                                                                           FILED 

                                                                        JULY 14,2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 32063-4-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
AMEL W. DALLUGE,                              )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -    Arnel Dalluge appeals the result of a Dillenburgl hearing that

this court ordered to remedy the failure years earlier to conduct a decline hearing before

transferring criminal charges against Mr. Dalluge to adult court. The superior court

concluded that the juvenile court would have declined jurisdiction of property crime

charges filed against Mr. Dalluge in 1998. As a result, his 1998 conviction of those

charges in adult court stands.

       Mr. Dalluge, who represented himself in the hearing, argues that the superior court

improperly allowed him to focus on legal challenges and to stipulate that the factual

factors to be considered in declining jurisdiction would have been satisfied. He asks us to



        1 Dillenburgv. Maxwell, 70 Wn.2d 331, 413 P.2d 940 (1966), modified on reh'g,
422 P.2d 783 (1967) (court must hold a retroactive decline hearing when ajuvenile is
tried in adult court without a decline hearing).
i!
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Ii   No. 32063-4-III
     State v. Dalluge



I

1
     apply the protection against improvident waiver that we would accord to a juvenile facing

     criminal prosecution.
1
          As a 33-year-old seeking relief from convictions, Mr. Dalluge stands on a different


I    footing than a juvenile faced with criminal prosecution. He made a knowing and

     voluntary stipulation to facts on which the superior court reasonably relied. For that

     reason, and because the superior court made all necessary findings, we affirm.

                            FACTS AND PROCEDURAL BACKGROUND

                                            Prior Matters

            We first recount events dating back almost 20 years that led to the outcome of the

     July 2013 hearing challenged in this appeaL The following history is largely drawn from

     this court's Order Returning Personal Restraint Petition to Superior Court and Closing

     Petition in Court of Appeals, In re Pers. Restraint ofDalluge, No. 292S6-8-III (Wash. Ct.

     App., Jun. 8, 2011).

            In September 1997, then 17-year-old Arnel Dalluge was charged with first degree

     rape. On March 2, the State amended the information in the rape case to one count of

     rape in the second degree and one count of rape in the third degree, or in the alternative,

     two counts of third degree rape.

            While evading apprehension for the rape charges, Mr. Dalluge committed property

     crimes in November 1997. He was charged with burglary in the second degree, theft in

     the second degree, and vehicle prowling in the second degree on January 16, 1998.

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No. 32063-4-III
State v. Dalluge


       The property crime charges proceeded to trial before the rape charges, and on

March 5, 1998, Mr. Dalluge was convicted of the property crimes in adult court. On

March 30, he was convicted of two counts of rape in the third degree in adult court.

       Both of Mr. Dalluge's cases were properly in adult court before March 2, 1998,

because the charge of first degree rape (a serious violent offense) subjected him to

automatic juvenile court declination and exclusive adult court jurisdiction. RCW

13.04.030(1)(e)(v)(A). On account of that automatic declination, he was no longer

considered a juvenile for purposes of the subsequent property crimes and the adult court

had sole jurisdiction over those proceedings as welL See RCW 13.40.020(15); State v.

Sharon, 100 Wn.2d 230,231,668 P.2d 584 (1983).

       But when the information was amended to reduce the rape charges, Mr. Dalluge

was no longer charged with a serious violent offense and the case no longer qualified for

automatic declination ofjuvenile court jurisdiction. In response to a personal restraint

petition filed by Mr. Dalluge challenging his rape convictions, our Supreme Court ruled

that with the reduction of charges, the trial court should have remanded the rape charges

to the juvenile court for a decline hearing. In re Pers. Restraint ofDalluge, 152 Wn.2d

772, 783, 100 P.3d 279 (2004). Since Mr. Dalluge's petition was not barred as untimely

given the jurisdictional error, the remedy ordered was to remand to adult criminal court

for a de novo Dillenburg hearing on whether declination would have been appropriate.




