State Of Washington v. Gene Alfred Palmer, Ii

C. 'i' •*.'
2015 MAR -9 A;i 3= IJ
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 71106-7-1
v.
UNPUBLISHED OPINION
GENE ALFRED PALMER II
Appellant. FILED: March 9, 2015
Dwyer, J. — Gene Palmer pleaded guilty to one count of false information
by a claimant. At sentencing, the trial court ordered restitution but set a separate
hearing at which the amount of restitution would be determined. Palmer
voluntarily waived his right to be present at that hearing. More than two years
later, Palmer now requests leave of this court to appeal from the trial court's
restitution order, entered at the later hearing, claiming that he was not aware of
the restitution order and did not knowingly waive his right to appeal therefrom.
Palmer's motion is denied. As Palmer asserts no error in the proceeding from
which he filed his appeal, we affirm.
No. 71106-7-1/2
I
On March 3, 2007, Palmer was charged by information with one count of
theft in the first degree.1 On October 27, 2011, pursuant to a plea agreement,
the State, in open court, filed an amended information charging Palmer with one
count of false information by a claimant.2 Palmer's counsel informed the court
that his client intended to change his plea to guilty.
Later that day, a plea and sentencing hearing commenced. Palmer's
counsel advised the court that Palmer had "[g]one line through line" through the
statement of defendant on plea of guilty and was "freely, [and] voluntarily
agreeing into this [plea]." The court asked Palmer if he understood the statement
of defendant on plea of guilty and whether he was pleading guilty freely and
voluntarily. Palmer responded, "[y]es, sir." Palmer affirmed that he understood
that "whatever the recommendation is by either your attorney or the prosecuting
attorney, I [the court] don't have to go along with that recommendation." Palmer
also acknowledged that he understood that "one of the consequences of this
[plea] is that [the court] could also order restitution in the full amount of the
amount that's being claimed here." Palmer requested that the court review the
affidavit of probable cause to establish the factual basis for his Alford3 plea.
After accepting the guilty plea, the court turned to sentencing. The State's
sentencing recommendation was six months of confinement (with credit for time
served) and no restitution. The trial court once again informed Palmer that,
notwithstanding the plea agreement and the State's recommendation, it could
1 RCW 9A.56.030.
2 RCW 51.48.020(2).
3 North Carolina v. Alford. 400 U.S. 25, 91 S. Ct. 160, 27 L Ed. 2d 162 (1970).
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No. 71106-7-1/3
order restitution. The court specifically stated that, "I have the independent
authority [to order restitution] if I believe that restitution is required in this case."
The court then asked Palmer if there was anything he wanted to say to the court.
He replied, "No, sir."
The court then pronounced sentence, following the parties' agreed
sentencing recommendation with regard to incarceration.4 However, it "order[ed]
restitution in an amount to be determined." A restitution hearing was set for
November 10, 2011, two weeks later, after confirming that Palmer would be
available to attend on that date. Palmer was advised that, if he wished, he could
waive his right to be present at the restitution hearing. His counsel repeated this
advisement in open court, with Palmer at his side.
Palmer signed the judgment and sentence, which included the restitution
order and hearing date. Paragraph 5.8 of the judgment and sentence also
informed Palmer of his right to appeal. Specifically, it stated, "This right must be
exercised by filing a notice of appeal with the clerk of this court within 30 days
from today. If a notice of appeal is not filed within this time, the right to appeal is
IRREVOCABLY WAIVED."
At the November 10, 2011 restitution hearing, Palmer was represented by
his trial attorney. Palmer did not appear. Palmer's attorney stated that Palmer's
presence was waived and requested to proceed with the hearing.5 The court
found that Palmer voluntarily waived his presence.
4The sentencing court also imposed mandatory financial obligations of a $500 victim
penalty assessment and a $100 DNA testing fee.
5"The discussion we thought walking out of here was that his presence was not
necessary herefor this hearing because it's justrestitution He is not here. We're not asking
No. 71106-7-1/4
Palmer's decision to voluntarily absent himself from the restitution hearing
is not without context. Palmer had filed for Chapter 13 bankruptcy, which was
approved on May 21, 2010, and he was of the belief, which he has since often
repeated, that any restitution ordered would be dischargeable in bankruptcy.6
In making its oral ruling, the trial court reiterated the State's
recommendation and read aloud the part of the plea agreement that provided:
"This is an Alford plea. Credit for time served, six months, no restitution, no active
or inactive probation." The court asked Palmer's attorney whether he understood
that the court was not bound by the plea agreement. Counsel stated that he did.
