IN RE: Dominick EDWARDS on Habeas Corpus.

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IN RE: Dominick EDWARDS on Habeas Corpus.

No. G043624.

Decided: June 24, 2010

Neil Auwarter under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Assistant Attorney General, for Respondent.

OPINION

Following a jury trial, petitioner Dominick Edwards was convicted of two counts of robbery. Enhancements were also found true and on September 18, 2009, Edwards was sentenced to 17 years in state prison. According to Edwards's declaration, at the sentencing hearing, counsel agreed to file a notice of appeal on his behalf. According to habeas counsel's declaration, trial counsel acknowledges that Edwards wanted to appeal his conviction, but instead of filing a notice of appeal on Edwards's behalf, trial counsel mailed an unsigned notice of appeal to Edwards for Edwards to file himself. Edwards confirms that he received documents from counsel, but states the documents arrived without explanation and when he tried to reach trial counsel for assistance before expiration of the 60 days to file the notice of appeal, he was unable to do so until 66 days after the sentencing hearing.

On December 4, 2009, 17 days after the statutory 60-day period within which to file a timely notice of appeal expired, the superior court “received” Edward's notice of appeal, but did not file the appeal on the basis that the last day to file a notice of appeal was November 17, 2009. Accordingly, Edwards seeks relief from the failure to file a timely notice of appeal from his criminal conviction.

The Attorney General does not oppose granting the petition without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)

The principle of constructive filing of the notice of appeal should be applied in situations where a criminal defendant asks trial counsel to file a notice of appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney who has been asked to file a notice of appeal on behalf of a client has a duty to file a proper notice of appeal. (Pen.Code § 1240.1, subd. (b).) Edwards's reasonable reliance on the promise of trial counsel to file a timely notice of appeal entitles him to the relief requested.

The petition is granted. The Clerk of the Superior Court is directed to file the notice of appeal that was received but not filed on December 4, 2009. Further proceedings, including the preparation of the record on appeal, are to be conducted according to the applicable rules of court. In the interest of justice, the opinion in this matter is deemed final as to this court forthwith.

FOOTNOTES

FOOTNOTE.  

THE COURT.* FN* Before Sills, P.J., Rylaarsdam, J., and Fybel, J.