Personal Restraint Petition Of Stephen Palmer Dowdney, Jr. ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal Restraint ) No. 80957-1-I
of ) consolidated with
) No. 82170-9-I
)
STEPHEN P. DOWDNEY, JR., )
)
Petitioner, ) UNPUBLISHED OPINION
)
VERELLEN, J. — In this personal restraint petition, Stephen Dowdney Jr.
challenges this court’s dismissal of his direct appeal under the Anders v.
California1 procedure.2 Because he identifies at least one nonfrivolous issue
involving legal financial obligations (LFOs), we reinstate his direct appeal.
FACTS
On June 6, 2016, pursuant to a stipulated bench trial, the court found
Dowdney guilty of first degree robbery with a deadly weapon enhancement. 3 At
sentencing, the prosecutor noted that Dowdney’s DNA4 had already been
collected. Dowdney’s judgment and sentence ordered payment of a DNA
1 368 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967).
2State v. Dowdney, No. 75416-5-I, slip op. at 1 (Wash. Ct. App. Oct. 15,
2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/754165.pdf.
3Clerk’s Papers (CP) at 7-10; Report of Proceedings (RP) (June 6,
2016) at 68-69.
4 Deoxyribonucleic acid.
No. 80957-1-I/2
collection fee and interest on nonrestitution LFOs. Dowdney timely appealed
his judgment and sentence to this court. On appeal, Dowdney’s court-
appointed attorney filed a motion to withdraw on the ground that he could “find
no basis for a good faith argument on review.” 5 Neither Dowdney, his counsel,
nor the prosecutor referred to any potential LFO issue.6 This court conducted
an independent review and did not recognize the potential LFO issue.7 In
October 2018, this court granted Dowdney’s appointed counsel permission to
withdraw and dismissed his appeal as “wholly frivolous.”8 Dowdney filed this
personal restraint petition.
ANALYSIS
The Anders procedure is designed to safeguard against dismissing a
criminal appeal when appointed counsel is under the mistaken belief that the
appeal is wholly frivolous.9 Specifically, Anders provides,
[Defense counsel’s] role as an advocate requires that he support
his client’s appeal to the best of his ability. Of course, if counsel
finds his case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request
permission to withdraw. That request must, however, (1) be
accompanied by a brief referring to anything in the record that
might arguably support the appeal. (2) A copy of counsel’s brief
should be furnished to the indigent and (3) time allowed him to
raise any points that he chooses; (4) the court—not counsel—then
5 Petitioner’s Supp. Br. at App. 66.
6 Dowdney, No. 75416-5-I, slip op. at 1.
7 Id.8 Id.9 Anders, 386 U.S. at 741-42.
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proceeds, after a full examination of all the proceedings, to decide
whether the case is wholly frivolous.[10]
The “critical determination to be made in an Anders situation is whether the
appeal ‘is indeed so frivolous that counsel should be permitted to withdraw.’”11
And in State v. Nichols, our Supreme Court held that where “an appellate
court ‘concludes that there are nonfrivolous issues to be raised’” the proper
remedy is for the court “to appoint counsel to pursue the appeal and direct that
counsel to prepare an advocate’s brief before deciding the merits. It is not
sufficient that the court grant[ ] relief on the one issue it found to be
meritorious.”12 If the appellate court mistakenly dismisses a criminal appeal as
wholly frivolous the court must vacate the order dismissing the direct appeal
and permit the appellant to proceed with a new appeal not limited in scope. 13
In this PRP, Dowdney contends he was denied a meaningful direct
appeal for failure of this court to comply with the Anders procedure, he was
denied his right to counsel on appeal, he was denied his constitutional right to
proceed pro se on appeal, and this court did not have the complete record of
the proceedings. And through counsel appointed to represent Dowdney in his
10 State v. Theobald, 78 Wn.2d 184, 185, 470 P.2d 188 (1970) (alteration
in original) (citing Anders, 386 U.S. at 744).
11State v. Hairston, 133 Wn.2d 534, 538, 946 P.2d 397 (1997) (citing
McCoy v. Court of Appeals, 486 U.S. 429, 442, 108 S. Ct. 1895, 1903, 100 L.
Ed. 2d 440 (1988)).
12
136 Wn.2d 859, 861-62, 968 P.2d 411 (1998) (quoting McCoy, 486
U.S. 429).
