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In re Kennedy

California Court of Appeals, Fourth District, Third Division
Apr 30, 2009
No. G041650 (Cal. Ct. App. Apr. 30, 2009)

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NOT TO BE PUBLISHED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. 07SF0241, Dan McNerney, Judge. Petition denied.

Anna M. Jauregui for Petitioner.

Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.


OPINION

THE COURT:

Before Acting P.J., Rylaarsdam, Aronson J., and Ikola, J.

In his petition for a writ of habeas corpus, petitioner asks this court to grant his request for constructive filing of a late notice of an appeal, and to order the Superior Court of Orange County to accept the late filing of his notice of appeal as having been timely filed.

We deny petitioner’s petition for a writ of habeas corpus. We conclude the facts presented here do not justify granting him relief.

I

Facts and Proceedings

Petitioner was represented at trial by retained counsel Stephen R. Cohen. He was found guilty by a jury of conspiracy, attempted first-degree robbery, and attempted first-degree burglary. On September 5, 2008, he was sentenced to three years in state prison.

After he was sentenced, the trial court advised him of his appellate rights. He was advised he had 60 days in which to file his notice of appeal.

Any notice of appeal filed from the September 5, 2008, judgment was due for filing on November 4, 2008.

In a declaration, petitioner admits the court advised him that he had 60 days in which to file his notice of appeal. However, he believed the 60 days in which to appeal were “business days only.” He further declares: “Had my attorney explained to me at my sentencing hearing my appeal rights – that the 60 days was not court days but every day counted and that he could file a notice of appeal for me or give the form to file it myself and provide me with the case number, then I could have timely filed my notice by either asking him to file it or timely doing it myself.”

A letter from trial counsel included as an exhibit to the petition advises that counsel was hired to represent petitioner at trial, but he was not hired to represent petitioner on appeal. Counsel further advises he and petitioner did not discuss petitioner’s appeal rights.

Petitioner claims he made various unsuccessful attempts to contact trial counsel after his sentencing. He contends he tried to call counsel at least five times while in jail during September of 2008, to no “avail.” He further contends he was unable to obtain counsel’s office address even though he made three attempts to do so during September of 2008. When he was transferred to Wasco State Prison in October of 2008, he had no access to a telephone. He also looked in the prison law library directory of attorneys, but he was unable to locate counsel in the directory.

On November 13, 2008, petitioner prepared a handwritten request to appeal based on what he believed “was 60 court days.” Petitioner claims he delivered the notice of appeal to prison officials on or about that date. The notice of appeal was received by the Superior Court on November 25, 2008.

II

Discussion

In his petition for a writ of habeas corpus, petitioner contends he is entitled to relief pursuant to the doctrine of constructive filing of a late notice of appeal despite the fact that his notice of appeal was not filed within the sixty days after judgment was rendered as required by California Rules of Court, rule 8.308 (a). He contends he is entitled to relief on the basis: (1) trial counsel was remiss in not advising him about his appeal rights following his conviction; (2) he had no knowledge of how to count the 60 days to file his notice of appeal; and, (3) he was diligent in protecting his appeal rights. We disagree.

The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.

In In re Benoit (1973) 10 Cal.3d 72, 86-87 (Benoit), the California Supreme Court expanded the doctrine of constructive filing of a late notice of appeal to cover those cases where appointed counsel had promised a defendant to file a notice of appeal on his behalf, but then failed to do so. The doctrine had previously been applied only to those cases involving an incarcerated defendant whose delay in filing a notice of appeal resulted from the conduct or representations of prison officials on which the defendant relied, and was not substantially due to any fault on the defendant’s part.

The court in Benoit concluded that the expansion of this doctrine was not to be “indiscriminately permitted,” but rather, was extended to apply only to those cases where an incarcerated defendant after having been properly notified of his appeal rights by the sentencing judge, had relied to his detriment on the affirmative representation of counsel that a notice of appeal would be filed on his behalf.

While acknowledging a defendant should not be automatically relieved from the responsibility placed on him to file a notice of appeal on his own behalf after being so advised by the court under then California Rules of Court, rule 250, the court also recognized that an exception was in order when a criminal defendant relied to his detriment, or was “lulled into a false sense of security” based on the affirmative representation of counsel that the notice would be so filed. (Benoit, supra, 10 Cal.3d at pp. 85-87.)

An understanding of the interrelationship between then California Rules of Court, rule 250, and the holding in Benoit is helpful. As the court in Benoit explained ‘“A new Rule 250 was also adopted effective January 1, 1972 to require superior court judges, after imposing sentence in a criminal case upon conviction after trial, to advise defendant of his right to appeal, of the time and necessary steps for taking an appeal, and of the right of an indigent appellant to have counsel appointed for him by the appellate court. The Judges’ advice must be given orally and transcribed by the court reporter for inclusion in the case file. In the past, defendants have alleged ignorance of their appeal rights as an excuse for seeking a late appeal. The required advice and transcripts will serve to rebut a future claim of ignorance by defendants. The overall effect of these rule changes is to eliminate the former delays resulting from the processing of late notices of appeal.”’ (Benoit, supra, 10 Cal.3d at pp. 85-85, fn. 12.)

