Opinion
A160399
08-31-2020
In re PATRICK SEAN O'HEARN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC206592)
In this petition for writ of habeas corpus, Patrick O'Hearn seeks an order directing the superior court to issue a certificate of probable cause, which would allow him to pursue an appeal from the superior court's denial of his motion to withdraw a guilty plea in a related case.
On December 3, 2018, petitioner pled guilty to the making of criminal threats in violation of Penal Code section 422 and admitted a probation violation, in exchange for which two other probation violations were dismissed with Harvey waivers. On July 8, 2019, petitioner filed a motion to withdraw his plea (§ 1018) on the grounds that his former attorney, Manton Selby, provided ineffective assistance of counsel with respect to the plea proceedings and the plea was not voluntary. On September 26, 2019, after conducting a hearing at which petitioner and Selby both testified, the court denied the motion to withdraw the plea.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
People v. Harvey (1979) 25 Cal.3d 754.
Attorney Michael Coffino represented petitioner in moving to withdraw the plea and prepared and signed the notice of appeal from denial of the motion. Coffino filed a timely notice of appeal, but failed to "file[] with the court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," as required by section 1237.5 and rule 8.304(b) of the California Rules of Court.
Further rule references are to the California Rules of Court.
In connection with this appeal (which was given case No. A158676), court-appointed appellate counsel filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. After reviewing the record, it became apparent to us that appellate counsel did not file a Wende brief due to a determination that petitioner lacked any arguable basis upon which to challenge the ruling on the motion to withdraw the plea. On the contrary, we assume counsel was aware petitioner possessed such an arguable issue but filed a Wende brief because Coffino had not complied with section 1237.5 and rule 8.304(b). Rule 8.304(b) provides that if the defendant does not file a required statement or the superior court denies the certificate of probable cause, "the superior court clerk must mark the notice of appeal 'inoperative,' notify the defendant, and send a copy of the marked notice of appeal to the district appellate project." (Rule 8.304(b)(3).)
We grant petitioner's request that we take judicial notice of the transcripts, files, briefs, motions, and records in People v. Patrick Sean O'Hearn, case No. A158676. (Evid. Code, §§ 452, subd. (d)(1), 453, 459.)
On May 18, 2020, we ordered petitioner to file a supplemental brief in case No. A158676 addressing three issues: (1) whether Coffino's failure to comply with section 1237.5 constituted ineffective assistance of counsel; if so, (2) whether there is any way in which the appeal in case No. A158676 may be rendered cognizable that does not offend the principle announced in People v. Mendez (1999) 19 Cal.4th 1084 (Mendez); and, if not, (3) whether any other remedy may be available.
In response, petitioner contended that the failure to comply with section 1237.5 constituted ineffective assistance of counsel, that claim could not be adjudicated in his appeal, and the sole remedy available to him was a habeas corpus petition based on ineffective assistance. The Attorney General agreed that a habeas petition is the appropriate means by which petitioner can present his claim of ineffective assistance of counsel by Coffino.
Accordingly, petitioner filed the present petition for writ of habeas corpus on July 2, 2020. Petitioner asks us to find that Coffino provided ineffective assistance in filing the notice of appeal without complying with section 1237.5 and rule 8.304(b), thereby foreclosing a direct appeal of the order denying his assertedly meritorious motion to withdraw his plea. Petitioner also seeks an order directing the trial court to grant him a certificate of probable cause and, thereafter, authorizing petitioner to submit supplemental briefing in appeal No. A158676, challenging the denial of his motion to withdraw the plea. On July 27, 2020, we ordered the Attorney General to show cause why the relief requested in the petition should not be granted. On July 31, 2020, the Attorney General elected to submit its July 21, 2020 informal response as the return. Petitioner filed the traverse on August 5, 2020.
As we will explain, we agree the relief petitioner seeks is warranted.
FACTS AND PROCEEDINGS BELOW
The facts relating to the filing of the notice of appeal and the failure to request a certificate of probable cause are as follows:
Petitioner's motion to withdraw the plea was denied on September 26, 2019, and the notice of appeal was timely filed on October 8, 2019. A bolded "Notice" on the face of the notice of appeal form states that it must be filed within 60 days after the trial court rendered the judgment being appealed, and that "[i]f your appeal challenges the validity of a guilty plea . . . you must also complete the Request for Certificate of Probable Cause on page 2 of this form. (Pen. Code, § 1237.5.)" The form notice indicates counsel must complete "either" "item a." or "item b." and states in bolded print that counsel should "not complete both."
Judicial Council Form CR 120, as revised in 2017.
Item a. is applicable if the appeal "is after entry of a plea of guilty or no contest or an admission of a probation violation; item b applies to "all other appeals." If, as in this case, it is appropriate to complete item a., the defendant or counsel must check one or more of four boxes indicating, respectively, that: (1) "This appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea (Cal. Rules of Court, rule 8.304(b))"; (2) "This appeal is based on the denial of a motion to suppress evidence under Penal Code section 1538.5"; (3) "This appeal challenges the validity of the plea or admission," in which case the defendant "must complete the Request for Certificate of Probable Cause on page 2 of this form and submit it to the court for its signature"; and (4) "Other basis for this appeal," in which case the defendant must also "complete the Request for Certificate of Probable Cause on page 2 of this form and submit it to the court for its signature," specifying the basis of the appeal.
Here, Coffino checked only the first box of item a., indicating O'Hearn's appeal "is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." This was a mistake; counsel should have checked box 3, indicating that the "appeal challenges the validity of the plea or admission," and followed the direction to "complete the Request for Certificate of Probable Cause on page 2 of this form and submit it to the court for its signature."
