FILED 


JULY 14,2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32063-4-III 

Respondent, ) 

) 

v. ) 

) 

AMEL W. DALLUGE, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

SIDDOWAY, C.J. - Arnel Dalluge appeals the result of a Dillenburgl hearing that 

this court ordered to remedy the failure years earlier to conduct a decline hearing before 

transferring criminal charges against Mr. Dalluge to adult court. The superior court 

concluded that the juvenile court would have declined jurisdiction ofproperty crime 

charges filed against Mr. Dalluge in 1998. As a result, his 1998 conviction ofthose 

charges in adult court stands. 

Mr. Dalluge, who represented himself in the hearing, argues that the superior court 

improperly allowed him to focus on legal challenges and to stipulate that the factual 

factors to be considered in declining jurisdiction would have been satisfied. He asks us to 

1 Dillenburgv. Maxwell, 70 Wn.2d 331, 413 P.2d 940 (1966), modified on reh'g, 

422 P.2d 783 (1967) (court must hold a retroactive decline hearing when ajuvenile is 

tried in adult court without a decline hearing). 
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No. 32063-4-III i State v. Dalluge 

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apply the protection against improvident waiver that we would accord to a juvenile facing 

criminal prosecution. 

As a 33-year-old seeking relief from convictions, Mr. Dalluge stands on a different 

footing than a juvenile faced with criminal prosecution. He made a knowing and 

voluntary stipulation to facts on which the superior court reasonably relied. For that 

reason, and because the superior court made all necessary findings, we affirm. 

FACTS AND PROCEDURAL BACKGROUND 

Prior Matters 

We first recount events dating back almost 20 years that led to the outcome ofthe 

July 2013 hearing challenged in this appeaL The following history is largely drawn from 

this court's Order Returning Personal Restraint Petition to Superior Court and Closing 

Petition in Court ofAppeals, In re Pers. Restraint ofDalluge, No. 292S6-8-III (Wash. Ct. 

App., Jun. 8, 2011). 

In September 1997, then 17-year-old Arnel Dalluge was charged with first degree 

rape. On March 2, the State amended the information in the rape case to one count of 

rape in the second degree and one count ofrape in the third degree, or in the alternative, 

two counts ofthird degree rape. 

While evading apprehension for the rape charges, Mr. Dalluge committed property 

crimes in November 1997. He was charged with burglary in the second degree, theft in 

the second degree, and vehicle prowling in the second degree on January 16, 1998. 

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No. 32063-4-III 

State v. Dalluge 

The property crime charges proceeded to trial before the rape charges, and on 

March 5, 1998, Mr. Dalluge was convicted ofthe property crimes in adult court. On 

March 30, he was convicted oftwo counts ofrape in the third degree in adult court. 

Both ofMr. Dalluge's cases were properly in adult court before March 2, 1998, 

because the charge of first degree rape (a serious violent offense) subjected him to 

automatic juvenile court declination and exclusive adult court jurisdiction. RCW 

13.04.030(1)(e)(v)(A). On account ofthat automatic declination, he was no longer 

considered a juvenile for purposes ofthe subsequent property crimes and the adult court 

had sole jurisdiction over those proceedings as welL See RCW 13.40.020(15); State v. 

Sharon, 100 Wn.2d 230,231,668 P.2d 584 (1983). 

But when the information was amended to reduce the rape charges, Mr. Dalluge 

was no longer charged with a serious violent offense and the case no longer qualified for 

automatic declination ofjuvenile court jurisdiction. In response to a personal restraint 

petition filed by Mr. Dalluge challenging his rape convictions, our Supreme Court ruled 

that with the reduction of charges, the trial court should have remanded the rape charges 

to the juvenile court for a decline hearing. In re Pers. Restraint ofDalluge, 152 Wn.2d 

772, 783, 100 P.3d 279 (2004). Since Mr. Dalluge's petition was not barred as untimely 

given the jurisdictional error, the remedy ordered was to remand to adult criminal court 

for a de novo Dillenburg hearing on whether declination would have been appropriate. 

