Opinion
F077555
08-10-2018
In re MARLON JOSEPH ROBINSON, On Habeas Corpus.
Marlon Joseph Robinson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tuolumne Super. Ct. No. CRF51748)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Marlon Joseph Robinson, 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 filed May 30, 2018, Marlon Joseph Robinson (petitioner) seeks permission to file a belated appeal. We will grant petitioner's request.
BACKGROUND
The Tuolumne County Superior Court sentenced petitioner on August 9, 2017, following a trial by jury. He is currently serving a nine-year sentence at La Palma Correctional Center in Arizona.
In petitioning the court for habeas relief, petitioner declares that immediately after sentencing he requested his trial counsel file a notice of appeal. According to petitioner, trial counsel assured him he would file a notice of appeal, and added his office always files a notice of appeal after trial on behalf of his clients. After sentencing, trial counsel did not respond to inquiries from petitioner or his family regarding the status of the appeal.
On February 13, 2018, petitioner filed a notice of appeal in the Tuolumne County Superior Court, which the court rejected as untimely. On March 27, 2018, petitioner filed a petition for writ of habeas corpus in the Court of Appeal, Third Appellate District, which was denied without prejudice to filing in this court. After receiving assistance from the Central California Appellate Program, petitioner filed the instant petition.
This court wrote petitioner's trial counsel inquiring about petitioner's allegations in the petition, but counsel did not respond. This court also granted the Attorney General leave to file an informal response, indicating the court would treat 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 August 9, 2017, sentencing date, petitioner was required to file a notice of appeal in the trial court no later than October 10, 2017.
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 he relied on his trial counsel's assurances his office would file a notice of appeal. When petitioner discovered trial counsel had not filed the notice, he diligently attempted to file it himself. Accordingly, we conclude petitioner has made an adequate showing 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
The Clerk/Executive Officer of this court is authorized to send a copy of the notice of appeal attached to the petition in the above entitled action to the Clerk of the Tuolumne County Superior Court.
Let a writ of habeas corpus issue directing the Clerk of the Tuolumne County Superior Court to file said notice of appeal in case No. CRF51748, to deem said notice of appeal to be timely filed from the judgment entered on August 9, 2017, and to proceed with the preparation of and filing in this court the record on appeal in accordance with the applicable 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.