KINZEL v. STATE (2002)

 [¶ 1] Aaron Kinzel appeals from a judgment entered in the Superior Court, (Aroostook County, Mead, C.J.), denying his petition on post-conviction review.   Kinzel contends that his trial attorney neglected to file a notice of appeal after he had asked him to file the notice.   His trial attorney denied that Kinzel had ever asked for an appeal.   The post-conviction court found both Kinzel and the attorney credible, but concluded that Kinzel failed to sustain his burden of proof.

 [¶ 2] The United States Supreme Court has held “that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.”  Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (citing Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969)).   The post-conviction court's finding that Kinzel's assertion is credible indicates that Kinzel did not consent to the decision not to file an appeal.  Id. Under the unusual circumstances of this case, we hold that Kinzel has made a sufficient showing that his trial attorney did not act in a reasonable manner.

The entry is:

The Defendant's right to appeal is reinstated.   Remanded to the Superior Court for further proceedings consistent with the opinion herein.

PER CURIAM.