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State v. Gilbert

March 24, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
DAVID ALLEN GILBERT, APPELLANT. IN THE MATTER OF THE PERSONAL RESTRAINT PETITION OF: DAVID ALLEN GILBERT, PETITIONER.



Appeal from Superior Court of King County. Docket No: 92-1-07822-4. Date filed: 04/22/93. Judge signing: Hon. Michael J. Fox.

PER CURIAM. David Gilbert appeals the judgment and sentence entered following his Alford *fn1 plea to the crime of rape in the second degree. Gilbert's court-appointed attorney has filed a motion to withdraw as appellate counsel on the ground that there is no basis for a good faith argument on review. Pursuant to State v. Theobald, 78 Wash. 2d 184, 470 P.2d 188 (1970), and Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the motion to withdraw must:

[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 the indigent and [3]

time allowed him to raise any points that he chooses; [4]

the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

State v. Theobald, supra, at 185 quoting Anders v. California, (supra) at 744.

This procedure has been followed. Gilbert's counsel on appeal filed a brief with the motion to withdraw. Gilbert was served with a copy of the brief and informed of the right to file a pro se supplemental brief. A supplemental brief has been filed in the case. A personal restraint petition filed by Gilbert has also been consolidated with the appeal.

The court has reviewed the briefs filed in this court and has independently reviewed the entire record. The court specifically considered the following potential issue raised by counsel on appeal:

1. Did the trial court err in denying Gilbert's motion to withdraw his plea?

This potential issue is wholly frivolous. In addition, this court has considered various issues raised by Gilbert in his pro se brief. These claims are either fully addressed in the issue raised by counsel on appeal or concern matters outside the trial record.

Claims of error that are based solely on matters outside the trial record need not be considered on appeal and must instead be raised in a personal restraint petition. State v. Crane, 116 Wash. 2d 315, 335, 804 P.2d 10 (1991); State v. Bugai, 30 Wash. App. 156, 158, 632 P.2d 917, review denied, 96 Wash. 2d 1023 (1981). Because the personal restraint petition filed by Gilbert has been consolidated with his direct appeal, however, we shall treat the issues raised in the pro se brief as having been raised in the personal restraint petition. See, State v. McFarland, 127 Wash. 2d 322, 325, 899 P.2d 1251 (1995).

I.

Gilbert was charged by information with one count of second degree rape and one count of unlawful imprisonment. The charges stemmed from an incident occurring on November 23, 1992, in which he allegedly restrained and raped a woman he had previously met at a lounge in Seattle. Pursuant to a plea agreement, Gilbert pleaded guilty to the single charge of rape in the second degree. Brian Tsuchida represented Gilbert at the plea proceeding.

Prior to sentencing, Gilbert moved to withdraw the guilty plea on several grounds, including that he was denied effective representation during the plea stage. As a consequence, new counsel, Hunter John, was appointed to represent Gilbert. A hearing was held on the motion to withdraw at which Brian ...


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