                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             April 28, 2020

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                               No. 52219-5-II

                        Respondent,

           v.
                                                                UNPUBLISHED OPINION
    THOMAS JOSEPH MURPHY,

                        Appellant.


          SUTTON, J. — Thomas Joseph Murphy appeals his conviction for possession of a stolen

vehicle. Murphy argues that his waiver of his right to appeal was invalid because it was not made

intelligently, voluntarily, knowingly, and with a full understanding of the consequences of a

waiver.     The State argues that we should deny Murphy’s appeal because he intelligently,

voluntarily, knowingly, and with a full understanding of the consequences waived his right to

appeal his conviction in exchange for a standard range low end sentence.1 We hold that Murphy

intelligently, voluntarily, knowingly, and with a full understanding of his appeal rights waived his

right to appeal his conviction.2 Thus, we affirm Murphy’s conviction.


1
  The State inappropriately relies on exhibits attached to its brief. These exhibits are not part of
the record. RAP 10.3(a)(8). Thus, we do not consider these exhibits or any resulting argument
from them.
2
  The State’s practice of offering a favorable sentence in exchange for a defendant waiving his or
her right to appeal is problematic. Other states have held that this practice is against public policy.
See Spann v. State, 704 N.W.2d 486 (Minn. 2005), State v. Ethington, 121 Ariz. 572, 592 P.2d 768
(1979), and People v. Harrison, 386 Mich. 269, 191 N.W.2d 371 (1971). However, Murphy has
not raised this issue, and on these facts, Murphy benefited from the waiver by receiving a standard
range low end sentence of 43 months, despite his high offender score.
No. 52219-5


                                             FACTS

        Gerald Marston owns Christian Brothers Towing. On March 11, 2018, Marston’s Honda

Accord was parked by the entrance of the tow yard. Justin Jester was the tow truck driver for

Christian Brothers Towing. At approximately 7:00 PM, Jester was in the office and noticed a man

in the tow yard. Jester heard a vehicle fire up, walked outside, and saw a Chevy truck driving

away. Jester ran after the truck and the driver turned around to look at him. As Jester walked back

into the office to report the stolen truck to the police, he noticed that the Honda Accord was

missing.

        Police located the Honda Accord approximately three hours after Jester reported it stolen.

Prior to trial, the State filed a second amended information and charged Murphy with theft of a

motor vehicle, a Chevy truck, and possession of a stolen vehicle, a Honda Accord.3 Murphy did

not object to the second amended information.

        At trial, witnesses testified to the above facts. The State also presented the testimony of

Officer Gary Bishop. Officer Bishop testified that he came upon a Honda Accord that matched

the description of the stolen vehicle at approximately 10:52 PM. Officer Bishop followed the

vehicle, ran its plate, and received confirmation that it was the stolen vehicle. Officer Bishop

followed the vehicle until it pulled over and parked.

        As the Honda Accord came to a stop, Officer Bishop confirmed it was the stolen Honda

and initiated contact with the driver. Officer Bishop confirmed that Murphy was the driver.




3
    RCW 9A.56.068.


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No. 52219-5


Officer Bishop noticed the stolen Chevy truck was parked just ahead of the Honda with its engine

off and was unoccupied.

        Officer Bishop stated that when he discovered Murphy and the vehicle, the vehicle was

running, but there was no key in the ignition. Officer Bishop also testified that Murphy explained

that he had recently purchased the two vehicles from two random people he met on the street.

Officer Bishop stated that Murphy did not have contact information for these people. Murphy also

did not have the titles, registrations, keys, or bills of sale for the vehicles.

        The jury acquitted Murphy of theft of the Chevy truck. The jury found Murphy guilty of

possession of a stolen motor vehicle, the Honda Accord.

        Murphy had an offender score of 10 with a standard sentencing range of 43-57 months.

The State recommended a standard range low end sentence of 43 months in exchange for Murphy

filing a waiver of his right to appeal. The sentencing court questioned Murphy about the waiver:

        THE COURT: . . . Is this your signature on the waiver of your right to appeal?

