        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                             No. 78448-0-I

                             Respondent,          DIVISION ONE

                                                  UNPUBLISHED OPINION
               V.


 KEVIN LIGHT-ROTH,

                             Appellant.           FILED: May 6, 2019

       CHUN, J.   —   In 2000, the trial court convicted Kevin Light-Roth of first

degree robbery based on his guilty plea. At the time, he was a minor. Eighteen

years later, Light-Roth moved to extend the time to file a notice of appeal of the

judgment. A commissioner of this court remanded the case to the trial court for

an evidentiary hearing on whether Light-Roth voluntarily, knowingly, and

intelligently waived his constitutional right to appeal. The State moved to modify

the commissioner’s decision. Because of the ambiguity in the language of

Light-Roth’s notice of rights of appeal and his declaration attesting to his lack of a

voluntary, knowing, and intelligent waiver of his right to appeal, we deny the

State’s motion to modify and remand for an evidentiary hearing.

                                    BACKGROUND
      In March 2000, the State charged Light-Roth with robbery in the first

degree and assault in the second degree all while armed with a handgun.
 No. 78448-0-1/2


 Light-Roth was 16 years old at the time. Due to the first degree robbery charge,

 Light-Roth automatically came under the jurisdiction of the adult court. Former

 RCW 13.04.030(1)(e)(v)(C) (2000). He pleaded guilty to first degree robbery and

 the State agreed to dismiss the firearm enhancement. The court sentenced

 Light-Roth to 36 months of total confinement, the low end of his standard range.1

         In May 2018, Light-Roth filed a notice of appeal of the judgment and

sentence for first degree robbery entered in 2000 after his guilty plea. At the

direction of the court, Light-Roth filed a motion to extend time for notice of

appeal, which the State opposed. A commissioner of this court remanded the

case to the trial court for a hearing to determine whether Light-Roth voluntarily,

knowingly, and intelligently waived his limited right to appeal after he pleaded

guilty. The State filed a motion to modify the ruling, requesting denial of the

motion to extend time without an evidentiary hearing. A three-judge panel

referred both motions for oral argument on the existing briefs.

                                          ANALYSIS
        Light-Roth requests an extension of time to file an appeal under

RAP 18.8(b), claiming he involuntarily forfeited his right to appeal the declination

of his case from juvenile court. The State contends the evidence shows

          Soon after release, the State charged Light-Roth with second degree murder. Upon
conviction, the court sentenced him to 335 months of confinement. In re Pers. Restraint of Light-
Roth, 191 Wn.2d 328, 332, 422 P.3d 444 (2018). This court affirmed the judgment and sentence
on direct appeal. State v. Light-Roth, noted at 139 Wn. App. 1093 (2007). Both the Washington
Supreme Court and United States Supreme Court subsequently denied review. Light-Roth, 191
Wn.2d at 332; State v. Light-Roth, noted at 163 Wn.2d 1028 (2008); Light-Roth v. Washington,
555 U.S. 922, 129 S. Ct. 288, 172 L.Ed.2d 211 (Oct. 6,2008). The Washington State Supreme
Court dismissed Light-Roth’s personal restraint petition as time barred in August 2018. Light
Roth, 191 Wn.2d at 338.




                                                2
No. 78448-0-1/3


Light-Roth knowingly waived his right to appeal, requiring denial of the motion to

extend time. We disagree. On the facts currently before us, we cannot

determine whether Light-Roth validly waived his right to appeal.

       Washington’s Constitution guarantees criminal defendants the right to

appeal in all cases. CONST. art I,   § 22 (amend. 10). This right exists in a limited
capacity following a guilty plea, only allowing defendants to raise collateral

questions such as jurisdiction of the court. State v. Pritchard, 79 Wn. App. 14,

17, 900 P.2d 560 (1995). Declination of a case from juvenile court is “appealable

as a matter of right, even after a plea of guilty, because it raises a question of

jurisdiction.” Pritchard, 79 Wn. App. at 17.

       Generally, defendants must invoke the right to appeal within 30 days after

entry of the decision for review. RAP 5.2(a). “The appellate court will ordinarily

hold that the desirability of finality of decisions outweighs the privilege of a litigant

to obtain an extension of time under this section.” RAP 18.8(b). However, “the

strict application of filing deadlines must be balanced against a defendant’s state

constitutional right to appeal.” State v. Kells, 134 Wn.2d 309, 314, 949 P.2d 818

(1998). Therefore, an appellate court may extend the time for notice of appeal

“in extraordinary circumstances and to prevent a gross miscarriage of justice.”

RAP 18.8(b).

       “[Am involuntary forfeiture of the right to a criminal appeal is never valid.”

Kells, 134 Wn.2d at 313. Before an appeal may be dismissed as untimely under

RAP 18.8(b), the State bears the burden of demonstrating the defendant




                                           3
No. 78448-0-1/4


voluntarily, knowingly, and intelligently waived the right to appeal. Kells, 134

Wn.2d at 315; State v. Cater, 186 Wn. App. 384, 392, 345 P.3d 843 (2015). This

requires an affirmative showing that the defendant “understood [their] right to

appeal and chose not to exercise it.” Kells, 134 Wn.2d at 315. Courts do not

presume a waiver of the right to appeal. State v. Sweet, 90 Wn.2d 282, 286, 581

P.2d 579 (1978); Kells, 134 Wn.2d at 314; Cater, 186 Wn. App. at 392.

