FILED
COURT OF APPEALS
STATE OF WV I
WASHINGT01-4
2017APR 17 A1111: 13
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 73098-3-1
V.
UNPUBLISHED OPINION
DALE RUSSELL LIESCHNER, )
)
Appellant. ) FILED: April 17, 2017
)
DWYER, J. — Dale Lieschner filed a notice of appeal more than a year
after the entry of his judgment and sentence. He claimed that he told defense
counsel that he wanted to file an appeal and that despite agreeing to do so,
counsel failed to file a notice of appeal. After an evidentiary hearing, the trial
court rejected Lieschner's account as not credible and found that Lieschner
advised counsel that he did not want to appeal. Because the State satisfied its
burden of demonstrating that Lieschner knowingly, intelligently, and voluntarily
waived his right to appeal, we deny his motion to enlarge the time to file a notice
of appeal.
In November 2013, a jury found Lieschner guilty of possession of a
controlled substance with intent to deliver. At sentencing, on December 24,
2013, the court imposed a standard-range term of 60 months confinement.
No. 73098-3-1/2
Section 5.8 of the judgment and sentence advised Lieschner of his right to
appeal. The court also advised Lieschner orally of his right to appeal:
You have the right to appeal the decision. You have to file a notice
of appeal within 30 days. Your time to file a notice of appeal would
start tomorrow. If you need assistance, the clerk's office can assist
you in filing a notice of appeal. If you can't afford an attorney, an
attorney could be appointed for you to represent you on the appeal.
You can also get copies of transcripts and whatever portion of the
record is necessary at no cost to you for purposes of appeal if it's
determined that you are indigent.
Lieschner did not file a notice of appeal within 30 days.
On May 7, 2014, Lieschner filed a pro se motion in the trial court to
terminate his legal financial obligations(LFO) in this case. Lieschner also filed a
supporting affidavit and motion for order of indigence, requesting preparation of a
verbatim report of the sentencing hearing. On January 16, 2015, Lieschner filed
a motion to correct or modify his LFO debt.'
On January 17, 2015, Lieschner wrote to his trial attorney, Brian Ashbach,
asking about the status of his appeal. In the letter, Lieschner claimed that "right
after sentencing" he told Ashbach to file a notice of appeal and that Ashbach said
he would file the appeal the following Monday. On January 22, 2015, in
response to Lieschner's inquiry, this court advised him that no appeal was
pending.
On February 6, 2015, Lieschner filed a notice of appeal and a motion to
enlarge the time to file the notice of appeal. In his supporting declaration,
1 Nothing in the record indicates that the trial court ruled on these motions.
-2-
No. 73098-3-1/3
Lieschner asserted that Iiimmediately after being found guilty and then after
sentencing also," he told Ashbach that he wanted to file an appeal and that
Ashbach said he would file the notice of appeal and a motion for an order of
indigence on the following Monday. Lieschner claimed that because Ashbach
said an appeal could take more than a year, he had checked on the status of the
appeal only after another inmate told him he should have received materials
related to an appeal. Lieschner also asserted that "I've never done an appeal
before."
In October 2015, a commissioner granted the parties' joint motion and
remanded the matter for an evidentiary hearing on whether Lieschner waived his
right to appeal.
At the evidentiary hearing in February 2016, Brian Ashbach testified that
immediately after the jury's verdict, Lieschner expressed his dissatisfaction with
Ashbach's representation. When Ashbach told Lieschner that he could appeal,
Lieschner responded, "it didn't matter now." Ashbach later learned that
Lieschner was referring to a suspended sentence for a Montana conviction.
Lieschner indicated that he faced a potential 20-year sentence if his probation
was revoked because of the Washington conviction.
Ashbach discussed with Lieschner the fact that his Washington conviction
"would be a problem for his probation in Montana." Ashbach could not recall for
certain, but assumed the discussion involved the possibility that an appeal of the
-3-
No. 73098-3-1/4
Washington conviction would have no effect on the probation decision in
Montana.
After sentencing, Ashbach asked Lieschner to let him know as soon as
possible if he had changed his mind and wanted to appeal. Ashbach could not
recall Lieschner's precise response, but asserted that "he had indicated that he
did not want to pursue the appeal." Ashbach denied that Lieschner said he
wanted to file an appeal.
