Newberry v. State
| Decision Date | 21 August 2014 |
| Docket Number | No. 2012–KA–01910–SCT.,2012–KA–01910–SCT. |
| Citation | 145 So.3d 652 |
| Court | Mississippi Supreme Court |
| Parties | Weissenger NEWBERRY, III a/k/a Weissenger Newberry v. STATE of Mississippi. |
OPINION TEXT STARTS HERE
Wanda Abioto, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before WALLER, C.J., CHANDLER and KING, JJ.
¶ 1. On appeal of Weissenger Newberry's felony convictions, we reverse and remand for a new trial due to the trial court's and counsel's failure to comply with Mississippi Rule of Appellate Procedure 46 governing the admission of foreign attorneys to practice pro hac vice. Most significantly, the trial court erred in waiving the now-mandatory requirement that associated local counsel be present at trial.
¶ 2. In 2011, Newberry was pulled over for suspicion of driving under the influence (DUI) after an officer observed him weaving between lanes. He resisted arrest and subsequently was indicted on two counts of assaulting a law-enforcement officer, possession of marijuana, possession of cocaine, and a first DUI. The indictment later was amended to reflect his habitual-offender status. The assault charges eventually were dropped.
¶ 3. Newberry engaged Gerald S. Green, a Tennessee attorney, to represent him. A scheduling order of May 14, 2012, listed Green as attorney of record. On June 15, 2012, Green submitted a verified application and affidavit to appear pro hac vice, listing the enumerated requirements of Mississippi Rule of Appellate Procedure 46(b)(5), including the statement that Green “has associated Attorney Daniel O. Lofton, a member in good standing of the Mississippi Bar as local counsel in this case....” The application included a Certificate of Local Attorney signed by Daniel Lofton and a Certificate of Payment for the pro hac vice fee of $200 to the Clerk of the Mississippi Supreme Court. This was the complete extent of Lofton's involvement in the case.
¶ 4. Also on June 15, 2012, Green submitted a Motion to Dismiss Prosecution and a Request for Discovery on Newberry's behalf. These two motions were signed and submitted only by Green. Additionally, Green's bar number as listed next to his signature on these motions did not indicate in which state Green was licensed.
¶ 5. Green represented Newberry at an August 7, 2012, hearing in which the court denied the Motion to Dismiss and granted the State's Motion to Amend the Indictment charging Newberry as a habitual offender under Mississippi Code Section 99–19–81. Green had not at that time been approved to proceed pro hac vice, and associated attorney Lofton was not present at the hearing. The court subsequently denied an August 17, 2012, Motion to Continue Trial filed by Green.1
¶ 6. The trial occurred on August 22, 2012. After the jury was selected, the court approved Green's application to proceed pro hac vice and waived the requirement that local counsel be present during trial. The State had no objection to the trial proceeding without the presence of local counsel. The portion of the transcript from the start of trial granting Green's pro hac vice application and permitting the trial to move forward without the presence of local counsel reads as follows:
[STATE]: Your Honor, as a preliminary matter ... [i]t's my understanding that the Supreme Court has approved him to proceed pro hac vice in the Mississippi court. The state has no objection to that.
Further, it's my understand of the rule that local counsel is not here. The rule expressly allows the defendant defense counsel to proceed without local counsel if the judge expressly allows that or makes a ruling as such. The state has no objection whatsoever to Mr. Green proceeding without local counsel being present.
THE COURT: All right. It's my understanding from looking at the court file myself that Mr. Green has complied with the Mississippi rules concerning the admission pro hac vice, and I do hereby rule that he is an attorney in good standing in Shelby County and has been accepted for practice here pursuant to our court rules.
He has paid the necessary fees to the State of Mississippi and to the Mississippi bar, and I'm going to excuse the local counsel from being here participating....
¶ 7. After a one-day trial, Newberry was convicted of possession of marijuana, possession of cocaine, and first-offense DUI. Evidence was submitted showing that Newberry's blood alcohol level several hours after arrest was 0.13. In addition to the testimony of officers present at the scene, the dash-cam video of the incident was shown to the jury.
