Opinion
F074240
02-16-2017
In re LEONARD ALLEN SLAVEN, On Habeas Corpus.
Leonard Allen Slaven, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 14CMS1744)
OPINION
THE COURT ORIGINAL PROCEEDING; petition for writ of habeas corpus. Leonard Allen Slaven, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
Before Hill, P.J., Poochigian, J., and Detjen, J.
-ooOoo-
In a petition for writ of habeas corpus filed on August 23, 2016, Leonard Allen Slaven (petitioner) seeks permission to file a belated appeal. We will grant petitioner's request.
BACKGROUND
The Kings County Superior Court sentenced petitioner on June 19, 2015, following a trial by jury.
In petitioning the court for habeas corpus relief, petitioner declares he asked his trial counsel immediately after sentencing to file an appeal on his behalf. Petitioner later wrote trial counsel regarding the status of his appeal in mid-August, but counsel did not respond. According to email correspondence submitted by petitioner, trial counsel informed a friend of petitioner in mid-September 2015 that petitioner's "case is on its way to the appellate court in Fresno."
No timely appeal was filed on petitioner's behalf. Petitioner made several unsuccessful attempts between December 2015 and March 2016 to belatedly appeal by contacting the superior court, this court, and the Central California Appellate Program. Petitioner includes an original notice of appeal rejected as untimely by the superior court on January 28, 2016.
This court attempted to contact petitioner's trial counsel after petitioner filed the present petition for writ of habeas corpus, but counsel did not respond. This court granted the Attorney General leave to file an informal response, who responded on February 2, 2017, stating 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 June 19, 2015, sentencing date, petitioner was required to file a notice of appeal in the trial court no later than August 18, 2015.
Further statutory references are to the Penal Code unless otherwise stated. --------
A criminal defendant has 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." (§ 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 promise 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's promise. (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. (Cf. People v. Rodriguez (1971) 4 Cal.3d 73, 79; see also In re Benoit, supra, 10 Cal.3d at p. 89.)
In petitioning this court, petitioner declares under penalty of perjury that he asked counsel to file an appeal immediately after sentencing. Correspondence submitted by petitioner, which the Attorney General does not challenge, suggests trial counsel believed he had filed an appeal on petitioner's behalf and that he thought the appeal was "on its way" to this court. Accordingly, we conclude petitioner has made an adequate showing that he expressly requested and relied upon counsel to appeal on his behalf and will grant petitioner's request to file a belated appeal.
DISPOSITION
The Clerk/Administrator 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 Kings County Superior Court.
Let a writ of habeas corpus issue directing the Clerk of the Kings County Superior Court to file said notice of appeal in Kings County Superior Court case No. 14CMS1744, to deem said notice of appeal to be timely filed from the judgment entered on June 19, 2015, 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.