Lieschner testified that at the time of trial, he was facing a "20-year
sentence" in Montana if his probation was revoked. For this reason, he refused
to accept a plea offer and insisted that he go to trial in order to preserve his
opportunity to appeal. Lieschner maintained that he told Ashbach after
sentencing that he wanted to appeal and that Ashbach said he would file the
appeal on the following Monday.
While in prison, Lieschner testified, he believed that "the appeal was in
progress." In December 2014, another inmate told Lieschner that he should
have by then communicated with an appellate attorney and received transcripts.
Lieschner then wrote to Ashbach and eventually learned that no appeal had been
filed.
At the reference hearing, during cross-examination, Lieschner
acknowledged that he knew that he had the right to appeal, that he had to file an
appeal within 30 days, and that he would lose his right to appeal if he did not file
it within that time. Lieschner also conceded that he knew by May 2014, when he
-4-
No. 73098-3-1/5
requested a sentencing transcript for his motion to set aside legal financial
obligations, that no transcript had been prepared. Contrary to the assertion in his
supporting declaration, Lieschner also admitted that he had pursued a pro se
appeal on an earlier occasion.
At the conclusion of the evidentiary hearing, the State argued that
Lieschner's undisputed knowledge of the right to appeal, his understanding of the
need to file an appeal within 30 days, and his subsequent inaction, established
his waiver of the right to appeal. Counsel for Lieschner argued that Ashbach's
two brief discussions with Lieschner about his right to appeal were insufficient to
establish a waiver given the multiple contested trial issues and Lieschner's
motivation for filing an appeal.
The trial court found that Ashbach's testimony was credible and that
Lieschner's testimony was not credible. In particular, the court found that
Lieschner was aware of his right to appeal, how to perfect an appeal, and gave
"verbal instructions" to Ashbach not to file an appeal. The court rejected as not
credible Lieschner's testimony that he had initially misunderstood the question
about whether he had ever pursued a pro se appeal and that he had told
Ashbach from the beginning about facing a 20-year sentence on a Montana
conviction.
After the evidentiary hearing, the superior court transmitted its findings to
this court, and the parties filed supplemental briefs.
-5-
No. 73098-3-1/6
II
Generally, a criminal defendant seeking review must file a notice of appeal
within 30 days after the entry of the judgment and sentence. RAP 5.2(a). An
appellate court will extend the time to file a notice of appeal
"only in extraordinary circumstances and to prevent a gross
miscarriage of justice." RAP 18.8(b). But in a criminal case, we
must balance strict application of that filing deadline with the
defendant's state constitutional right to an appeal. State v. Kells,
134 Wn.2d 309, 314, 949 P.2d 818(1998); see CoNs-r. art. 1,§ 22
(amend. 10). The State bears the burden of showing that the
decision to waive the constitutional right to appeal was knowing,
intelligent, and voluntary. State v. Sweet, 90 Wn.2d 282, 286, 581
P.2d 579 (1978). Consequently, the State must demonstrate that
"a defendant understood his right to appeal and consciously gave
up that right before a notice of appeal may be dismissed as
untimely." Kells 134 Wn.2d at 314.
State v. Chettv, 184 Wn. App. 607, 613, 338 P.3d 298(2014)(Chetty II). Under
certain circumstances, however, "inaction on the part of a defendant may be
used by the State to prove the defendant waived the right to appeal." State v.
Tomal, 133 Wn.2d 985, 990, 948 P.2d 833(1997).
Ill
Lieschner contends that this court should accept his untimely notice of
appeal because the State failed to demonstrate that he knowingly, intelligently,
and voluntarily waived his right to appeal. Lieschrier does not challenge the trial
court's factual findings that he knew he had a right to appeal, knew how to
perfect an appeal, and told defense counsel that he did not want to appeal.
Rather, he argues that he was denied effective assistance of counsel when
-6-
No. 73098-3-1/7
Ashbach failed to consult with him about the advantages and disadvantages of
filing an appeal.
In certain circumstances, we may consider the effectiveness of counsel
when determining whether a defendant validly waived the right to appeal and
whether to enlarge the time to file a notice of appeal. State v. Chettv, 167 Wn.
