Appeal from Superior Court of Snohomish County. Docket No: 95-1-00282-4. Date filed: 09/06/95. Judge signing: Hon. Larry E. McKeeman.
PER CURIAM. On RALJ appeal, the superior court affirmed Susan Mills'sentence for driving while under the influence. In seeking discretionary review of that decision, Mills requested and was denied the appointment of counsel and preparation of a written verbatim report of the district court proceedings at public expense. We grant review of the court's denial and hold an indigent RALJ petitioner has no right to appointed counsel or district court transcripts. We deny review of Mills' challenges to her sentence.
The State cited Mills for driving while under the influence in August 1992. In January 1993, she stipulated to the admissibility of the police report and was found guilty. In March, the Cascade District Court sentenced Mills to 365 days in jail, and stayed imposition of the sentence pending the outcome of State v. Wittenbarger, 124 Wash. 2d 467, 880 P.2d 517 (1994). Later in 1993, Mills was convicted of first degree manslaughter and immediately began serving a 41-month sentence. After the district court lifted the Wittenbarger stay, Mills filed a motion to suspend the 365-day sentence or to run the term concurrent with the manslaughter sentence. The court denied the motion. She then filed a motion for reconsideration of her sentence, which was also denied.
Mills filed a RALJ appeal. In accordance with Snohomish County Local Rules, the district court proceedings were not transcribed. Instead, the parties' briefs cited to portions of the audiotapes of the proceedings. The superior court affirmed the sentence.
Mills sought review of the superior court's decision in this Court. In order to pursue discretionary review, she requested the superior court to find her indigent, appoint counsel and prepare a verbatim report of the district court proceedings. The court found her indigent, but denied appointment of counsel and preparation of the verbatim report at public expense. The court granted Mills permission to renew her requests if this Court granted discretionary review. Mills now seeks review of the court's order of indigency.
We agree with the State that the order is not a superior court decision reviewing the decision of a court of limited jurisdiction under RAP 2.3(d). We nevertheless apply the criteria set forth in RAP 2.3(d) because the issues are inextricably intertwined with the RALJ process. The need for counsel and a verbatim report obviously became necessary only after the superior court rejected Mills' RALJ appeal; counsel had been appointed for Mills' RALJ appeal and the superior court did not require transcripts to decide her appeal. Mills has raised issues involving significant questions of constitutional law and matters of public interest. RAP 2.3(d)(2), (3). We grant review.
Right to Counsel on Discretionary Review of RALJ Decision
Mills' contention that she has a right to the appointment of counsel is based on the premise that, in enacting RCW 10.73.150, the Legislature has taken away a right to counsel that previously existed for discretionary review petitioners. She argues the statute violates the constitutional rights to counsel and to equal protection. We disagree with the premise and with Mills' constitutional arguments.
RCW 10.73.150 (Laws of 1995, ch. 275, sec. 2) provides in pertinent part as follows:
Counsel shall be provided at state expense to an adult offender convicted of a crime . . . when the offender is indigent . . . and the offender:
(1) Files an appeal as a matter of right;
(2) Responds to an appeal as a matter of right or responds to a motion for discretionary review or petition for review filed by the state;
(6) Prosecutes a motion or petition for review after the supreme court or court of appeals has accepted discretionary review of a decision of a court of limited jurisdiction . . . . Contrary to Mills' premise, RCW 10.73.150 was designed to expand, not restrict, the right to counsel. In enacting the provision, the Legislature recognized the constitutional rights of equal protection and due process require counsel be provided for indigent criminal appellants "for the first appeal as a matter of right . . . and no further." *fn1 Laws of 1995, ch. 275, sec. 1. The Legislature stated it was "appropriate to extend the right to counsel at state expense beyond constitutional requirements in certain limited circumstances to persons who are indigent . . . ." Laws of 1995, ch. 275, sec. 1. Because the statute creates a right to counsel for indigent litigants that did not previously exist, the law has no effect on the constitutional right to counsel.
The heart of Mills' challenge to RCW 10.73.150 is that it violates equal protection by creating different classifications depending on whether the indigent person initiates or responds to a motion for discretionary review. One of three tests is used to determine whether the right to equal protection is violated. The first, or "strict scrutiny" test, applies when a classification affects a suspect class or fundamental right. Westerman v. Cary, 125 Wash. 2d 277, 294, 892 P.2d 1067 (1994). RCW 10.73.150 does neither. Indigent petitioners seeking discretionary review are not a suspect class. In addition, access to discretionary review of an appeal as a matter of right is not a fundamental constitutional right. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); State ...