State Of Washington v. Andre Franklin Jr. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80345-0-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ANDRE FRANKLIN JR,
Appellant.
COBURN, J. — In 2016, the State charged Andre Franklin Jr., then
16-years-old, as an adult with robbery in the first degree and possession of a
stolen vehicle in King County Superior Court. The matters were eventually
resolved in juvenile court and those juvenile records were later sealed. Franklin
unsuccessfully moved to seal the records of the adult charges he received as a
juvenile and now appeals. After filing his notice of appeal, Franklin was charged
with three new serious violent felonies and his juvenile records of the 2016
incident are no longer sealed. The State argues his appeal is moot because this
court can no longer provide effective relief. We agree and dismiss.
FACTS
On January 10, 2016, then 16-year-old Franklin and three of his friends
took Uber driver Joseph N. Atak’s Dodge Stratus at gunpoint. Under
Washington’s auto-decline laws, the State charged Franklin as an adult for the
Citations and pin cites are based on the Westlaw online version of the cited material.
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crime of robbery in the first degree and possession of a stolen vehicle. After plea
negotiations, the superior court dismissed the case and the State refiled the
matters in juvenile court where Franklin pleaded guilty to attempted robbery in
the second degree and unlawful possession of a firearm in the second degree.
In September 2018, Franklin successfully moved to seal his juvenile court
records under RCW 13.50.260. In April 2019, Franklin moved to seal the
superior court records of the adult charges filed for the same matters. The State
did not object to the motion but requested a hearing for the superior court to
weigh the five factors articulated in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30,
640 P.2d 716 (1982) and GR 15. During the hearing, the superior court
reminded the parties that Washington State Constitution article I, section 10
establishes a presumption of openness and Washington courts disfavor sealing
court records. The superior court considered the Ishikawa factors and denied
Franklin’s motion to seal.
Franklin appeals arguing state constitution article I, section 10’s
presumption of openness, and thus, the Ishikawa factors, does not apply to
superior court records of adult charges for matters involving juveniles when those
matters were ultimately resolved and sealed in juvenile court. In the alternative,
Franklin argues that the superior court’s “application of each of [the Ishikawa]
factors was flawed because at no time did the court give any weight to the fact
that Mr. Franklin’s offense was committed when he was a child, adjudicated and
sealed in juvenile court, and that he had a significant interest in privacy and
rehabilitation.”
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Four months after Franklin filed his notice of appeal, Franklin allegedly
committed robbery in the second degree and two counts of robbery in the first
degree. The State filed charges in March 2020. The State obtained a court
order confirming the nullification of the motion to seal Franklin’s juvenile court
records under RCW 13.50.260(8)(b). 1
DISCUSSION
We review a superior court’s decision to seal or nullify a previous order to
seal records for abuse of discretion. State v. Richardson, 177 Wn.2d 351, 357,
302 P.3d 156 (2013).
Article I, section 10 of the state constitution provides, “Justice in all cases
shall be administered openly, and without unnecessary delay.” We commonly
refer to this section as establishing a constitutional presumption of openness.
We apply this presumption to keep court records open to review by the general
public. To determine whether the moving party has overcome the presumption
and is entitled to seal their court records—thereby restricting public access to the
records—a superior court will apply the following five Ishikawa factors:
1. The proponent of closure [and/]or sealing must make some
showing of the need for doing so, and where that need is based on
a right other than an accused’s right to a fair trial, the proponent
must show a ‘serious and imminent threat’ to that right.
1 The State filed a motion to designate records of Franklin’s subsequent
felony charges and the order nullifying the previous order sealing his juvenile
court records. A commissioner of this court granted the State’s motion. Franklin
requests this court strike reference to those documents. We deny that request
because the records are the basis of the State’s mootness argument and
Franklin was given an opportunity to brief that issue. RCW 13.50.260(8)(b)
states that “[a]ny charging of an adult felony subsequent to the sealing [of the
juvenile records] as the effect of nullifying the sealing order.”
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2. Anyone present when the closure [and/or sealing] motion is
made must be given an opportunity to object to the closure.
3. The proposed method for curtailing open access must be the
least restrictive means available for protecting the threatened
interests.
4. The court must weigh the competing interests of the proponent of
closure and the public.
5. The order must be no broader in its application or duration than
necessary to serve its purpose.
State v. Parvin, 184 Wn.2d 741, 765-66, 364 P.3d 94 (2015) (alteration in
original) (quoting Allied Daily Newspapers of Washington v. Eikenberry, 121
Wn.2d 205, 210-11, 848 P.2d 1258 (1993) (citing Ishikawa, 97 Wn.2d at 36-39)).
Our legislature treats juvenile court records “as different from adult
criminal court records and [juvenile court records] have been subject to
legislation providing increased confidentiality for them.” State v. S.J.C., 183
Wn.2d 408, 430, 352 P.3d 749 (2015); See RCW 13.50.260, RCW 13.50.250.
As the Supreme Court explained:
[W]e have always recognized that the legislature is in the unique
and best position to publicly weigh the competing policy interests
raised in the juvenile court setting, particularly as it pertains to the
openness of juvenile court records. As discussed above, from the
time of this state’s first juvenile court legislation, statutes have
consistently provided for distinctive treatment and enhanced
confidentiality of juvenile court records. Our own precedent holds a
presumption of openness is not constitutionally required because of
the fundamental differences between a juvenile offender
proceeding, which seeks to rehabilitate the juvenile, and an adult
criminal proceeding, which seeks to deter and punish criminal
behavior.
S.J.C., 183 Wn. 2d at 422.
