Blanchard v. Bennett

• Decision Date: 06 May 1969
• Docket Number: No. 53560,53560
• Citation: 167 N.W.2d 612
• Parties: Eugene BLANCHARD, Appellant, v. John E. BENNETT, Warden Iowa State Penitentiary, Fort Madison, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 612

167 N.W.2d 612

Eugene BLANCHARD, Appellant, v. John E. BENNETT, Warden Iowa State Penitentiary, Fort Madison, Iowa, Appellee.

No. 53560.

Supreme Court of Iowa.

May 6, 1969.

Roy W. Meadows, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., Michael M. Phelan, Asst. County Atty., Fort Madison, for appellee.

MOORE, Justice.

The sole question presented by this habeas corpus action is whether plaintiff, Eugene Blanchard, is entitled to release from custody because his retained counsel failed to comply with the statutory procedure required to perfect an appeal from a criminal conviction.

Plaintiff was convicted of criminal solicitation upon a jury trial in Lee County District Court. Sentence of a term not to exceed five years in the state penitentiary at Fort Madison was imposed February 14, 1968. Code section 724.2. Plaintiff professed his innocence and notified his retained attorney, Neil McManus, of his desire to appeal from said conviction. Mr. McManus, an experienced trial attorney and member of the Iowa Bar since 1938, agreed to perfect the appeal but contacted plaintiff's present attorney for purposes of handling all other aspects of the appeal.

On March 12 Mr. McManus filed a notice of appeal with the district court clerk. March 13 the clerk mailed a certified copy of this notice to the attorney general's office. The clerk on March 14 mailed to the clerk of this court a transcript of all record entries in the case as required by Code section 793.6.

Section 793.4, Code, 1966, provides: 'Taking and perfecting. An appeal is taken and perfected by the party or his attorney serving on the adverse party or his attorney of record in the district court at the time of the rendition of the judgment, a notice in writing of the taking of the appeal, and filing the same with such clerk, with evidence of service thereof indorsed thereon or annexed thereto.'

Plaintiff concedes the notice of appeal was never served on the county attorney as required by section 793.4 and of course evidence of service thereof was not endorsed thereon or annexed thereto. This substantial oversight was due in part to Mr. McManus' mistaken reliance on his past practice in handling appeals whereby he had relied on the district court clerk to forward a copy of the notice of appeal to the county attorney. He testified he was not aware of the statutory requirement that in criminal cases the notice of appeal must be served on the county attorney. The procedure followed by Mr. McManus was that provided by rule 336, Rules of Civil Procedure, for giving notice of appeal in a civil case. The county attorney had been advised an appeal would be taken and learned later a notice of appeal was on file in the clerk's office.

No proper notice of appeal having been served on the county attorney or his assistant a motion to dismiss the appeal was filed by the assistant attorney general on April 26 and sustained by this court on July 29. On August 16 we denied an application for permission to take a delayed appeal. The application was based on Mr. McManus' mistake and made no contention the state had in any way interfered with the attempt to appeal.

Thereafter, plaintiff filed his petition for a writ of habeas corpus. Following an evidentiary hearing the trial court filed his findings of fact and conclusions of law.

The court's findings include: '1) That the plaintiff makes no claim that his legal counsel did not properly and adequately represent him at all stages of his trial prior to imposition of sentence;

'2) That the plaintiff is being held in the Iowa State Penitentiary at Fort Madison, Iowa, by virtue of a mittimus directed to the Warden of the Penitentiary, following the entry of judgment and imposition of sentence on February 14, 1968;

'3) That the plaintiff was represented by competent and adequate legal counsel throughout his trial; and that the failure to perfect his appeal does not constitute a defect so as to render the judgment of the court subject to a collateral attack by way of habeas corpus.'

The trial court concluded 'the plaintiff has failed to establish his claim that he was deprived of competent counsel and insufficient legal assistance so as to constitute a lack of adequate legal counsel.'

