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State v. I.N.A.

Court of Appeals of Washington, Division 1

July 29, 2019

STATE OF WASHINGTON, Respondent,
v.
I.N.A., Appellant.

          DWYER, J.

         It 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 case herein.

         I.N.A., 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 matter.

         So now 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.

         I

         The principles underlying our resolution of the matter are easy to elucidate.

         A 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 13.40.020(19).

         When a 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).

         We have 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).

         In an 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).

         II

         A

         I.N.A., 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.

         As was her right, I.N.A. appealed. We granted the appeal expedited status. See RAP 18.13. Briefs have been ...


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