[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Kenneth Darnell Esters appeals from the circuit court's denial of his petition filed pursuant to Rule 32, Ala. R.Crim. P., in which he sought an out-of-time appeal of his convictions in 2001 for attempted murder and first-degree robbery. See Rule 32.1(f). In his petition, he claimed that his failure to appeal within the prescribed time was not due to any fault on his part, but was due to the ineffective assistance of his counsel. He asserted that neither his two appointed trial counsel nor counsel retained to file a motion to withdraw his guilty pleas filed a notice of appeal and that he had timely notified both appointed counsel and retained counsel that he wanted to appeal. (He specifically alleged that he stated his request to appeal to appointed counsel after he was sentenced and to retained counsel after the trial court denied his pro se motion and retained counsel's motion to withdraw his guilty pleas.)
On appeal, Esters contends that the circuit court abused its discretion in denying his petition without an evidentiary hearing. An understanding of the procedural chronology of this case in the trial court is necessary to a review of the circuit court's ruling.1
April 20, 2001: Esters was sentenced, as a habitual felony offender, to life imprisonment without the possibility of parole for his convictions for attempted murder and first-degree robbery, which were based on his "blind" guilty pleas entered pursuant to a plea agreement.
May 10, 2001: Appointed trial counsel, Deborah McGowin and Joan Connolly, filed a motion to reconsider Esters's sentences.
May 16, 2001: Esters filed a pro se motion to withdraw his guilty pleas.2 It appears from the case action summaries that Esters also filed a pro se "[m]otion for appointment of counsel for said withdrawal
of guilty plea[s]" and a pro se motion to vacate his sentences.
May 18, 2001: Jim Harper, counsel retained by Esters's family, filed a motion to withdraw Esters's guilty pleas or, in the alternative, for a new trial, asserting, among other grounds, ineffectiveness or conflict of interest concerning Esters's appointed trial counsel.
June 14, 2001: Appointed trial counsel Connolly filed a motion to withdraw as counsel.
June 19, 2001: Esters's pro se motion to withdraw his guilty pleas and retained counsel's motion to withdraw Esters's guilty pleas or, in the alternative, for a new trial were denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P.3 We also assume, for purposes of this opinion, that appointed trial counsel's motion to reconsider Esters's sentences and Esters's pro se motion to vacate his sentences were also denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P.4
July 25, 2001: The trial court held a hearing on all motions. It granted Connolly's
motion to withdraw as counsel, declared the pro se motion for appointment of counsel for "said withdrawal of guilty plea[s]" to be moot, and denied appointed counsel's motion for reconsideration of sentence, the pro se motion to vacate the sentences, and the two motions to withdraw the guilty pleas. However, the trial court was without jurisdiction to hold the hearing or to rule on the merits of all but the first two motions. See Finney v. State, 860 So.2d 367 (Ala.Crim.App. 2002); Edgar v. State, 646 So.2d 681, 682 (Ala.Crim.App. 1993), rev'd on other grounds, 646 So.2d 683 (Ala. 1994) (pertinent reasoning approved).
July 31, 2001: Time for filing the notice of appeal expired. See Rule 4(b)(1), Ala. R.App. P.5
August 14, 2001: Esters filed a pro se motion for appointment of counsel for "said amend sentence hearing."
August 17, 2001: Esters filed a pro se motion for reconsideration of his sentences and a pro se motion for appointment of counsel for "said reconsider sentence hearing."
August 20, 2001: The trial court denied Esters's three August pro se motions.
April 24, 2002: Esters filed his Rule 32 petition.
Retained counsel Harper filed an affidavit in response to Esters's allegations in his Rule 32 petition that Harper did not pursue an appeal, as Esters had allegedly requested. In that affidavit, Harper stated that he was retained only to file a motion to withdraw the guilty pleas or, in the alternative, for a new trial; that, at the motions hearing, appointed trial counsel McGowin and Connolly testified on Esters's behalf; that no one, including Esters, had requested that Harper file an appeal; that, had Esters so requested, he would have referred Esters to another attorney because Harper does not do appellate work; and that he had had no contact with Esters or Esters's family since the hearing.