The court explained that it had the statutory authority to order restitution and
expressed that it had been shocked when the State had taken the position that it
was not going to seek restitution. The court then ordered Palmer to pay
restitution in the amount of $10,929.93. The court, the State, and Palmer's
attorney signed the restitution order. Palmer did not timely seek review of either
the judgment and sentence or the November 10 restitution order.
On May 3, 2013, the clerk of the superior court filed a declaration and
notice of community supervision violation and affidavit of probable cause for
violation noting that Palmer had not paid any restitution, that the clerk had sent
delinquency notices to Palmer, and that Palmer "feels he doesn't owe [restitution]
because he filed bankruptcy."
for a continuance. We are definitely waiving his right to be - his right to be here, and we ask the
court [to] make the decision today."
6 This belief is also consistent with Palmer's decision not to timely appeal from the
restitution order.
No. 71106-7-1/5
A review hearing to address Palmer's failure to pay restitution was set for
September 17, 2013. At that hearing, in response to Palmer's repeated
assertions that no restitution was ever ordered in the case, the court stated,
"There's an order [dated] November 10th that says that you owe the restitution."
The review hearing was thereafter continued at Palmer's request to allow him to
obtain new counsel.
On October 8, 2013, a hearing to review Palmer's failure to pay restitution
was again commenced. At that hearing, Palmer admitted that a restitution
hearing had been held and that he "didn't have to be present." After hearing from
all parties, the court entered an order modifying the sentence, which set forth a
new payment schedule.
On October 22, 2013, Palmer filed a notice of appeal from the order
modifying sentence. On April 24, 2014, Palmer filed a merits brief seeking relief
from the 2011 restitution order. This was filed in conjunction with a motion "to
expand the notice of appeal to include [the 2011] restitution order."7 The merits
brief did not set forth or argue any issue stemming from the October 22, 2013
hearing or order.
7We understand this pleading to be a motion to seek relief from the requirement of RAP
5.2(a) that an appeal be filed within 30days ofthe entry ofthe final order from which the appeal is
taken.
No. 71106-7-1/6
II
Palmer asserts that he was not present at the restitution hearing, did not
know that restitution had been imposed, and was not told that he had the right to
appeal from the restitution order. Thus, he contends, he did not knowingly waive
his right to appeal the restitution order. We disagree.
RAP 5.2(a) requires a litigant to file a notice of appeal within 30 days of
the entry of the order appealed. Moreover, pursuant to RAP 18.8(a), the
appellate court will only extend the time within which a party must file a notice of
appeal in extraordinary circumstances and to prevent a gross miscarriage of
justice.
We recently explicated the application of RAP 18.8(a) in criminal cases:
[l]n a criminal case, we must balance strict application of that filing
deadline with the defendant's state constitutional right to an appeal.
State v. Kells. 134 Wash. 2d 309, 314, 949 P.2d 818 (1998); see
Const, art. 1, § 22 (amend. 10). The State bears the burden of
showing that the decision to waive the constitutional right to appeal
was knowing, intelligent, and voluntary. State v. Sweet, 90 Wash. 2d
282, 286, 581 P.2d 579 (1978). Consequently, the State must
demonstrate that "a defendant understood his right to appeal and
consciously gave up that right before a notice of appeal may be
dismissed as untimely." Kells. 134 Wash. 2d at 314.
State v. Chettv. _Wn. App. 338 P.3d 298, 301 (2014).
The state and federal constitutional rights to be present at trial may be
waived, provided the waiver is voluntary and knowing. State v. Thomson, 123
Wash. 2d 877, 880, 872 P.2d 1097 (1994); CrR 3.4(b).
There is no dispute that Palmer herein waived his right to be present at
the restitution hearing. He thereby waived any claim that he was not aware of
facts or legal circumstances ofwhich he would have been made aware of had he
No. 71106-7-1/7
attended that hearing. In particular, Palmer forfeited any claim that the trial court
erred by not informing him of the amount of the restitution ordered or his right to
appeal from that order.
By choosing not to attend, Palmer left himself reliant on his attorney to
inform him of what transpired at the restitution hearing. Palmer makes no claim
that his counsel was constitutionally deficient in the discharge of his duties to
Palmer either before, during, or after the restitution hearing. Setting aside
Palmer's claim of ignorance related to his voluntary absence from the restitution
hearing, the State presented significant evidence that Palmer voluntarily waived
his right to appeal from the restitution order.
The record establishes the following: Palmer was present at sentencing
when the court ordered restitution in an amount to be determined at a later
hearing and set a date for that hearing at a time that Palmer could attend.