From denial of a writ of habeas corpus plaintiff has appealed. We affirm.

I. We have uniformly held the trial court's findings in a habeas corpus action not involving custody of a child are binding upon us if supported by substantial evidence. Scalf v. Bennett, Iowa, 147 N.W.2d 860, 862; Herold v. Haugh, 259 Iowa 667, 669, 145 N.W.2d 657, 659; Birk v. Bennett, 258 Iowa 1016, 1019, 141 N.W.2d 576, 578.

II. Service of the notice of appeal upon the county attorney or an assistant county attorney is necessary to perfect an appeal from a criminal conviction. Without such service, as required by section 793.4, this court is without jurisdiction to consider a defendant's appeal. An appeal in a criminal case cannot be taken and perfected by filing the notice of appeal with the clerk of the court in the manner of a civil action. State v. Spillane, Iowa, 150 N.W.2d 595; State v. Birchall, Iowa, 150 N.W.2d 715; State v. McCune, 259 Iowa 386, 144 N.W.2d 401; State v. Fees, 250 Iowa 163, 93 N.W.2d 103; State v. Thomas, 238 Iowa 998, 29 N.W.2d 198.

We do not understand plaintiff contends we erred in refusing to entertain his defectively filed appeal or in denying his application for a delayed appeal. In Ford v. State, 258 Iowa 137, 138 N.W.2d 116, we affirmed the trial court's denial of a writ of habeas corpus but, under the peculiar facts, granted a delayed appeal. There the evidence revealed Ford, without counsel had been prevented from giving timely notice of appeal by either misfeasance or malfeasance on the part of the statute authorities at the men's reformatory. No such contention or facts are before us here.

III. Plaintiff argues he is entitled to a writ on the ground he was deprived of adequate and effective counsel following his conviction in that said counsel failed to serve notice of appeal in accordance with section 793.4. He makes no contention of any violation of constitutional rights during trial of the criminal case.

We are aware of the importance and continually expanding scope of the writ of habeas corpus. See Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281; Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, both filed March 24, 1969. We are not, however, persuaded plaintiff's allegation of inadequate counsel, standing alone and viewed within the context of the facts of this case, presents a question of the necessary constitutional dimensions to warrant issuance of the writ.

Although the Supreme Court has not squarely ruled on this rather narrow issue, other courts have held relief by way of post conviction remedies foreclosed under similar facts.

In Dennis v. United States, 4 Cir., 177 F.2d 195, petitioner appealed from the district court's order denying his application for collateral relief under 28 U.S.C.A. section 2255. In its affirmance the court of appeals at page 195 said: 'He claims that his counsel did not take an appeal for him as instructed; but, aside from the fact that it appears that counsel advised him that he had no ground for appeal and received no further instructions, failure to appeal may not be excused upon a mere showing of neglect of counsel. The motion was properly denied.'

In Mitchell v. United States, 103 U.S. App.D.C. 97, 254 F.2d 954, 955, petitioner alleged he had been denied effective assistance of counsel because his trial counsel had failed to appeal. In affirming the district court's denial of post conviction relief the court said: 'It has been said that 'failure to appeal may not be excused upon a mere showing of neglect of counsel.' Dennis v. United States, 4 Cir., 177 F.2d 195. Perhaps that statement is too broad. We need not now decide whether failure to appeal would be a denial of effective assistance, and would open a conviction to 'collateral attack' under § 2255, if there were plain reversible error in the trial. There was no such plain error in this trial.'

In Peabody v. United States, 9 Cir., 394 F.2d 175, at page 177, petitioner appealed from the district court's denial of his application for post conviction relief. He alleged he had been denied his right of direct appeal and that prejudicial errors had been committed during his trial. In refusing to grant relief on either count the court said: 'We have examined the record and fully agree with the district court that appellant has not disclosed the nature of the error and the prejudice which he proposes, by this appeal, to correct. His allegations are purely conclusionary.

'It is settled in this Circuit that a ...