arguing not that the appeal was meritorious but that it was wholly frivolous. The commissioner of the Court of Appeals, Division Three, granted defense

1Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 1State v. Stump (Curtis Guy), No. 91531-8


### counsel's motion to withdraw, agreed with defense counsel's assessment that the appealwas whollyfrivolous, dismissedthe appeal, andaffirmed Stump'sconviction. The Statethen filed a costbill, and the commissionerimposed appellate costs against Stump under RAP 14.2. RAP 14.2 states, in part, "A commissioner
... of the appellate court will award costs to the party that substantially prevails on review." At least one otherDivision ofthe Court ofAppeals has declined to order costs in this situation. 2 

### We granted review to resolve the issue ofthe propriety of imposing costs against an indigent criminal defendant whose appointed lawyer files
anAnders

### briefand motionto withdraw. FACTUALBACKGROUND Stump was convicted of possession of a controlled substance-heroinfollowing a bench trial. CP at 7-8. The trial court sentenced him to a residential chemical dependencytreatment-based sentencing alternative. CP at 13-26. 

### Stump appealed. CP at 27. After reviewing the trial record, his appointed appellate counsel moved to withdraw and filed an Anders 

### brief, arguing that the appeal contained no basis in law or in fact on which the court could grant relief. Suppl. Br. ofResp'tAttach. C. The State'sresponse askedthe Court ofAppeals for

2 See State v. C.A.G., noted at 184 Wn. App. 1023, 2014 WL 5581270, at *1 (granting motion to withdraw); Comm'r'sNotationRuling, State v. C.A.G., No. 70939-9- I (Wash. Ct. App. Jan. 7, 2015) ("This is anAnders appeal in which appellant's counsel withdrew. No costs will be awarded."). 

### 2

### State v. Stump (Curtis Guy), No. 91531-8
the samereliefthat defense counsel sought: grantthe motionto withdraw and affirm the conviction. 

### !d. at Attach. D. Stump filed no statement ofadditional grounds for review. 

### !d. at Attach. G. After reviewing the trial court record independently, a Court of Appeals' commissioner found no nonfrivolous issues, granted Stump's appellate counsel's motion to withdraw, dismissed the case, and affirmed Stump's conviction. 

### !d. at Attach. E. The State then filed a cost bill, requesting $3,024.50 in appellate costs pursuant to RAP 14.3 and RCW 10.73.160. 

### !d. at Attach. F. Stump objected, arguing that the State was not the "substantially prevail[ing]" party and hence was not entitledto an award ofcosts on appeal underRAP 14.2. 

### !d. at Attach. H-1. The commissioner disagreed with Stump; she ruled, "[T]he State of Washington did prevail in that the trial court's decision was affirmed." 

### !d. at Attach. H-2. A panel ofCourt ofAppeals, Division Three,judges denied Stump's motion to modify the ruling imposing costs. 

### !d. at Attach. J. This court granted Stump's motion for discretionary review of the order imposing costs.

3

### State v. Stump (Curtis Guy), No. 91531-8
ANALYSIS I. Standard ofReview To resolve this case, we must interpret the Rules of Appellate Procedure (RAPs). The interpretation ofa courtrule presents a question oflawthatwereview de novo. 

### State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009) (we review questions ofstatutory interpretation de novo); 

### Jafar v. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042 (2013) (we interpret court rules in the same manner as statutes). However, this court is "uniquely positioned to declare the correct interpretation of any court-adopted rule." 

### Jafar, 177 Wn.2d at 527. II. RAP 14.2 DoesNot Apply to

### Anders Briefs Courts possess inherent authority to prescribe rules ofprocedure andpractice for thejudicialbranch. 

### State v. Gresham, 173 Wn.2d405, 428, 269 P.3d207 (2012) ('"[T]hepowerto prescriberules for procedure andpractice' is an inherentpowerof thejudicial branch, 

### State v. Smith, 84 Wn.2d 498, 501, 527 P.2d 674 (1974), and flows from article IV, section 1 ofthe Washington Constitution, 

