The legal system, in all of its complexity, can be an intimidating place. The FAQ Section is intended to provide concrete information about the appellate process. It is built upon 26 years of experience. Our hope is that its message facilitates the process of filing an appeal, equips the public with knowledge, and eases the minds of defendants and their families, mothers and fathers in the DSHS system, and others needing guidance.
The Washington Appellate Project is a non-profit law firm. The Project was founded in 1993 by two attorneys and a legal assistant from the Snohomish County Public Defender. The Project contracts with the State of Washington to provide appellate representation to those who do not have the means to retain private counsel. The right to appeal is a constitutional right.
WASHINGTON STATE CONSTITUTION
ARTICLE I, SECTION 22 RIGHTS OF THE ACCUSED. 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:
In no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed. [AMENDMENT 10, 1921 p 79 Section 1. Approved November, 1922.]
All of our cases are appointed to us directly from the Office of Public Defense. We are not private counsel and can only represent individuals whose appeals are assigned to us. We are a committed group of attorneys and legal assistants who work together to fight for equality in our justice system and to protect the constitutional rights afforded to all citizens.
A Direct Appeal is filed when appellate review is sought of a final order (final orders include judgment and sentence, order of restitution, parental termination order, dependency dispositional order, and civil commitment).
A Direct Appeal is also called an appeal as a matter of right.
A Discretionary Review Appeal is filed when appellate review is sought of a ruling, interim order, or a decision other than a final decisions include: a ruling on placement in a dependency (or any decisions prior to disposition), an order requiring an evaluation, an order denying an annual trial in a civil commitment case, a ruling on suppression.
A Discretionary Review is also called an interlocutory appeal.
A Discretionary Review Appeal differs from an appeal as a matter of right because the appellate court decides whether or not to accept review. If the Court grants review, the appeal is now one as a matter of right and the case will proceed as a direct appeal.
A Personal Restraint Petition is filed when review is sought of issues not appropriate for direct review because they were not addressed in the record of the trial court.
These issues include ineffective assistance of counsel, retroactivity of changes in the law, and newly discovered evidence.
Counsel is not appointed to assist in the preparation of a Personal Restraint Petition.
The Court of Appeals will appoint counsel, however, if a finding is made that the Petition is not frivolous and has merit.
A Personal Restraint Petition is also called a collateral attack.
A Notice of Appeal must be filed in the Superior Court within 30 days after entry of the order being appealed.
The Notice of Appeal must have the order being appealed attached and must show service on opposing counsel.
Rule of Appellate Procedure 2.2 http://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_02_02_00.pdf
Rule of Appellate Procedure 5.2 http://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_05_02_00.pdf
A Notice of Discretionary must be filed in the Superior Court within 30 days after entry of the ruling or interim order for which review is sought.
The Notice of Discretionary Review must have the ruling/order for which review is sought attached and must show service on opposing counsel.
Rule of Appellate Procedure 5.2 http://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_05_02_00.pdf
A Personal Restraint Petition must be filed in the Court of Appeals within 1 year after entry of the order being appealed. A Statement of Finances needs to be filed with the Petition to have filing fees waived.
Rules of Appellate Procedure 16.4 and 16.7
There are two additional documents, in addition to the Notice of Appeal, that must be filed:
1.) Motion for Order of Indigency
2.) Order of Indigency
The Motion for Order of Indigency includes a financial declaration that must be completed by the appellant. The Motion is presented to the judge, along with the Order of Indigency. The Judge will review the Motion and, if warranted, will authorize the Order of Indigency.
It is best to have appellate documents prepared and ready at sentencing. This allows for the Motion to be reviewed and the Order signed while all are present. It also provides for an efficient manner to file the appellate documents.
Rule of Appellate Procedure 15.2 http://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_15_02_00.pdf
Once a Notice of Appeal is filed in the trial court, it is processed and sent to the Court of Appeals where an appeal is opened.
Note: There are 3 divisions of appellate courts in the State of Washington. Each division has jurisdiction over specific counties in the State.
King, Snohomish, Island, San Juan, Skagit and Whatcom
Pierce, Clallam, Grays Harbor, Jefferson, Kitsap, Mason, Adams, Asotin, Benton, Columbia, Franklin, Garfield, Grant, Walla Walla, Thurston and Whitman
Chelan, Douglas, Kittitas, Klickitat, Yakima, Clark, Cowlitz, Ferry, Lincoln, Okanogan, Pend Oreille, Spokane, Stevens, Lewis, Pacific, Skamania and Wahkiakum
If an Order of Indigency is filed along with the Notice of Appeal, counsel will be appointed to represent you on your appeal.
If an Order of Indigency is not filed with the Notice of Appeal, a filing fee is expected and counsel will not be appointed. The filing fee amount differs by county.
