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Weason v. Colorado Court of Appeals

Supreme Court of Colorado

January 26, 1987

Jack D. WEASON, Petitioner,
v.
The COLORADO COURT OF APPEALS and the Honorable Charles D. Pierce, One of the Judges Thereof, Respondents.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for respondents.

ROVIRA, Justice.

In this original proceeding, Jack Weason, petitioner, seeks a writ of mandamus compelling the court of appeals to grant his

Page 737

Motion to File Notice of Appeal Out of Time, pursuant to C.A.R. 4(b). We issued a rule to show cause, and now modify the rule and make it absolute.

I.

After a trial at which petitioner was represented by private counsel, petitioner was convicted of felony theft. On March 21, 1986, he was sentenced to the department of corrections for four years. Under C.A.R. 4, his notice of appeal had to be filed within 45 days--that is, by May 5--in order to be timely. No timely appeal was filed.

According to letters later written by petitioner to the district court, petitioner had been employed when he had retained private counsel, and a plan to pay the legal fees in installments was worked out. Petitioner was subsequently laid off from work. According to the letters, private counsel told petitioner he would not work on petitioner's case unless petitioner continued to pay him, which petitioner could not do. Court records indicate that private counsel did move to withdraw a month before trial, but was not allowed to do so. According to petitioner's letters, private counsel then made it unequivocally clear that he would not do anything further to aid petitioner, not even discuss a plea bargain. He would just "show up" when he had to. [1]

Two days after the end of the forty-five-day period, on May 7, 1986, petitioner filed a motion in the district court to proceed on appeal in forma pauperis. The motion was granted on that same day, and the public defender was appointed to represent petitioner. However, the district court did not send notice to the public defender of its appointment until June 2, 1986, and this notice was not received until June 4, 1986.

Coincidentally, but importantly, June 4 was also the last day of the additional thirty-day period in which a late notice of appeal can be filed. When the failure to file within the forty-five-day period is due to "excusable neglect," the court of appeals may allow a late notice to be filed within the next thirty days. C.A.R. 4(b).

The public defender filed a notice of appeal on June 4. It was supplemented by a Motion to File Notice of Appeal Out of Time filed the next day. While the motion contained the chronology of events listed above, it did not state any reason why private counsel did not file notice of appeal within the original forty-five-day period. On June 12, without any explanatory comment, the court of appeals denied the motion for out-of-time filing. Under the unusual circumstances of this case, we are of the opinion that the denial was an abuse of discretion.

II.

It is elementary that the right to appeal one's criminal conviction is fundamental. Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969) (due process and equal protection require that indigents be given the same access to appellate review of their convictions as is given to nonindigents). It is also clear that the appellate court is without power to allow filing of a notice of appeal after the seventy-fifth day. See People v. Allen, 182 Colo. 395, 513 P.2d 1060 (1973) (applying former rule; trial court had no power to allow filing after the sixtieth day following the conviction).

Thus, June 4, when the public defender was informed that it had been appointed to represent the petitioner on his appeal, was the last day the appeal could be filed. The public defender did file a notice of appeal by the end of the day, and filed a supporting motion the next day. The court of appeals denial of that motion was apparently predicated on the failure to make a showing of excusable neglect.

Under these circumstances, it is too much to require that the public defender search out the private counsel that had

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represented petitioner at trial, interview him (assuming he could be found and was free to discuss the case), collect affidavits or other documentation, and construct an argument that would establish that the failure to file in the original forty-five-day ...


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