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No. 32063-4-111 

State v. Dalluge 

On remand, the superior court conducted a Dillenburg hearing and concluded Mr. 

Dalluge would have been declined from juvenile jurisdiction to the adult system. 

In a personal restraint petition filed with this court in 2010, Mr. Dalluge raised the 

same infirmity with his property crime convictions that he earlier raised and addressed 

with the rape convictions. Here again, Mr. Dalluge's petition was not barred as untimely, 

given the jurisdictional error. This court rejected the State's argument that the outcome 

ofthe Dillenburg hearing on the rape charges controlled whether juvenile court 

jurisdiction would have been declined as to the lesser property charges. The remedy 

ordered was to again remand to the superior court for a Dillenburg hearing to determine, 

this time, whether declination ofjurisdiction over the property crime charges would have 

been appropriate. 

Proceedings Following Remand 

In November 2011, at the request ofMr. Dalluge, the trial court appointed a 

lawyer to represent him. Mr. Dalluge later reported "political" disagreements and 

conflicts with the lawyer, Robert Kentner, whom Mr. Dalluge also accused of being 

nonresponsive. Mr. Dalluge eventually asked to represent himself. 

Among Mr. Dalluge's reasons for wishing to represent himself were that Mr. 

Kentner wanted to argue that the eight factors identified by the United States Supreme 

Court inKentv. United States, 383 U.S. 541,566-67,86 S. Ct. 1045,16 L. Ed. 2d 84 

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No. 32063-4-II1 

State v. Dalluge 

(1966) as bearing on whether declination is appropriate2 did not support declination in 

Mr. Dalluge's case. Mr. Dalluge preferred to attack the constitutionality ofthe 

Dillenburg hearing. Mr. Dalluge was familiar with the Kent factors from his prior 

Dillenburg hearing. See State v. Dalluge, noted at 148 Wn. App. 1004, 2009 WL 73138, 

*3-*9.3 

Aware ofMr. Dalluge's difficulties in working with Mr. Kentner, the court 

decided to proceed with the expectation that Mr. Dalluge would represent himself. In 

reaching its decision, the court observed that Mr. Dalluge had previously participated in a 

2 The eight factors identified by Kent, 383 U.S. at 566-67, are: 

1. The seriousness ofthe alleged offense to the community and whether the 

protection ofthe community requires [ declination]. 

2. Whether the alleged offense was committed in an aggressive, violent, 


premeditated or willful manner. 


3. Whether the alleged offense was against persons or against property .... 

4. The prosecutive merit ofthe complaint .... 

5. The desirability oftrial and disposition ofthe entire offense in one court when 

the juvenile'S associates in the alleged offense are adults .... 

6. The sophistication and maturity ofthe juvenile as determined by 

consideration of his home, environmental situation, emotional attitude and pattern of 

living. 

7. The record and previous history of the juvenile .... 

8. The prospects for adequate protection ofthe public and the likelihood of 

reasonable rehabilitation ofthe juvenile (ifhe is found to have committed the alleged 

offense) by the use ofprocedures, services and facilities currently available to the 

Juvenile Court. 

3 Although the 2009 opinion was unpublished, we cite it not as authority but for its 

historical relation to this case. See GR 14.1(a). 

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No. 32063-4-111 

State v. Dalluge 

Dillenburg hearing; had made clear that he had the ability to read and understand the law; 

and was not before the court as a criminal defendant but instead as the moving party 

seeking relief from convictions. The court ordered Mr. Kentner to remain standby 

counsel, to assist and to step in ifneeded. 

At a hearing on May 7,2013, the court signed an order documenting the selfrepresentation and standby counsel arrangement and also granted Mr. Dalluge's request 

to continue the Dillenburg hearing to give him more time to prepare. In response to the 

State's expression of concern about time and witness availability, Mr. Dalluge told the 

court: 

I'm going to do what I can-in my direction in the case is I'm going to 

waive the Kent factors, just so, you know, the state, you know, has-has no 

basis, I guess, to have the witnesses hanging [out] any more-she can let 

them go. 'Cause I'm going to write it up and waive that. 