App. 432, 444, 272 P.3d 918(2012)(Chetty 1)(the effectiveness of counsel is a
circumstance that bears on the validity of defendant's waiver of the right to
appeal and, in turn, on the determination whether to extend time to file notice of
appeal under RAP 18.8(b)); see also Chettv II, 184 Wn. App. at 614-15
(defendant did not validly waive right to appeal when defense counsel failed to
advise defendant of adverse immigration consequence and failed to consult
about the advantages and disadvantages of filing an appeal); State v. Wicker,
105 Wn. App. 428, 431-33, 20 P.3d 1007(2001)(an attorney who fails to timely
comply with a client's request to file a notice of appeal is 'professionally
unreasonable' and prejudice is presumed).2
The United States Supreme Court has adopted the framework of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), for analyzing whether defense counsel's failure to file a notice of appeal
constitutes ineffective assistance. Roe v. Flores-Ortega, 528 U.S. 470, 478, 120
S. Ct. 1029, 145 L. Ed. 2d 985(2000). Lieschner acknowledges that he
2 The State mischaracterizes the scope of Chettv I and its effect on the State's burden to
establish a valid waiver of the right to appeal. We decline the State's invitation to reconsider
Chettv I.
-7-
No. 73098-3-1/8
therefore bears the burden of demonstrating both deficient performance and
resulting prejudice. See Strickland 466 U.S. at 687; State v. Thomas, 109
Wn.2d 222, 225-26, 743 P.2d 816 (1987). To establish prejudice in this context,
Lieschner must show that "but for counsel's deficient conduct, he would have
appealed." Chettv II, 184 Wn. App. at 614 (quoting Roe 528 U.S. at 486).
As evidence of deficient performance, Lieschner relies on the fact that
Ashbach had only brief discussions with him about an appeal and that the trial
court made no finding that he "explicitly" told Ashbach not to file an appeal.
Lieschner also suggests several reasons why he would have wanted to pursue
an appeal and notes his counsel's conclusory arguments at the evidentiary
hearing about the American Bar Association guidelines for advising defendants
about the right to appeal.
The trial court found that Lieschner "advised" Ashbach and gave "verbal
instructions" that he did not want to appeal. Viewed in context, the record and
findings establish that Lieschner clearly conveyed to Ashbach that he did not
want to file an appeal. See Roe, 528 U.S. at 477 ("a defendant who explicitly
tells his attorney not to file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed deficiently"). But we need not
decide whether counsel's failure to consult further with Lieschner, despite
instructions not to file an appeal, constituted deficient performance because
Lieschner has failed, in any event, to demonstrate prejudice.
Lieschner's motion to enlarge the time to file his notice of appeal and the
resulting evidentiary hearing were based exclusively on his repeated assertions
-8-
No. 73098-3-1/9
that he told Ashbach to file an appeal and Ashbach agreed to file the appeal.
Lieschner had every opportunity at the evidentiary hearing to explain why he
might have told counsel not to file an appeal or how further consultation with
counsel would have persuaded him to file an appeal.
But Lieschner steadfastly maintained that he intended to preserve his right
to appeal from the beginning of trial, that he told Ashbach to file an appeal, that
Ashbach said he would file an.appeal, and that he patiently waited in prison,
believing that the appeal was proceeding. Lieschner expressed no uncertainty
about his actions or his intentions. The trial court found this account not
credible. Under the circumstances, Lieschner's current claim that he would have
appealed had counsel consulted with him about the advantages and
disadvantages of filing an appeal rests on nothing more than speculation.
Because Lieschner failed to establish prejudice, his ineffective assistance claim
fails. See State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)
(claims of ineffective assistance must be based "on the record established in the
proceedings below").
There is no dispute that Lieschner understood he had a right to appeal
and the failure to file a notice of appeal within 30 days could result in the waiver
of his right to appeal. He told defense counsel that he did not want to file an
appeal and then waited more than a year to file a notice of appeal. On this
record, the State satisfied its burden of demonstrating that Lieschner knowingly,
intelligently, and voluntarily waived his right to appeal.
-9-
No. 73098-3-1/10
We deny Lieschner's motion to enlarge the time to file a notice of appeal.
We concur:
c"
.
C,2( g) •
I()le.Z.1 1\f‘ci,)J.
-10-