People v. Parks
| Decision Date | 29 April 2021 |
| Docket Number | Court of Appeals No. 21CA0428 |
| Citation | 2021 COA 61,492 P.3d 1043 |
| Court | Colorado Court of Appeals |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy PARKS, Defendant-Appellant. |
No Appearance for Plaintiff-Appellee
Timothy Parks, Pro Se
Opinion by JUDGE TOW
¶ 1 Defendant, Timothy Parks, appeals the denial of his petition for postconviction relief pursuant to Crim. P. 35(c). He filed his notice of appeal 197 days after the court denied his petition — well after the due date for appeal. Nevertheless, for the reasons stated below, we find good cause to accept the appeal as timely. And we do so in a published order so that we may address a recurring problem with how trial courts throughout the state process such postconviction matters filed by pro se defendants long after the initial prosecution has ended — specifically, the failure of the trial courts to properly serve the pro se defendant with the order denying the petition.
¶ 2 Following a jury trial in February 2013, Parks was convicted of multiple charges involving possession with the intent to distribute drugs. After being adjudicated a habitual offender, Parks was sentenced to sixty-four years in the custody of the Colorado Department of Corrections, with all sentences running concurrently. On direct appeal, a division of this court partially reversed, concluding that some of Parks's convictions should be merged. People v. Parks , (Colo. App. No. 13CA0822, Mar. 24, 2016), 2016 WL 1166118 (). Because his sentences were concurrent, however, the merger had no impact on the length of his incarceration.
¶ 3 Parks later filed a pro se petition for postconviction relief pursuant to Crim. P. 35(c) challenging the proportionality of his sentence. On August 31, 2020, the district court denied the petition without a hearing. When issuing the order, however, the district court did not serve Parks with a copy of the order; instead — despite the fact that Parks had filed the petition pro se — the order was sent to two attorneys whom the district court file still reflected as counsel of record: Esteban Martinez and Laura Schwartz.2
¶ 4 On February 5, 2021, the district court received a letter from Parks inquiring as to the status of the petition. That same day the district court entered an order noting "NO ACTION TAKEN" and explaining that it had entered a written ruling denying the petition several months earlier. Again, however, this order was sent not to Parks, but to Martinez and Schwartz. Shortly thereafter, Martinez filed a motion requesting that he be removed as counsel of record and forwarded a copy of each of the district court's orders to Parks.3 Five weeks later, Parks filed his notice of appeal and a request that we accept the appeal out of time.
¶ 5 The deadline for a defendant to appeal a final judgment or order in a criminal case is forty-nine days after entry of the judgment or order. C.A.R. 4(b)(1). This court may extend that time by up to thirty-five days upon a finding of excusable neglect. Id. "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. Baker , 104 P.3d 893, 896 (Colo. 2005).
¶ 6 When a court enters an order out of the presence of the parties, "the clerk shall mail to each party affected a notice of the order and shall note the mailing in the docket." Crim. P. 49(c). The failure of the trial court to perform its duties can be a factor in determining whether there is good cause to permit an appeal to be filed after the expiration of the deadline. See Baker , 104 P.3d at 896.
¶ 7 Parks filed his postconviction petition pro se. But the trial court, in derogation of Crim. P. 49(c), sent a copy of the order denying the petition to two individuals who had ceased to represent him as a matter of law. Trial counsel's representation terminates automatically "when trial court proceedings have concluded." Crim. P. 44(e)(1). The conclusion of such proceedings occurs when restitution, if any, has been determined and either (1) the matter is dismissed and no timely appeal is filed; (2) the parties agree to pretrial diversion or the court enters an order granting a deferred sentence; (3) a sentence to incarceration is imposed and either the period for reconsideration pursuant to Crim. P. 35(b) has passed or any such motion is resolved; or (4) a timely notice of appeal is filed. Id.4 Unless appellate counsel also represented the defendant at trial, the representation terminates at the conclusion of the proceedings in the appellate court in which the attorney has appeared. C.A.R. 5(f). Significantly, neither the criminal rules nor the appellate rules require the attorney to take any steps to withdraw from representation after the proceedings have concluded.
¶ 8 The trial court proceedings had concluded, since there had been a direct appeal. Thus, Schwartz should have no longer been listed as counsel of record.5 Appellate proceedings had also concluded. Thus, Martinez should also have been removed as counsel of record.
¶ 9 Despite the termination of both Schwartz's and Martinez's representation by operation of law, they were not removed as counsel of record by the trial court. As a result, when serving the order denying the petition, the trial court's case management system automatically emailed the order to counsel instead of mailing it to Parks directly. Thus, the trial court failed to discharge its obligation to serve Parks, a pro se party, with the order denying his postconviction petition. Thus, Parks could not have known that the appellate clock had begun to tick. Once he discovered his petition had been denied, he filed an appeal within a reasonable time. Under these circumstances, there is ample good cause to accept the late filing.
¶ 10 We understand the volume of cases district court judges handle. But that cannot excuse courts from establishing procedures to remove counsel from a file once representation terminates or, at the very least, taking steps to ensure that postconviction orders are not served on counsel who is no longer representing the defendant.
¶ 11 Moreover, we do not intend to...
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Summaries of Published Opinions
...motion were reversed and the case was remanded for reconsideration of the Rule 6(b)(2) motion and further proceedings as necessary. 2021 COA 61. No. 21CA0428. People v. Parks. Crim P. 35(c)—Service of Papers—Computation and Extension of Time. Defendant filed a pro se petition for post convi......