State v. Graham ( 2019 )

This opinion was
fiied for record
/FVUE
/ IN CLERKS OFFICE
D/JE Susan L. Carlson
czJj. kAMJ^ Supreme Court Clerk
GHtepMsnce
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 973 2 9-6
Respondent,
V. EN BANC
RANDOLPH THOMAS GRAHAM,
Petitioner.
DEC 1 9 2019
Filed:
PER CURIAM—RAP 1.2(a) underscores the purposes of the Rules of
Appellate Procedure when it states unequivocally that "[tjhese rules will be liberally
interpreted to promote justice and facilitate the decision of cases on the merits. Cases
and issues will not be determined on the basis of compliance or noncompliance with
these rules except in compelling circumstances where justice demands, subject to the
restrictions in rule 18.8(b)[which has no application to the facts of this discretionary
review]." The clerk of Division Two of the Court of Appeals imposed a $200 fine on
attorney Travis Steams for seeking an extension of time to file an opening brief in an
indigent criminal appeal. In a split decision, a panel ofthe Court of Appeals denied his
motion to modify and affirmed the sanction, and Steams filed a motion for discretionary
review in this court. Because Steams was fulfilling his duty of effective representation
No.97329-6 Page 2
in asking for an extension, we grant discretionary review and reverse the Court of
Appeals.
FACTS
Steams's client, Randolph Graham,was convicted offirst degree murder and
other crimes and sentenced to 800 months' confinement, about 300 months above the
standard range. Graham appealed, and counsel from the Washington Appellate Project
was appointed to represent Graham when his original attomey left practice to join the
judiciary. The opening brief in Graham's case was originally due on January 17, 2019,
but the first attomey the Washington Appellate Project assigned to Graham's case asked
for an extension of time to file the opening brief after discovering that the record was
incomplete and that more transcripts had to be ordered. The Court of Appeals clerk
granted an extension to March 8, 2019. The last verbatim report of proceedings was
filed on Febmary 13, 2019.
The Washington Appellate Project then substituted Steams for Graham's
original attomey. When he took over. Steams moved for another extension of time to
file the opening brief, explaining that his current workload had prevented him from
starting on Graham's appeal, which had an extensive record, including 1,300 pages of
transcripts. The clerk of the Court of Appeals granted an extension to April 17, 2019,
explaining that failure to file the brief by that date would result in the imposition of a
$200 sanction.
On April 17, Steams filed a second request for an extension of time,
explaining that the Washington Appellate Project had received the complete record just
63 days previously and that the case involved complicated legal issues and a substantial
record. Steams explained that he had been working to complete Graham's opening brief
but also had other significant demands on his time, outlining all of his other current
work. He stated that he anticipated filing the brief as soon as possible, noting that he
No.97329-6 PAGE 3
had read the complete record and had started drafting his brief, having identified three
significant and distinct issues. He stated further that he had worked on the brief as
quickly as he could within his constitutional obligations and the Standards for Indigent
Defense. He noted that the standards restricted the number of briefs he could write to
three a month when the average transcript length is 350 pages, and he believed it would
be impossible to comply with these standards and file Graham's brief within the 63 days
he had had since his office received the complete set of transcripts.
The clerk of the Court of Appeals granted the extension but also sanctioned
Steams $200 for not filing Graham's opening brief by April 17. Steams filed a motion
to modify the clerk's mling, asking the Court of Appeals to strike the $200 sanction.
The State responded in support of Steams's motion, agreeing that no sanction should
be imposed. The State opined that in cases where a criminal defendant has been
convicted of a serious offense, such as first degree murder, or in a case where there is a
lengthy or complicated record, the court should afford appellate counsel flexibility to
be able to adequately perform the constitutionally required duties of defense attomeys
in criminal actions. The State also provided examples of comparable cases where
defense attomeys were granted longer extensions without sanction. A majority of a
panel ofjudges denied the motion to modify, with one judge dissenting.
