* State Of Washington, V. I.a., Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 79587-2-1
V.
PUBLISHED OPINION
I.N.A.,
Appellant. FILED: July 29, 2019
DWYER, J. — It sometimes happens that a party's litigation transgressions
are so repeated, and so significant, that justice does not allow for them to be
ignored. Such is the case herein.
I.N.A., a first-time juvenile offender, was sentenced to a manifest injustice
disposition of 24 to 32 weeks in total confinement. She appealed. We granted
the appeal expedited status. But our review has been compromised by the
transgressions of the prosecutor. First, the prosecutor did not timely act to obtain
the proper entry of necessary findings of fact and conclusions of law. After our
clerk of court ordered him to do so, the prosecutor obtained findings and
conclusions—but in an ex parte proceeding of which no notice was given to
I.N.A. or her attorney of record. I.N.A. properly complained of this and briefed
the issue in her merits brief. The prosecutor decided not to address the matter in
the brief of respondent—other than to direct the court's attention to an entirely
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No. 79587-2-1/2
different pleading, in the event that the court was in any way interested in the
State's thoughts on the matter.
So now we have a choice:(1) remand the matter again to the juvenile
court for proper presentation and entry of findings and conclusions (a time-
consuming process completely contrary to our decision to expedite this appeal),
or (2) decide the case as if the findings and conclusions were never entered.
Believing that the State should not be allowed to deprive an incarcerated juvenile
offender of the benefit of expedited review simply by violating applicable rules of
procedure, we choose the latter course. Accordingly, because the manifest
injustice disposition is not supported by findings of fact and conclusions of law
that set forth the juvenile court's basis for varying from a standard range
disposition, we reverse with instructions to impose a standard range disposition.
1
The principles underlying our resolution of the matter are easy to
elucidate.
A juvenile court may depart from a standard range disposition only if it
concludes that a standard range disposition would effectuate a manifest injustice.
RCW 13.40.160(2); State v. Tai N., 127 Wn. App. 733, 741, 113 P.3d 19(2005);
State v. J.N., 64 Wn. App. 112, 113-14, 823 P.2d 1128 (1992). A "manifest
injustice" results if a standard range disposition "would either impose an
excessive penalty on the juvenile or would impose a serious, and clear danger to
society in light of the purposes" of the Juvenile Justice Act of 1977, chapter 13.40
RCW. RCW 13.40.020(19).
2
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No. 79587-2-1/3
When a juvenile court concludes that a manifest injustice disposition is
appropriate, it must "enter[] its reasons for its conclusion." RCW 13.40.160(2).
These must be reduced to formal written findings of fact and conclusions of law if
the case is appealed. JuCR 7.11(d). "The prosecution must submit such
findings and conclusions within 21 days after receiving the juvenile's notice of
appeal." JuCR 7.11(d).
We have previously held that "[b]asic due process and the governing
criminal rules require notice of court proceedings to counsel of record." State v.
Pruitt, 145 Wn. App. 784, 792, 187 P.3d 326 (2008). In that case, we also held
that service upon a party's former lawyer "does not excuse [the]failure to notify
[a party's] appellate counsel, the only counsel of record at the time." Pruitt, 145
Wn. App. at 793. We may "disregard" findings and conclusions that are obtained
without proper notice to counsel. State v. Nava, 177 Wn. App. 272, 289 n.6, 311
P.3d 83(2013). See also State v. Corbin, 79 Wn. App. 446, 451, 903 P.2d 999
(1995)(even when trial counsel remains as counsel of record, notice should also
be given to appellate counsel).
In an appellate court, it is improper to attempt to "incorporate by reference"
into a party's merits brief arguments made in other pleadings. State v. Gamble,
168 Wn.2d 161, 180, 225 P.3d 973(2010)("argument incorporated by reference
to other briefing is not properly before this court"); Diversified Wood Recycling,
Inc. v. Johnson, 161 Wn. App. 859, 890, 251 P.3d 293(2011)("We do not permit
litigants to use incorporation by reference as a means to argue on appeal or to
escape the page limits for briefs set forth in RAP 10.4(b)."); Kaplan v. Nw. Mut.
