Esters v. State

• Decision Date: 25 April 2003
• Parties: Kenneth Darnell ESTERS v. STATE.
• Court: Alabama Court of Criminal Appeals

894 So.2d 755

Kenneth Darnell ESTERS v. STATE.

CR-01-1872.

Court of Criminal Appeals of Alabama.

April 25, 2003.

Kenneth Darnell Esters, pro se.

William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

Kenneth Darnell Esters appeals from the circuit court's denial of his petition filed pursuant to Rule 32, Ala. R.Crim. P., in which he sought an out-of-time appeal of his convictions in 2001 for attempted murder and first-degree robbery. See Rule 32.1(f). In his petition, he claimed that his failure to appeal within the prescribed time was not due to any fault on his part, but was due to the ineffective assistance of his counsel. He asserted that neither his two appointed trial counsel nor counsel retained to file a motion to withdraw his guilty pleas filed a notice of appeal and that he had timely notified both appointed counsel and retained counsel that he wanted to appeal. (He specifically alleged that he stated his request to appeal to appointed counsel after he was sentenced and to retained counsel after the trial court denied his pro se motion and retained counsel's motion to withdraw his guilty pleas.)

On appeal, Esters contends that the circuit court abused its discretion in denying his petition without an evidentiary hearing. An understanding of the procedural chronology of this case in the trial court is necessary to a review of the circuit court's ruling.¹

April 20, 2001: Esters was sentenced, as a habitual felony offender, to life imprisonment without the possibility of parole for his convictions for attempted murder and first-degree robbery, which were based on his "blind" guilty pleas entered pursuant to a plea agreement.

May 10, 2001: Appointed trial counsel, Deborah McGowin and Joan Connolly, filed a motion to reconsider Esters's sentences.

May 16, 2001: Esters filed a pro se motion to withdraw his guilty pleas.² It appears from the case action summaries that Esters also filed a pro se "[m]otion for appointment of counsel for said withdrawal of guilty plea[s]" and a pro se motion to vacate his sentences.

May 18, 2001: Jim Harper, counsel retained by Esters's family, filed a motion to withdraw Esters's guilty pleas or, in the alternative, for a new trial, asserting, among other grounds, ineffectiveness or conflict of interest concerning Esters's appointed trial counsel.

June 14, 2001: Appointed trial counsel Connolly filed a motion to withdraw as counsel.

June 19, 2001: Esters's pro se motion to withdraw his guilty pleas and retained counsel's motion to withdraw Esters's guilty pleas or, in the alternative, for a new trial were denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P.³ We also assume, for purposes of this opinion, that appointed trial counsel's motion to reconsider Esters's sentences and Esters's pro se motion to vacate his sentences were also denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P.⁴

July 25, 2001: The trial court held a hearing on all motions. It granted Connolly's motion to withdraw as counsel, declared the pro se motion for appointment of counsel for "said withdrawal of guilty plea[s]" to be moot, and denied appointed counsel's motion for reconsideration of sentence, the pro se motion to vacate the sentences, and the two motions to withdraw the guilty pleas. However, the trial court was without jurisdiction to hold the hearing or to rule on the merits of all but the first two motions. See Finney v. State, 860 So.2d 367 (Ala.Crim.App.2002)

; Edgar v. State, 646 So.2d 681, 682 (Ala.Crim.App.1993),

rev'd on other grounds,

646 So.2d 683 (Ala.1994) (pertinent reasoning approved).

July 31, 2001: Time for filing the notice of appeal expired. See Rule 4(b)(1), Ala. R.App. P.⁵

August 14, 2001: Esters filed a pro se motion for appointment of counsel for "said amend sentence hearing."

August 17, 2001: Esters filed a pro se motion for reconsideration of his sentences and a pro se motion for appointment of counsel for "said reconsider sentence hearing."

August 20, 2001: The trial court denied Esters's three August pro se motions.

April 24, 2002: Esters filed his Rule 32 petition.

Retained counsel Harper filed an affidavit in response to Esters's allegations in his Rule 32 petition that Harper did not pursue an appeal, as Esters had allegedly requested. In that affidavit, Harper stated that he was retained only to file a motion to withdraw the guilty pleas or, in the alternative, for a new trial; that, at the motions hearing, appointed trial counsel McGowin and Connolly testified on Esters's behalf; that no one, including Esters, had requested that Harper file an appeal; that, had Esters so requested, he would have referred Esters to another attorney because Harper does not do appellate work; and that he had had no contact with Esters or Esters's family since the hearing.

