(concurring in part, dissenting in part) — I concur with the majority in affirming convictions in the four subject cases, but I dissent to its approval of RAP 18.14(i) (the motion on the merits) for use in criminal cases by nonjudges (commissioners) in the State Court of Appeals.
The motion on the merits (RAP 18.14(i)) allows nonjudge employees to permanently dismiss criminal appeals, without any input from duly elected appellate judges. On dismissal of a defendant's appeal, he has only the right to file a motion to modify a grant of a motion on the merits, but there is no court rule requiring the State to advise a dismissed defendant of his right to modify, even though, in all probability, he is incarcerated in prison at the time of being advised of the dismissal of his appeal.
The motion on the merits is a far cry from the provisions of Const, art. 4, § 2 which provides in part:
The supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum, and pronounce a decision. ... In the determination of causes all decisions of the court shall be given in writing and the grounds of the decision shall be stated.
(Italics mine.) In 1968, the Legislature passed and the people approved the intermediate Court of Appeals to alleviate the backlog on the Supreme Court. An examination of such enabling legislation fails to show where article 4, section 2 was repealed. The majority, however, by this decision makes the State Court of Appeals more powerful than the *138Supreme Court and the constitution. It authorizes the Court of Appeals to hire employees and designate them commissioners and give them the right indiuidually to dismiss nonfrivolous criminal appeals. The Supreme Court cannot even give this power to itself, as article 4, section 2 requires that the Supreme Court can only issue an opinion in writing by a majority of the court. Yet by rule, the Supreme Court here amends article 4, section 2, authorizing the State Court of Appeals to enter final orders of dismissal of defendants' appeals through nonjudges. This is clearly unconstitutional.
RAP 18.14(i) Violates Article 1, Section 22
Dismissal of defendants' appeals pursuant to a motion on the merits also violates article 1, section 22.
Article 1, section 22 of the Washington State Constitution expressly guarantees the right to appeal in all criminal cases.
In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases: . . .
This constitutional right to an appeal in a criminal case necessarily rests on the premise that the framers of our constitution were of the consensus that a trial by jury or court is not a sufficient procedural protection when the accused is faced with deprivation of his liberty upon conviction. The right to appeal is guaranteed even though the trial itself contains constitutionally afforded procedural protections such as notice of the charge against the defendant, representation by counsel, trial by jury, right to confront and cross-examine all witnesses against the accused, and the right of proof beyond a reasonable doubt.
*139The constitutional right to an appeal functions as a check against the risk of erroneous deprivation of liberty. "'The principal reason for having appellate courts is to provide an opportunity for several minds to check the trial decisions made by one mind.'" Lobsenz, A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction, 8 U. Puget Sound L. Rev. 375, 383 (1985) (quoting ABA Section of Judicial Administration, Internal Operating Procedures of Appellate Courts 14 (1961)).
Bearing in mind that the essential function of appellate review is to reduce the risk of erroneous conviction, this court must determine what attributes of appellate review are essential to effectuate meaningful review. The majority apparently feels that because a criminal defendant is granted the right of motion to modify a grant of a motion on the merits, the constitutional guaranty of a right to appeal has not been abridged.
Motion on the merits, RAP 18.14, permits an appellate court commissioner to affirm a criminal conviction of a trial court. The rule instructs the commissioner to grant the motion in those appeals found to be "clearly without merit." RAP 18.14(e). If the commissioner grants the motion, the losing party may move for modification of the commissioner's ruling by a panel of judges. RAP 18.14(i). Ordinarily, however, a party is not allowed oral argument on a motion to modify a commissioner's ruling. RAP 17.5(b). Consequently, under RAP 18.14, a party can lose an appeal without ever having had an opportunity to present oral argument to a 3-judge panel of the Court of Appeals.