        MURPHY:          Yes, sir.

        THE COURT: And do you feel you understand it?

        MURPHY:          Yes, sir.

        THE COURT: And are you giving up your right to appeal voluntarily?

        MURPHY:          Yes, sir.

        THE COURT: And you consulted with your attorney on this; is that right?

        MURPHY:          Yes, sir.

Report of Proceedings at 450-51.




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No. 52219-5


       Murphy signed and filed a waiver of his right to appeal. The waiver stated:

              On June 12, 2018, I went to trial in the above captioned case. A jury found
       me guilty of Possession of A Stolen Motor Vehicle, Count II.

                I am aware that I have a right to have appellate courts review [this] matter,
       and I have spoken with my attorney about that right. After speaking with my
       attorney, I now knowingly, intelligently, and voluntarily waive my right to appeal
       [this] case because I am receiving the below favorable sentencing recommendation
       in this case.

              My offender score for the above case is 10 and my standard sentencing
       range on Count II is 43-57 months in prison. For Count II, the State will
       recommend a sentence of 43 months.

Clerk’s Papers at 85. Murphy now appeals his conviction.

                                             ANALYSIS

       Murphy argues the waiver of his right to appeal was invalid because it was not made

intelligently, voluntarily, and knowingly, and with a full understanding of his appeal rights and the

consequences of waiving them. He argues that the court’s colloquy failed to include any discussion

of his right to appointed counsel on appeal at public expense, the procedure for invoking the right

to appeal, or any detailed discussion of the consequences of a waiver. We disagree and hold that

Murphy intelligently, voluntarily, knowingly, and with a full understanding of his appeal rights

waived his right to appeal his conviction.

       Our constitution guarantees criminal defendants “the right to appeal in all cases.” WASH.

CONST. art. I, § 22. “A defendant may waive this right, but only if he does so intelligently and

with a full understanding of the consequences.” State v. Neff, 163 Wn.2d 453, 459, 181 P.3d 819

(2008). “To show his understanding, the State must prove a defendant understood both his right

to appeal and the effect of a waiver.” Neff, 163 Wn.2d at 159. “The State goes far in meeting this




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No. 52219-5


burden when a defendant signs a waiver statement and admits to understanding it because doing

so ‘creates a strong presumption that the [waiver] is voluntary.’” Neff, 163 Wn.2d at 159

(alteration in original) (quoting State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998)). The

fact that the defendant signed a waiver statement creates a presumption that the waiver is valid,

but it is not conclusive. Neff, 163 Wn.2d at 459. A waiver may still be invalid if the defendant

signed a written statement and the record reflects that the defendant did not sign the statement with

a full understanding of the consequences.

       Here, Murphy signed a waiver of his right to appeal. At the sentencing hearing, he agreed

to waive his right to appeal in exchange for the State recommending a standard range low end

sentence of 43 months. The sentencing court questioned Murphy about the waiver. Murphy

affirmed that he signed the waiver, felt he understood it, voluntarily gave up his right to appeal his

conviction, and that he consulted with his attorney prior to signing the waiver. After the colloquy

with Murphy, the court accept the waiver.

       We hold that Murphy’s claim, that his waiver of his right to appeal was invalid, fails. The

record reflects that Murphy intelligently, voluntarily, knowingly, and with a full understanding of

his appeal rights waived his right to appeal his conviction in exchange for a standard range low

end sentence of 43 months. Because Murphy intelligently, voluntarily, knowingly, and with a full

understanding of his appeal rights waived his right to appeal, we affirm his conviction.




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No. 52219-5


                                         CONCLUSION

        We hold that Murphy intelligently, voluntarily, knowingly, and with a full understanding

of his appeal rights waived his right to appeal his conviction and thus, we affirm his conviction.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     SUTTON, J.
 We concur:



 LEE, C.J.




 WORSWICK, J.




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