In denying Esters's petition, the circuit court adopted, intoto, the State's response to Esters's petition. It specifically found that retained counsel Harper "was only hired by Petitioner's family to file and prosecute a Motion to Withdraw Guilty Plea[s]," not to appeal. This finding was supported by Harper's affidavit.
However, no evidence was presented to contradict Esters's allegation that he also requested appointed trial counsel to file a notice of appeal. Thus, Esters's allegations in this regard must be accepted as true. See Wright v. State, 845 So.2d 836
(Ala.Crim.App. 2001). In regard to any responsibility carried by appointed counsel, the circuit court held, in part, the following:
"Connolly and McGowin were forced to withdraw from the representation of Petitioner due to his complaints against them. They had a conflict of interest created by Petitioner. They did not represent Petitioner. Assuming that Petitioner asked them to appeal, they could not because they did not represent Petitioner. Also, it is inconceivable that Petitioner would ask them to appeal when he blamed them for the basis of that appeal."
The circuit court further found that they withdrew before "Petitioner, through his family, hired attorney Jim Harper."
We analyze the circuit court's denial of Esters's petition by the following mandates of Rule 6.2, Ala. R.Crim. P.:
"(b) Duty of Continuing Representation. Counsel representing a defendant at any stage shall continue to represent that defendant in all further proceedings in the trial court, including filing of notice of appeal, unless counsel withdraws in accordance with a limited contract of employment as described in Rule 6.2(a),6 or for other good cause as approved by the court.
"(c) Withdrawal. Counsel may be permitted to withdraw for good cause shown; however, no attorney shall be permitted to withdraw after a case has been set for trial except upon written motion stating the attorney's reasons for withdrawing."
(Emphasis added.) In the Committee Comments to Rule 6.2, we find the following:
"Section (b) contemplates that the usual procedure will be that counsel initially retained privately or appointed by the court will continue to represent the defendant through all stages of the trial proceeding, including filing notice of appeal. The rationale is that that attorney has the advantage of familiarity with the case. Continued representation also guarantees that the defendant's right of appeal is not lost in the period between termination of trial counsel's responsibilities in the case and retention or appointment of counsel for an appeal, if any. See ABA, Standards for Criminal Justice, Providing Defense Services 5-5.2 (2d ed. 1986).
"Counsel must move to withdraw by means of a formal written motion. Withdrawal will be permitted only upon order of the court in response to such motion.
Normally, appointed counsel will not be permitted to withdraw prior to appeal. However, if the court permits withdrawal by counsel, the court must then provide new counsel or see that counsel for the defendant has been provided, unless right to counsel has been waived.
"The purpose of section (c) is to maintain the integrity of the trial date, to protect the interests of the defendant, and to aid the trial court in providing continuity in legal representation. See Ala. Code 1975, § 15-12-5(d) [which states, in part, `To the extent possible, judges shall provide continuity in legal representation.']."
(Emphasis added.) See also Rule 24(b)(1), Ala. R.App. P, which states, "Appointed trial counsel shall continue as defendant'scounsel on appeal unless relieved by order of the trial court." (Emphasis added.) In regard to this particular provision, the Comments to Rule 24 explain:
"[D]ue to the brevity of time within which an appeal must be taken (42 days), appointed trial counsel in a criminal case shall continue as counsel on appeal. Appointed trial counsel may be relieved of his or her responsibility to continue as counsel on appeal only by order of the trial court."
See also King v. State,
613 So.2d 888,
891 (Ala.Crim.App. 1993) ("if an indigent defendant is constitutionally entitled to the assistance of counsel at sentencing and in the first appeal as a matter of right, that defendant would be entitled to the assistance of counsel in the interim period, absent a waiver");
Oliver v. State,
435 So.2d 207 (Ala.Crim.App. 1983) (the petitioner was entitled to an appeal as relief requested in a postconviction petition, where he informed appointed counsel that he wanted to appeal, but counsel did not appeal because counsel considered that he was appointed only through the filing of a motion for a new trial).