And as I was trying to tell stand-by counsel, I-I don't see any reason 

for a factual defense and I'd rather go on a legal defense. 

And I was going to do that, you know, as that would save judicial 

resources and expedite the proceedings. 

Report ofProceedings (RP) at 68-69. The court responded, "Okay. Well, then, you work 

on what you want to propose as a stipulation with the [S]tate, and ifyou need the 

assistance ofMr. Kentner in getting things back and forth, or wording, or whatever, he's 

there [as] your standby." Id. at 69. 

The Dillenburg hearing was continued to July 24. Mr. Dalluge submitted briefing 

on his "law based defense." Clerk's Papers (CP) at 110-27, 129-30. 

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No. 32063-4-III 

State v. DaUuge 

A substantial part ofthe Dillenburg hearing was consumed by a discussionprincipally between the court and Mr. DaUuge-about Mr. Dalluge's desire to "waiv[e] 

the challeng[e]ofthe Kent factors and mov[e] on to the second part ofDillenburg," 

challenging the constitutionality ofthe hearing. RP at 75. Since what was invited and 

agreed by Mr. Dalluge is at the heart ofthis appeal, we reproduce substantial portions of 

the discussion. 

It began with the prosecutor expressing her concern about whether the parties were 

addressing "Mr. Dalluge's issues or ... the Kent factors," reminding the court that Mr. 

Dalluge said he was waiving the factors but that she so far had no written stipulation. RP 

at 74. She argued, "[I]f [it's] true [he's going to stipulate to the Kent factors] I'd like to 

have something in writing signed by the parties for the file." RP at 74-75. 

The following dialogue ensued: 

DEFENDANT: ... It wasn't stipulating to nothing; it was 

waiving-waiving the challenging ofthe Kent factors and moving on to the 

second part of Dillenburg, challenging under constitutional rights. 

THE COURT: Okay. 

Mr. Dalluge, I was trying to recreate the representations that you 

made from the clerk's minutes and I'm having some difficulty doing that. 

When you say that you--waived the Kent factors, or what-I may 

misstate your language-what exactly did you intend in that regard? 

DEFENDANT: As in Dillenburg, it has-I can-I can wait 'til after 

the Kent factors and that's how Dillenburg lays it out, is after we do the 

Kent factors I can argue, you know, "Hey, this is unconstitutional for these 

reasons." But I find that--because we already have the first hearing we can 

use that and I can demonstrate any unconstitutionally from that [sic]. So I 

feel it may be more efficient for this court, and a preservation ofjudicial 

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No. 32063-4-III 1 State v. Dalluge j 

resources, ifwe just skip that and move on to the challenging of the 

unconstitutionality ofit. 

THE COURT: Okay. So let me ask it in-in very specific terms. 

Do you stipulate that a consideration of the Kent factors in this case 

would result in a decline ofjuvenile court jurisdiction? 

DEFENDANT: I believe that-that that's-that's going beyond-is 

with the waiver I'm-I guess I'm trying to stay away from that. Is-is you 

know, I'm not going to come back on--on appeal-I see where you're 

coming from, but if I do that I guess I'd be admitting defeat, and- ... 

. . . I don't think I would have to go that far and that's why I'm 

staying away from stipulation and going more towards waiver-just-. 

RP at 75-77 (alteration in original). 

In order to determine how to proceed, the superior court explained to Mr. Dalluge 

that the Court ofAppeals had remanded the cause for a Dillenburg hearing, reviewing 

what that entails. 

THE COURT: ... That court says that we're required to conduct a 

hearing, a Dillenburg hearing, in which the court considers the Kent factors 

to determine whether or not, had it been timely, decline would have been 

ordered, to decline juvenile court jurisdiction in this case. 

You want to add to that consideration some legal arguments based 

on the constitutionality of this proceeding, and I'm totally comfortable with 

that. But the question is, what do we do with the first part of the hearing 

that the Court ofAppeals has ordered us to conduct. 