In 1975, the Commission on Revision of the Federal Court Appellate System reported on the subject of eliminating oral argument:
[T]he Commission recognizes the importance of safeguarding the right to oral argument in all cases where it is appropriate. Oral argument is an essential part of the appellate process. It contributes to judicial accountability, it guards against undue reliance upon staff work, and *140it promotes understanding in ways that cannot be matched by written communication. It assures the litigant that his case has been given consideration by those charged with deciding it. The hearing of argument takes a small proportion of any appellate court's time; the saving of time to be achieved by discouraging argument is too small to justify routinely dispensing with oral argument.
Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures; Recommendations for Change (June 1975), reprinted in 67 F.R.D. 195, 254-55 (1975). See also Lobsenz, at 387.
The inability to present oral argument to the 3-judge appellate panel undermines the meaningfulness of the constitutional guaranty of an appeal of criminal convictions.
Further, the focus of the appellate court's inquiry in a motion to modify the commissioner, subsequent to a grant of a motion on the merits, is unreasonably narrow. RAP 18.14 provides that in deciding whether an appeal is "clearly without merit," the commissioner or judge will consider all relevant factors, including three specific issues: " [Wjhether the issues on review (1) are clearly controlled by settled law, (2) are factual and supported by the evidence, or (3) are matters of judicial discretion and the decision was clearly within the discretion of the trial court." RAP 18.14(e). The appellate court's review in a motion to modify will necessarily be a limited inquiry into these three areas and not an inquiry into the merits of a criminal appeal. The text of RAP 18.14 concedes this much by differentiating between appellate review of a motion on the merits and "full appellate review." (Italics mine.) RAP 18.14(f). Appellate review in the context of a motion to modify is not a full de novo review as contended by the majority. If it were, the appellant would be entitled to oral argument and the commissioner's "weeding-out" process would be unnecessary.
It is further apparent that the motion on the merits rule has a scope far exceeding the common law grounds for dismissing appeals prior to full appellate review. RAP 18.9(c) *141provides that the appellate court "will, on motion of a party, dismiss review of a case ... if the application for review is frivolous, moot, or solely for the purpose of delay,
. . ." Since the power to dismiss frivolous appeals was already codified in RAP 18.9, the promulgation of the motion on the merits rule reflects a desire to eliminate some form of nonfrivolous appeals. Washington courts have generally defined a frivolous appeal as one that presents "no debatable issues upon which reasonable minds might differ, and [that] is so totally devoid of merit that there was no reasonable possibility of reversal." Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980). In the context of a civil case, when the right to appeal is not premised upon the state constitution, this court has approved a number of factors for courts to consider when deciding whether an appeal is "frivolous":
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; . . .
Millers Cas. Ins. Co. v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983) (quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980)). The need for efficient judicial administration and the orderly resolution of cases without needless delay are served by the rule permitting dismissal of frivolous appeals. See 3 L. Orland, Wash. Prac., Rules on Appeal § 4531, at 430 (3d ed. 1978).
Contrary to resolving all doubts in favor of the appellant, the appellant in a motion on the merits setting is foreclosed from arguing before the appellate court that settled case law should be overturned, that the facts were incorrectly determined, or that judicial discretion was abused.
Denying a criminal defendant the ability to contest the trial court fact-finding role obviates the "clearly settled" principle that when constitutional rights are of issue, the appellate court is obligated to make an independent de *142novo evaluation of the testimony and to reach its own conclusions as to the facts. See, e.g., State v. Daugherty, 94 Wn.2d 263, 269, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981); State v. Sweet, 90 Wn.2d 282, 289, 581 P.2d 579 (1978).
The motion on the merits practice restricts the scope of appellate review beyond what could logically be considered meaningful review under well established common law principles. When the framers of our constitution provided a right of appeal of all criminal convictions they necessarily envisioned a meaningful appeal which affords the appellant the common law principles inherent in the appellate process.
Conclusion
I would affirm all four convictions; however, I would hold that the motion on the merits (RAP 18.14(i)) in criminal cases denies defendants a meaningful right to appeal and is unconstitutional, for it violates article 1, section 22 and article 4, section 2 of our state constitution.