¶ 8. The Supreme Court never received an order approving Green's admission to proceed pro hac vice. Green stated at the post-trial motions hearing that
¶ 9. Daniel Lofton, the associated attorney, testified at the post-trial motions hearing that he understood his role and obligations to be limited to certifying that Green was an attorney in good standing in Tennessee on Green's pro hac vice application, and that he would be notified if his involvement was further required. Lofton never met or communicated with Newberry. Lofton stated that
Mr. Green is an experienced counsel, and I acted discretionarily under his advice.... I saw none of [the documents/motions filed on Newberry's behalf] nor was I aware that this matter was going to trial, nor was I aware of the seriousness with which—the charges which Mr. Newberry faced, especially the habitual offender issue. I had no idea... I basically certified that Gerald Green was an attorney in good standing to the best of my knowledge, which I have direct knowledge of being a Tennessee attorney,2 as well, no, like I said, I was not part of the contract for services with Mr. Newberry. I didn't have any arrangement with him to be compensated.
At the post-trial motions hearing, Newberry asserted that he never knew Green was not licensed to practice in Mississippi. This contradicts Green's testimony that he told Newberry up front that he could not practice in Mississippi unless he was admitted pro hac vice and followed the rules governing admission. Newberry hired a new attorney immediately following the trial and was represented by the new attorney at the post-trial motions hearing, sentencing hearing, and on this appeal.
¶ 10. Deprivation of counsel and pro hac vice requirements are questions of law, which we review de novo. In re Williamson, 838 So.2d 226, 233 (Miss.2002).
¶ 11. Newberry argues that he was denied counsel under the Sixth Amendment due to Green's failure to comply with the requirements to practice pro hac vice, and in particular due to the absence of local counsel at trial. But failure of an out-of-state attorney to comply with the rules for pro hac vice admission is not a per se deprivation of counsel under the Sixth Amendment. Cole v. U.S., 162 F.3d 957, 958 (7th Cir.1998). Addressing a situation where a nonlocal lawyer had provided representation, the Seventh Circuit stated:
The right to the representation of counsel implies some minimum standard of competence, but “the key to adequate representation is not technical license to practice in the jurisdiction involved, but a credential from some forum demonstrating the specialized knowledge of a lawyer.” ... Thus, whether a lawyer has been admitted to practice in the local jurisdiction is not of constitutional dimension.
Id. (quoting U.S. v. Maria–Martinez, 143 F.3d 914, 917 (5th Cir.1998)). The court further observed:
As a general matter, only a few circumstances give rise to a per se violation of the Sixth Amendment right to counsel: no counsel present at all, or counsel not present at critical stages; complete failure to cross-examine or subject the opposing case to the adversarial process; an actual conflict of interest; and failure to file a requested appeal. The Supreme Court has described these as “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”
Id. (quoting U.S. v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). See also U.S. v. Sanders, 377 F.3d 845 (8th Cir.2004) ().
¶ 12. Here, Green was a licensed, competent, practicing attorney in Tennessee. Therefore, his failure to satisfy the pro hac vice requirements does not constitute a per se structural violation of the Sixth Amendment.
¶ 13. Green did not completely satisfy the requirements for pro hac vice admission before acting to represent Newberry, and the trial court clearly erred in allowing the trial to proceed without the presence of local counsel.
¶ 14. Rule 46(b)(7) states:
A foreign attorney shall not appear as counsel pro hac vice before any court or administrative agency until the foreign attorney certifies to the court or administrative agency that the foreign attorney has provided a copy of the order authorizing such appearance to the Clerk of the Supreme Court.
¶ 15. The trial court did not authorize Green to practice pro hac vice until well after Green had represented Newberry by filing motions on Newberry's behalf without listing associated counsel and by representing him in person at pretrial hearings.3 Additionally, Green should have certified to the trial court that the Clerk of the Supreme Court had been provided a copy of the order authorizing his appearance before he acted to represent Newberry.
¶ 16. The trial court erred in waiving the now-mandatory requirement that associated local counsel be...
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