       Here, Light-Roth relies on Kelis, 134 Wn.2d at 313, to support his request

for an extension of time to file his notice of appeal. In Kells, a commissioner of

the juvenile division of the trial court declined juvenile jurisdiction over a 15 year-

old defendant accused of killing his friend. 134 Wn.2d at 311-12. The defendant

pleaded guilty to second degree murder in Superior Court. Kells, 134 Wn.2d at

312. The court did not inform the defendant he had a right to appeal the order of

declination. Kells, 134 Wn.2d at 312. Fifteen months after sentencing, the

defendant filed a notice of appeal of the order of declination. Kells, 134 Wn.2d at

312. The Washington Supreme Court determined the State did not need to

inform the defendant of his right to appeal a declination order. Kells, 1 34 Wn.2d

at 315. However, the court also explicitly established that the State must

affirmatively demonstrate the defendant voluntarily, knowingly, and intelligently

waived his right to directly appeal the declination order before an appellate court

may dismiss the appeal as untimely. Kells, 134 Wn.2d at 311.

       Light-Roth contends he did not properly waive his right to appeal because

of a misleading notice of rights on appeal. Light-Roth received and signed a




                                           4
 No. 78448-C-U5


notice of his rights to appeal specifying, “You have a right to appeal your

conviction if you were found guilty following a trial” and “You have the right to

appeal a sentence outside the standard sentence range.” This notice suggested

Light-Roth lacked any right to appeal because he did not fall within the described

parameters—he pleaded guilty instead of going to trial and received a standard

sentence. Furthermore, the notice failed to advise Light-Roth of his limited rights

of appeal after a plea of guilty, including adult court jurisdiction. Thus, the notice

created potential for confusion as to Light-Roth’s rights.

       However, “the mere existence of a potentially confusing advisement

without a declaration” from the defendant does not merit a hearing for evidence

of waiver of the right to appeal. Cater, 186 Wn. App. at 396. In Cater, the

defendant failed to provide a declaration asserting that he lacked awareness of

his limited right to appeal following a guilty plea or that he would have directed

his attorney to file an appeal. 186 Wn. App. at 395-96. Additional circumstances

led this court to conclude the defendant had properly waived his right to appeal:
      The unique circumstances, including the presumption of a voluntary
      plea, the exceptionally favorable plea agreement, the unexplained
      34-year delay in filing a notice of appeal, and [the defendant’s]
      complete failure to assert any facts suggesting he was unaware of
      his limited right to appeal, support the strong inference that he
      knowingly, intelligently, and voluntarily waived his limited right to
      appeal following a guilty plea.
Cater, 186 Wn. App. at 397.

      Here, unlike Cater, Light-Roth provided a declaration with his motion to

extend time. In an unsworn declaration Light-Roth asserted:




                                          5
 No. 78448-0-116

            2. When I was convicted and sentenced, I was not informed and
               did not know that I had a right to appeal issues such as the
               jurisdiction of adult court for a crime committed when I was a
               juvenile.
            3. If I had been informed or known, I would have asked my
               attorney to file an appeal for me.
            4. I did not knowingly, intelligently, and voluntarily waive my right
               to appeal.
This declaration casts doubt upon whether he validly waived his limited right to

appeal after his plea.2 Furthermore, the notice of rights of appeal essentially

informed Light-Roth that he lacked any right to appeal, despite the appealability

of a declination order even after a plea of guilty. The State must affirmatively

demonstrate Light-Roth waived his right to appeal the declination order before

the appeal may be dismissed as untimely. KelIs, 134 Wn.2d at 311. At this

stage in the proceedings, the State fails to satisfy this burden. The facts before

us do not establish proper waiver, necessitating an evidentiary hearing to

determine whether Light-Roth voluntarily, knowingly, and intelligently waived his

right to appeal. Therefore, we deny the State’s motion to modify.

        As per the commissioner’s ruling, we remand the case to the trial court for

an evidentiary hearing to address whether Light-Roth voluntarily, knowingly, and

intelligently waived his limited right to appeal. The evidentiary hearing shall

occur within 60 days, unless the trial court requires additional time. In that event,

Light-Roth’s counsel shall advise this court of the status of the hearing. After the


        2We do not conclude that such an unsworn statement—serving as a written offer of
proof—necessarily suffices to demonstrate the lack of awareness of the right to appeal. We
understand, based on the representation of counsel, that Light-Roth will adopt his statements
under oath and perfect his declaration at the beginning of the evidentiary hearing.




                                                6
No. 78448-0-1/7


hearing, counsel shall promptly forward to this court copies of the written findings

and conclusions with any transcript of the hearing.



                                                      c€’~-, Q
WE CONCUR:


     ‘‘I
          ‘I’
