NO. 2004-CA-02185-COA
Appeal Date: October 05, 2004
[editor's note: The court document was erroneously notated with 2 ¶7's; I have reordered the numbering to give the correct 9¶.]
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-02185-COA
| ROBERT PARKER | APPELLANT |
| v. | |
| STATE OF MISSISSIPPI | APPELLEE |
| DATE OF JUDGMENT: | 10/5/2004 |
| TRIAL JUDGE: | HON. THOMAS J. GARDNER, III |
| COURT FROM WHICH APPEALED: | ALCORN COUNTY CIRCUIT COURT |
| ATTORNEY FOR APPELLANT: | CHRISTOPHER E. KITCHENS |
| ATTORNEY FOR APPELLEE: | OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE |
| DISTRICT ATTORNEY: | JOHN R. YOUNG |
| NATURE OF THE CASE: | CIVIL - POST-CONVICTION RELIEF |
| TRIAL COURT DISPOSITION: | PETITION FOR POST-CONVICTION RELIEF DENIED |
| DISPOSITION: | AFFIRMED: 02/14/2006 |
| MOTION FOR REHEARING FILED: | |
| MANDATE ISSUED: |
EN BANC.
KING, C.J., FOR THE COURT:
- On September 24, 1994, Robert Parker was
convicted by an Alcorn County Circuit Court jury on
one count of murder and two counts of aggravated
assault. Parker was sentenced on the murder charge to
serve a term of life in the custody of the
Mississippi Department of Corrections. On the
aggravated assault charges, he was sentenced to two
concurrent twenty year terms to run consecutive to
the life term. The record contains one Order
Extending Time to File Notice of Appeal. However, no
direct appeal was taken. On August 16, 2004, Parker
filed a petition for post-conviction relief.
Alternatively, Parker asked the court to grant an
out-of-time appeal. The grounds upon which Parker
based his post-conviction relief petition were that
he received ineffective assistance of counsel and
that he was incompetent to stand trial. On October 6,
2004, the trial court dismissed Parker's petition
finding that it was time-barred and met no
exceptions. Parker now appeals the denial of
post-conviction relief, raising the following issues
which we quote verbatim:
- The circuit judge committed reversible error
when he denied the Appellant's Motion for Out of
Time Appeal without expanding the record in light
of the Appellant's affidavit that he desired to
file an appeal within the time allowed by the
Mississippi Rules of Appellate Procedure , but
through no fault of his own his trial counsel
failed to perfect his notice of appeal or
withdraw from representation.
- The circuit judge committed reversible error
in dismissing Appellant's Motion for Out of Time
Appeal without requiring a hearing concerning the
allegations made in his motion in violation of
Parker's right to respond as provided in §
99-39-17(3) of the Mississippi Code Annotated.
- The circuit court and trial counsel failed to follow the recommendation of the supreme court in Wright v. State as to resolving disputes between lawyer and client as to client's desire to appeal a criminal conviction.
Finding no error, we affirm.
ANALYSIS
I. & II. Out of time appeal and evidentiary hearing
- The circuit judge committed reversible error
when he denied the Appellant's Motion for Out of
Time Appeal without expanding the record in light
of the Appellant's affidavit that he desired to
file an appeal within the time allowed by the
Mississippi Rules of Appellate Procedure , but
through no fault of his own his trial counsel
failed to perfect his notice of appeal or
withdraw from representation.
- Parker claims that he desired a direct appeal,
but through no fault of his own, an appeal was never
perfected. In support of his argument, Parker
contends that this desire was evidenced by the fact
that his trial counsel secured him an extension of
time to file a notice of appeal. Attached to Parker's
petition for post-conviction relief is his own
affidavit in which he swears that the reason that he
did not perfect a direct appeal is because his
attorney quoted a fee of three hundred and fifty
thousand dollars to represent him on appeal, and
Parker could not afford that fee. He argues that both
his attorney and the trial court failed to inform him
that as an indigent he could receive a court
appointed attorney to represent him on appeal, and
had he been properly informed, he would have
perfected an appeal.