Meanwhile, Steams filed an opening brief on April 22, 2019, only 23 days
beyond the initial deadline provided for in RAP 10.2.^ Graham's appeal raises issues of
instmctional error, as well as Graham's right to represent himself at trial. Reading and
preparing Graham's opening brief took Steams approximately 79 hours of work to
complete. He also worked on a significant number of other cases while preparing
Graham's opening brief. Since his original request to extend time. Steams filed opening
briefs, petitions for review, and reply briefs in seven cases and had oral argument in
^ The last verbatim report of proceedings was filed on Febmary 13,2019.
No.97329-6 PAGE 4
three cases before both the Court of Appeals and this court. After the filing ofGraham's
opening brief, the State also asked for an extension of time to file its responsive brief
and was granted an extension to July 31, 2019, a total of 100 days after the filing of
Graham's opening brief and 37 more days than the time the court gave Steams before
imposing the sanction.
Steams filed a motion for discretionary review in this court. We grant the
motion and reverse the Court of Appeals.
ANALYSIS
The Court of Appeals is authorized to sanction counsel for late filings.
RAP 10.2(i); RAP 18.9(a). But it is also required to liberally interpret the mles to
promote justice, and it has the authority to waive or alter any provision of the mles in
order to serve the ends ofjustice. RAP 1.2(a), (c). This includes authority to waive or
alter the mles to enlarge or shorten time within which an act must be done. RAP 18.8(a).
The Rules ofAppellate Procedure were designed to allow flexibility so as to avoid harsh
results. Weeks v. Chief of Wash. State Patrol, 96 Wash. 2d 893, 895-96, 639 P.2d 732
(1982). In pursuing an appeal, a criminal defendant has a right to effective assistance of
counsel. State v. Rolax, 104 Wash. 2d 129, 135, 702 P.2d 1185 (1985). The Standards for
Indigent Defense provide that the caseload of public defenders must allow each lawyer
to give each client the time and effort necessary to ensure effective representation.
Standards for Indigent Defense Services std. 3.2. To that end,experienced attomeys are
limited to 36 appeals a year, which equates to three appeals per month. Standards std.
3.4. This limit is based on experienced attomeys handling cases that have an average
transcript length of 350 pages. Id. The standards instmct that when a transcript length
exceeds 350 pages, caseloads should be reduced accordingly. Id. Because decisions to
impose sanctions, grant an extension oftime, or waive the appellate mles are within the
discretion of the Court of Appeals, we review the court's decision here for an abuse of
No.97329-6 Page 5
discretion. See Yousoufian v. Office ofKin^ County Exec., 152 Wn.2d 421,431,98 P.3d
463 (2004).^ A court abuses its discretion if its decision is manifestly unreasonable or
exercised on untenable grounds or for untenable reasons. State v. Oxborww,106 Wn.2d
525, 542, 723 P.2d 1123 (1986).
Here,the record demonstrates that Steams was prompt in communicating the
constraints placed on him by his current caseload and explaining why another extension
was necessary. The record does not show any malfeasance or lack of diligence on
Steams's part or any lapse in his representation and, indeed, reveals Steams's primary
concem with fulfilling his duty of effective representation. In light of these
circumstances,the Court of Appeals' sanction was not directed at or useful for deterring
future dilatory conduct. Rather, it was contrary to the policies promoting effective
representation of indigent criminal defendants on appeal. Under these circumstances,
where counsel needs an extension of time to fulfill his obligations of representation, it
is appropriate to grant an extension without the imposition of sanctions. Recent cases
have highlighted the constitutional importance of maintaining proper caseloads in
indigent defense cases. See, e.g., Wilbur v. City ofMount Vernon,989 F. Supp. 2d 1122,
1124(W.D. Wash.2013); State v. A.N.J., 168 Wn.2d 91,102,225 P.3d 956(2010). For
these reasons, we conclude that the Court of Appeals abused its discretion by
sanctioning Steams when he requested an extension of time in order to fulfill his duty
of effective representation.
We grant discretionary review,reverse the Court ofAppeals, and remand the
matter to the Court of Appeals with instmctions to strike the sanction.
^ RAP 18.9(a) provides that the appellate court"may" order a party to pay sanctions.
RAP 1.2(c) provides that the appellate court "may" waive or alter the provisions of the
appellate mles. RAP 18.8(a) provides that the appellate court"may" enlarge the time within
which an act must be done.