Although counsel, retained by Esters's family, filed a motion to withdraw Esters's guilty pleas, both appointed trial counsel were still attorneys of record. Their representation of, and attendant obligations to, Esters existed as long as they remained attorneys of record. Rule 6.2, Ala. R.Crim. P., provides the only means by which counsel may withdraw from representation (after a case has been set for trial): a formal written motion granted by the trial court. Thus, their responsibilities to Esters, including preserving his right to appeal, existed until they were allowed to withdraw as attorneys of record, unless he had validly waived his right to counsel, which does not appear to be the case.
Contrary to the circuit court's findings, Connolly remained Esters's counsel until the trial court granted her formal written motion to withdraw 6 days before the 42-day period for filing notice of appeal expired; it appears that McGowin never filed a formal written motion to withdraw and, the trial court thus never released McGowin from representing Esters.
Thus, if in fact Esters requested, after sentencing, that his appointed counsel file a notice of appeal, they were obligated pursuant to their duty of continuing representation to take the simple procedural steps necessary to protect his right to appeal. We find apropos the following excerpt from the Commentary to ABA, Standards for Criminal Justice, Defense Function 4-8.2 (3d ed. 1993):
"A defendant needs effective representation and advice in the relatively short period immediately following conviction when the decision whether to appeal must be made. . . . To make the right to counsel meaningful, representation must be continuous throughout the criminal process. . . .
". . . .
"There is often misunderstanding between lawyer and client concerning the action that will be taken by each after conviction. Rather than continue to face the problem in the form of petitions for relief from time limitations on filing appeals or of postconviction collateral attacks on the ground of inadequate representation, trial counsel's obligation to protect the defendant's right of appeal
should be affirmed. Accordingly, section (b) provides that `[d]efense counsel should take whatever steps are necessary to protect the defendant's rights of appeal.' Frequently, this may include perfecting the appeal itself, even though arrangements may have to be made for other counsel to represent the defendant before the appellate court."
See also Commentary to ABA, Standards for Criminal Justice, Sentencing Standards 18-5.19 (3d ed. 1994) ("defense counsel, even if retained or appointed only for the trial court phase of a prosecution, . . . [has] the minimal professional responsibility to take the necessary steps to protect the offender's right to appeal" if the offender decides to appeal).
See, e.g., UnitedStates v. Ruth,
768 F.Supp. 1428 (D.Kan. 1991) (where the defendant informed his trial counsel after sentencing that he wanted to appeal, but, according to trial counsel, the defendant said another attorney would be hired to represent him, trial counsel still had the responsibility to ensure that notice of appeal was timely filed because he had not been granted leave to withdraw);
Broeckel v. State,
900 P.2d 1205 (Alaska App. 1995) (although the defendant's family retained counsel after sentencing, appointed trial counsel did not attempt to formally withdraw, as required, and had no authority to unilaterally withdraw from representation; thus, trial counsel had an ongoing duty toward his client).
Moreover, Rule 1.16(d), Ala. R. Prof'l Conduct, requires an attorney, upon termination of representation, to "take steps to the extent reasonably practicable to protect a client's interests." The Comment to this section states that, "[e]ven if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client."
Pursuant to the above authorities, appointed counsel's duty to file a notice of appeal, if requested, was not so tenuous as to be excused by the possibility that other counsel would have been appointed before the 42-day period expired. Trial counsel should file the notice as soon as is reasonably possible after the defendant's request. For these reasons, we reject the attorney general's argument that, because retained counsel Harper could have also timely filed notice, but Esters did not ask him, Esters was not prejudiced by appointed counsel's failure to file notice.
Inherent in Rule 6.2, Ala. R.Crim. P., is our supreme court's determination that the responsibility to preserve the defendant's right to appeal falls upon the attorney of record, which in this case are appointed trial counsel and retained counsel. Retained counsel submitted that he was not asked to file a notice of appeal. It remains for the circuit court to determine whether either appointed counsel was asked.