Ifyou-If you are waiving that, saying, "No, Judge, you don't have 

to do that part," I don't think you have authority to do that. If you are 

stipulating that the Kent factors, without the constitutional considerations, 

the Kent factors alone, would have resulted in decline, then we can proceed 

to your constitutional argument. 

RP at 77-78. The court clearly told Mr. Dalluge that "the Kent factors have to be applied 

in regard to the specific charges." RP at 80. 

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No. 32063-4-lII 

State v. Dalluge 

Following the court's explanation, Mr. Dalluge acceded to the court's position that 

it would not forgo review ofthe Kent factors unless Mr. Dalluge was stipulating that the 

juvenile court's consideration ofthe Kent factors in 1998 would have resulted in 

declination. Since Mr. Dalluge still stated that he preferred "waiver" to "stipulation," the 

court sought to confinn, and did confinn, that Mr. Dalluge did not believe a ''waiver'' 

would preserve review ofthe Kent factors for another day. The court inquired: 

THE COURT: ... lfthe court allowed you to waive the Kent factors 

and not stipulate, ifwe then had a hearing on your legal defenses, your 

constitutional claims and so on, and ifthis court decided against you on the 

legal claims, where do you think you would be in regard to the finality ofofthe judgment and sentence in this case? 

DEFENDANT: It would be a matter, I guess, for the Court of 

Appeals. 

THE COURT: On the legal issues. 

DEFENDANT: Yeah. Not-not-not-going into the waiver or 

the stipulation; it would be merely, as I'm saying, the constitutionality ofit. 

THE COURT: OkayDEFENDANT: It would be strictly towards that. 

THE COURT: And-And if, after full legal appeals and so on, you 

did not prevail on the legal defenses, and the constitutional argument, 

would you then expect that at some point the court would have to conduct a 

hearing in regard to the Kent factors? 

DEFENDANT: That would not be honorable. No. 


THE COURT: Okay. 


So, under these circumstances I understand Mr. Dalluge essentially 


to stipulate. I honor for the record his attempt to distinguish between a 

waiver and a stipulation. But I understand him to stipulate that the-the 

Kent factors alone would result in declination ofjuvenile court jurisdiction 

in this case-Or, in the context of a Dillenburg hearing, would have 

resulted in declination. 

RP at 81-82. 

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No. 32063-4-III 

State v. Dalluge 

The court continued with the remaining issues and at the conclusion ofthe 

hearing, took the matter under advisement pending supplemental briefing. But it also 

entered an order setting forth the parties' stipulation and other matters; in relevant part, 

the order states that "[t]he parties stipulate that an application ofthe factors identified in 

Kent v. United States would, without consideration ofDefendanfs constitutional 

arguments and legal defenses, result in declination ofjuvenile court jurisdiction in this 

cause." CP at 131-32 (citation omitted). The court asked Mr. Dalluge ifhe had any 

issues with the form ofthe order and Mr. Dalluge answered, "No, I don't, your Honor." 

RP at 91. Once prepared, Mr. Dalluge signed the order, indicating, as the prosecutor did, 

"Copy received and approved for entry." CP at 132. 

Following the hearing, the State filed a response brief and Mr. Dalluge filed his 

reply. The court issued a written memorandum concluding that Mr. Dalluge's legal 

defenses to the Dillenburg hearing were without merit. It also stated: 

The court concludes, on the parties' stipulation, that application ofthe legal 

standards for declination ofjuvenile court jurisdiction, had they been 

addressed prior to adult division proceedings in this case, would have 

resulted in declination. 

CP at 160. It therefore ruled that ''the conviction in this case remains intact and no new 

trial is ordered." Id. Mr. Dalluge filed, and the court denied, a motion for 

reconsideration. Mr. Dalluge appeals. 

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No. 32063-4-111 

State v. Dalluge 

ANALYSIS 

Mr. Dalluge has accepted representation by counsel on appeaL His five 

assignments of error are variations on arguments that the trial court erred by accepting his 

stipulation and by failing to make necessary and adequately supported findings, including 

that declination ofjuvenile jurisdiction was in Mr. Dalluge's or the public's best interest. 