13 Id. at 862.
3
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PRP, Dowdney argues that his direct appeal presented nonfrivolous issues,
including: improper LFO’s; failure to charge and to make findings supporting an
alleged “through force or fear” element; and violation of his speedy trial right
under CrR 3.3 after the prosecutor abusively filed felony charges in district court
with no intention of engaging in preliminary matters before refiling in superior
court. He contends the resulting delay in starting the speedy trial period has
equal protection and due process implications.14
Here, there is at least one issue that is not “wholly frivolous.” In 2018,
prior to this court’s order allowing counsel to withdraw pursuant to Anders and
dismissing Dowdney’s direct appeal, our legislature amended numerous LFO
statutes. Relevant here, these amendments prohibit the court from imposing
the DNA collection fee “if the offender’s DNA has [already] been collected
because of a prior conviction” and any interest on nonrestitution LFOs. 15 And in
State v. Ramirez, our Supreme Court held that the legislature’s 2018
amendments “apply prospectively to defendant’s whose cases were pending on
direct appeal at the time the amendments were enacted.”16 Inconsistent with
Ramirez, Dowdney’s judgment and sentence ordered payment of interest on
nonrestitution LFOs and payment of the DNA collection fee even though
14 Dowdney also disputes the State’s argument that two continuances
granted by the trial court are excluded from the speedy trial period and
therefore, the trial was timely.
15 State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).
16 191 Wn.2d 732, 747, 426 P.3d 714 (2018).
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Dowdney’s DNA had already been collected.17 Dowdney timely appealed his
judgment and sentence to this court. In 2018, this court dismissed Dowdney’s
appeal as “wholly frivolous” without identifying the nonfrivolous LFO issue.18
Because Dowdney’s direct appeal was pending before this court when our
Supreme Court decided Ramirez, the validity of Dowdney’s LFO’s is not “wholly
frivolous.”
The State relies on State v. Wade19 to argue that on this pending PRP
we can directly reach the merits of the LFO issue alone. But Wade is
inapposite. In Wade, the defendant’s appointed counsel withdrew under
Anders.20 The defendant filed a CrR 7.8 motion in superior court, arguing that
his judgment and sentence was facially invalid because it did not set a term for
community placement.21 The court of appeals ordered the superior court to
amend his judgment and sentence.22 The defendant then filed a motion to
recall the mandate, arguing that under Anders, the appellate court erred in
amending his judgment and sentence without granting him a new appeal.23 The
appellate court held that it had authority to recall the mandate to correct an
17 CP at 383.
18 Dowdney, No. 75416-5-I, slip op. at 1.
19 133 Wn. App. 855, 138 P.3d 168 (2006).
20 Id. at 862.
21 Id.
22 Id. at 863.
23 Id.
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“inadvertent mistake” without reinstating the defendant’s appeal.24 But unlike
Wade, Dowdney was before this court on direct appeal, and the nonfrivolous
issue could have been identified by this court at the time it reviewed the Anders
motion.25 Here, there is no motion to recall the mandate. Therefore, Wade
does not control.
Dowdney’s appointed counsel argues that even though a new appeal is
compelled and unlimited in scope, this court should apply the standard of
review that applies in a direct appeal to the issues presented in the existing
briefing and conclude that based upon the numerous issues raised by and on
behalf of Dowdney, his conviction should be reversed and the charges
dismissed with prejudice.
But as directed in Nichols, the proper remedy here is to reinstate
Dowdney’s appeal and allow him to proceed in the normal course. Therefore,
we need not address at this juncture on the existing briefing and the existing
record the merits of all the various issues mentioned in this PRP. Consistent
with Nichols, he can brief the specific issues he wants to address in his
reinstated direct appeal. And because Dowdney appears to seek to represent
himself on his reinstated appeal, he should be provided the opportunity to
engage in this court’s procedure for that purpose assisted by his current
appointed counsel.
24 Id. at 868-69.
25 Id. at 865.
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No. 80957-1-I/7
Because this court’s prior opinion dismissing Dowdney’s direct appeal
was improvidently entered, we grant his petition, recall the mandate in No.
75416-5, vacate the opinion issued October 15, 2018, and reinstate his direct
appeal. If he seeks to represent himself in the reinstated appeal, Dowdney’s
counsel appointed for this PRP shall assist him in complying with the pro se
procedure required by this court. Otherwise, counsel shall proceed to represent
him in the reinstated direct appeal.
WE CONCUR:
7