In denying Esters's petition, the circuit court adopted, in toto, the State's response to Esters's petition. It specifically found that retained counsel Harper "was only hired by Petitioner's family to file and prosecute a Motion to Withdraw Guilty Plea[s]," not to appeal. This finding was supported by Harper's affidavit.

However, no evidence was presented to contradict Esters's allegation that he also requested appointed trial counsel to file a notice of appeal. Thus, Esters's allegations in this regard must be accepted as true. See Wright v. State, 845 So.2d 836 (Ala.Crim.App.2001)

. In regard to any responsibility carried by appointed counsel, the circuit court held, in part, the following:

"Connolly and McGowin were forced to withdraw from the representation of Petitioner due to his complaints against them. They had a conflict of interest created by Petitioner. They did not represent Petitioner. Assuming that Petitioner asked them to appeal, they could not because they did not represent Petitioner. Also, it is inconceivable that Petitioner would ask them to appeal when he blamed them for the basis of that appeal."

The circuit court further found that they withdrew before "Petitioner, through his family, hired attorney Jim Harper." We analyze the circuit court's denial of Esters's petition by the following mandates of Rule 6.2, Ala. R.Crim. P.:

"(b) Duty of Continuing Representation. Counsel representing a defendant at any stage shall continue to represent that defendant in all further proceedings in the trial court, including filing of notice of appeal, unless counsel withdraws in accordance with a limited contract of employment as described in Rule 6.2(a),[⁶] or for other good cause as approved by the court.

"(c) Withdrawal. Counsel may be permitted to withdraw for good cause shown; however, no attorney shall be permitted to withdraw after a case has been set for trial except upon written motion stating the attorney's reasons for withdrawing."

(Emphasis added.) In the Committee Comments to Rule 6.2, we find the following:

"Section (b) contemplates that the usual procedure will be that counsel initially retained privately or appointed by the court will continue to represent the defendant through all stages of the trial proceeding, including filing notice of appeal. The rationale is that that attorney has the advantage of familiarity with the case. Continued representation also guarantees that the defendant's right of appeal is not lost in the period between termination of trial counsel's responsibilities in the case and retention or appointment of counsel for an appeal, if any. See ABA, Standards for Criminal Justice, Providing Defense Services 5-5.2 (2d ed.1986).

"Counsel must move to withdraw by means of a formal written motion. Withdrawal will be permitted only upon order of the court in response to such motion. Normally, appointed counsel will not be permitted to withdraw prior to appeal. However, if the court permits withdrawal by counsel, the court must then provide new counsel or see that counsel for the defendant has been provided, unless right to counsel has been waived.

"The purpose of section (c) is to maintain the integrity of the trial date, to protect the interests of the defendant, and to aid the trial court in providing continuity in legal representation. See Ala.Code 1975, § 15-12-5(d) [which states, in part, `To the extent possible, judges shall provide continuity in legal representation.']."

(Emphasis added.) See also Rule 24(b)(1), Ala. R.App. P, which states, "Appointed trial counsel shall continue as defendant's counsel on appeal unless relieved by order of the trial court." (Emphasis added.) In regard to this particular provision, the Comments to Rule 24 explain:

"[D]ue to the brevity of time within which an appeal must be taken (42 days), appointed trial counsel in a criminal case shall continue as counsel on appeal. Appointed trial counsel may be relieved of his or her responsibility to continue as counsel on appeal only by order of the trial court."

See also King v. State, 613 So.2d 888, 891 (Ala.Crim.App.1993)

("if an indigent defendant is constitutionally entitled to the assistance of counsel at sentencing and in the first appeal as a matter of right, that defendant would be entitled to the assistance of counsel in the interim period, absent a waiver"); Oliver v. State, 435 So.2d 207 (Ala.Crim.App.1983) (the petitioner was entitled to an appeal as relief requested in a postconviction petition, where he informed appointed counsel that he wanted to appeal, but counsel did not appeal because counsel considered that he was appointed only through the filing of a motion for a new trial).

Although counsel, retained by Esters's family, filed a motion to withdraw Esters's guilty pleas, both appointed trial counsel were still attorneys of record. Their representation of, and attendant obligations to, Esters existed as long as they remained attorneys of record. Rule 6.2, Ala. R.Crim. P., provides the only means by which counsel may withdraw from representation (after a case...