People v. Baker, 04SA194.

• Decision Date: 18 January 2005
• Docket Number: No. 04SA194.,04SA194.
• Parties: In re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: Bobby L. BAKER.
• Court: Colorado Supreme Court

104 P.3d 893

In re: Plaintiff: The PEOPLE of the State of Colorado, v. Defendant: Bobby L. BAKER.

No. 04SA194.

Supreme Court of Colorado, En Banc.

January 18, 2005.

David S. Kaplan, Colorado State Public Defender Kathleen A. Lord, Chief Appellate Deputy Public Defender Denver, for Petitioner.

John W. Suthers, Acting Attorney General, John T. Bryan, Assistant Attorney General, Denver, for Respondent.

MULLARKEY, Chief Justice.

In this original proceeding, Bobby Baker, petitioner, seeks a writ of mandamus compelling the court of appeals to accept his direct appeal. We issued a rule to show cause and now make that rule absolute.

The court of appeals abused its discretion when it dismissed Baker's appeal as untimely. Errors by the trial court and Baker's trial counsel, combined with the lack of prejudice to the prosecution in allowing the appeal to proceed, principles of judicial economy and the inadequacy of a Crim. P. 35(c) proceeding as a substitute for a direct appeal constitute good cause to excuse the late filed notice of appeal.

I. Facts and Procedural History

Baker was convicted of multiple felony offenses in December 2001 and sentenced to forty-eight years to life in the Department of Corrections. At trial, Baker was represented by private counsel, whom he had retained. At the sentencing hearing on December 4, 2001, the trial court advised Baker that he had a right to appeal, but did not determine if Baker was indigent or advise him of his right to appointment of counsel for direct appeal if he were indigent. Prior to the hearing, Baker had filed a motion to proceed in forma pauperis. The court never ruled on that motion. During the sentencing hearing, Baker indicated that he was "interested" in having a public defender appointed for appeal. The court responded that it could entertain a motion for the appellate section of the Colorado Public Defender to represent Baker in an appeal, but because no such motion was before the court, it could do nothing at that time.

Baker had prepared a handwritten notice of appeal, which he showed to his trial counsel. Although counsel and Baker had agreed that he would not represent Baker on appeal, trial counsel offered to type and submit Baker's notice of appeal "as a courtesy." On December 10, 2001, trial counsel filed Baker's notice of appeal in the Jefferson County District Court and delivered a copy to the Office of the District Attorney, but failed to file the notice of appeal in the court of appeals, as is required by C.A.R. 4(b). Consequently, Baker's appeal was not perfected.

In March 2003, Baker wrote to the court of appeals to inquire about the status of his appeal. The clerk of the court replied that no notice of appeal had been filed and suggested Baker contact his trial counsel. Baker followed this advice and his trial counsel responded with a letter reminding him that he had not agreed to represent Baker in "any appellate actions or other post-conviction motion," and wishing him luck with his appeal. Attached to the letter was a copy of the notice of appeal counsel had typed for him. Reviewing it, Baker discovered that notice had been incorrectly filed in the district court. Following this discovery, Baker again wrote to the clerk of the court of appeals, informing him of the error and asking for a lawyer as well as advice on what steps, if any, he could take to perfect his appeal. There is no response to this letter in the record.

On March 12, 2004, Baker filed a new notice of appeal in the court of appeals and a motion for appointment of counsel in the district court. This time, the district court appointed the Office of the Public Defender to pursue Baker's direct appeal. Six weeks later, the court of appeals issued an order to Baker directing him to show cause why the notice of appeal should not be dismissed for lack of jurisdiction due to failure to file timely notice. The public defender appeared for Baker and responded to the order to show cause by arguing that Baker should not be unfairly prejudiced by the ineffective assistance of his trial counsel who failed to perfect his direct appeal in violation of Crim. P. 44(e). In a one sentence order, the court of appeals dismissed Baker's appeal as untimely. One judge dissented. Baker then petitioned this court for relief pursuant to C.A.R. 21. We issued a rule to show cause why the appeal should not be accepted and now make the rule absolute.