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Waiver
Franklin argues the presumption of openness does not apply to court
records involving a juvenile charged as an adult and ultimately convicted in
juvenile court. The State argues that because Franklin did not raise this
argument below, Franklin waived this argument and we should deny
consideration. Franklin does not deny he failed to make this argument before the
superior court but argues he raises a manifest constitutional error that is
reviewable for the first time on appeal under RAP 2.5(a)(3).
Generally, we will not consider issues raised for the first time on appeal.
State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2019). We recognize an
exception to that rule where the appellant raises a “manifest error affecting a
constitutional right” for the first time on appeal. RAP 2.5(a)(3). To establish a
manifest error affecting a constitutional right, the appellant must identify a
constitutional error and show how the error likely prejudiced their rights at trial.
State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). “It is this
showing of actual prejudice that makes the error ‘manifest,’ allowing appellate
review.” Id. at 927 (citing State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d
1251 (1995)). “Thus, a court previews the merits of the constitutional argument
first raised on appeal to determine if it is likely to succeed.” State v. Reeder, 181
Wn. App. 897, 912, 330 P.3d 786 (2014).
Franklin has not raised a manifest constitutional error for two reasons.
First, Franklin does not have a constitutional right to seal his records. In fact, the
state constitution article I, section 10 does the opposite, and the proponent of
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sealing has the burden of overcoming the presumption of openness through the
Ishikawa analysis. 97 Wn.2d at 37-38. Second, the basis to seal juvenile court
records is statutory, not constitutional. Thus, Franklin waived this argument.
Mootness
In the alternative, Franklin argues that the superior court abused its
discretion because its application of the Ishikawa factors was flawed “because at
no time did the court give any weight to the fact that Mr. Franklin’s offense was
committed when he was a child, adjudicated and sealed in juvenile court, and
that he had a significant interest in privacy and rehabilitation.” The crux of
Franklin’s argument during the motion to seal was that Franklin’s “juvenile court
record has now been sealed.” As Franklin’s counsel articulated,
So I’d argue that not only the fact that he was 16 years old when
this happened but the fact that it’s already been sealed by another
department of the superior court. Both of those weigh towards
defeating the presumption of not sealing.
The State contends Franklin’s argument became moot when the superior
court nullified the previous order sealing Franklin’s juvenile court records after the
State charged Franklin as an adult with new felonies.
Generally, we do not consider moot issues. State v. T.J.S.-M., 193 Wn.2d
450, 454, 441 P.3d 1181 (2019). “A case is moot if we can no longer provide
effective relief on appeal.” Id. at 454.
Franklin argues that this court could still provide effective relief because
the adult charges Franklin received as a juvenile would be removed from public
view regardless of what happens in the future with his juvenile court file. We
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disagree. We can no longer provide effective relief because the juvenile court
records related to the same adult charges filed in superior court are no longer
sealed. As the State and lower court noted, even if the records of the adult
charges Franklin received as a juvenile were to be sealed, the existence of a
court file sealed in its entirety is available for viewing by the public on court
indices, which includes the case number, names of parties, case type, and
charges in criminal cases. GR 15(c)(4).
Franklin argues that even if this issue is technically moot, we should
review it because it “involves ‘matters of continuing and substantial public
interest.’ ” State v. B.O.J., 194 Wn.2d 314, 321, 449 P.3d 1006 (2019) (citations
omitted). We consider three criteria in determining whether “a sufficient public
interest is involved: (1) the public or private nature of the question presented;
(2) the desirability of an authoritative determination which will provide future
guidance to public officers; and (3) the likelihood that the question will recur.” Id.
at 321. “The continuing and substantial public interest exception has been used
in cases dealing with constitutional interpretation, the validity of statutes or
regulations, and matters that are sufficiently important to the appellate court.
This exception is not used in cases that are limited to their specific facts.” State
v. Beaver, 184 Wn. 2d 321, 331, 358 P.3d 385, 390 (2015). In considering
mootness, appellate courts also “consider the likelihood that the issue will never
be decided by a court due to the short-lived nature of the case.” B.O.J., 194 Wn.
2d at 321 (quoting Philadelphia II v. Gregoire, 128 Wn.2d 707, 712, 911 P.2d 389(1996)).
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Franklin argues that even if his appeal to seal is moot, his case “raises a
constitutional question about the presumption of open courts in relation to adult
records created for juvenile offenders.” Despite Franklin’s attempt to frame the
issue as a constitutional question, Franklin is actually asserting the statutory right
to sealing juvenile court records extends to the records of his charges filed in
adult court when he was a juvenile. That is not a constitutional right.
Also, Franklin has not persuaded us that individuals who have had their
juvenile records sealed will not be able to seal related records of their adult
charges in superior court as long as they satisfy the Ishikawa factors. 2 This also
is not a circumstance where the short-lived nature of the case would prevent it
from being decided by a court. Franklin’s argument that we should disregard the
mootness of this case because the issue concerns matters of continuing and
substantial public interest is unpersuasive.
We dismiss the appeal as moot.
WE CONCUR:
2 As the lower court found, “Franklin asserts in his unsworn Brief that
‘[h]aving applied for numerous positions at various companies, [Franklin] has not
been successful in gaining employment.” Yet at the June 26 hearing, Franklin
said that he has obtained ‘temp service jobs.’ ” The first Ishikawa factor requires
the proponent of sealing to make some showing of the need for doing so, and
where that need is based on a right, the proponent must show a ‘serious and
imminent threat’ to that right. Ishikawa, 97 Wn.2d at 36-38.
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