1.2(a) underscores the purposes of the Rules of Appellate
Procedure when it states unequivocally that "[t]hese
rules will be liberally interpreted to promote justice and
facilitate the decision of cases on the merits. Cases and
issues will not be determined on the basis of compliance or
noncompliance with these rules except in compelling
circumstances where justice demands, subject to the
restrictions in rule 18.8(b) [which has no application to the
facts of this discretionary review]." The clerk of
Division Two of the Court of Appeals imposed a $200 fine on
attorney Travis Stearns for seeking an extension of time to
file an opening brief in an indigent criminal appeal. In a
split decision, a panel of the Court of Appeals denied his
motion to modify and affirmed the sanction, and Stearns filed
a motion for discretionary review in this court. Because
Stearns was fulfilling his duty of effective representation
in asking for an extension, we grant discretionary review and
reverse the Court of Appeals.
client, Randolph Graham, was convicted of first degree murder
and other crimes and sentenced to 800 months'
confinement, about 300 months above the standard range.
Graham appealed, and counsel from the Washington Appellate
Project was appointed to represent Graham when his original
attorney left practice to join the judiciary. The opening
brief in Graham's case was originally due on January 17,
2019, but the first attorney the Washington Appellate Project
assigned to Graham's case asked for an extension of time
to file the opening brief after discovering that the record
was incomplete and that more transcripts had to be ordered.
The Court of Appeals clerk granted an extension to March 8,
2019. The last verbatim report of proceedings was filed on
February 13, 2019.
Washington Appellate Project then substituted Stearns for
Graham's original attorney. When he took over, Stearns
moved for another extension of time to file the opening
brief, explaining that his current workload had prevented him
from starting on Graham's appeal, which had an extensive
record, including 1, 300 pages of transcripts. The clerk of
the Court of Appeals granted an extension to April 17, 2019,
explaining that failure to file the brief by that date would
result in the imposition of a $200 sanction.
April 17, Stearns filed a second request for an extension of
time, explaining that the Washington Appellate Project had
received the complete record just 63 days previously and that
the case involved complicated legal issues and a substantial
record. Stearns explained that he had been working to
complete Graham's opening brief but also had other
significant demands on his time, outlining all of his other
current work. He stated that he anticipated filing the brief
as soon as possible, noting that he had read the complete
record and had started drafting his brief, having identified
three significant and distinct issues. He stated further that
he had worked on the brief as quickly as he could within his
constitutional obligations and the Standards for Indigent
Defense. He noted that the standards restricted the number of
briefs he could write to three a month when the average
transcript length is 350 pages, and he believed it would be
impossible to comply with these standards and file
Graham's brief within the 63 days he had had since his
office received the complete set of transcripts.
clerk of the Court of Appeals granted the extension but also
sanctioned Stearns $200 for not filing Graham's opening
brief by April 17. Stearns filed a motion to modify the
clerk's ruling, asking the Court of Appeals to strike the
$200 sanction. The State responded in support of
Stearns's motion, agreeing that no sanction should be
imposed. The State opined that in cases where a criminal
defendant has been convicted of a serious offense, such as
first degree murder, or in a case where there is a lengthy or
complicated record, the court should afford appellate counsel
flexibility to be able to adequately perform the
constitutionally required duties of defense attorneys in
criminal actions. The State also provided examples of
comparable cases where defense attorneys were granted longer
extensions without sanction. A majority of a panel of judges
denied the motion to modify, with one judge dissenting.
Stearns filed an opening brief on April 22, 2019, only 23
days beyond the initial deadline provided for in RAP
10.2. Graham's appeal raises issues of
instructional error, as well as Graham's right to
represent himself at trial. Reading and preparing
Graham's opening brief took Stearns approximately 79
hours of work to complete. He also worked on a significant
number of other cases while preparing Graham's opening
brief. Since his original request to extend time, Stearns
filed opening briefs, petitions for review, and reply briefs
in seven cases and had oral argument in three cases before
both the Court of Appeals and this court. After the filing of
Graham's opening brief, the State also asked for an
extension of time to file its responsive brief and was
granted an extension to July 31, 2019, a total of 100 days
after the filing of Graham's opening brief and 37 more
days than the time the court gave Stearns before imposing the
filed a motion for discretionary review in this court. We
grant the motion and reverse the Court of Appeals.
Court of Appeals is authorized to sanction counsel for late
filings. RAP 10.2(i); RAP 18.9(a). But it is also required to
liberally interpret the rules to promote justice, and it has
the authority to waive or alter any provision of the rules in
order to serve the ends of justice. RAP 1.2(a), (c). This
includes authority to waive or alter the rules to enlarge or
shorten time within which an act must be done. RAP 18.8(a).
The Rules of Appellate Procedure were designed to allow
flexibility so as to avoid harsh results. Weeks v. Chief
of Wash. State Patrol, 96 Wn.2d 893, 895-96, 639 P.2d
732 (1982). In pursuing an appeal, a criminal defendant has a
right to effective assistance of counsel. State v.
Rolax, 104 Wn.2d 129, 135, 702 P.2d 1185 (1985). The
Standards for Indigent Defense provide that the caseload of
public defenders must allow each lawyer to give each client
the time and effort necessary to ensure effective
representation. Standards for Indigent Defense Services std.
3.2. To that end, experienced attorneys are limited to 36
appeals a year, which equates to three appeals per month.
Standards std. 3.4. This limit is based on experienced
attorneys handling cases that have an average transcript
length of 350 pages. Id. The standards instruct that
when a transcript length exceeds 350 pages, caseloads should
be reduced accordingly. Id. Because decisions to
impose sanctions, grant an extension of time, or waive the
appellate rules are within the discretion of the Court of
Appeals, we review the court's decision here for an abuse
of discretion. See Yousoufian v. Office of King County
Exec, 152 Wn.2d 42l, 43l, 98P.3d 463
(2004). A court abuses its discretion if its
decision is manifestly unreasonable or exercised on untenable
grounds or for untenable reasons. State v. Oxborrow,
106 Wn.2d 525, 542, 723 P.2d 1123 (1986).
the record demonstrates that Stearns was prompt in
communicating the constraints placed on him by his current
caseload and explaining why another extension was necessary.
The record does not show any malfeasance or lack of diligence
on Stearns's part or any lapse in his representation and,
indeed, reveals Stearns's primary concern with fulfilling
his duty of effective representation. In light of these
circumstances, the Court of Appeals' sanction was not
directed at or useful for deterring future dilatory conduct.
Rather, it was contrary to the policies promoting effective
representation of indigent criminal defendants on appeal.
Under these circumstances, where counsel needs an extension
of time to fulfill his obligations of representation, it is
appropriate to grant an extension without the imposition of
sanctions. Recent cases have highlighted the constitutional
importance of maintaining proper caseloads in indigent
defense cases. See, e.g., Wilbur v. City of Mount
Vernon, 989 F.Supp.2d 1122, 1124 (W.D. Wash. 2013);
State v. A.N.J., 168 Wn.2d 91, 102, 225 P.3d 956
(2010). For these reasons, we conclude that the Court of
Appeals abused its discretion by sanctioning Stearns when he
requested an extension of time in order to fulfill his duty
of effective representation.
grant discretionary review, reverse the Court of Appeals, and
remand the matter to the Court of Appeals with ...