* State v. M.N.H.

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
M.N.H.,
Petitioner.
NO. 100319-6
EN BANC
Filed: _____________
PER CURIAM—M.N.H., a juvenile, seeks review of a Court of Appeals
decision affirming the juvenile court’s imposition of 10 days of confinement for
M.N.H.’s failure to comply with the terms of community supervision. State v. M.N.H.,
19 Wn. App. 2d 281, 495 P.3d 263 (2021). We grant review and reverse the Court of
Appeals. We hold that 13-year-old M.N.H. had a statutory right to advice of her right
to counsel and a statutory right to counsel at that hearing. We therefore reverse.
FACTS
In March 2019, M.N.H., who was then 13 years old, pleaded guilty to fourth
degree assault after consulting with counsel. The juvenile court imposed three days of
confinement and suspended the balance of the sentence on condition that M.N.H.
comply with the terms of community supervision and community service. M.N.H.
subsequently violated some conditions of her community supervision, resulting in
several revocation hearings and additional periods of confinement.
M.N.H. appeared for one such violation hearing on May 7, 2019, without
counsel. The State informed the court that M.N.H.’s father and her attorney were both
March 17, 2022
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
MARCH 17, 2022
ERIN L. LENNON
SUPREME COURT CLERK
FILE
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
MARCH 17, 2022
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NO. 100319-6. 	PAGE 2
unable to attend the hearing and requested a continuance. The court ordered that M.N.H.
be held on bail and set the hearing for the next day. Without prompting, M.N.H.
apologized to the court for coming back and stated that it would be the last time. M.N.H.
appeared in court with her attorney the next day and admitted the violations.
In 	October 	2019, 	M.N.H. 	appeared 	in 	court 	with 	counsel 	to 	contest
allegations that she failed to attend school and failed to follow parental rules and curfew.
The court found that M.N.H. violated the disposition order. It imposed a sanction of 10
days of confinement, which it suspended at M.N.H.’s request.
In November 2019, M.N.H. returned to court to face allegations of further
violations. Her lawyer was not present. At this hearing, the court summarily revoked
the previously imposed suspended sentence and ordered M.N.H. to serve 10 days of
confinement (with credit for 1 day served).
Although M.N.H.’s assignments of error on appeal were technically moot by
the time she appealed the 10-day incarceration sanction (because she had already served
that time), the Court of Appeals elected to review two of M.N.H.’s claims. It declined,
however, to review M.N.H.’s contention that the juvenile court violated her statutory
right to counsel, concluding that she waived the argument by not objecting in the trial
court. We exercise our discretion to review M.N.H.’s statutory right to counsel claim.
See State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015) (this court has
discretionary authority to review claims raised for the first time on appeal).
ANALYSIS
RCW 13.40.140 provides a juvenile with the statutory right to counsel at all
“critical stages” of the proceedings, unless the juvenile “waive[s]” that right. RCW
13.40.140(2). That right to counsel attaches at any proceeding in which the juvenile
faces the “danger of confinement.” Id. The record here reflects that 13-year-old M.N.H.
not only faced the “danger of confinement,” she was actually confined for 10 days as a
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NO. 100319-6. 	PAGE 3
result of the court’s decision at the November 2019 hearing, which proceeded without
counsel.
This right to counsel comes with a statutory directive that the juvenile and
their parent, guardian, or custodian “shall be advised by the court” about the right to
representation. Id. The juvenile shall be fully advised of their right to an attorney and
of the relevant services an attorney can provide. Id. In order for any purported waiver
of this right to counsel to be effective, it must be “an express waiver intelligently made
by the juvenile after the juvenile has been fully informed of the right being waived.”
RCW 13.40.140(10).
None of that happened here. The record shows that the court failed to advise
M.N.H., her family, or anyone else of the right to counsel. Understandably, M.N.H. did
not raise the issue herself, nor was she required to do so. Lastly, even if a juvenile could
waive the right to counsel without being advised of the right and without the opportunity
to consult with counsel, a matter we need not decide, M.N.H. did not do so here. The
record is silent on waiver, and, at a bare minimum, a 13-year-old cannot waive counsel
based on a silent record.
The prerequisites to the attachment of the statutory right to counsel were
therefore satisfied in this case. And the right was violated.
The Court of Appeals declined to reach this statutory issue in part because
M.N.H. did not object; that court referred to the right to counsel challenge as an “alleged
procedural misstep[].” 	M.N.H., 19 Wn. App. 2d at 285-86, 286 n.2. But M.N.H. was
13 years old. She was not told that she had a right to counsel to assert. She did not
consult with counsel before deciding whether she should give up this valuable right.
The court did not even ask whether M.N.H. waived her right to counsel. We therefore
disagree with the Court of Appeals’ conclusion that we can infer that M.N.H. waived
her right from the silent record.
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NO. 100319-6. 	PAGE 4
The Court of Appeals also declined to reach this statutory issue in part
because M.N.H. had already served her time and, hence, it could provide no effective
relief—in other words, the case was moot. We agree. But given the importance of the
guiding hand of counsel, particularly for a juvenile, we conclude that this issue falls
within an exception to the mootness doctrine. See State v. Hunley, 175 Wn.2d 901, 907,
287 P.3d 584 (2012) (this court may retain and decide a technically moot appeal if it
involves matters of continuing and substantial public interest).
The State asserts that any error in depriving M.N.H. of her right to counsel
at the November 2019 hearing at which she received the 10-day sanction was harmless,
so she is not now entitled to relief. But as discussed above, this case is moot. There is
no adequate relief that this court can provide anyway.
We therefore grant discretionary review and reverse the Court of Appeals’
decision that 13-year-old M.N.H. silently waived her statutory right to counsel at the
November 2019 hearing. 	We hold that the statutory right to counsel attached, the
statutory right to counsel was not waived, and the statutory right to counsel was
violated.
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