                                             3

No. 32063-4-111
State v. Dalluge


On remand, the superior court conducted a Dillenburg hearing and concluded Mr.

Dalluge would have been declined from juvenile jurisdiction to the adult system.

      In a personal restraint petition filed with this court in 2010, Mr. Dalluge raised the

same infirmity with his property crime convictions that he earlier raised and addressed

with the rape convictions. Here again, Mr. Dalluge's petition was not barred as untimely,

given the jurisdictional error. This court rejected the State's argument that the outcome

ofthe Dillenburg hearing on the rape charges controlled whether juvenile court

jurisdiction would have been declined as to the lesser property charges. The remedy

ordered was to again remand to the superior court for a Dillenburg hearing to determine,

this time, whether declination ofjurisdiction over the property crime charges would have

been appropriate.

                             Proceedings Following Remand

      In November 2011, at the request of Mr. Dalluge, the trial court appointed a

lawyer to represent him. Mr. Dalluge later reported "political" disagreements and

conflicts with the lawyer, Robert Kentner, whom Mr. Dalluge also accused of being

nonresponsive. Mr. Dalluge eventually asked to represent himself.

      Among Mr. Dalluge's reasons for wishing to represent himself were that Mr.

Kentner wanted to argue that the eight factors identified by the United States Supreme

Court inKentv. United States, 383 U.S. 541,566-67,86 S. Ct. 1045,16 L. Ed. 2d 84




                                             4

No. 32063-4-II1
State v. Dalluge


(1966) as bearing on whether declination is appropriate2 did not support declination in

Mr. Dalluge's case. Mr. Dalluge preferred to attack the constitutionality of the

Dillenburg hearing. Mr. Dalluge was familiar with the Kent factors from his prior

Dillenburg hearing. See State v. Dalluge, noted at 148 Wn. App. 1004, 2009 WL 73138,

*3-*9. 3

       Aware of Mr. Dalluge's difficulties in working with Mr. Kentner, the court

decided to proceed with the expectation that Mr. Dalluge would represent himself. In

reaching its decision, the court observed that Mr. Dalluge had previously participated in a



       2   The eight factors identified by Kent, 383 U.S. at 566-67, are:

         1. The seriousness of the alleged offense to the community and whether the
    protection of the community requires [declination].
         2. Whether the alleged offense was committed in an aggressive, violent, 

    premeditated or willful manner. 

         3. Whether the alleged offense was against persons or against property ....
         4. The prosecutive merit of the complaint ....
         5. The desirability of trial and disposition of the entire offense in one court when
    the juvenile'S associates in the alleged offense are adults ....
         6. The sophistication and maturity of the juvenile as determined by
    consideration of his home, environmental situation, emotional attitude and pattern of
    living.
         7. The record and previous history of the juvenile ....
         8. The prospects for adequate protection of the public and the likelihood of
    reasonable rehabilitation of the juvenile (ifhe is found to have committed the alleged
    offense) by the use of procedures, services and facilities currently available to the
    Juvenile Court.

       3 Although   the 2009 opinion was unpublished, we cite it not as authority but for its
historical relation to this case. See GR 14.1(a).

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No. 32063-4-111
State v. Dalluge


Dillenburg hearing; had made clear that he had the ability to read and understand the law;

and was not before the court as a criminal defendant but instead as the moving party

seeking relief from convictions. The court ordered Mr. Kentner to remain standby

counsel, to assist and to step in if needed.

         At a hearing on May 7,2013, the court signed an order documenting the self-

representation and standby counsel arrangement and also granted Mr. Dalluge's request

to continue the Dillenburg hearing to give him more time to prepare. In response to the

State's expression of concern about time and witness availability, Mr. Dalluge told the

court:

         I'm going to do what I can-in my direction in the case is I'm going to
         waive the Kent factors, just so, you know, the state, you know, has-has no
         basis, I guess, to have the witnesses hanging [out] any more-she can let
         them go. 'Cause I'm going to write it up and waive that.
              And as I was trying to tell stand-by counsel, I-I don't see any reason
         for a factual defense and I'd rather go on a legal defense.
              And I was going to do that, you know, as that would save judicial
         resources and expedite the proceedings.

