sometimes happens that a party's litigation
transgressions are so repeated, and so significant, that
justice does not allow for them to be ignored. Such is the
a first-time juvenile offender, was sentenced to a manifest
injustice disposition of 24 to 32 weeks in total confinement.
She appealed. We granted the appeal expedited status. But our
review has been compromised by the transgressions of the
prosecutor. First, the prosecutor did not timely act to
obtain the proper entry of necessary findings of fact and
conclusions of law. After our clerk of court ordered him to
do so, the prosecutor obtained findings and conclusions-but
in an ex parte proceeding of which no notice was given to
I.N.A. or her attorney of record. I.N.A. properly complained
of this and briefed the issue in her merits brief. The
prosecutor decided not to address the matter in the brief of
respondent-other than to direct the court's attention to
an entirely different pleading, in the event that the court
was in any way interested in the State's thoughts on the
we have a choice: (1) remand the matter again to the juvenile
court for proper presentation and entry of findings and
conclusions (a time-consuming process completely contrary to
our decision to expedite this appeal), or (2) decide the case
as if the findings and conclusions were never entered.
Believing that the State should not be allowed to deprive an
incarcerated juvenile offender of the benefit of expedited
review simply by violating applicable rules of procedure, we
choose the latter course. Accordingly, because the manifest
injustice disposition is not supported by findings of fact
and conclusions of law that set forth the juvenile
court's basis for varying from a standard range
disposition, we reverse with instructions to impose a
standard range disposition.
principles underlying our resolution of the matter are easy
juvenile court may depart from a standard range disposition
only if it concludes that a standard range disposition would
effectuate a manifest injustice. RCW 13.40.160m State v.
Tai N., 127 Wn.App. 733, 741, 113P.3d 19(2005);
State v. J.N.. 64 Wn.App. 112, 113-14, 823 P.2d
1128(1992). A "manifest injustice" results if a
standard range disposition "would either impose an
excessive penalty on the juvenile or would impose a serious,
and clear danger to society in light of the purposes" of
the Juvenile Justice Act of 1977, chapter 13.40 RCW. RCW
juvenile court concludes that a manifest injustice
disposition is appropriate, it must "enter its reasons
for its conclusion." RCW 13.40.160(2). These must be
reduced to formal written findings of fact and conclusions of
law if the case is appealed. JuCR 7.11(d). "The
prosecution must submit such findings and conclusions within
21 days after receiving the juvenile's notice of
appeal." JuCR 7.11(d).
previously held that "[b]asic due process and the
governing criminal rules require notice of court proceedings
to counsel of record." State v. Pruitt, 145
Wn.App. 784, 792, 187 P.3d 326 (2008). In that case, we also
held that service upon a party's former lawyer "does
not excuse [the] failure to notify [a party's] appellate
counsel, the only counsel of record at the time."
Pruitt, 145 Wn.App. at 793. We may
"disregard" findings and conclusions that are
obtained without proper notice to counsel. State v.
Nava, 177 Wn.App. 272, 289 n.6, 311 P.3d 83 (2013).
See also State v. Corbin. 79 Wn.App. 446, 451, 903
P.2d 999 (1995) (even when trial counsel remains as counsel
of record, notice should also be given to appellate counsel).
appellate court, it is improper to attempt to
"incorporate by reference" into a party's
merits brief arguments made in other pleadings. State v.
Gamble, 168 Wn.2d 161, 180, 225 P.3d 973 (2010)
("argument incorporated by reference to other briefing
is not properly before this court"); Diversified
Wood Recycling. Inc. v. Johnson. 161 Wn.App. 859, 890,
251 P.3d 293 (2011) ("We do not permit litigants to use
incorporation by reference as a means to argue on appeal or
to escape the page limits for briefs set forth in RAP
10.4(b)."); Kaplan v. Nw. Mut. Life Ins. Co..
115 Wn.App. 791, 801 n.5, 65 P.3d 16 (2003). Instead, the
proper approach is for the attorney to set forth the
party's complete argument in the argument section of the
merits brief. See RAP 10.3(a), (b).
a first-time juvenile offender, was originally granted a
deferred disposition. She did not satisfy the conditions
placed on her and the deferred disposition was properly
revoked. At her new disposition hearing, a standard range
disposition would have called for local sanctions, including
the possibility of several days of incarceration. The
juvenile court believed the standard range to be
insufficient. Hence, a manifest injustice disposition of 24
to 32 weeks of total incarceration was imposed.
her right, I.N.A. appealed. We granted the appeal expedited
status. See RAP 18.13. Briefs have been ...