As aptly summarized by the superior court: 

A Dillenburg hearing is ordered when a matter has been prosecuted to 

conviction in Superior Court without a legally-required declination hearing 

in juvenile court. The hearing is intended to answer this question: ifthe 

court had conducted a declination hearing before the adult court 

prosecution, applying the factors identified in Kent v. United States, would 

the juvenile court have declined jurisdiction? Ifthe answer is "yes," the 

adult court conviction stands; if "no," the conviction is vacated and a new 

trial ordered. 

CP at 158 (emphasis omitted) (citation omitted). The State was required to show that 

declination would have been appropriate in 1998 by a preponderance ofthe evidence. Cf 

State v. HD., 119 Wn. App. 549, 551, 81 P.3d 883 (2003) (decision to decline 

jurisdiction over a juvenile charged with a crime is subject to preponderance standard). 

This court reviews a decision to decline jurisdiction for abuse of discretion. Id. at 556. 

Failure to Consider Kent Factors 

Mr. Dalluge contends that the court abused its discretion when it failed to 

independently consider the Kent factors despite his request to waive them and his 

ultimate stipulation that they would have supported declination. In response, the State 

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 No. 32063-4-111 

State v. Dalluge 

argues that Mr. Dalluge is bound by his stipulation and alternatively that if error 

occurred, Mr. Dalluge invited it. 

Mr. Dalluge cites no case law holding that a competent adult-and Mr. Dalluge 

was 33 years old at the time ofthe Dillenburg hearing-cannot stipulate to facts at such a 

hearing. He relies instead on cases holding that juveniles cannot waive a decline hearing 

and that the juvenile court must independently consider the Kent factors in deciding 

whether declination is in the best interest ofthe juvenile or the public. The questions 

addressed at a timely decline hearing for a juvenile and a Dillenburg hearing, often 

involving an adult, are similar but not identical. A decline hearing is conducted in 

accordance with statute while a Dillenburg hearing is conducted as prescribed by the 

Dillenburg decision. The ramifications ofthe two proceedings are vastly different. 

As explained by our Supreme Court in State v. Saenz, 175 Wn.2d 167, 174,283 

P.3d 1094 (2012), when ajuvenile facing criminal prosecution waives juvenile court 

jurisdiction 

he or she also waives the increased protections ofthe juvenile justice 

system, exiting a system designed to rehabilitate and entering a system 

designed to punish. This exit is a one-way street with no return: by waiving 

juvenile jurisdiction once, the juvenile enters the adult system permanently, 

forfeiting the right to be tried in juvenile court for all future offenses. RCW 

13.40.020(14); State v. Sharon, 100 Wn.2d 230,231,668 P.2d 584 (1983). 

Thus, moving a case from juvenile court to adult court is "a 'critically 

important' action determining vitally important statutory rights ofthe 

juvenile." Kent, 383 U.S. at 556, (citing Black v. United States, 122 U.S. 

App. D.C. 393, 355 F.2d 104, 105 (1965)). 

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No. 32063-4-111 

State v. Dalluge 

By contrast, an adult being provided retroactive relief through a Dillenburg 

hearing has already been prosecuted in adult court. The adult is making a motion for 

relief. He or she faces at best, the vacating ofthe conviction and a new trial (in adult 

court), and at worst, that the conviction will stand. Where an adult can choose whether or 

not to even request a Dillenburg hearing, we see no reason why he or she cannot 

knowingly and voluntarily stipulate to facts for reasons like those Mr. Dalluge identified: 

to "save judicial resources and expedite the proceedings." RP at 68-69. 

Even in a criminal trial, a defendant's stipulation to facts--even to elements of a 

crime---{}o not need to be accompanied by a colloquy on the record between the 

defendant and the trial court. State v. Humphries, 181 Wn.2d 708, 715, 336 P.3d 1121 

(2014). "[R]equiring trial courts to question defendants personally as to the voluntariness 

of every stipulation would 'needlessly delay and confuse the conduct of a typical triaL'" 

Id. (quoting Us. v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980)). Instead, when a 

stipulation is agreed to by a defendant's attorney in the presence ofthe defendant, the 

trial court may presume that the defendant consents, unless the defendant objects at the 

time the stipulation is made. 

