9 NICS App. 82, CHEHALIS TRIBE v. YOUCKTON (March 2010)
IN THE CHEHALIS TRIBAL COURT OF APPEALS
CHEHALIS INDIAN RESERVATION
OAKVILLE, WASHINGTON
Chehalis Indian Tribe, Appellee,
v.
Anthony Youckton, Jr., Appellant.
No. CR 06/08-099 CR-T-04/08-060 CR-T-04/08-061 (March 3, 2010)
SYLLABUS*
Trial court issued orders adverse to the defendant in several criminal proceedings. Defendant initially appealed, then filed a “motion for remand” instead of a brief. Court of Appeals holds that appellant’s repeated failures to file a brief in compliance with the code and the Court’s orders preclude appellate review. Appeal dismissed.
Before: Randy A. Doucet, Chief Judge; Raquel Montoya-Lewis, Associate Judge; Suzanne Ojibway Townsend, Associate Judge.
Appearances: Paula T. Olson, Attorney for Appellant Anthony Youckton, Jr.; Annie Harlan, Attorney for Appellee Chehalis Tribe.
OPINION
Doucet, C.J.:
PROCEDURAL BACKGROUND
Anthony Youckton, Jr., Appellant, filed a Notice of Appeal on June 10, 2009, seeking review of decisions entered by the trial court on May 27, 2008, in case numbers CR 06/08-099, CR-T-04/08-060 and CR-T-04/08-061.
The appeal was accepted on July 6, 2009. In the order accepting the appeal the parties were required to file with the Clerk of Court a stipulated briefing schedule on or before July 17, 2009. On August 3, 2009, the parties filed a stipulated briefing schedule that required
9 NICS App. 82, CHEHALIS TRIBE v. YOUCKTON (March 2010) p. 83
Appellant’s opening brief to be filed on November 2, 2009. On August 28, 2009, the Court of Appeals adopted the stipulated briefing schedule. Oral arguments were set for January 15, 2010.
On December 2, 2009, Youckton filed a Motion for Extension of Time to File Opening Brief. Youckton’s opening brief was already one month late. This Court issued the following order granting the requested extension:
Counsel is ultimately responsible for adhering to all filing dates in the scheduling order, because attorneys are responsible for the acts or omissions of legal staff under their control. Ordinarily, this Court would not grant an extension based merely on counsel’s failure to properly calendar a briefing due date. However, because counsel declares under oath that the Tribe does not oppose the motion and that the extension may facilitate a settlement or at least a narrowing of the issues on appeal, this Court hereby grants the motion and adopts the briefing schedule set forth in the declaration of counsel supporting the motion.
Appellant’s opening brief shall be due January 19, 2010.
Appellee’s response brief shall be due February 16, 2010.
Appellant’s reply brief shall be due March 1, 2010.
The parties shall comply with all rules concerning the formatting, filing, and service of briefs set forth in Chehalis Appellate Rules 6.08.020, .030 and .040.”(Emphasis added).
On January 20, 2010, one day past the due date for Appellant’s opening brief, Youckton’s attorney filed an “Appellant’s Motion for Remand.” The Tribe filed a response brief to the motion on February 5, 2010. Youckton’s motion sought to remand the case back to the trial court to consider new evidence that Youckton asserts is material to the issues in case # CHE-Cr-06/08-099. This case involved violations of an Order of Protection by text messages and telephone contacts with the protected party. The purported new evidence is that the protected party, Tyanna Canales, turned 18 years old on November 12, 2009. She is now in a relationship with, and considering marrying, Youckton. Now, as an adult, Canales is able to appear on her own behalf and presumably testify in favor of Youckton.
DISCUSSION
The general preference for appellate courts is to decide cases on the merits. However, when the rules of appellate procedure do not allow for the exercise of discretion, or when the court has issued specific orders, then the Court of Appeals must follow the dictates of the law and rules of procedure.
9 NICS App. 82, CHEHALIS TRIBE v. YOUCKTON (March 2010) p. 84
Youckton’s attorney calls the Motion for Remand an "opening brief" (see page 1, first sentence), but the “brief” does not address any of the issues raised in the Notice of Appeal, nor does it conform to RAP 6.08.030, “Content of Appellant's Brief”. Both parties were required to follow all “rules concerning the formatting, filing, and service of briefs set forth in Chehalis Appellate Rules 6.08.020, .030 and .040.” See Court of Appeals Order Granting Motion for Extension. Youckton’s Motion for Remand is a motion both in form and content. Youckton was required to file an opening brief.
The scope of review for an appeal is limited to review of the 1) record of proceedings..., 2) errors...raised by Appellant in his written brief, and 3) oral argument.... RAP 6.03.030. Without an appellant’s brief, that leaves this Court with only the record of proceedings to review. It is not for this Court to review the record and develop the issues and arguments for Appellant. RAP 6.08.050 requires the Court of Appeals to schedule oral arguments within 30 days of the date the last brief is allowed to be filed. The last brief was scheduled to be filed on February 16, 2010. RAP 6.08.060 provides that the parties may present "any arguments raised in the briefs at the hearing." Without an appellant's brief there is no point in hearing oral argument.
Parties are allowed to bring motions in the Court of Appeals. RAP 6.08.010. Appellant’s motion requested the Court of Appeals to remand this case to the trial court to consider additional evidence under RAP 6.08.070. Appellant’s Motion for Remand, P. 3. The rule cited by Youckton does not authorize remand, but only applies to appellate review of additional evidence by the Court of Appeals.
Finally, the Court of Appeals is troubled by the timing of Appellant’s motion. Appellant’s opening brief was originally due on November 2, 2009. This date was stipulated to by the parties. Appellant’s counsel was already one month late for filing an opening brief when she requested an extension. During the period of the missing brief, the protected victim’s 18th birthday occurred on November 12, 2009, resulting in the purported new evidence.1 Rather than seek an additional extension to file an opening brief, Appellant’s counsel missed the filing date for a second time. Appellant’s opening brief has never been filed.
Appellant has failed to file an opening brief pursuant to the Court’s briefing schedule order. This appeal cannot proceed and must be dismissed.
9 NICS App. 82, CHEHALIS TRIBE v. YOUCKTON (March 2010) p. 85
ORDER
IT IS THEREFORE ORDERED that Appellant’s appeal is dismissed. The stay of proceedings in the trial court is hereby vacated.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
This Court makes no ruling today on the issue of whether the proffer of testimony not developed or presented at a trial should actually be considered “new evidence” simply because a witness or victim turns eighteen subsequent to the trial and then wishes to amend his or her testimony.