State Of Washington, V. Kevin Light-roth

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78448-0-I
(Consolidated with No. 82005-2-I)
Respondent,
v. DIVISION ONE
KEVIN WILLIAM LIGHT-ROTH,
UNPUBLISHED OPINION
Appellant.
CHUN, J. — In 2000, the State charged 16-year-old Kevin Light-Roth with
robbery in the first degree. Based on former RCW 13.04.030(1)(e)(v)(C) (2009),
the juvenile division of the superior court automatically declined jurisdiction and
the matter proceeded in adult superior court where Light-Roth pleaded guilty and
received a sentence. Eighteen years later, Light-Roth appealed, challenging the
jurisdiction of the adult superior court. He moved for an extension of time to
appeal. We remanded for the trial court to conduct an evidentiary hearing to
address whether Light-Roth voluntarily, knowingly, and intelligently waived his
limited right to appeal. On remand, the trial court found that Light-Roth so
waived that right. Light-Roth appeals that decision. A commissioner of this court
consolidated the appeals. For the reasons discussed below, we affirm, deny the
motion to extend time, and dismiss the appeal.
I. BACKGROUND
A. Guilty Plea and Sentencing
In 2000, the State charged 16-year-old Light-Roth with robbery in the first
Citations and pin cites are based on the Westlaw online version of the cited material.
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degree with a deadly weapon. Under former RCW 13.04.030(1)(e)(v)(C) (2009),
the juvenile division of the superior court automatically declined jurisdiction. See
State v. Watkins, 191 Wn.2d 530, 533, 423 P.3d 830 (2018) (“Former
RCW 13.04.030(1) (2009), part of the Basic Juvenile Court Act (BJCA), provided
that juvenile courts must automatically decline jurisdiction over 16 and 17 year
olds charged with enumerated offenses.”). The matter proceeded in adult
superior court.
The State and Light-Roth agreed that he would plead guilty to robbery in
the first degree and the State would dismiss the firearm enhancement. Light-
Roth executed a Statement of Defendant on Plea of Guilty.
At the sentencing hearing, the State recommended 48 months of
confinement. Light-Roth’s trial counsel Zenon Olbertz recommended the court
impose a sentence below the standard range. The court sentenced Light-Roth to
36 months of confinement, the low-end of the sentencing range.1
The sentencing court asked Olbertz, “Counsel, would you please notify
your client of his appeal rights?” Olbertz responded, “Yes.” On the clerk’s
minute entry, a box was checked for, “The Court advised Defendant of his / her
rights on appeal / collateral attack, and the Certificate of Compliance is
executed.”
1
About six months after Light-Roth’s release from confinement for this robbery
conviction, in February 2003, he killed a man and a jury convicted him of murder in the
second degree. Light-Roth unsuccessfully appealed and collaterally attacked that
conviction. In re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 422 P.3d 444 (2018).
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Light-Roth signed a “standard form” “NOTICE OF RIGHTS ON APPEAL
AND CERTIFICATE OF COMPLIANCE WITH CrR 7.2(b); SUPERIOR COURT
RULES” (Notice of Rights) that provided in pertinent part,
1. You have a right to appeal your conviction if you were found
guilty following a trial.
2. You have the right to appeal a sentence outside the
standard sentence range. The sentence that has been imposed (is)
(is not) outside the standard sentence range.
3. You are advised that unless a written notice of appeal is
filed within 30 days after the entry of this judgment (which is today),
the right of appeal is irrevocably waived. The original and one (1)
copy of the notice of appeal must be filed with, and the filing fee paid
to, the Clerk of the Superior Court within 30 days after the entry of
this judgment. If you are authorized to proceed at public expense,
that order must be filed with the notice of appeal instead of the filing
fee.
B. Initial Appeal
Eighteen years later, Light-Roth appealed the judgment and sentence. At
the direction of this court,2 Light-Roth moved to extend time to file a notice of
appeal under RAP 18.8(b), and he explained that he sought to appeal the adult
superior court’s jurisdiction. He supported the motion with a declaration, stating
in part:
2. When I was convicted and sentenced, I was not informed and did
not know that I had a right to appeal issues such as the
jurisdiction of adult court for a crime committed when I was a
juvenile.
3. If I had been informed or known, I would have asked my attorney
to file an appeal for me.
4. I did not knowingly, intelligently, and voluntarily waive my right to
appeal.
2
See State v. Light-Roth, No. 78448-0-I, slip op. at 1 (Wash. Ct. App. May 6,
2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/784480.pdf).
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The State responded that Light-Roth signed the written Notice of Rights that
informed him of his right to appeal, and Olbertz advised him of that right.
A commissioner of this court determined the record on appeal was
insufficient to determine whether Light-Roth voluntarily, knowingly, and
intelligently waived his right to appeal. The commissioner remanded the case to
the trial court for an evidentiary hearing to address waiver.
The State moved to modify the commissioner’s ruling, arguing the record
sufficiently showed that Light-Roth understood and waived his right to appeal.
