S.t. v. State Of Washington ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of ) No. 77656-8-1
S.T., ) UNPUBLISHED OPINION
Appellant. ) FILED: March 4, 2019
SCHINDLER, J. — S.T. filed a notice of appeal more than 50 days after the court
entered a 14-day order of commitment for involuntary treatment. We deny the motion to
enlarge the time to file the notice of appeal and grant the motion to dismiss the appeal
as untimely.
14-Day Involuntary Treatment Commitment Order
On September 27, 2017, 21-year-old S.T. ran into a local business to hide
because "someone is going to kill him." The police took S.T. to Overlake Medical
Center emergency room for evaluation and treatment. S.T. told the social worker he
"bought a gun to kill himself with." On September 28, S.T. was transferred to Fairfax
Health hospital.
The State filed a "Petition for 14 Day Involuntary Treatment." The petition
alleged S.T. presents "a likelihood of serious harm to self' and is "gravely disabled . .
as a result of a mental disorder." The petition states, "[T]here are no less restrictive
alternatives to detention in the best interest of the respondent or others because the
respondent requires the monitoring and stabilization of an inpatient psychiatric hospital."
No. 77656-8-1/2
Licensed clinical psychologists Dr. Richard Thomas and Dr. Sonja Kottke
testified at the probable cause hearing on October 2.
Dr. Thomas testified that S.T. told Overlake hospital social worker Jenny
Donovan that "someone is trying to kill him." S.T. said he "almost killed himself last
week when he purchased [a] gun and was going to shoot himself." S.T. said the "gun
and bullets are stored in the car."
Dr. Kottke testified that she evaluated S.T. and reviewed his medical records.
On September 28, S.T. presented as "tangential, difficult to redirect, stuck on one
subject, repeating himself over and over." S.T. "described visual hallucinations" but was
"much calmer than described while in the E.D."1 S.T. denied "feeling suicidal" and
"does not believe he has a mental health issue." On September 30, S.T. "presented
with anxious mood, congruent affect, and linear thought process." S.T."seemed to be
confused and disorganized" and his "mood is very unstable." On October 1, S.T. said
he "feels paranoid at times." S.T. was "anxious and afraid of the surroundings. States
others might attack him while in bed at night. Needs repeated, constant reminder that
his is safe." S.T. was "loose, disorganized, with grandiose delusions. His affect is
suspicious and withdrawn." S.T. "has been compliant with medications and sleeping
and eat adequately."
Dr. Kottke testified that S.T. has a "working diagnosis [of] psychosis unspecified"
that requires "additional time to monitor." Dr. Kottke testified S.T. "presents a
substantial risk of physical harm to himself" because he said he "had purchased a gun
and had a gun and bullets in his car. He was living in his car. That he had felt suicidal
. . .[a]nd that he had thought about killing himself." Dr. Kottke testified that S.T. is
I Emergency department.
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"gravely disabled as a result of his mental disorder." Dr. Kottke recommended
"[Unpatient psychiatric hospitalization" and said S.T. "needs monitoring in the hospital on
medications to work on stability and medication management."
On October 2, 2017, the court entered the 14-day involuntary treatment
commitment order. Two days later on October 4, Fairfax hospital released S.T.
On November 22, S.T. filed a notice of appeal of the October 2 order. On April
16, 2018, S.T. filed the brief of appellant arguing his attorney provided ineffective
assistance of counsel by stipulating to the admission of medical records.
On June 15, the State filed the brief of respondent. The State argued the court
should dismiss S.T.'s appeal as untimely. If the court reached the merits, the State
argued S.T. could not establish ineffective assistance of counsel.
On July 16, S.T.'s appellate attorney requested a 15-day extension to file the
reply brief. We granted an extension to July 31. On July 31, the attorney requested a
1-week extension to file the reply brief. We granted an extension to August 7. On
August 7, S.T.'s attorney requested "an additional two weeks" to file the reply brief to
obtain information about why the appeal was not timely filed and a motion to enlarge
time to file the notice of appeal. We granted the motion for an extension to August 21
but stated, "[N]o further extensions" would be granted. The appellate attorney did not
file a reply brief or a motion to enlarge the time to file the notice of appeal by the August
21 deadline.