Item b. on the notice of appeal form, to be used "[f]or all other appeals," consists of three boxes, from which only one must be chosen: (1) "This appeal is after a jury or court trial. (Pen. Code, § 1237(a).)"; (2) "This appeal is after a contested violation of probation. (Pen. Code, § 1237(b).)"; and (3) "Other," requiring a specification of the nature of the appeal. Counsel erroneously checked box 3 and typed in the specification that the appeal was from the "Denial of motion to withdraw guilty plea." Neither of the two boxes checked required a request for a certificate of probable cause, and counsel did not make such a request.
Rule 8.304, warns counsel of the drastic consequences of failing to file the statement required by section 1237.5. Although rule 8.304(b)(4) allows certain appeals to proceed without a certificate of probable cause (i.e., those based on the denial of a motion to suppress or "[g]rounds that arose after entry of the plea and do not affect the validity of the plea's validity"), rule 8.304(b)(5) states that no issue challenging the validity of the plea is cognizable on that appeal without a certificate of probable cause. (Mendez, supra, 19 Cal.4th at p. 1099.)
As box 3 of item a.—which Coffino should have checked—pertained to appeals challenging the validity of the plea and required a certificate of probable cause, and item b. applied only to appeals other than those covered by item a., the "other" appeals covered by box 3 of item b. could not include petitioner's appeal, which challenged the validity of the plea.
DISCUSSION
A. Petitioner Is Eligible for Habeas Relief
Because petitioner is currently under probationary supervision, which amounts to constructive custody, there is no doubt he is eligible to seek relief by means of a petition for the writ of habeas corpus seeking vindication of rights guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution (People v. Villa (2009) 45 Cal.4th 1063, 1069; People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 221; People v. Byron (2009) 170 Cal.App.4th 657, 666) The Attorney General does not claim otherwise.
B. The Notice of Appeal is Defective and Inoperative
The filing of a Wende brief raising no legal issues in case No. A158676, did not in our view result from appellate counsel's belief that the trial court's rulings were legally unassailable. Rather, as appellate counsel has confirmed, he filed a Wende brief only because Coffino failed to comply with section 1237.5, and rule 8.304(b), thus rendering petitioner's appeal from the order denying his motion to withdraw his plea inoperative.
A defendant may not obtain review of any issues subject to the requirements of section 1237.5 and rule 8.304(b), including an appeal from an order denying a motion to withdraw a guilty plea, unless the defendant has fully complied with those provisions. (Mendez, supra, 19 Cal.4th at p. 1099; People v. Johnson (2009) 47 Cal.4th 668, 676.) Those provisions are to be applied "in a strict manner." (Mendez, at p. 1098.) Failure to strictly comply with those provisions renders the appeal "inoperative" and precludes appellate review of any issue affecting the validity of the plea. (Id. at pp. 1096-1096; rule 8.304(b)(5).)
Because these requirements were not satisfied, the principles announced in Mendez and its progeny render petitioner's appeal in case No. A158676 non-cognizable and subject to dismissal. (Mendez, supra, 19 Cal.4th at p. 1096.)
C. Counsel Provided Ineffective Assistance
To demonstrate ineffective assistance of counsel, a defendant must show that counsel's performance was inadequate when measured against the standard of " 'a reasonably competent attorney,' " and that counsel's performance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686-687.) "In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny" and "view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time . . . ." (People v. Ledesma (1987) 43 Cal.3d 171, 216.) "[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
1. Counsel's Deficient Performance
We agree with petitioner that Coffino's filing of a deficient notice of appeal, though inadvertent and perhaps understandable, constitutes "ineffective assistance" within the meaning of Strickland. As petitioner states, "counsel's deficient performance appears within the four corners of the appellate record," specifically the notice of appeal itself. Furthermore, Coffino acknowledges he completed the notice of appeal mistakenly and not for any strategic purpose and that, though a certificate of probable cause was required, he failed to obtain one.
The Attorney General does not dispute that counsel's performance in filing the notice of appeal was deficient but claims it was not prejudicial.
2. Counsel's Deficient Performance Prejudiced Petitioner
The Attorney General contends petitioner was not prejudiced because he "cannot demonstrate that the superior court would have issued a certificate of probable cause or that the superior court erred in denying the motion to withdraw the plea." We are not persuaded, and find that, but for defense counsel's admitted oversight, the denial of his motion to withdraw his plea would have been ripe for review on direct appeal.
" 'Section 1237.5 does not limit the scope of review of the denial of a motion to withdraw a plea of guilty when that error is properly before the court on appeal. It merely sets forth a procedure for precluding frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.' [Citation.] The trial court must issue the certificate if the defendant's statement under section 1237.5 presents 'any cognizable issue for appeal which is not clearly frivolous and vexatious . . . .' " (People v. Johnson, supra, 47 Cal.4th at p. 676.)
The factual and legal issues presented by petitioner's motion to withdraw his plea are certainly not "clearly frivolous and vexatious." Although the trial court ruled that the conduct of Selby, petitioner's counsel during the plea proceeding, was not below a reasonable standard of care, it expressly conceded that "[p]erhaps an expert might have been able to articulate that, persuade the court that his behavior fell under a reasonable standard of care, but I'm not finding that Selby's conduct fell below a reasonable standard of care in the industry, notwithstanding what I said about it not being ideal." As for the argument that petitioner cannot show the trial court erred in denying the motion to withdraw the plea, as long as that issue is not frivolous or vexatious, it is properly the subject of the appeal in case No. A158676.
For the foregoing reasons, we grant petitioner the habeas relief he seeks.
DISPOSITION
Accordingly, this matter is hereby remanded to the Marin County Superior Court for immediate issuance of a certificate of probable cause in support of petitioner's notice of appeal from the September 26, 2019 order denying his motion to withdraw, upon which his appeal in case No. A158676 is predicated.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.