We denied the State’s motion and remanded the case for an evidentiary hearing
to determine whether Light-Roth voluntarily, knowingly, and intelligently waived
his right to appeal. State v. Light-Roth, No. 78448-0-I, slip op. at 1 (Wash. Ct.
App. May 6, 2019) (unpublished), https://www.courts.wa.gov/opinions/
pdf/784480.pdf; see GR 14.1(c).
C. Evidentiary Hearing
On remand, the trial court heard testimony from Olbertz, Light-Roth, and
Light-Roth’s mother Noreen Light.3
Olbertz testified that he did not have a “very good” or “independent”
recollection of the case. The State asked him if he remembered telling Light-
Roth “that he was not allowed any appeal?” Olbertz testified, “I don’t recall, but I
would not have told anyone that, because it is not accurate.” The trial court
found Olbertz credible.
3
For clarity, we refer to Noreen Light by her first name. We intend no disrespect.
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At the beginning of the evidentiary hearing, Light-Roth submitted a revised
declaration. During the hearing, he purported to read it as follows:4
I Kevin Light-Roth declare I wish to appeal my judgment. When I
was convicted and sentenced on 8/4/2000, I was not informed and
did not know that I had a right to appeal issues such as jurisdiction
of adult court for a crime committed when I was a juvenile and/or
whether mitigating factors relating to youthfulness, impetuosity,
psychological maladies and substance abuse warrant reduced
sentences. If I had been informed or had known, I would have asked
my attorney to file an appeal for me. I did not knowingly, intelligently
and voluntarily waive my right to appeal.
Light-Roth testified that after the sentencing hearing,
I was signing all of the documents as I was leaving in a hurry,
ushering me out of the courtroom so they could bring the next guy in.
I remember that. And I remember him saying, “Don’t worry about
this stuff, we are done,” just sign it and go, which—the essence of
which I took to be that “there is no—there is nothing else to be done.
There is no appeal for you; there is no—there is nothing else to be
done. This is it.”
The trial court found Light-Roth not credible.
The trial court found that Light-Roth voluntarily, knowingly, and intelligently
waived his right to appeal. In doing so, the trial court explained that it considered
“the transcript of the sentencing hearing, the advice of rights on appeal, and all
other files and pleadings in this case (as specifically agreed to by both counsel
during the evidentiary hearing).” Light-Roth appeals the order. A commissioner
of this court consolidated the appeal with his earlier appeal.
II. ANALYSIS
Light-Roth contends substantial evidence does not support the trial court’s
finding that he voluntarily, knowingly, and intelligently waived his right to appeal.
4
Neither party included the declaration in the appellate record.
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We disagree.
The Washington State Constitution guarantees criminal defendants the
right to appeal.5 CONST. art. I, § 22 (amend. 10). “The State carries the burden
of demonstrating that a convicted defendant has made a voluntary, knowing, and
intelligent waiver of the right to appeal.” State v. Sweet, 90 Wn.2d 282, 286, 581
P.2d 579 (1978). The State must “make some affirmative showing that the
defendant understood and chose not to exercise [their] right to appeal.” State v.
Cater, 186 Wn. App. 384, 392, 345 P.3d 843 (2015). “A defendant who pleads
guilty retains a limited right to appeal collateral questions such as the validity of
the statute, sufficiency of the information, and an understanding of the nature of
the offense.” Id.Under “extraordinary circumstances,” we may grant a motion to extend
time for an appellant to file an otherwise untimely appeal. RAP 18.8(b). We
“ordinarily hold that the desirability of finality of decisions outweighs the privilege
of a litigant to obtain an extension of time under this section.” RAP 18.8(b).
“However, strict application of RAP 18.8(b) must be balanced against a
defendant’s state constitutional right to appeal.” Cater, 186 Wn. App. at 392.
On remand, the trial court considered the testimony of Olbertz, Light-Roth,
and Noreen, as well as the sentencing transcript and filings related to sentencing.
5
Light-Roth asserts that recent case law on juvenile brain development and
culpability provide him the means to challenge the constitutionality of the automatic
decline statute. Our Supreme Court has held that automatic decline is constitutional. ln
re Boot, 130 Wn.2d 553, 571–72, 925 P.2d 964 (1996); Watkins, 191 Wn.2d at 533
(“[A]utomatic decline does not violate due process because juveniles do not have a
constitutional right to be tried in juvenile court.”).
6
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The trial court found, “the State met its burden of proving that the defendant
voluntarily, knowingly, and intelligently waived his right to appeal.”
The trial court listed a number of considerations that supported finding
Light-Roth waived his right to appeal. “Factual findings are erroneous where not
supported by substantial evidence in the record. Substantial evidence exists
where there is a ‘sufficient quantity of evidence in the record to persuade a fair-
minded, rational person of the truth of the finding.’” In re Pers. Restraint of Davis,
152 Wn.2d 647, 680, 101 P.3d 1 (2004) (quoting State v. Hill, 123 Wn.2d 641,
644, 870 P.2d 313 (1994)). We focus on three of the court’s considerations.