II. Analysis

The right to direct appeal of a criminal conviction is fundamental. Weason v. Colorado Court of Appeals, 731 P.2d 736, 737 (Colo.1987); Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969); see also § 16-12-101, C.R.S. (2004) ("Every person convicted of an offense under the statutes of this state has the right of appeal to review the proceedings resulting in conviction."). C.A.R. 4(b) establishes a timeline for filing a notice of appeal in criminal cases and requires that notice be filed within forty-five days after entry of judgment. Unless notice of appeal is timely filed, the court of appeals lacks jurisdiction to hear the appeal. Estep v. People, 753 P.2d 1241, 1246 (Colo.1988); see also C.A.R. 3(a).

However, C.A.R. 4(b)(1) also provides that, before or at any time after the initial time expires, an additional thirty day extension can be granted upon a showing of excusable neglect. Additionally, C.A.R. 26(b) allows the appellate court to enlarge the time for filing or permit an act to be done after the expiration of a deadline for good cause shown. People v. Allen, 182 Colo. 395, 397, 513 P.2d 1060, 1061 (1973). C.A.R. 2 also allows the court of appeals to suspend the requirements or provisions of any of the appellate rules in a particular case "in the interest of expediting decision, or for other good cause shown." Taken individually and collectively, the Rules confer discretion on the court of appeals to extend jurisdiction over appeals filed outside the forty-five day time limit under certain circumstances upon a showing of excusable neglect or good cause.

Although the court of appeals' discretion in accepting late-filed notices of appeal is broad, it may not be exercised in a manner that is arbitrary, unreasonable or unfair. Estep, 753 P.2d at 1247. With that standard in mind, we next consider whether the court of appeals abused its discretion when it rejected Baker's appeal. We conclude that Baker demonstrated ample factors to support a finding of good cause to allow late filing and the court of appeals therefore abused its discretion by dismissing his appeal.

Baker's trial counsel had a duty to perfect Baker's appeal by properly filing notice in the court of appeals. Even though counsel may have mistakenly believed that because he had not agreed to represent Baker on appeal, his responsibilities to his client ended at sentencing, and he was merely submitting Baker's appeal notice "as a courtesy," Crim. P. 44(e) provides otherwise. In relevant part, Crim. P. 44(e) states that counsel's representation of a defendant terminates:

(III) After a sentence to incarceration is imposed upon conviction when no motion has been timely filed pursuant to Crim. P. 35(b) or such motion so filed is ruled on; or (IV) When notice of appeal is filed by the defendant.

Baker's trial counsel filed a Crim. P. 35(b) motion on April 8, 2002. Because appellate counsel had not been appointed prior to that time, and trial counsel had not moved to withdraw, Baker's trial counsel was counsel of record at the time the forty-five day period for filing a notice of appeal under C.A.R. 4(b) expired. Plainly, counsel neglected his duties to his client by failing to follow the proper procedures for filing a notice of appeal and filing the notice in the wrong court.

To establish excusable neglect, the circumstances must show that "there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as the result of some unavoidable hindrance or accident." Farmers Ins. Group v. Dist. Court, 181 Colo. 85, 89, 507 P.2d 865, 867 (1973). The circumstances surrounding the failure of Baker's trial counsel to correctly file a notice of appeal do not meet that standard, because the error resulted from counsel's carelessness and ignorance of his responsibilities. See Estep, 753 P.2d at 1247

. Thus, Baker cannot make the showing of excusable neglect necessary for a grant of an extra thirty days to file under C.A.R. 4(b)(1).

This does not mean that Baker should be denied his right to appeal. Under C.A.R. 26(b), the court of appeals may permit an appeal to be filed after the initial forty-five day time period for good cause shown.¹ The determination of whether good cause exists naturally depends on the particular facts of each case and should be made after assessing the totality of the circumstances. In Estep, we concluded that when counsel's neglect to file is inexcusable, the court can consider "whether other factors weigh heavily in favor of permitting the late filing." 753 P.2d at 1248. Three nonexclusive factors outlined in Estep included: 1) the potential prejudice the People may suffer from late filing, 2) the interests of judicial economy, and 3) the propriety of requiring the defendant to pursue other remedies.²Id.

Here, these factors, as well as several others, favor requiring Baker's appeal to be reinstated for good cause under C.A.R. 26(b). Baker's failure to file a timely appeal can be attributed to the failure of both his trial counsel and the trial court to perform duties owed to criminal defendants. Despite personal beliefs to the contrary, Baker's trial counsel was counsel of record at the time the notice of appeal should have been filed and was therefore obligated to ensure Baker's appeal was perfected. The failure to do so amounts to ineffective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (Appellate counsel's failure to file a statement of appeal with the Kentucky...