- Parker cites Harris v. State, for the
proposition that where the proof establishes that a
petitioner's right to appeal was denied through no
fault of his own, then an out-of-time appeal should
be granted. Harris v. State, 578 So. 2d
617,619 (Miss. 1991). However, the case at hand is
easily distinguishable. In Harris, the
appellant filed a motion for an out-of-time appeal
nine months after his conviction arguing that his
attorney failed to inform him of his right to appeal
and failed to perfect his appeal. Id. at
618. The trial court then required his attorney to
respond by affidavit. Id. The attorney
stated that he had informed Harris of his right to
appeal, but that Harris expressed no such desire.
Id. The trial court then summarily denied
Harris' motion for an out-of-time appeal.
Id. The supreme court reversed and remanded
for an evidentiary hearing, noting that "this court
eschews trial by affidavit." Id. at 619,
620.
- Parker filed his motion for an out-of-time appeal
ten years after his conviction. Unlike
Harris, Parker does not allege that he was
unaware of his right to appeal, only that he was
unaware that he may have the right to court-appointed
counsel to represent him on appeal. Further, this is
not a case of trial by affidavit. Parker's petition
for post-conviction relief in which he alternatively
sought an out-of-time direct appeal was supported
only by his own affidavit. We find Harris to
be inapplicable to the case at hand.
- Rule 2(c) of the Mississippi Rules of Appellate
Procedure allows this Court, for good cause shown, to
suspend the requirement of Rule 4 of the Mississippi
Rules of Appellate Procedure that an appeal be filed
within thirty days of the entry of judgment. However,
our appellate courts have opined that a trial judge
probably does not have the authority to grant an
out-of-time appeal later than 180 days after the
entry of judgment, but the appellate courts do have
the authority to grant a criminal defendant such an
appeal if failure to perfect the appeal was "through
no fault of his own" and if "justice demands."
McGruder v. State, 886 So. 2d 1, 2 (¶4)
(Miss. 2003).1 Accordingly, we find that the
trial court was without discretion to grant an
out-of-time appeal, and therefore did not err in
denying the requested relief. The question then
turns to whether this Court should allow an
out-of-time appeal.
- We simply cannot find that Parker was completely
without fault in failing to timely pursue a direct
appeal. Clearly Parker knew of his right to appeal
and the timeliness involved as evidenced by his trial
counsel's motion to extend the time for filing a
notice of appeal. Parker presents only his own
affidavit to support his contention that his trial
attorney failed to inform him of his potential right
to court-appointed counsel. He then argues that the
trial court should have required his trial attorney
to respond to Parker's allegation. However the trial
court was under no obligation to do so. A trial court
may summarily dismiss a petition for post-conviction
relief if it plainly appears from the face of the
petition that the movant is not entitled to any
relief. Hill v. State, 797 So. 2d 1006, 1008
(¶5) (Miss. Ct. App. 2001) (citing Miss. Code Ann. §
99-39-11(2) (Rev. 2000)).
- We decline to suspend the requirements of the
Mississippi Rules of Appellate Procedure, as Parker
has failed to show any cause, much less good cause,
as to the reason for a ten year delay in seeking a
direct appeal. The circuit court judge committed no
error in denying Parker's motion for out-of-time
appeal, as the judge had no discretion to allow an
out-of-time appeal outside of 180 days from the entry
of judgment. Further, this Court does not find that
justice demands granting Parker an out-of-time appeal
ten years after his conviction. This issue is without
merit. Furthermore, since we find that the trial
judge was within his discretion in summarily
dismissing Parker's petition, there is no need to
address Parker's argument that he should have been
granted an evidentiary hearing.
III. Recommendation of supreme court in Wright v. State - In Wright, the supreme court suggested
that criminal defense lawyers obtain a signed writing
regarding the client's decision whether or not to
pursue an appeal. Wright v. State, 577 So.2d
387, 390 (Miss. 1991). While this is sound advice, it
is no rule of law from which we can find reversible
error. This issue is without merit.
-
THE JUDGMENT OF THE ALCORN COUNTY CIRCUIT
COURT DENYING POST CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN
COUNTY.
LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
1 In DeLoach v. State, 890 So.2d 934, 936 (¶6) (Miss. Ct. App. 2004), this Court noted that the precedence relied on in McGruder was written before the 1997 amendment to Mississippi Rules of Appellate Procedure Rule 4 which "created an outer limit of 180 days to file for an out-of-time appeal."