### State v. Fields, 85 Wn.2d 126, 129, 530 P.2d 284 (1975).").3

3 RCW 10.73.160(1) also states that "[t]he court of appeals, supreme court, and superior courts may require an adult offender convicted of an offense to pay appellate costs." That statute provides that the party requesting such costs must comply with the applicable court rule. RCW 10.73.160(3) ("Costs, including recoupment offees for courtappointed counsel, shall be requested in accordance with the procedures contained in Title 14 ofthe rules ofappellate procedure and in Title 9 ofthe rules for appeal ofdecisions of 4State v. Stump (Curtis Guy), No. 91531-8
The Court ofAppeals found that the applicable rule here is RAP 14.2. RAP 14 authorizes appellatejudges, commissioners, and clerks to award appellate costs to the State, including the costs of appointed counsel,4 in certain circumstances. RAP 14.2 states, in relevant part, "A commissioner or clerk ofthe appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. Ifthere is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party...." This rule gives appellate courtjudges the discretion to deny costs, even to a prevailing party. 

### !d. But it also appears to take that discretion away from the appellate courtcommissioner andclerk. Instead, underRAP 14.2, an appellate court commissioner or clerk "will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review." (Emphasis added.) Here, the commissionerrelied onthatnondiscretionary

courts of limited jurisdiction. An award of costs shall become part of the trial court judgment and sentence."). 4 We have upheld the courts' authority to impose such costs against indigent criminal defendants. State v. Blank, 131 Wn.2d 230, 234-35, 930 P.2d 1213 (1997) (upholding then new RCW 10.73.160's applicationto indigent criminal defendants against a variety ofconstitutional challenges, in large part because ofthe after-the-factpossibility ofremission); State v. Nolan, 141 Wn.2d 620, 629, 8P.3d 300 (2000) (affirming Court of Appeals' award ofcosts to the State under RCW 10.73.160 and thus rejecting defendant's attempt to limit such awards to frivolous appeals). 

### 5State v. Stump (Curtis Guy), No. 91531-8
directive to award costs and a panel of judges denied Stump's motion to reconsider that ruling. The State defends that ruling; it argues thatthe appellate court commissioner
was required to award costs against the indigent Mr. Stump, whose lawyer abandoned all arguments in favor ofreview and sought to withdraw. It focuses on RAP 14.2's "substantially prevail[ing]" party language and contends that since the Stateprevailed, costs mustbe imposed. Suppl. Br. ofResp'tat 10. Stump challenges that ruling; he argues that he was the one who prevailed because "[t]he Court of Appeals granted defense counsel's motion and granted the relief requested by petitioner (Mr. Stump), by permitting counsel to withdraw. Thus, if anyone prevailed, Mr. Stump was the prevailing party, because he received the relief he sought." Mot. for Discr. Review at 6 (emphasis omitted). Alternatively, Stump claims, "Here, eachpartyrequestedthe samerelief- to allow counsel for Mr. Stump to withdraw. As a consequence, bothparties prevailed, sincethe reliefrequested by bothparties was granted." ld(emphasis omitted).5 The State certainly got what it sought: an affirmance. The State's argument mighttherefore be the more persuasive one ifwe analyzed RAP 14.2 in isolation.

5As another alternative, Stump asserts, "The motion filed by counsel forMr. Stump did not address the merits ofany issue on appeal, merely concluding there were no nonfrivolous issues on appeal. As such, in light ofthe fact that