Motion to Dismiss and Motion to Enlarge Time to File Appeal
On November 26, 2018, the State filed a motion to dismiss review of the case
"for failure to file a timely notice of appeal" under RAP 5.2(a). The State argued S.T. did
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No. 77656-8-1/4
not establish grounds to enlarge the time to file a notice of appeal under RAP 18.8(a)
and "abandoned review" by not timely filing a reply brief or motion to enlarge time to file
the appeal.
On December 10, more than 12 months after he filed the notice of appeal, S.T.
filed a motion to enlarge time to file the notice of appeal and an answer to the State's
motion to dismiss. S.T. conceded the notice of appeal was untimely. S.T. did not
address the failure to comply with the August 21 deadline to file a reply brief or a motion
to enlarge time to file a notice of appeal.
S.T. contends the court should deny the State's motion to dismiss and grant his
motion to enlarge the time to file the notice of appeal "based on extraordinary
circumstances and to prevent a gross miscarriage of justice."
RAP 5.2(a) provides that a party must file a notice of appeal within "30 days after
the entry of the decision of the trial court that the party filing the notice wants reviewed."
RAP 18.8(a) allows the appellate court to "enlarge. .. the time within which an act must
be done in a particular case in order to serve the ends of justice." RAP 18.8(b),
"Restriction on Extension of Time," states:
The appellate court will only in extraordinary circumstances and to prevent
a gross miscarriage of justice extend the time within which a party must
file a notice of appeal, a notice for discretionary review, a motion for
discretionary review of a decision of the Court of Appeals, a petition for
review, or a motion for reconsideration. The appellate court will ordinarily
hold that the desirability of finality of decisions outweighs the privilege of a
litigant to obtain an extension of time under this section. The motion to
extend time is determined by the appellate court to which the untimely
notice, motion or petition is directed.
Under RAP 18.8(b), "the time for filing a notice of appeal will be extended only in
extraordinary circumstances and to prevent a gross miscarriage of justice." State v.
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No. 77656-8-1/5
Hand, 177 Wash. 2d 1015, 308 P.3d 588, 589 (2013). "Extraordinary circumstances"
include instances in which "the filing, despite reasonable diligence, was defective due to
excusable error or circumstances beyond the party's control." Reichelt v. Ravmark
Indus., Inc., 52 Wash. App. 763, 765, 764 P.2d 653(1988). "Negligence, or lack of
'reasonable diligence,' does not amount to 'extraordinary circumstances.'" Hand, 308
P.3d at 589 (quoting Beckman v. Dep't of Soc. & Health Serv., 102 Wash. App. 687, 695,
11 P.3d 313(2000)). RAP 18.8(b) "clearly favors the policy of finality of judicial
decisions over the competing policy of reaching the merits in every case." Reichelt, 52
Wash. App. at 765.
S.T. contends extraordinary circumstances support his motion to enlarge the time
to file the notice of appeal because his attorney provided ineffective assistance of
counsel by not timely filing the notice of appeal. S.T. contends his inability to contact
his attorney constitutes circumstances beyond his control.
To establish ineffective assistance of counsel, S.T. must demonstrate both
deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant alleging ineffective
assistance of counsel must overcome"'a strong presumption that counsel's
performance was reasonable.'" State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260
(2011)(quoting State v. KvIlo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009)).
In support of the motion to enlarge the time to file the notice of appeal under RAP
18.8(b), S.T. submitted a declaration and attached an e-mail exchange with his
attorney. In his declaration, S.T. states:
Shortly after being released, I called my assigned attorney Cherilyn
Church to ask about filing an appeal. 1 do not recall exactly how many
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times I called; I do remember calling Ms. Church a few times. Ms. Church
did not respond to my calls.
S.T. states that "[a]fter not hearing back," he "sent Ms. Church an e-mail." The e-mails
attached to his declaration show that on November 22, 2017 at 12:03 p.m., S.T. sent an
e-mail to Church with the subject, "FairFax Appeal." At 12:45 p.m., Church responded
to S.T. and said,"Can you give me a call ASAP?" and provided her telephone number.
Church filed a notice of appeal the same day.
The record shows that S.T. successfully contacted his attorney through e-mail
but did not do so until 49 days after he was released from the hospital. The e-mail
exchange shows his attorney responded immediately to his e-mail and filed the notice of
appeal the same day. Because S.T. has not shown either ineffective assistance of
counsel or extraordinary circumstances that justify an extension of time, we deny the
motion to enlarge the time file the notice of appeal. We grant the motion to dismiss the
appeal as untimely.
561)-,N\rtc1S1—.
WE CONCUR:
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