Opinion
F077462
08-10-2018
In re MATTHEW COBBS, On Habeas Corpus.
Matthew Cobbs, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. No. 15CR-00701)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Matthew Cobbs, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
Before Smith, Acting P.J., Meehan, J. and Ellison, J.
-ooOoo-
In a petition for writ of habeas corpus, Matthew Cobbs (petitioner) seeks permission to file a belated appeal. We will grant petitioner's request.
BACKGROUND
The Merced County Superior Court sentenced petitioner to a 15-year prison term following his guilty plea to assault with a semiautomatic firearm. (Pen. Code, § 245, subd. (b).)
In petitioning for habeas relief, petitioner declares he asked his appointed trial counsel at his January 12, 2018, sentencing hearing to file an appeal on his behalf, and that trial counsel responded the court had imposed an illegal sentence. On April 9, 2018, petitioner contacted his attorney to ask about the status of his appeal, who informed him a notice of appeal was never filed. Petitioner then contacted a California appellate project for assistance, and subsequently filed this petition on May 10, 2018, seeking to file a belated appeal to challenge the legality of his sentence.
This court wrote petitioner's trial counsel inquiring about petitioner's allegations, but counsel did not respond. This court also granted the Attorney General leave to file an informal response, indicating the court would treat the failure to respond as consent to grant the requested relief without further proceedings. The Attorney General responded that petitioner appears to have made "a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)"
DISCUSSION
A notice of appeal must be filed within 60 days of the judgment or order being appealed to confer appellate jurisdiction on this court. (Cal. Rules of Court, rule 8.308(a).) An appealable judgment in a criminal case is generally rendered at the time of sentencing. (Pen. Code, § 1237, subd. (a).) Based on petitioner's January 12, 2018, sentencing date, petitioner was required to file a notice of appeal in the trial court no later than March 13, 2018.
A criminal defendant bears the burden of timely filing a notice of appeal, but that burden may be delegated to counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) Moreover, appointed defense counsel has a statutorily imposed duty to "execute and file" a timely notice of appeal where "arguably meritorious grounds exist for a reversal or modification of the judgment." (Pen. Code, § 1240.1, subd. (b).)
When applicable, the doctrine of constructive filing allows an untimely filed notice of appeal to be deemed timely if the defendant relied upon the assurances of trial counsel to timely file the notice on the defendant's behalf. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.) The doctrine protects defendants who have been "lulled into a false sense of security" by counsel. (Id. at p. 87.) Reasonable doubts as to the veracity of a petitioner's allegations in these matters are to be resolved in favor of the petitioner to protect the right of appeal rather than forfeit it on technical grounds. (People v. Rodriguez (1971) 4 Cal.3d 73, 79; see In re Benoit, supra, 10 Cal.3d at p. 89.)
In petitioning this court, petitioner declares under penalty of perjury that he asked trial counsel to file a notice of appeal at sentencing. Trial counsel responded the court imposed an illegal sentence. While it is unclear if trial counsel expressly promised to file a notice of appeal, petitioner interpreted trial counsel's statement as an intent to do so. The Attorney General does not challenge petitioner's interpretation. Accordingly, we conclude petitioner has made an adequate showing that he expressly requested and relied upon trial counsel to file an appeal on his behalf and will grant petitioner's request to file a belated appeal.
DISPOSITION
Petitioner is granted leave to file a notice of appeal, subject to compliance with Penal Code section 1237.5, on or before 30 days from the date of this opinion, in Merced County Superior Court case No. 15CR-00701.
Let a writ of habeas corpus issue directing the Clerk of the Merced County Superior Court, if the court receives the notice of appeal on or before 30 days from the date of this opinion, to treat the notice of appeal as being timely filed, and to process the appeal in accordance with the applicable rules of the California Rules of Court.
This opinion is final forthwith as to this court.
†
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.