Here, of course, Mr. Dalluge personally agreed to the stipulation. He did so after 

the benefit of a colloquy with the trial court. He does not raise any challenge on appeal 

to his knowing, voluntary, and intelligent decision to represent himself. 

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No. 32063-4-III 

State v. Dalluge 

The invited error doctrine would provide another basis for affinning the superior 

court notwithstanding its acceptance ofMr. Da1luge's stipulation, even ifit were error. 

The doctrine is applicable when a party '" takes affinnative and voluntary action that 

induces the trial court to take an action that party later challenges on appeaL'" Hymas v. 

UAP Distrib., Inc., 167 Wn. App. 136, 148,272 P.3d 889 (2012) (quoting Lavigne v. 

Chase, Haskell, Hayes & Kalamon, PS, 112 Wn. App. 677, 681, 50 P.3d 306 (2002)). It 

was Mr. Dalluge who asked, and persisted in his request, not to address the Kent factors. 

Because we fmd no error, however, we need not address invited error further. 

Failure to Enter Findings 

Mr. Dalluge also assigns error to the trial court's failure to enter a written finding 

that transfer to adult court was in the best interest ofthe juvenile or the public, which he 

contends was required by RCW 13.40.110(4). He argues that "[a] transfer ofjuvenile 

jurisdiction to adult court is not valid until the juvenile court has fulfilled its solemn 

responsibility to independently detennine that a decline ofjurisdiction is in the best 

interest ofthe juvenile or the public and entered written fmdings to that effect before 

transferring the case." Saenz, 175 Wn.2d at 179. 

Here, however, the superior court was not going to be transferring jurisdiction of 

Mr. Dalluge's charges to adult court. It was not conducting a decline hearing under 

RCW 13.40.110. It was conducting a different sort of hearing, required by court order 

and to be conducted in accordance with the procedure prescribed by Dillenburg. The 

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No. 32063-4-III 

State v. Dalluge 

Dillenburg procedure is not identical to a decline hearing. While the statutes providing 

for decline hearings inform the court's task, the Dillenburg decision requires different 

fmdings and a different result. 

Dillenburg requires "a de novo hearing before the superior court as to the 

propriety ofthe challenged transfer, i.e., whether the facts before the juvenile 'session' of 

the superior court in the ftrst instance warranted and justifted the transfer for criminal 

prosecution." Dillenburg, 70 Wn.2d at 355. At the conclusion ofthe hearing, Dillenburg 

requires only that the court "make ftndings offact and conclusions of law relative to any 

relevant and disputed issue between the prosecuting offtcials and the convicted person." 

ld. "In the event it be determined, as a result of such hearing, that the initiating juvenile 

court transfer for criminal prosecution was appropriate under all ofthe circumstances, 

then the challenged conviction will stand unless intervening events have so prejudiced the 

constitutional rights ofthe convicted person as to compel a different result." ld. 

These are the requirements of Dillenburg, and the superior court's decision 

satisfted them. The court concluded, based on the parties' stipulation, that the facts 

would have warranted and justifted the transfer for criminal prosecution. It was not 

required to make ftndings or conclusions on relevant and disputed issues other than the 

parties' legal disputes, because there were no others. It ruled that the conviction would 

stand. There were no ftndings or conclusions required of a Dillenburg hearing that the 

court failed to make. 

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No. 32063-4-III 

State v. Dalluge 

STATEMENT OF ADDITIONAL GROUNDS 

In a pro se statement of additional grounds (SAG), Mr. Dalluge argues that he is 

unable to raise any meritorious issues for the court to review because he was not provided 

adequate access to the prison's law library. The State responds that it is unable to 

ascertain the nature or occurrence of any error and is unable to adequately respond. We, 

too, are unable to consider a matter as to which evidence is outside the record. See State 

v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). A personal restraint petition 

is the appropriate vehicle for bringing such a matter before the court. 

Affirmed. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

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WE CONCUR: 

Brown, J. 

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