First, the trial court found Olbertz “credible and competent.” It noted,
“Mr. Olbertz was candid that he somewhat remembered the case, remembered
little about the sentencing, did not remember if he advised his client of his right to
appeal, but knew that he would not have advised the defendant that he had no
right to appeal as the defendant contended.” Olbertz’s statements during the
evidentiary hearing and in his declaration support the trial court’s
characterization. When asked whether he told Light-Roth that he could not
appeal, Olbertz testified, “the specific answer is I don’t recall, but I would not
have told anyone that, because that is not accurate.” (Emphasis added.) Olbertz
also testified:
Well, because there is always a right to attack the effective
assistance of counsel under any circumstance, and . . . . there’s
always issues that can be appealed, limited issues, but even with a
waiver of a right to appeal, effective assistance of counsel is always
an issue that is not waivable, and so I was operating under at least
that limited thought process at all times, so I just wouldn’t have said
that because it is not true.
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Similarly, in his declaration, Olbertz wrote, “[A]s a general matter, I would
not have told Mr. Light-Roth that he was not allowed any appeal. I understood in
2000, as I understand now, that defendants have limited rights of appeal
following a plea.” He also wrote, “Had Mr. Light-Roth or any other client asked
me about his right to appeal following a plea, I would have informed the client
that he or she does have a limited right to appeal.”
Second, the trial court found Light-Roth not credible. The court wrote, “His
attempt to explain the language in his declaration that was directly at odds with
Mr. Olbertz’s testimony, after this Court stated that this Court found Mr. Olbertz to
be credible (during this Court’s ruling on the defendant’s half-time motion)[,] was
not credible.” Substantial evidence supports this statement because Light-Roth
claims that Olbertz told him he could not appeal, and Olbertz testified that he
“would not have told anyone that [they were not allowed to appeal] because it is
not accurate.”
And while the clerk’s minute entry says that the court advised Light-Roth
of his right to collateral attack, but not his right to appeal, at sentencing, the court
asked Olbertz to advise Light-Roth of his appeal rights and he responded, “Yes.”
Third, the trial court found that Noreen’s testimony was not “helpful or
relevant” because of her understandable bias in favor of Light-Roth and her “little
independent recall of the sentencing or the circumstances surrounding the plea.”
Noreen’s testimony appears unhelpful and irrelevant to the waiver question
because she testified that she did not know of any conversation between Light-
Roth and Olbertz about his plea or right to appeal.
8
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The State cites In re Pers. Restraint of Merritt, where this court remanded
for the trial court to hold an evidentiary hearing to determine whether trial counsel
failed to inform Merritt of his intoxication defense. 69 Wn. App. 419, 420–21, 848
P.2d 1332 (1993). During the evidentiary hearing, trial counsel testified to his
“practice habits.” Id. at 421. While the trial counsel did not have a specific
recollection of the defendant’s case, he testified, “‘[I]t’s very likely I would have
discussed the issue of intoxication and its impact on Mr. Merritt’s defense with
him.’” Id. at 422. Merritt testified that trial counsel never advised him of that
defense. Id. The trial court found that, because “[t]he discussions of the
intoxicated condition of Mr. Merritt were just too pervasive in all of this case,” trial
counsel and the defendant “obviously” discussed the possibility of the defense.
Id. at 423. It also found Merritt not credible. Id. Merritt appealed, asserting
substantial evidence did not support the trial court’s finding and the trial court
improperly weighed trial counsel’s “‘habit and practice evidence.’” Id. at 424–25.
This court affirmed, stating, “[I]t is for the trier of fact to determine the credibility of
the witnesses and the weight and sufficiency of the evidence, including evidence
of habit and practice.” Id. at 425.
While Light-Roth acknowledges that credibility determinations are usually
for the finder of fact, he contends the trial court erred in weighing the witnesses’
credibility. He says it was “patently absurd” for the trial court to give Olbertz’s
testimony on his standard practice more weight than Light-Roth’s testimony on
what actually occurred. But as discussed in Merritt, it is for the trier of fact to
determine witnesses’ credibility and weight; and to determine the sufficiency of
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the evidence, the trier of fact may use habit and practice evidence. Thus, we will
not disturb the trial court’s credibility determinations. See Davis, 152 Wn.2d at
680 (“A trial court’s credibility determinations cannot be reviewed on appeal,
even to the extent there may be other reasonable interpretations of the
evidence.”); State v. Cross, 156 Wn. App. 568, 581, 234 P.3d 288 (2010) (“The
trier of fact makes credibility determinations that we do not review on appeal.”).
Given the foregoing, substantial evidence supports the trial court’s finding
that Light-Roth voluntarily, knowingly, and intelligently waived his limited right to
appeal.6
We affirm, deny Light-Roth’s motion to extend time, and dismiss the
appeal.
WE CONCUR:
6
Because Light-Roth waived his limited right to appeal, we do not reach the
State’s other arguments.
10