267 P.3d 369
Wash. Ct. App.2011Background
- Substituted party for a deceased criminal defendant may pursue appeal at public expense only if RAP 15.2(c) indigency standards are met.
- Devlin died after sentencing and notice of appeal; his sister became administrator of the estate and sought substitution.
- The court asked whether the substitute, as estate representative, could rely on the deceased’s order of indigency for public funding.
- Webb v. State held substitution is the route to pursue merits and to challenge financial obligations, not automatic funding under the deceased’s order.
- The majority vacates the original indigency order, remanding to determine estate indigency under RAP 15.2(c); the estate is treated as a quasi-civil appellant rather than the “offender.”
- The decision emphasizes limits on public funding and distinguishes the estate’s status from the actual offender and the constitutional right to counsel at public expense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a substituted party may proceed at public expense under the deceased appellant's order of indigency. | Devlin's estate, as substitute, should inherit indigency status. | Indigency was tied to the deceased; the estate cannot automatically assume that status. | No; the estate must seek indigency under RAP 15.2(c). |
| Whether the estate can rely on RAP 15.2(b) indigency rather than RAP 15.2(c). | Estate should be treated as the deceased’s successor and receive funding. | RCW 10.73.150 funding is for the offender, not the estate. | RAP 15.2(c) governs for non-RAP 15.2(b) cases; substitute must file for indigency under 15.2(c). |
| Whether the estate qualifies as the “offender” under RCW 10.73.150 for appointed counsel. | Estate stands in shoes of Devlin and is entitled to counsel. | Estate is not the offender and not entitled to public funding. | Estate is not the offender; no entitlement to public expense under the statute. |
| What is the appropriate remedy for the substituted party after death of the appellant? | Continue merits review with funding as necessary under substitution. | Merits review may be possible only via abatement and financial relief; funding is not guaranteed. | Estate may pursue indigency under RAP 15.2(c); the original indigency order is vacated and remanded for proper indigency determination. |
Key Cases Cited
- State v. Webb, 167 Wn.2d 470 (2009) (substitution allows heirs to challenge financial obligations and pursue merits without automatic abatement)
- State v. Devin, 158 Wn.2d 157 (2006) (overruled Furth ab initio and allowed merit review where appropriate to restore victim restitution without automatic abatement)
- State v. Furth, 82 Wash. 665 (1914) (abatement ab initio; automatic dismissal of appeal upon defendant's death)
- In re Estate of Hatfield, 46 Wn. App. 247 (1986) (estate substitution considerations in appellate indigency context)
- State v. A.N.J., 168 Wn.2d 91 (2010) (distinguishes right to counsel from right to public funding; critical stages require due process)
- Michels, 150 Wn.2d 159 (2003) (public funding constraints in postconviction or appellate contexts)
- State v. Long, 104 Wn.2d 285 (1985) (distinguishes right to counsel from right to free counsel; public expense not guaranteed)
- City of Spokane v. Kruger, 116 Wn.2d 135 (1991) (limits on right to counsel in certain proceedings)
- Carlin v. State, 249 P.3d 752 (Alaska 2011) (public defender continuation on appeal when estate pursues appeal)
- Surland v. State, 392 Md. 17 (2006) (allowing continued counsel for deceased defendant’s appeal in Maryland)