Abels v. State, PC-89-269
| Decision Date | 08 January 1991 |
| Docket Number | No. PC-89-269,PC-89-269 |
| Citation | 804 P.2d 454 |
| Parties | James L. ABELS, Sr., Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On June 8, 1989, an Order Affirming Denial of Post-Conviction Relief was entered by this Court in the above styled case after a review of the thorough findings of fact and conclusions of law entered by the District Court of Oklahoma County on May 23, 1989. The District Court determined that Appellant had not been denied an appeal through no fault of his own and denied his application for an appeal out of time in accordance with Smith v. State, 611 P.2d 276, 277 (Okl.Cr.1980). Subsequently, Appellant filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma, D.C. No. CIV-89-1528-R, which was denied. Appellant then sought review of that order by the United States Court of Appeals, 10th Circuit, in Case No. 90-6050. Abels v. Kaiser, 913 F.2d 821 (CA 10th Cir.1990) (). His appeal sought review of his denial of court appointed counsel for appeal and the denial of his request for an appeal out of time due to the failure to perfect the appeal of his state convictions to this Court within the statutory period.
In an order entered on September 4, 1990, the Court of Appeals, 10th Circuit, affirmed the denial of court appointed counsel for appeal based on the findings by the Oklahoma County District Court. However, the Court then proceeded to determine that Appellant was denied an appeal through no fault of his own and should be granted an appeal out of time. The Court in reaching its conclusion stated as follows:
Rule 3.6A of the Rules of the Oklahoma Court of Criminal Appeals requires that, once an attorney makes an appearance, he must "diligently proceed with the appeal including the filing of a brief, until and unless withdrawal as the attorney of record is granted by" the court. In this case, Abels' retained counsel filed a notice of intent to appeal, which apparently constitutes an appearance sufficient to bind him to this duty. Our review of the district court's chronology indicates that at the time Abels' time for appeal expired his retained counsel had not yet filed a motion to withdraw, much less had the motion been granted. Abels, therefore, had every right to expect that his counsel would follow his instructions in perfecting the appeal. Counsel's failure to do so, when he had not been relieved of his duties through a successful withdrawal, was a violation of Abels' constitutional right to effective assistance of counsel on his appeal as of right. See Evitts [v. Lucey,] 469 U.S. , 396-97 [105 S.Ct. 830, 836-37, 83 L.Ed.2d 821 (Ky.1985) ].
The Court of Appeals, 10th Circuit, did not seek a determination of state law prior to rendering this decision and based its decision on what, in their view, was "apparently" the law in Oklahoma. Had a determination of state law been requested the Court would have been provided the interpretation we rendered in Pueblo v. State, 799 P.2d 141 (Okl.Cr.1990), wherein we stated that "the general rule of law in Oklahoma is that the last act required of trial counsel is the filing of all jurisdictional documents required to be filed in the district court to perfect an appeal, if an appeal is to be initiated". We further determined that "[a]n appearance before this Court for purposes of perfecting an appeal is not made until the filing of the Petition in Error, with supporting original record and transcript of evidence" as required by our rules. 799 P.2d at 141.
Regardless of the basis for the order, the Court of Appeals, 10th Circuit, granted Appe...
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Jones v. Cowley
...distinguish our opinion in Abels v. Kaiser on the basis of the Oklahoma Court of Criminal Appeals comments on remand in Abels v. State, 804 P.2d 454 (Okla.Crim.App.1991). In Abels v. Kaiser we cited Rule 3.6 A of the Rules of the Oklahoma Court of Criminal Appeals, which "requires that, onc......