Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge a judgment of the Superior Court of Orange County No. 08NF3418, James E. Rogan, Judge. Petition granted.
Richard Schwartzberg, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.
OPINION
Before Rylaarsdam, Acting P. J., Aronson, J., and Ikola, J.
William Joseph Bowen filed a petition for writ of habeas corpus on his own behalf complaining that the superior court should not have refused to file his notice of appeal. But the notice of appeal was clearly untimely. Judgment was entered December 23, 2008 and thus the last day to file a notice of appeal was February 21, 2009. The notice of appeal submitted by petitioner to the superior court, however, shows a signature date of April 16, 2009, and that it was received, unfiled, by the superior court on April 27, 2009.
The habeas corpus petition filed by Bowen was woefully defective and even though we could have simply denied it, in the interest of justice this court appointed counsel to represent him. A supplemental petition was filed by counsel. Attached to the supplemental petition is a declaration from Bowen stating he was never advised by the deputy public defender representing him of any right to appeal and a declaration by trial counsel stating that he did not recollect advising Bowen of his right to appeal but thought it would have been unlikely he would have because Bowen had entered into a plea bargain. Further, even though the superior court was under no duty to do so, the minute order of the hearing at which Bowen pled guilty and was sentenced does not indicate he was advised of any right to appeal. Also, the Tahl form supplied by Bowen with the initial petition indicates that he did not waive his right to appeal.
The Attorney General was served with a copy of the petition and the supplemental petition. He does not oppose the relief requested.
It appears trial counsel failed to consult with Bowen about his right to appeal. A trial counsel’s failure to advise the defendant of the right to appeal may form the basis for relief from the untimely filing of a notice of appeal. (See Roe v. Flores-Ortega (2000) 528 U.S. 470.) Bowen tells us, moreover, that the superior court did not honor the plea bargain, the sentence is “constitutionally illegal,” and there are other defects in the conviction, the validity of the plea, and the sentencing process. In the notice of appeal he submitted to the superior court he checked off the boxes indicating the appeal is based on sentencing and other matters occurring after the plea and the denial of a motion to suppress. Also attached to the appeal is a request for a certificate of probable cause. On this basis the relief sought in the habeas corpus petition appears to be appropriate.
After counsel was appointed, Bowen filed a motion for new counsel or the right to represent himself on this habeas petition. That request is denied as moot.
Good cause appearing, and the Attorney General having effectively waived the necessity of issuing an order to show cause, the petition for relief is granted. (People v. Romero (1994) 8 Cal.4th 728, 740 fn. 7.) On petitioner’s behalf, attorney Richard Schwartzberg is directed to prepare and file a notice of appeal in Orange County Superior Court case number 08NF3418, and if necessary, to file a request for a certificate of probable cause. The clerk of the superior court is directed to accept the notice for filing and any request for a certificate of probable cause if it is presented within 20 days of this opinion becoming final. In the interest of justice, this opinion is deemed final as to this court forthwith.