Palmer also signed the judgment and sentence, which included the restitution
order and stated the date on which the restitution hearing was set. It also
advised Palmer of his right to appeal, including that his right must be exercised
within 30 days or be "irrevocably waived."
The restitution hearing was held as scheduled. Palmer did not attend but
was represented by his attorney. Upon the representations of Palmer's counsel,
the trial court found that Palmer had voluntarily waived his right to be present.
Palmer makes no claim that his counsel failed to inform him of the result of the
hearing or his right to appeal from the order entered or that counsel's
performance was otherwise constitutionally deficient.
No. 71106-7-1/8
Thus, to the extent that Palmer's claim is that he was unaware that the
court would order restitution, and thus did not appeal, the record demonstrates
otherwise. The judgment and sentence set forth that restitution would be ordered
in an amount to be determined on November 10. It also informed Palmer that he
had 30 days to appeal from this determination. To the extent that Palmer
contends that the trial court had an obligation to personally inform him of the
amount of restitution ordered and that he had 30 days to appeal from the order
memorializing that calculation, Palmer forfeited this claim by voluntarily choosing
not to appear. Palmer does not claim that his lawyer did not inform him of the
results of the November 10 hearing or of his appellate rights. It is clear that he
did not file a notice of appeal within 30 days of his sentencing or within 30 days
of the restitution hearing.
The State has met its burden of showing that Palmer's decision to waive
his right to appeal was knowing, intelligent, and voluntary.8
Palmer may now feel remorse over his flawed legal analysis that
restitution was dischargeable in bankruptcy, but that is not an "extraordinary
8Alternatively, the doctrine of invited error precludes Palmer from receiving appellate
relief. The doctrine of invited error prohibits a party from setting up an error in the trial court and
then complaining of iton appeal. In re Pers. Restraint of Call. 144 Wash. 2d 315, 328, 28 P.3d 709
(2001); State v. Wakefield. 130 Wash. 2d 464, 475, 925 P.2d 183 (1996). The defendant musttake
knowing and voluntary action to set up the error. CaJJ, 144 Wash. 2d at 328. The invited error
doctrine applies even to purported errors of constitutional magnitude. State v. Heddrick, 166
Wash. 2d 898, 909, 215 P.3d 201 (2009). A defendant is "not denied due process by the State
when such denial results from his own act, nor may the state be required to protect him from
himself." State v. Lewis. 15 Wash. App. 172, 177, 548 P.2d 587 (1976) (emphasis added).
Here, at sentencing, Palmer was told that he had 30 days to appeal from the judgment
and sentence, which included the trial court's order that payment of restitution was a condition of
the sentence. Palmer waived his presence at the hearing setting the amount of restitution but
knew the date and time of the hearing and could have attended. He did not. Thus, to the extent
that his presentclaim is dependent on an assertion that he did not know the amount of restitution,
as set by the court, or thatthe 30-day appeal period ran anewfrom the entry ofthe November 10
order, it was he who created the state of affairs, thus inviting the error of which he presently
complains.
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No. 71106-7-1/9
circumstance" justifying an extension of the time to file a notice of appeal from
the October 27 judgment and sentence or the November 10 order setting the
amount of restitution.
Palmer's motion is denied.
Ill
Although Palmer's appeal is taken from the trial court's October 8, 2013
order setting a new restitution payment schedule, he does not, in his briefing,
assign error to that order or otherwise establish a basis for a grant of appellate
relief.9
Affirmed.10
We concur: ^ ^
9In his merits briefing, Palmer's sole claim of error is that the prosecutor breached the
plea agreement by urging the trial court to impose restitution in a certain amount. Were this claim
timely presented, it would fail.
The record is clear that the prosecutor at all times adhered to the agreed sentencing
recommendation of no restitution. However, the record is equally clear that the experienced
superior court judge repeatedly and forcefully declared his right and obligation to order restitution
when he saw fit to do so. The prosecutor's actions in supplying information to the court on the
amountof the losses subjectto restitution, and in correcting deficiencies in the calculations
Palmer put forth to the court, did not constitute a breach ofthe plea agreement. Rather, the
prosecutor was simply complying with the court's directions and honoring the prosecutor's duty of
candor to the court. There was no breach of the plea agreement. See State v. Tallev, 134 Wash. 2d
176, 949 P.2d 358 (1998); State v. Sledae. 133Wn.2d 828, 947 P.2d 1199 (1997); State v. Van
Buren. 112 Wash. App. 585, 49 P.3d 966 (2002).
10 Palmer's statement of additional groundsdoes not present any basis upon which relief
can be granted.