Report of Proceedings (RP) at 68-69. The court responded, "Okay. Well, then, you work

on what you want to propose as a stipulation with the [S]tate, and if you need the

assistance of Mr. Kentner in getting things back and forth, or wording, or whatever, he's

there [as] your standby." Id. at 69.

         The Dillenburg hearing was continued to July 24. Mr. Dalluge submitted briefing

on his "law based defense." Clerk's Papers (CP) at 110-27, 129-30.



                                               6

No. 32063-4-III
State v. DaUuge


       A substantial part of the Dillenburg hearing was consumed by a discussion-

principally between the court and Mr. DaUuge-about Mr. Dalluge's desire to "waiv[e]

the challeng[e]ofthe Kent factors and mov[e] on to the second part of Dillenburg,"

challenging the constitutionality of the hearing. RP at 75. Since what was invited and

agreed by Mr. Dalluge is at the heart of this appeal, we reproduce substantial portions of

the discussion.

       It began with the prosecutor expressing her concern about whether the parties were

addressing "Mr. Dalluge's issues or ... the Kent factors," reminding the court that Mr.

Dalluge said he was waiving the factors but that she so far had no written stipulation. RP

at 74. She argued, "[I]f [it's] true [he's going to stipulate to the Kent factors] I'd like to

have something in writing signed by the parties for the file." RP at 74-75.

       The following dialogue ensued:

               DEFENDANT: ... It wasn't stipulating to nothing; it was
       waiving-waiving the challenging of the Kent factors and moving on to the
       second part of Dillenburg, challenging under constitutional rights.
               THE COURT: Okay.
               Mr. Dalluge, I was trying to recreate the representations that you
       made from the clerk's minutes and I'm having some difficulty doing that.
               When you say that you--waived the Kent factors, or what-I may
       misstate your language-what exactly did you intend in that regard?
               DEFENDANT: As in Dillenburg, it has-I can-I can wait 'til after
       the Kent factors and that's how Dillenburg lays it out, is after we do the
       Kent factors I can argue, you know, "Hey, this is unconstitutional for these
       reasons." But I find that--because we already have the first hearing we can
       use that and I can demonstrate any unconstitutionally from that [sic]. So I
       feel it may be more efficient for this court, and a preservation ofjudicial


                                               7

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    No. 32063-4-III
1   State v. Dalluge
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           resources, if we just skip that and move on to the challenging of the
           unconstitutionality of it.
                  THE COURT: Okay. So let me ask it in-in very specific terms.
                  Do you stipulate that a consideration of the Kent factors in this case
           would result in a decline ofjuvenile court jurisdiction?
                  DEFENDANT: I believe that-that that's-that's going beyond-is
           with the waiver I'm-I guess I'm trying to stay away from that. Is-is you
           know, I'm not going to come back on--on appeal-I see where you're
           coming from, but if I do that I guess I'd be admitting defeat, and- ...

                  . . . I don't think I would have to go that far and that's why I'm
           staying away from stipulation and going more towards waiver-just-.

    RP at 75-77 (alteration in original).

           In order to determine how to proceed, the superior court explained to Mr. Dalluge

    that the Court of Appeals had remanded the cause for a Dillenburg hearing, reviewing

    what that entails.

                   THE COURT: ... That court says that we're required to conduct a
           hearing, a Dillenburg hearing, in which the court considers the Kent factors
           to determine whether or not, had it been timely, decline would have been
           ordered, to decline juvenile court jurisdiction in this case.
                   You want to add to that consideration some legal arguments based
           on the constitutionality of this proceeding, and I'm totally comfortable with
           that. But the question is, what do we do with the first part of the hearing
           that the Court of Appeals has ordered us to conduct.
                  If you-If you are waiving that, saying, "No, Judge, you don't have
           to do that part," I don't think you have authority to do that. If you are
           stipulating that the Kent factors, without the constitutional considerations,
           the Kent factors alone, would have resulted in decline, then we can proceed
           to your constitutional argument.

