Opinion
2021-M-00005-SCT
08-26-2021
WILLIAM MATTHEW WILSON Petitioner v. STATE OF MISSISSIPPI Respondent
EN BANC ORDER
JOSIAH DENNIS COLEMAN, JUSTICE
Now before the Court is William Matthew Wilson's Motion for Out-of-Time Appeal, Motion to Proceed In Forma Pauperis, and Unopposed Motion for Leave to Reply. The State of Mississippi opposes Wilson's Motion for Out-of-Time Appeal.
As to Wilson's Unopposed Motion for Leave to Reply, the Court finds the motion should be granted. Leave is granted to re-file electronically the reply in compliance with Section 3(A)(3) of the Appellate E-Filing Administrative Procedures.
Further, the Court finds that Wilson's Motion for Out-of-Time Appeal should be denied, thus rendering his Motion to Proceed in Forma Pauperis moot.
IT, THEREFORE, IS ORDERED that Wilson's Unopposed Motion for Leave to Reply is granted. Wilson shall re-file electronically the reply in compliance with Section 3(A)(3) of the Appellate E-Filing Administrative Procedures.
IT IS FURTHER ORDERED that Wilson's Motion for Out-of-Time Appeal is denied, and the Motion to Proceed in Forma Pauperis is dismissed as moot.
SO ORDERED.
AGREE: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE, AND GRIFFIS, JJ.
DISAGREE: KITCHENS AND KING, P.JJ.
KING, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J.
¶1. Because good cause exists to grant Wilson's Motion for an Out-of-Time Appeal, I object to the order denying it.
¶2. Wilson asks this Court to allow him to file an out-of-time appeal of a post-conviction ruling by the trial court. Wilson had filed petitions for post-conviction relief alleging that his trial counsel was ineffective. Wilson v. State, 311 So.3d 1143, 1144 (Miss. 2020). He challenged both his sentence of death and the validity of his guilty plea. Id. The trial court found that Wilson's trial counsel was ineffective for failing to communicate with Wilson, for failing to conduct a mitigation investigation, and for failing to prepare for the penalty phase. Id. The trial court consequently set aside Wilson's death sentence. Id. However, the trial court found that Wilson was competent to enter a plea and declined to set aside Wilson's guilty plea. Id. at 1144-45. Wilson did not file an appeal of the trial court's decision not to set aside his guilty plea. Id. at 1145.
¶3. Wilson eventually filed a motion for leave to file an out-of-time appeal in the circuit court. Id. The circuit court found that it lacked jurisdiction to reopen the time for appeal. Id. This Court agreed. Id. at 1045-46. It further refused to suspend the Rules of Appellate Procedure and to treat his appellate brief as an application for an out-of-time appeal. Id. So Wilson now jumps through the hoops unnecessarily required of him by this Court and files his Motion for an Out-of-Time Appeal with this Court.
¶4. Wilson's post-conviction relief counsel testified that he failed to inform Wilson that he had a right to appeal the trial court's decision not to set aside Wilson's guilty plea. He also testified that he informed Wilson that he no longer represented him and that a new attorney would be appointed. New counsel was not appointed for Wilson until after his time to appeal had expired.
Counsel testified that he had "tunnel vision" regarding the death sentence because he had been working for several years to get Wilson off of death row.
Because Wilson's case was placed back on the active docket and because he was no longer on death row, statutory law provided that the Office of Capital Post-Conviction Counsel could no longer represent him.
¶5. Mississippi Rule of Appellate Procedure 2(c) allows this Court to "suspend the requirements or provisions of any of these rules" "[i]n the interest of expediting decision, or for other good cause shown[.]" M.R.A.P. 2(c). The rule provides that "[t]he time for taking an appeal under Rules 4 or 5 may be extended in criminal and post-conviction cases . . . ." Id.
¶6. "We may suspend Rules 2 and 4 'when justice demands' to allow an out-of-time appeal in criminal cases." McGruder v. State, 886 So.2d 1, 2 (Miss. 2003) (quoting Fair v. State, 571 So.2d 965, 966 (Miss. 1990)). When a criminal defendant "through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court[, ]" this Court should grant an out-of-time appeal. Id. (quoting Jones v. State, 355 So.2d 89, 90 (Miss. 1978), superseded by statute on other grounds as recognized in Chapman v. State, 250 So.3d 429 (Miss. 2018)). Wilson's attorney failed to advise him regarding his right to appeal the trial court's refusal to set aside his guilty plea.
[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 1036, 145 L.Ed.2d 985 (2000). Wilson did not receive any consultation from counsel about appealing the circuit court's decision regarding his guilty plea, despite indications that Wilson desired an appeal. Counsel also advised Wilson that he was no longer his attorney. Wilson, therefore, not knowing he could appeal the refusal to set aside the guilty plea and believing that he did not have an attorney, failed through no fault of his own to timely perfect his appeal.
¶7. Moreover, Wilson faces another potential sentence of death upon resentencing. This Court affords the highest degree of scrutiny in criminal cases where the death penalty is involved. Blakeney v. State, 236 So.3d 11, 19 (Miss. 2017). Because the death penalty is irrevocable, this Court is charged with having an "enhanced awareness" of its "awesome responsibility." Id. (internal quotation marks omitted) (quoting Pinkton v. State, 481 So.2d 306, 308 (Miss. 1985)). This Court shirks that awesome responsibility here by refusing to simply allow Wilson an out-of-time appeal when his death is at issue.
¶8. Consequently, we should grant Wilson's Motion for an Out-of-Time Appeal.
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.