Thus, the court’s ruling in Benoit was a departure from the then existing general rule that a criminal defendant who had been advised of his appeal rights by the court, was not automatically relieved of the responsibility to file his or her own timely notice of appeal. The exception made by Benoit was based solely on the fact that the defendant had relied to his detriment on counsel’s promise to file a notice of appeal on his behalf.

The doctrine of constructive filing and its relationship to perfecting an appeal has been more recently addressed in In re Chavez (2003) 30 Cal.4th 643, 658 (Chavez). In Chavez, the court chose to reject this doctrine where the facts established the defendant did not seek, and did not receive any assurances from counsel that counsel would prepare a notice of appeal or a written statement of reasonable grounds for appeal. As the court concluded “It is evident that none of the criteria for application of the principle of constructive filing are present in defendant’s case....We expressly decline to extend the holding of that case [Benoit] to situations in which an attorney not only does not agree to prepare or file a statement of reasonable grounds for appeal, but also does not agree to represent the defendant.” (Ibid.)

Similarly, the court in People v. Aguilar (2003) 112 Cal.App.4th 111, 115-116, concluded the principle of constructive filing was inapplicable because, “There [was] no indication appellant’s counsel agreed to prepare or file a statement of reasonable grounds for appeal and appellants do not demonstrate that they made diligent but futile efforts in seeking to ensure that their attorneys carried out that responsibility.”

The instant case does not fall within the parameters of Benoit. Rather, it is the type of case which the court in Benoit sought to factually distinguish, i.e., where the record established the court had correctly instructed the defendant on how to file an appeal, but the defendant still alleged ignorance as an excuse in which to justify a late filing.

Also, petitioner’s case is factually similar to the more recent cases which have declined to extend the holding of Benoit, where there has been no reliance placed upon representations made by counsel to perfect an appeal. For as here, petitioner placed no reliance on any promise made by counsel to file a notice of appeal on his behalf. Moreover; petitioner bears responsibility for his own filing mistakes. The court correctly advised him that he had 60 days in which to file a notice of appeal, but for whatever reason, petitioner chose to interpret the 60-day period to mean “court days only.”

Petitioner seeks to diffuse the fact he placed no reliance on any representation made by counsel to file a notice of appeal on his behalf. Instead he focuses on such factors as: (1) trial counsel was remiss in not advising him about his appeal rights following his conviction; (2) he had no knowledge of how to count the 60 days to file his notice of appeal; and, (3) he was diligent in protecting his appeal rights.

To this extent petitioner claims “Had my attorney explained to me at my sentencing hearing my appeal rights – that the 60 days were not court days but every day counted and that he could file a notice of appeal for me or give me the form to file it myself and provide me with the case number, then I could have timely filed my notice by either asking him to file it or timely doing it myself.”

Petitioner relies on Roe v. Flores-Ortega (2000) 528 U.S. 470-471, 476-478 to support his claim. But in Roe, unlike here, appointed counsel “questionably” promised to file a notice of appeal on defendant Roe’s behalf, but then inexplicably failed to do so. The Supreme Court rejected the Ninth Circuit’s bright-line rule which held that where a defendant has not clearly conveyed his wishes regarding the filing of a notice of appeal, counsel’s failure to do so is per se deficient assistance of counsel. The Supreme Court however, rejected that rule as being inconsistent with the circumstance-specific requirements set forth in Strickland v. Washington (1984) 466 U.S. 668.

Under the facts of this case, we cannot conclude based on petitioner’s attached declaration; or counsel’s attached letter; that counsel rendered petitioner ineffective assistance for failing to file a notice of appeal on his behalf. Counsel was privately retained; and there was no agreement he was to be retained for the purpose of an appeal. Moreover, and most importantly, the record appears clear that counsel made no representation he would file a notice of appeal on petitioner’s behalf. Additionally, petitioner bears some blame for his filing problems. He construed the 60-day period to mean “60 court days” despite the fact that the court placed no such limitations on the 60-day period, when it was explained to him in court.

Thus in sum, we conclude that petitioner is not entitled to relief from filing his late notice of appeal under the doctrine of constructive filing.

III

Disposition

Petitioner’s request for a writ of habeas corpus is hereby denied.


Summaries of

In re Kennedy

California Court of Appeals, Fourth District, Third Division
Apr 30, 2009
No. G041650 (Cal. Ct. App. Apr. 30, 2009)
Case details for

In re Kennedy

Case Details

Full title:In re STEPHEN KENNEDY on Habeas Corpus.

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

Date published: Apr 30, 2009

Citations

No. G041650 (Cal. Ct. App. Apr. 30, 2009)