    RP at 77-78. The court clearly told Mr. Dalluge that "the Kent factors have to be applied

    in regard to the specific charges." RP at 80.



                                                    8

No. 32063-4-lII
State v. Dalluge


       Following the court's explanation, Mr. Dalluge acceded to the court's position that

it would not forgo review of the Kent factors unless Mr. Dalluge was stipulating that the

juvenile court's consideration of the Kent factors in 1998 would have resulted in

declination. Since Mr. Dalluge still stated that he preferred "waiver" to "stipulation," the

court sought to confinn, and did confinn, that Mr. Dalluge did not believe a ''waiver''

would preserve review of the Kent factors for another day. The court inquired:

              THE COURT: ... lfthe court allowed you to waive the Kent factors
      and not stipulate, if we then had a hearing on your legal defenses, your
      constitutional claims and so on, and if this court decided against you on the
      legal claims, where do you think you would be in regard to the finality of­
      of the judgment and sentence in this case?
              DEFENDANT: It would be a matter, I guess, for the Court of
      Appeals.
              THE COURT: On the legal issues.
              DEFENDANT: Yeah. Not-not-not-going into the waiver or
      the stipulation; it would be merely, as I'm saying, the constitutionality of it.
              THE COURT: Okay-
              DEFENDANT: It would be strictly towards that.
              THE COURT: And-And if, after full legal appeals and so on, you
      did not prevail on the legal defenses, and the constitutional argument,
      would you then expect that at some point the court would have to conduct a
      hearing in regard to the Kent factors?
              DEFENDANT: That would not be honorable. No. 

              THE COURT: Okay. 

              So, under these circumstances I understand Mr. Dalluge essentially 

      to stipulate. I honor for the record his attempt to distinguish between a
      waiver and a stipulation. But I understand him to stipulate that the-the
      Kent factors alone would result in declination ofjuvenile court jurisdiction
      in this case-Or, in the context of a Dillenburg hearing, would have
      resulted in declination.

RP at 81-82.


                                             9

No. 32063-4-III
State v. Dalluge


       The court continued with the remaining issues and at the conclusion ofthe

hearing, took the matter under advisement pending supplemental briefing. But it also

entered an order setting forth the parties' stipulation and other matters; in relevant part,

the order states that "[t]he parties stipulate that an application of the factors identified in

Kent v. United States would, without consideration ofDefendanfs constitutional

arguments and legal defenses, result in declination ofjuvenile court jurisdiction in this

cause." CP at 131-32 (citation omitted). The court asked Mr. Dalluge ifhe had any

issues with the form of the order and Mr. Dalluge answered, "No, I don't, your Honor."

RP at 91. Once prepared, Mr. Dalluge signed the order, indicating, as the prosecutor did,

"Copy received and approved for entry." CP at 132.

       Following the hearing, the State filed a response brief and Mr. Dalluge filed his

reply. The court issued a written memorandum concluding that Mr. Dalluge's legal

defenses to the Dillenburg hearing were without merit. It also stated:

       The court concludes, on the parties' stipulation, that application of the legal
       standards for declination ofjuvenile court jurisdiction, had they been
       addressed prior to adult division proceedings in this case, would have
       resulted in declination.

CP at 160. It therefore ruled that ''the conviction in this case remains intact and no new

trial is ordered." Id. Mr. Dalluge filed, and the court denied, a motion for

reconsideration. Mr. Dalluge appeals.




                                               10 

No. 32063-4-111
State v. Dalluge


                                        ANALYSIS

       Mr. Dalluge has accepted representation by counsel on appeaL His five

assignments of error are variations on arguments that the trial court erred by accepting his

stipulation and by failing to make necessary and adequately supported findings, including

that declination ofjuvenile jurisdiction was in Mr. Dalluge's or the public's best interest.

