People v. Boivin

• Decision Date: 19 March 1981
• Docket Number: No. 80CA0373,80CA0373
• Citation: 632 P.2d 1038
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Pierre BOIVIN, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 1038

632 P.2d 1038

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Pierre BOIVIN, Defendant-Appellant.

No. 80CA0373.

Colorado Court of Appeals, Div. III.

March 19, 1981.

Rehearing Denied April 9, 1981.

Certiorari Granted Aug. 10, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Terry L. Perlet, Colorado Springs, for defendant-appellant.

BERMAN, Judge.

Defendant (movant) asks this Court for leave to file out of time a notice of appeal from his conviction of aggravated robbery. The record reveals that the conviction in question occurred on June 28, 1976. In a Crim.P. 35(b) motion for post-conviction relief, filed March 21, 1980, ¹ movant sought the trial court's leave to file out of time a notice of appeal. This motion was premised, inter alia, upon the trial court's assertedly having failed fully to advise movant, as required by C.A.R. 4(c)(2)(II)(A), of his right to appeal. The trial court ruled that it was without jurisdiction to consider movant's request; consequently, the motion was denied.

On July 7, 1980, movant filed in this Court a document which we elect to treat as a motion requesting this Court's leave to file a late notice of appeal. See Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969).

I.

Relying on Haines, supra, the People argue that movant's request must be denied. Haines established a two-part standard to guide an appellate court in determining whether to permit untimely appeal from a criminal conviction. First, there must be "factors" indicating that movant was deprived of his appellate rights; second, "meritorious grounds for appellate review must be shown."

Thus, the first question here is whether there are "factors" which excuse movant's failure timely to file notice of appeal. In this regard, movant claims that he was not aware of his right to appeal, and that his counsel did not advise him of such right. Movant further insists that the trial court itself did not advise him of such right, and consequently failed to comply with the dictates of C.A.R. 4(c)(2)(II)(A). See also Crim.P. 32(c).

In a pro se ² Crim.P. 35(b) motion, filed December 11, 1979, movant unsuccessfully sought post-conviction relief on the basis that, inter alia, he was deprived of effective assistance of counsel because "counsel did not perfect an appeal on the merits of the case as asked by the defendant." It is apparent, therefore, that movant had some awareness of his appellate rights. The People contend that, as a result, movant may not now complain that he was not advised concerning his right to appeal. We disagree.

Compliance with both C.A.R. 4(c)(2)(II)(A) and Crim.P. 32(c) is mandatory. C.A.R. 4(c)(2)(II)(A) requires, in pertinent part, that

"the district court shall advise the defendant at the time of sentencing of his right to appeal, including his right to appeal the sentence, of the time within which the appeal must be taken, and his right to be represented by counsel. The time for filing the notice of appeal may be extended by either the sentencing court or the appellate court." (emphasis added)

Crim.P. 32(c) requires, in pertinent part, that

"(e)xcept in cases where judgment of conviction has been entered following a plea of guilty or nolo contendere, the court shall after passing sentence inform the defendant of his right to seek review. In cases in which the court has previously made a determination that the defendant is indigent, the court shall also inform the defendant of his right to the assistance of appointed counsel upon review, and of his right to obtain a record on appeal without payment of costs." (emphasis added)

The question becomes whether noncompliance with the stated rules can be forgiven on the basis that a defendant acquired independent knowledge of his appellate rights. We hold that it cannot.

In the first place, a mere showing that a defendant at some point had some awareness of his right to appeal would scarcely obviate the need for full compliance with the quoted provisions. The purpose of the rules in question is not merely to alert a defendant that he has some right to appeal, but, rather, is to inform him as to what may be appealed, the pertinent time limits, and the availability, if defendant is indigent, of a free trial transcript and of appointed counsel to assist in pursuit of an appeal. Further, the rules are designed to provide such information in time for a defendant to put it to effective use.

In a very practical sense, effective access to the appellate process depends upon certain minimum knowledge concerning that process. The rules here involved were designed expressly to impart such knowledge. While that knowledge could indeed be acquired by other means, such as through advice of counsel, we think the intent behind the rules is to establish some minimum guarantee that such knowledge will be conveyed to defendants.