# amotion, not a merits brief, was filed, neitherparty substantially prevailed." Mot. for Discr. Review at 8. 6State v. Stump (Curtis Guy), No. 91531-8
Butwe cannotanalyze RAP 14.2 in isolation. Whenwe interpret a courtrule, like when we interpret a statute, we strive to determine and carry out the drafter's intent. Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002) (citing State v. J.M, 144 Wn.2d 472, 480, 28 P.3d 720 (2001)). We determine that intent by examining the rule's plain language not in isolation but in context, considering related provisions, and in light ofthe statutory or rule-making scheme as a whole. State v. Conover, 183 Wn.2d 706, 711, 355 P.3d 1093 (2015) (quotingAss 'n ofWash. Spirits & Wine Distribs. v. Wash. StateLiquor ControlBd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015)). The relevant context here is that the RAPs contain different provisions for burdening parties with costs in different situations, depending on the substantive effect ofthe appellate court's decision, and notjust the labels. For example, one RAP contains a special provision concerning awards of costs to parties whose substantive interests differ from their formal designation. See, e.g., RAP 14.2 ("A party who is a nominal party onlywill notbe awarded costs andwill notberequired to pay costs. A 'nominal party' is one who is named but has no real interest in the controversy."). Another RAP limits awards of costs, in the appellate court's discretion, where a case is dismissed at the request ofthe appealingparty. RAP 18.2 ("Costs will be awarded in a case dismissed on a motion for voluntary withdrawal ofreview only ifthe appellate court so directs
...."). And ofcourse, RAP 1.2(c) 7State v. Stump (Curtis Guy), No. 91531-8
allows us to "waive or alter the provisions ofany ofthese [RAPs] in order to serve the ends of justice."6 Thus, RAP 14.2 is not the exclusive means for dealing with all situations resulting in an affirmance ofa trial court decision. The RAPs are instead designed to allocate appellate costs in a fair and equitable manner depending on the realities of the case. This requires us to consider exactly what function an Anders brief
serves. A criminal defendant who cannot afford to retain counsel is entitled to a lawyer at public expense for the first appeal as a mattbr ofright. But that lawyer need not raise frivolous claims on the appeal. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); State v. Hairston, 133 Wn.2d 534, 537 n.2, 946 P.2d 397 (1997). In Anders, the United States Supreme Court addressed the potential tension between the indigent criminal defendant's constitutional right to appointed counsel on appeal and the lawyer'sprofessional obligationto refrain from raising frivolous claims. 386 U.S. at 744. The Anders majority established a "prophylactic framework," Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987), for allowing an attorney to withdraw: [I]fcounsel finds his case to be wholly frivolous, after a conscientious examination ofit, he should so advise the court and requestpermission to withdraw. That request must, however, be accompanied by a brief

6 RAP 1.2(c) is limited by RAP 18.8(b) and (c), but those limits do not apply here. 8

### State v. Stump (Curtis Guy), No. 91531-8 referring to anything in the record that might arguably support the appeal. A copy ofcounsel'sbriefshouldbe furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-thenproceeds, after afull examination ofall theproceedings, to decide whetherthe case is wholly frivolous. 

### Anders, 386 U.S. at 744. The

### Andersprocedure is not the onlywayto resolve this tension. In

### Smith v. Robbins, 528 U.S. 259, 276, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), the court explainedthat the Constitution does not mandate the

### Andersprocedure, butthat the procedure provides "one method ofsatisfying the requirements ofthe Constitution for indigent criminal appeals." U.S. CoNST. amend. XIV. States have discretion to establish alternative methods of ensuring that the court will resolve an indigent defendant's appeal. 

### Smith, 528 U.S. at 276-77. A number ofstates haveresponded to

### Anders byprohibiting appointed counsel from withdrawing; instead, these states mandate that counsel continue inthe adversaryproceeding.7 Washington, however, follows theprocedureestablishedin

### Anders. State v. Theobald, 78 Wn.2d 184, 184- 85, 470 P.2d 188 (1970).

7 See, e.g., Commonwealth v. Moffett, 383 Mass. 201,418 N.E.2d 585 (1981); State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); State v. Gates, 466 S.W.2d 681 (Mo. 1971); State v. Cigic,138 N.H. 313, 639 A.2d251 (1994);Mosley v. State, 908 N.E.2d 599, 608 (Ind. 2009) (acknowledging thatwhile prohibitingAnderswithdrawals couldresult in some "underdeveloped briefs" and "poorly substantiated arguments," it has ensured "review by thejudiciary, not by overworked and underpaid public defenders"); see also State v. Korth, 650 N.W.2d 528, 532-34 (S.D. 2002) (collecting citations to states not allowing withdrawals). 9State v. Stump (Curtis Guy), No. 91531-8
But anAnders briefis very different from a normal advocate's brief, "for it would be a strange advocate's briefthat would contain a preface advising the court that the author ofthe briefis convinced that his orher arguments are frivolous and whollywithoutmerit." McCoyv. Courtof Appeals ofWis., 486U.S. 429,439 n.13, 108 S. Ct. 1895, 100 L. Ed. 2d440 (1988). Instead, the purpose ofanAndersbrief "isto enablethe courtto decidewhetherthe appeal is so frivolous thatthe defendant has no federal right to have counsel presenthis orher case to the court." Id. at 440
n. 13. In fact, theAnders procedure cannot even be characterized as an adversary proceeding. TheUnited States Supreme Court said exactly that inPenson v. Ohio: "The so-called 'Anders brief serves the valuable purpose ofassisting the court in determining both that counsel in fact conducted the required detailed review ofthe
case and that the appeal is indeed so frivolous that it may be decided without an adversarypresentation." 488 U.S. 75, 81-82, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (emphasis added) (footnote omitted). This was notjust loose language. The court reiterated, "Anders, in essence, recognizes a limited exception to the requirement articulated in Douglas[s] that

8Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). 10State v. Stump (Curtis Guy), No. 91531-8 indigent defendants receive representation on their first appeal as ofright." 