       As aptly summarized by the superior court:

       A Dillenburg hearing is ordered when a matter has been prosecuted to
       conviction in Superior Court without a legally-required declination hearing
       in juvenile court. The hearing is intended to answer this question: if the
       court had conducted a declination hearing before the adult court
       prosecution, applying the factors identified in Kent v. United States, would
       the juvenile court have declined jurisdiction? If the answer is "yes," the
       adult court conviction stands; if "no," the conviction is vacated and a new
       trial ordered.

CP at 158 (emphasis omitted) (citation omitted). The State was required to show that

declination would have been appropriate in 1998 by a preponderance of the evidence. Cf

State v. HD., 119 Wn. App. 549, 551, 81 P.3d 883 (2003) (decision to decline

jurisdiction over a juvenile charged with a crime is subject to preponderance standard).

This court reviews a decision to decline jurisdiction for abuse of discretion. Id. at 556.

                             Failure to Consider Kent Factors

       Mr. Dalluge contends that the court abused its discretion when it failed to

independently consider the Kent factors despite his request to waive them and his

ultimate stipulation that they would have supported declination. In response, the State



                                             11 

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      No. 32063-4-111
        State v. Dalluge


        argues that Mr. Dalluge is bound by his stipulation and alternatively that if error

        occurred, Mr. Dalluge invited it.

               Mr. Dalluge cites no case law holding that a competent adult-and Mr. Dalluge

        was 33 years old at the time of the Dillenburg hearing-cannot stipulate to facts at such a

        hearing. He relies instead on cases holding that juveniles cannot waive a decline hearing

        and that the juvenile court must independently consider the Kent factors in deciding

        whether declination is in the best interest of the juvenile or the public. The questions

        addressed at a timely decline hearing for a juvenile and a Dillenburg hearing, often

        involving an adult, are similar but not identical. A decline hearing is conducted in

        accordance with statute while a Dillenburg hearing is conducted as prescribed by the

        Dillenburg decision. The ramifications of the two proceedings are vastly different.

               As explained by our Supreme Court in State v. Saenz, 175 Wn.2d 167, 174,283

        P.3d 1094 (2012), when ajuvenile facing criminal prosecution waives juvenile court

        jurisdiction

               he or she also waives the increased protections of the juvenile justice
               system, exiting a system designed to rehabilitate and entering a system
               designed to punish. This exit is a one-way street with no return: by waiving
               juvenile jurisdiction once, the juvenile enters the adult system permanently,
               forfeiting the right to be tried in juvenile court for all future offenses. RCW
                13.40.020(14); State v. Sharon, 100 Wn.2d 230,231,668 P.2d 584 (1983).
               Thus, moving a case from juvenile court to adult court is "a 'critically
               important' action determining vitally important statutory rights of the
               juvenile." Kent, 383 U.S. at 556, (citing Black v. United States, 122 U.S.
               App. D.C. 393, 355 F.2d 104, 105 (1965)).


                                                     12 

No. 32063-4-111
State v. Dalluge


       By contrast, an adult being provided retroactive relief through a Dillenburg

hearing has already been prosecuted in adult court. The adult is making a motion for

relief. He or she faces at best, the vacating of the conviction and a new trial (in adult

court), and at worst, that the conviction will stand. Where an adult can choose whether or

not to even request a Dillenburg hearing, we see no reason why he or she cannot

knowingly and voluntarily stipulate to facts for reasons like those Mr. Dalluge identified:

to "save judicial resources and expedite the proceedings." RP at 68-69.

       Even in a criminal trial, a defendant's stipulation to facts--even to elements of a

crime---{}o not need to be accompanied by a colloquy on the record between the

defendant and the trial court. State v. Humphries, 181 Wn.2d 708, 715, 336 P.3d 1121

(2014). "[R]equiring trial courts to question defendants personally as to the voluntariness

of every stipulation would 'needlessly delay and confuse the conduct of a typical triaL'"

Id. (quoting Us. v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980)). Instead, when a

stipulation is agreed to by a defendant's attorney in the presence of the defendant, the

trial court may presume that the defendant consents, unless the defendant objects at the

time the stipulation is made.

