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In re Hickman

California Court of Appeals, Fourth District, Third Division
Jun 27, 2024
No. G064201 (Cal. Ct. App. Jun. 27, 2024)

Opinion

G064201

06-27-2024

In re RAYMOND ANTHONY HICKMAN, on Habeas Corpus.

Appellate Defenders, Inc., and William Paul Melcher, for Petitioner. Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent.


NOT TO BE PUBLISHED

Original proceedings; petition for a writ of habeas corpus to file a timely notice of appeal. Super. Ct. No. 13NF1347 Petition granted.

Appellate Defenders, Inc., and William Paul Melcher, for Petitioner.

Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent.

OPINION

THE COURT: [*]

Raymond Anthony Hickman seeks relief from the failure to file a timely notice of appeal. The petition is granted.

On January 24, 2018, Hickman was sentenced in case No. 13NF1347. On September 26, 2023, Hickman signed a document requesting representation by counsel for a petition for resentencing. The document states counsel will "file a petition for resentencing, and file a notice of appeal if [the] petition is denied." On December 7, 2023, Hickman was represented by counsel when the trial court denied resentencing relief under Penal Code section 1172.75. According to counsel's declaration, a timely notice of appeal was not filed on Hickman's behalf. When counsel attempted to file a late notice of appeal on March 29, 2024, the superior court marked the notice of appeal "Received," but did not file the notice of appeal because February 5, 2024, was the last day to file a timely notice of appeal. (Cal. Rules of Court, rule 8.308(d).)

The principle of constructive filing of the notice of appeal is applied in situations where counsel advises a criminal defendant that he will file a notice of appeal on his behalf, and then fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because an attorney who has advised his client that he will file a notice of appeal has a duty to file a timely notice of appeal or tell the client how to file it himself. In this case, Hickman's reasonable reliance on the promise of counsel to file a timely notice of appeal entitles petitioner to the relief requested.

The Attorney General does not oppose Hickman's request for relief to file a late notice of appeal without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)

The petition is granted. The Clerk of the Superior Court is directed to file the notice of appeal that was received but not filed on March 29, 2024. Further proceedings, including preparation of the record on appeal, are to be conducted according to the applicable rules of court. (Cal. Rules of Court, rule 8.320(d).)

In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.

[*] Before Motoike, Acting P. J., Goethals, J., and Delaney, J.


Summaries of

In re Hickman

California Court of Appeals, Fourth District, Third Division
Jun 27, 2024
No. G064201 (Cal. Ct. App. Jun. 27, 2024)
Case details for

In re Hickman

Case Details

Full title:In re RAYMOND ANTHONY HICKMAN, on Habeas Corpus.

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jun 27, 2024

Citations

No. G064201 (Cal. Ct. App. Jun. 27, 2024)