Fountain, In re

• Decision Date: 04 November 1977
• Docket Number: Cr. 8729
• Court: California Court of Appeals Court of Appeals
• Parties: In re Edward A. FOUNTAIN, on habeas corpus.

Page 654

141 Cal.Rptr. 654

74 Cal.App.3d 715

In re Edward A. FOUNTAIN, on habeas corpus.

Cr. 8729.

Court of Appeal, Fourth District, Division 1, California.

Nov. 4, 1977.

As Modified on Denial of Rehearing Nov. 22, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Karl J. Phaler, Deputy Attys. Gen., for respondent. ¹

GERALD BROWN, Presiding Justice.

Edward A. Fountain, through his attorney, petitions this court for a writ of habeas corpus to relieve him from the consequences of failing to file a timely notice of appeal from a judgment convicting him of possessing a controlled substance for sale (Health & Saf. Code § 11351). Fountain had pleaded guilty and was sentenced to prison. This court issued an order to show cause returnable before the superior court with directions to report back findings of fact and conclusions of law.

Fountain was represented by appointed counsel in the trial court. That counsel did not file a notice of appeal nor is it anywhere suggested in the records of this proceeding he was requested to do so. Fountain's mother, however, paid $500 to present counsel within the 60-day period to file a notice of appeal. That fee clearly related to the processing of an appeal. No other justification for it appears in the record.

The attorney failed to file a notice of appeal until too late, and then filed an inadequate notice which did not meet the requirements of Penal Code section 1237.5 or California Rules of Court, rule 31(d).

Petitioner's attorney alleges Fountain's mother asked if he would handle the appeal. She gave him $500 and represented she would pay the balance within the 60-day period within which a notice should have been filed. He asserts he said he would hold the $500 apart from other funds, and not proceed until the full sum was delivered to his office. The balance (an amount no where specified) was not paid in time and the attorney did not file the jurisdictional notice.

The Attorney General seizes upon the fact the petition constitutes more of a timorous apologia for the attorney's abandonment of Fountain's interests than an advocacy of those very interests and concludes "This is surely one of the more ludicrous applications for habeas corpus . . . ." We would agree, but not for the reasons advanced by counsel for the respondent.

Central to the Attorney General's argument is the notion petitioner Fountain's mother (who the record indicates was on welfare) was somehow on a frolic of her own when she advanced $500 for counsel to handle the appeal and Fountain in no way authorized, ratified, requested or consented to that action. The superior court judge who heard the order to show cause apparently was persuaded by this theory because he found Fountain did not exercise due diligence in filing a notice of appeal and placed no reasonable reliance on his attorney to file one. The lower court concluded there had not been a timely constructive filing of a notice of appeal.

The superior court acted as a referee in taking evidence. While its findings are entitled to great weight, they are not binding upon this court (In re Fresquez, 67 Cal.2d 626, 634, 63 Cal.Rptr. 271, 432 P.2d 959; In re Atchley, 48 Cal.2d 408, 411, 310 P.2d 15) and this court is required to exercise its independent judgment on the facts (In re Swindall, 90 Cal.App.2d 177, 180, 202 P.2d 845).

We are unable to reconcile the weight of the evidence contained in the declarations with the findings made by the referee. We find as reasonable inferences that Fountain's mother acted on his behalf and with his authority when she paid the attorney $500 to undertake his appeal. We further find that, at a minimum, counsel's acceptance of the money created a contractual obligation on his part to protect Fountain's appeal rights by filing a timely and adequate notice. Since the attorney was so employed within the 60-day time limitation for filing a notice, there was no lack of diligence on Fountain's part, only the egregious failure on the part of his attorney. We find no reasonable inference Fountain did not rely on his attorney. There is nothing in the record to show counsel communicated to Fountain that he had encountered any problems in processing the appeal.

We conclude Fountain constructively filed an appeal and he is entitled to relief under the holding of In re Benoit, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97. Moreover, Fountain is entitled to an effective appeal. Because he pleaded guilty any...