       Here, of course, Mr. Dalluge personally agreed to the stipulation. He did so after

the benefit of a colloquy with the trial court. He does not raise any challenge on appeal

to his knowing, voluntary, and intelligent decision to represent himself.




                                             13 

No. 32063-4-III
State v. Dalluge


       The invited error doctrine would provide another basis for affinning the superior

court notwithstanding its acceptance of Mr. Da1luge's stipulation, even if it were error.

The doctrine is applicable when a party '" takes affinnative and voluntary action that

induces the trial court to take an action that party later challenges on appeaL'" Hymas v.

UAP Distrib., Inc., 167 Wn. App. 136, 148,272 P.3d 889 (2012) (quoting Lavigne v.

Chase, Haskell, Hayes & Kalamon, PS, 112 Wn. App. 677, 681, 50 P.3d 306 (2002)). It

was Mr. Dalluge who asked, and persisted in his request, not to address the Kent factors.

Because we fmd no error, however, we need not address invited error further.

                                  Failure to Enter Findings

       Mr. Dalluge also assigns error to the trial court's failure to enter a written finding

that transfer to adult court was in the best interest of the juvenile or the public, which he

contends was required by RCW 13.40.110(4). He argues that "[a] transfer ofjuvenile

jurisdiction to adult court is not valid until the juvenile court has fulfilled its solemn

responsibility to independently detennine that a decline ofjurisdiction is in the best

interest of the juvenile or the public and entered written fmdings to that effect before

transferring the case." Saenz, 175 Wn.2d at 179.

       Here, however, the superior court was not going to be transferring jurisdiction of

Mr. Dalluge's charges to adult court. It was not conducting a decline hearing under

RCW 13.40.110. It was conducting a different sort of hearing, required by court order

and to be conducted in accordance with the procedure prescribed by Dillenburg. The

                                               14 

No. 32063-4-III
State v. Dalluge


Dillenburg procedure is not identical to a decline hearing. While the statutes providing

for decline hearings inform the court's task, the Dillenburg decision requires different

fmdings and a different result.

       Dillenburg requires "a de novo hearing before the superior court as to the

propriety of the challenged transfer, i.e., whether the facts before the juvenile 'session' of

the superior court in the ftrst instance warranted and justifted the transfer for criminal

prosecution." Dillenburg, 70 Wn.2d at 355. At the conclusion of the hearing, Dillenburg

requires only that the court "make ftndings of fact and conclusions of law relative to any

relevant and disputed issue between the prosecuting offtcials and the convicted person."

ld. "In the event it be determined, as a result of such hearing, that the initiating juvenile

court transfer for criminal prosecution was appropriate under all of the circumstances,

then the challenged conviction will stand unless intervening events have so prejudiced the

constitutional rights ofthe convicted person as to compel a different result." ld.

       These are the requirements of Dillenburg, and the superior court's decision

satisfted them. The court concluded, based on the parties' stipulation, that the facts

would have warranted and justifted the transfer for criminal prosecution. It was not

required to make ftndings or conclusions on relevant and disputed issues other than the

parties' legal disputes, because there were no others. It ruled that the conviction would

stand. There were no ftndings or conclusions required of a Dillenburg hearing that the

court failed to make.

                                              15 

No. 32063-4-III
State v. Dalluge


                     STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Dalluge argues that he is

unable to raise any meritorious issues for the court to review because he was not provided

adequate access to the prison's law library. The State responds that it is unable to

ascertain the nature or occurrence of any error and is unable to adequately respond. We,

too, are unable to consider a matter as to which evidence is outside the record. See State

v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). A personal restraint petition

is the appropriate vehicle for bringing such a matter before the court.

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




                                              Si~~1                          (J
WE CONCUR:




Brown, J.




                                             16 

