State Of Washington v. Dale Russell Lieschner, 73098-3

In Nov. 2013 a jury convicted Dale Lieschner of possession with intent to deliver; on Dec. 24, 2013 the court imposed a 60‑month standard‑range sentence and advised him of the 30‑day appeal deadline both orally and in the judgment.
Lieschner did not file a notice of appeal within 30 days. Over a year later (Feb. 6, 2015) he filed a notice of appeal and a motion to enlarge time, claiming he told trial counsel Brian Ashbach immediately after sentencing to file an appeal and that counsel agreed but failed to do so.
The trial court held an evidentiary hearing. Ashbach testified Lieschner told him he did not want to pursue an appeal; Ashbach asked Lieschner to notify him if he changed his mind. Ashbach denied any instruction to file an appeal.
Lieschner testified he told Ashbach to file an appeal, believed an appeal was in progress while incarcerated, and only later discovered no appeal had been filed. He admitted knowledge of the 30‑day deadline and prior experience with a pro se appeal.
The trial court found Ashbach credible and Lieschner not credible, concluding Lieschner knowingly, intelligently, and voluntarily waived his right to appeal by telling counsel not to file. The court remanded findings to this court; the Court of Appeals denied the motion to enlarge time to file notice of appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to enlarge time to file untimely notice of appeal (RAP 18.8)	Lieschner: counsel agreed to file appeal after sentencing; late filing should be allowed because counsel failed to file	State: Lieschner knew right to appeal, knew deadline, and told counsel he did not want to appeal; waiver was knowing and voluntary	Denied — State met burden; waiver upheld
Whether counsel was ineffective for not consulting about appeal consequences	Lieschner: brief discussions were insufficient; counsel should have advised advantages/disadvantages, so waiver may be invalid	State: counsel discussed appeal; Lieschner told counsel not to appeal; any failure to consult caused no prejudice	No prejudice shown; ineffective assistance claim fails
Whether inaction can constitute waiver	Lieschner: reliance on counsel's alleged promise meant inaction was reasonable	State: inaction plus defendant’s knowledge and statement not to appeal supports waiver	Court treats inaction as evidence of waiver where defendant understood right and consciously relinquished it
Burden to prove waiver of constitutional right to appeal	Lieschner: State must show waiver was knowing, intelligent, voluntary; failure to consult may affect analysis	State: met burden via testimony and findings that defendant was informed and told counsel not to appeal	State satisfied burden; waiver established

State v. Kells, 134 Wn.2d 309 (discusses balance between strict filing deadlines and constitutional right to appeal)
State v. Sweet, 90 Wn.2d 282 (State bears burden to show waiver of right to appeal)
State v. Tomal, 133 Wn.2d 985 (inaction can be used to prove waiver)
State v. Chetty, 167 Wn. App. 432 (ineffectiveness of counsel can bear on validity of waiver)
State v. Chetty, 184 Wn. App. 607 (failure to advise on consequences and consult may invalidate waiver)
Roe v. Flores‑Ortega, 528 U.S. 470 (Strickland framework for counsel’s failure to file notice of appeal)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
State v. McFarland, 127 Wn.2d 322 (ineffective assistance claims assessed on record below)
State v. Wicker, 105 Wn. App. 428 (attorney’s failure to timely file notice of appeal is professionally unreasonable)