One should expect to hear from assigned appellate counsel within 2–4 weeks after the Notice of Appeal and Order of Indigency are filed.
The Court of Appeals reviews the “record on appeal”. The record consists of:
a) Trial court file documents as designated by appellate counsel;
b) Transcription of all hearings relevant to the appeal (also called verbatim report of proceedings);
c) Exhibits as determined relevant to the appellate issue(s).
Note: No new information can be introduced on appeal if it was not part of the trial court record. In general, the appellate court will not consider “factual” issues such as which witness was telling the truth, who was right, or even whether you are innocent or guilty. It will only look to the “record” which consists of the transcripts and the court file of your case. Because the appellate court is only reviewing what happened during relevant court proceedings, no new evidence, including testimony, may be brought in at this stage. This is not a new trial.
Note: Appellate counsel is responsible for creating the record on appeal – although opposing counsel can supplement it. The average time it takes to complete an appellate record is 90 days. This timeframe can be considerably shorter or longer depending on the size of the record, court reporter delays, etc.
Once all the records needed for review are gathered and submitted to the appellate court, a brief due date is set.
The first brief to be filed is an Appellant’s Opening Brief>. The due date is set for 45 days after the transcription is filed.
The first brief to be filed is a Motion for Discretionary Review. The due date is set for 15 days after the Notice of Discretionary is filed although it is common to need an extension of time to obtain needed records.
If counsel is appointed, the Court will often direct the issue they want reviewed. They would then direct the filing of a supplemental brief, usually within 30 days of appointment of counsel.
Note: It is common for extensions of time to be required in the briefing process. Additional time is needed for cases with extensive records and complex issues. Extensions are also sought for caseload management reasons.
After the opening brief is filed, the opposing counsel will file a response, called a Brief of Respondent. The Brief of Respondent is due 30 days after the filing of the Appellant’s Opening Brief.
Appellate counsel may then file a reply to opposing counsel’s response, called a Reply Brief. This brief is discretionary.
A defendant in the appeal of a criminal case may file a Statement of Additional Grounds for Review. The Statement of Additional Grounds is the appellant’s opportunity to address issue(s) they believe have not been adequately covered in the appellant’s opening brief.
Rule of Appellate Procedure http://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_10_10_00.pdf
After the initial brief (called a Motion for Discretionary Review) is filed, the opposing counsel will file a response.
The Court of Appeals will set the case for consideration. The Court will either call for oral argument—which means the parties appear before the court to argue their respective positions—or the Court will decide that it can sufficiently review the case based on the record and submitted briefing, often called aa panel review
The Court of Appeals will consider the case—after oral argument—and issue a decision as to whether to accept review. If review is accepted, the case will proceed as a direct appeal. If review is not accepted, the Court will issue an order denying review.
Rule of Appellate Procedure 2.3 http://www.courts.wa.gov/court_rules/pdf/RAP/APP_RAP_02_03_00.pdf
After consideration, the Court will issue a decision, called a Ruling or Opinion based on the appeal type.The Opinion may be published (giving it precedential value) or unpublished (it has no precedential value, but can be cited as persuasive authority if issued on or after March 1, 2013).
This decision will either:
a) Affirm the trial court, meaning no errors were found in the case that would warrant any action by the appellate court and the conviction or order stands as is.
b) Reverse the trial court, meaning error(s) affecting constitutional rights were found. The case may be remanded back to the trial court for a new trial, new sentencing, or to cure other found deficiencies.
c) Combination of affirm/reverse, meaning a specific error was found but the rest of the conviction, judgment, or order stands as is. An example of this would be the appellate court finding that the imposition of legal financial obligations was improper but that the conviction itself stands.
Option 1 No further action is taken. If this course is taken, the appeal will effectively conclude 30 days after the decision is issued.
Option 2: Further review of the Court of Appeals decision is sought by filing a Motion for Reconsideration or Motion to Modify, asking the Court of Appeals to reconsider or modify their decision.
A Motion for Reconsideration must be filed within 20 days after entry of the Opinion for which review is sought. A Motion to Modify must be filed within 30 days after entry of the Ruling for which review is sought. The Court of Appeals then issues a decision either denying the motions or granting them.
Note: It is rare for the Court of Appeals to reverse their own decisions.
Option 3: Review is sought from the Supreme Court by filing a Petition for Review.
A Petition for Review must be filed within 30 days after entry of the decision for which review is sought. The Supreme Court will then decide to accept review of deny review.
Note: It is extremely rare that the Supreme Court to grant Petitions for Review – but it does happen!
If the Court of Appeals affirms a case and efforts to have the decision reviewed further do not succeed, the appeal concludes with the issuance of a Mandate.