The instant case illustrates well the problem the rules seek to avoid. As has been noted, movant had, at some point, some awareness of his appellate rights. But, there is nothing in the record to indicate precisely when such awareness arose, nor how comprehensive that awareness was. In the hearing pursuant to his March 21, 1980, Crim.P. 35(b) motion, movant testified without contradiction that his trial counsel did not inform him of his appellate rights, and that he first learned of them some time after his incarceration in the penitentiary. That testimony is not on its face inconsistent with a claim that counsel failed to perfect an appeal at movant's request, for nowhere is it shown when movant requested trial counsel to perfect the appeal. Moreover, the trial court itself conceded at the same hearing that "the Court did not advise (movant) of his right to appeal." Thus, nothing in the record before us establishes that movant's knowledge of his appellate rights was timely enough and comprehensive enough to obviate the need for the salutary function C.A.R. 4 and Crim.P. 32 were designed to perform.

The People would have us remand the cause for a hearing limited to the issue of whether, despite the trial court's concession, movant nevertheless had timely actual knowledge of each appellate right listed in C.A.R. 4(c)(2)(II)(A) and Crim.P. 32(c). However, at the Crim.P. 35(b) hearing, the People had ample opportunity to challenge movant's assertions concerning his lack of knowledge of his rights. The People failed to use that opportunity. Indeed, the attorney for the People did not even bother to cross-examine movant at that hearing. Thus, the People are not in a position now to complain. Such considerations, however, are not necessary to our conclusion. Instead, from the standpoint of efficient and uniform judicial administration, we think it simpler and fairer to insist, in every case, upon full compliance with the rules in question; consequently, we decline to order an additional hearing.

Our holding is supported by opinions construing Federal Rule of Criminal Procedure 32(a)(2), of which our Crim.P. 32(c) is the direct counterpart. For example, the United States Court of Appeals for the Third Circuit has adopted "the view that the mandatory time limit for perfecting an appeal does not begin to run until the defendant is actually notified of his rights (in accordance with the rule)," because "(t)here is no adequate substitute for compliance on the record with Rule 32(a)(2)." United States v. Deans, 436 F.2d 596 (3rd Cir. 1971) (emphasis added). Accord, State v. Fletcher, 174 N.J.Super. 609, 417 A.2d 106 (1980) (construing New Jersey's counterpart to federal rule 32(a)(2)).

Thus, once there is sufficient reason to believe that the trial court has not advised a defendant of his appellate rights (including the special rights of an indigent defendant), the burden falls upon the People to demonstrate that he was so advised. This is so because law, generally speaking, and formal logic place the burden of proof upon him who asserts the affirmative of a proposition; not upon him who asserts an existential negative. See generally American Insurance Co. v. Naylor, 101 Colo. 34, 70 P.2d 349 (1937). The People failed to meet that burden in this case.

In conclusion, we hold that movant's right to appeal was effectively frustrated, and, therefore, that the first element of the Haines test has been satisfied. See generally Wynn v. Page, 369 F.2d 930 (10th Cir. 1966).

II.

As to the second aspect of Haines, the threshold question is whether, in light of Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), and its progeny, the Colorado Supreme Court would entirely adhere to its former opinion. Rodriquez, decided after Haines, involved a federal, rather than a state, defendant. In that case, petitioner brought "suit for post-conviction relief under 28 U.S.C. § 2255, alleging that after his conviction ... he had been improperly denied his right to appeal." Petitioner's counsel did not submit a notice of appeal within the period specified by the applicable federal rule. After the time had expired, petitioner himself attempted to file a notice of appeal. The trial court ruled that expiration of the appeal period deprived the court of jurisdiction. Petitioner then sought relief in the Court of Appeals for the Ninth Circuit, alleging that he had told his counsel to perfect an appeal, but that counsel had failed to do so. The Court of Appeals also denied petitioner's motion for lack of jurisdiction.

Both the District Court and the Court of Appeals held that applicants in petitioner's position were required to disclose what errors they would raise on appeal, and to demonstrate that denial of an appeal had prejudiced their cause. The United States Supreme Court reversed, holding that petitioner's failure to specify points he would raise were his right to appeal reinstated, after...