We also cannot agree with the circuit court's finding that Esters's complaint regarding representation by his appointed trial counsel automatically terminated their duty of representation by "forcing" them to withdraw. Such a per se rule would invite defendants anxious to rid themselves of unwanted lawyers to express dissatisfaction with representation, thereby forcing the appointment of substitute counsel. Cf. People v.Johnson, 227 Ill.App.3d 800, 814-15, 592 N.E.2d 345, 355-56, 169 Ill.Dec. 858, 868-69 (1992). Were the filing of a claim of ineffective counsel or a grievance against counsel sufficient to instantaneously terminate the relationship, a defendant could force the appointment of new counsel simply by filing a complaint, regardless of its merits. Such a per se rule would encourage the filing of even
more groundless complaints against counsel.
In addition, the purpose of the express requirement of formal allowance of withdrawal in Rule 6, Ala. R.Crim. P., is to ensure continuing representation through a critical stage, i.e., the transition from trial to appeal. The Rules are designed to avoid ambiguity of representation at the very point in the appellate process when certainty is imperative. Counsel cannot unilaterally and informally cease representation. By counsel's formally seeking withdrawal, the trial court can take steps necessary to prevent any lapse of representation in the short 42-day period. Formal leave of the court is clearly and unequivocally required before counsel may be deemed to have withdrawn as counsel. This case illustrates the importance of following this procedural safeguard.
The circuit court also erroneously based its summary denial of Esters's petition on its finding that Esters pleaded no prejudice because he did not plead any grounds of an appeal or the likelihood of success. We adopt the following rationale:
"Federal courts . . . appear almost unanimous in concluding that no prejudice need be shown when ineffective assistance of counsel consists of an attorney's failure to preserve the right of a client to appeal; these cases hold that upon a showing of ineffective assistance, the automatic remedy should be restoration of the right to appeal.
"[This] approach . . . makes sense, for an attorney who incompetently fails to file a notice of appeal deprives the client of the right to an appeal, not just the right to a successful appeal. Moreover, insisting on a showing of prejudice before allowing an appeal seems a fruitless exercise, since any determination of prejudice in this context will necessarily entail almost the same analysis that would be required in deciding the appeal on its merits. Finally, requiring that prejudice be shown as a condition of allowing an untimely appeal would be of questionable value, since it would impose on the trial court the essentially circular task of reviewing the propriety of its own legal decisions."
Broeckel v. State,
900 P.2d 1205,
1208 (Alaska App. 1995) (citations omitted). Moreover, because petitioners "might have grave difficulty in making even a summary statement of points to be raised on appeal . . . [or] may not even be aware of errors which occurred at trial," a requirement that they show prejudice would deprive them of "their only chance to take an appeal even though they have never had the assistance of counsel in preparing one."
Rodriquez v. United States,
395 U.S. 327,
330,
89 S.Ct. 1715,
23 L.Ed.2d 340 (1969) (a defendant deprived of the right to appeal by trial counsel's failure to file a notice of appeal is not required to specify errors he would have raised on appeal or to demonstrate that the denial of an appeal was prejudicial in order to state a prima facie case warranting postconviction relief).
Pursuant to the above considerations, Esters presented sufficient facts in his petition to warrant our remanding for a factual determination of whether he informed either appointed counsel of his desire to appeal within time reasonably sufficient for either to have filed an appeal notice. See Wright v. State.
If the court finds that counsel was timely informed, Esters is entitled to an appeal, because the failure to file an appeal is prejudicial per se. In lieu of an evidentiary hearing, the circuit court may take evidence as provided by Rule 32.9(a), Ala. R.Crim. P. See Harper v. State, 676 So.2d 949, 950
(Ala.Crim.App. 1995). In either event, the circuit court should make specific findings of
fact, as required by Rule 32.9(d). If the circuit court holds an evidentiary hearing, the return to remand shall include a transcript of that proceeding. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later that 35 days from the date of this opinion.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala. Code 1975.
REMANDED WITH DIRECTIONS.*
McMILLAN, P.J., and COBB and SHAW, JJ., concur. BASCHAB and WISE, JJ., concur in the result.