### !d. at 83. The Supreme Court made the same point-that an Anders brief is not an advocate's briefand hence anAnders proceeding is not an adversaryproceedingin McCoy. 486 U.S. at 439. In that case, the Court upheld against Sixth and Fourteenth Amendment challenges a Wisconsin court rule requiring appointed counsel who determines an appeal wouldbe frivolous to submit abriefincluding an explanation ofwhy any possible issues lacked merit. Id. at 440-44; U.S. CONST. amends. VI, XIV. TheMcCoy Court explicitly statedthat this is not an "advocate's brief': "TheAnders briefis not a substitute for an advocate's briefon the merits. As explained above, it is a device for assuring that the constitutional rights of indigent defendants are scrupulously honored. The Wisconsin Rule[, Wrs. R. OF APPELLATE PROC. 809.32,] does no injury to that purpose ...." Id. at 444. The McCoy Court continued, "Of course, if the court concludes that there are nonfrivolous issues to be raised, it must appoint counsel to pursue the appeal and directthat counsel to prepare an advocate's briefbefore deciding the merits." Id. Thus, an indigent criminal defendant with an appointed lawyer who files a brief against that indigent's interests does not have adversary representation; the paperworkthat lawyer files is not "an advocate'sbrief'but a mere "device"to alert

11State v. Stump (Curtis Guy), 

### No. 91531-8
the appellate court to the awkward situation. Hence, the appellant is not in a true adversarial contest with the State. None of our decisions interpreting RAP 14.2 arose in such a umque nonadversarial context. The State is correct that that plain language ofRAP 14.2, taken in isolation, arguably supports its position. As discussed above, however, we
are not permitted to interpret this court rule in isolation. We must consider the obvious goal ofthoserules to award costs in afair andjustmannerdepending onthe realities ofthe situation. Thus, the most important rule for us to consider is RAP 1.2(c). As discussed above, it states, "The appellate court may waive or alter the provisions ofany ofthese rules in order to serve the ends ofjustice, subject to the restrictions in rule 18.8(b) and (c)." The State certainly recognizes that different RAPs reflect different policies about when it is fair and just to penalize a litigant with an award of costs to the opposingparty. It

### argues thatRAP 18.2permits adefendantto voluntarilywithdraw
an appeal without incurring costs, and that Stump did not use this "mechanism by which a criminal defendant may avoid the imposition ofappellate costs when his or her attorney legitimatelybelieves the appeal to be frivolous." Suppl. Br. ofResp't at 13. The State further contends that "itis acceptable for there to be some financial risk associated with the pursuit ofmeritless appeals." Id. 

### at 14.

12State v. Stump (Curtis**Gt~y),** 

### No. 91531-8
We agree with the State that different RAPs reflect different policies about when alitigant shouldberesponsible for costs. Butwe disagree with its conclusion about what isjustin this situation. In orderto servethe ends of justice, wehold that RAP 14.2 cannot be applied to the indigent criminal appellant whose appointed lawyer files an Anders 

### brief, argues there are no meritorious issues, and moves to withdraw. CONCLUSION No adversaryproceeding occurred on the appeal and no issue was decided on themerits inthis casebecausethe appointed lawyermovedto withdraw and filed an Anders 

### briefing arguing that the indigent criminal defendant's appeal was wholly frivolous, and because Stump did not file a statement of additional grounds for review. In order to serve the ends of justice, we hold that RAP 14.2 does not apply to this unique situation. The appellate court's award ofcosts is therefore reversed. In addition, no costs shall be awarded to eitherpartyfor review in this court.

13State v. Stump (Curtis Guy), No. 91531-8

WE CONCUR:

14

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