3
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No. 79587-2-1/4
Life Ins. Co., 115 Wn. App. 791, 801 n.5, 65 P.3d 16 (2003). Instead, the proper
approach is for the attorney to set forth thb party's complete argument in the
argument section of the merits brief. See RAP 10.3(a),(b).
11
A
I.N.A., a first-time juvenile offender, was originally granted a deferred
disposition. She did not satisfy the conditions placed on her and the deferred
disposition was properly revoked. At her new disposition hearing, a standard
range disposition would have called for local sanctions, including the possibility of
several days of incarceration. The juvenile court believed the standard range to
be insufficient. Hence, a manifest injustice disposition of 24 to 32 weeks of total
incarceration was imposed.
As was her right, I.N.A. appealed. We granted the appeal expedited
status. See RAP 18.13. Briefs have been filed. Oral argument has taken place.
As indicated above, the prosecutor did not timely secure the entry of
findings of fact and conclusions of law. Only after this court, by way of a clerk's
order, commanded that it be done were findings and conclusions entered. But
they were entered in an ex parte proceeding, of which no notice was given to
appellant or her counsel of record.
In an adult criminal case, in which sentencing is conducted pursuant to the
Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,the remedy for such
a transgression is clear. When findings of fact and conclusions of law are not
properly entered in support of an exceptional sentence upward, the appellate
4
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No. 79587-2-1/5
court should remand the matter for the proper entry of such findings. State v.
Friedlund, 182 Wn.2d 388, 394-95, 341 P.3d 280 (2015). But, of course, in such
situations, time is not of the essence. An exceptional sentence upward in an
SRA sentencing results in a lengthy term of incarceration—hence, there is plenty
of time to secure necessary findings and conclusions to permit proper appellate
review.
But is that the proper remedy here? Is it so that the only remedy available
to I.N.A. for the State's transgressions is another remand?
Two concerns are significant. First, we have already remanded this
matter for the proper entry of findings and conclusions. Unfortunately, our first
order did not bring about the necessary compliance. Must we simply repeat
ourselves?
Second, here, time is of the essence. This is an expedited appeal. I.N.A.
is serving a term of weeks—not years—in total custody. At oral argument, it
became clear that, if we remand the matter yet again for proper entry of the
findings and conclusions, I.N.A. will have served her entire term of incarceration
before the matter can be returned to us for decision.
Our Supreme Court(and the United States Supreme Court) have made it
clear that, in the criminal justice system, "children are different." State v.
Houston-Sconiers, 188 Wn.2d 1, 8, 391 P.3d 409(2017)(quoting Miller v.
Alabama, 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)). Our
Supreme Court has repeatedly cited the special concerns attendant to youth as a
5
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No. 79587-2-1/6
reason to, under appropriate circumstances, treat youthful offenders differently
than we treat older offenders. See, e.o., Houston-Sconiers, 188 Wn.2d at 9;
State v. Ramos, 187 Wn.2d 420, 443-44, 387 P.3d 650, cert. denied, 138 S. Ct.
467, 199 L. Ed. 2d 355 (2017); State v. O'Dell, 183 Wn.2d 680, 697-98, 358 P.3d
359 (2015). Treating youthful offenders differently can, of course, mean
resolving their cases differently by imposing different remedies.
Accordingly, in this case, given that time is of the essence, given that the
passage of time can completely deprive I.N.A. of the benefit of the expedited
review that she properly sought and was granted, and given that we have once
before (albeit unsuccessfully) remanded this matter for proper entry of findings
and conclusions, we will not yet again impose remand as a remedy. Instead, we
will proceed with our review as if no findings and conclusions had been entered.
This is the only fair remedy available.
Ill
When a juvenile's case is appealed, a manifest injustice disposition must
be accompanied by written findings of fact and conclusions of law setting forth
the juvenile court's reasons for not imposing a standard range disposition. RCW
13.40.160(2); JuCR 7.11(d). Given our resolution of the issue presented in
Section II, the challenged disposition herein is not supported by the necessary
findings. Thus, the juvenile court's decision cannot be upheld.
6
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No. 79587-2-1/7
Accordingly, we remand this matter to the juvenile court with instructions
to vacate the manifest injustice disposition and impose a standard range
disposition.
Reversed.
WE CONCUR:
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7
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