Weason v. Colorado Court of Appeals , 1987 Colo. LEXIS 476 ( 1987 )

ERICKSON, JUSTICE,

dissenting:

I respectfully dissent. In my view, the court of appeals did not abuse its discretion in denying the defendant’s motion to file a notice of appeal out of time, and the extraordinary relief of mandamus should not be granted where the defendant has an adequate remedy under Crim.P. 35(c).

I.

A defendant’s failure to comply with C.A.R. 4 and C.A.R. 26(b) deprives the appellate court of jurisdiction and precludes review of the defendant’s conviction. People v. Silvola, 198 Colo. 228, 597 P.2d 583 (1979); People v. Allen, 182 Colo. 395, 513 P.2d 1060 (1973). Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980). A denial of a motion to file a notice of appeal after the expiration of the 45-day period set forth in C.A.R. 4 may not be overturned absent an abuse of discretion. Beaver Meadows v. Board of County Commissioners, 709 P.2d 928, 932 n. 4 (Colo.1985). See also Peoples Natural Gas Division of Northern Natural Gas Co. v. Public Utilities Commission, 626 P.2d 159 (Colo. 1981) (mandamus will lie only if the action was arbitrary or if it reflects a gross abuse of discretion).

In this case, the defendant’s motion to enlarge the time within which to file a notice of appeal alleges only that the public defender was not appointed until two days after the expiration of the 45-day period, and that the public defender did not learn of the appointment until the day that the additional 30-day period expired. The motion establishes neither excusable neglect sufficient to permit late filing under C.A.R. 4(b), nor good cause sufficient to enlarge the time for filing under C.A.R. 26(b). The motion at most creates an inference that the defendant’s private counsel negligently or wilfully failed to file a notice of appeal within the time prescribed in C.A.R. 4(b). That allegation, without more, is insufficient as a matter of law to establish excusable neglect under C.A.R. 4(b). See Cox v. Adams, 171 Colo. 37, 464 P.2d 513 (1970) (the press of work or other activities of an attorney do not constitute excusable neglect); Trujillo v. Industrial Commission, 648 P.2d 1094 (Colo.App.1982); Bosworth Data Services, Inc. v. Gloss, 41 Colo.App. 530, 587 P.2d 1201 (1978).

The public defender’s office need not, as the majority suggests, “interview [the defendant’s counsel], collect affidavits or other documentation, and construct an argument that would establish that the failure to file in the original forty-five day period was due to excusable neglect, all within a few working hours.” Maj. op. at 738. As long as the notice of appeal is filed within the 75-day period, the public defender “may ... at any time” file a motion to extend the 45-day period another thirty days.¹ In addition, C.A.R. 26(b) provides the court of appeals authority to permit the defendant, for good cause shown, to file a notice of appeal at any time after the 75-day period has expired. People v. Allen, 182 Colo, at 397, 513 P.2d at 1061. The public defender was not excused by the press of time from alleging facts sufficient to establish excusable neglect under C.A.R. 4(b).² In my opinion, the court of appeals did not abuse its discretion in denying the defendant’s motion to file the notice of appeal out of time, where the motion did not establish excusable neglect.

II.

Mandamus is an extraordinary remedy that may be granted only when the petitioner has no other adequate remedy. Sandoval v. Farish, 675 P.2d 300 (Colo. 1984); Gramiger v. Crowley, 660 P.2d 1279 (Colo.1983). Crim.P. 35(c)(2) provides:

Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make application for postcon-viction review upon the grounds hereinafter set forth. Such an application for postconviction review must, in good faith, allege one or more of the following grounds to justify a hearing thereon:

(I) That the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state.

(Emphasis added.)

If the allegations contained in the petition are true, defense counsel’s failure in this case to do anything more than “show up,” and his failure to perfect the defendant’s appeal establish a colorable claim for relief under Crim.P. 35. See, e.g., Clay v. Director of Juvenile Division, 749 F.2d 427 (7th Cir.1984) (defense counsel’s failure to perfect an appeal when his client has indicated a desire to appeal violates the sixth amendment), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 858 (1985); Martin v. Texas, 737 F.2d 460 (5th Cir.1984) (failure of appointed or retained counsel to advise defendant of his right to appointed counsel on appeal amounts to ineffective assistance of counsel); Blanchard v. Brewer, 429 F.2d 89 (8th Cir.1970) (failure of appointed or retained counsel to commence simple steps for appeal is a blatant denial of due process); cert. denied, 401 U.S. 1002, 91 S.Ct. 1224, 28 L.Ed.2d 535 (1971); State v. Schultz, 140 Ariz. 222, 681 P.2d 374 (1984) (defendant was denied effective assistance of counsel when defense counsel failed to interview potential witnesses and take steps to prepare for trial).

The majority contends that Crim.P. 35(c) does not provide an adequate remedy because “interests of substantial justice and judicial economy” favor a direct appeal. Maj. op. at 737 n. 2. I disagree. From the defendant’s standpoint, Crim.P. 35(c) is a speedy and effective remedy, for the defendant may allege and prove facts extrinsic to the record that would be available to the court of appeals. The record available on appeal contains nothing that preserves the defendant’s claim of ineffective assistance of counsel. Even if “judicial economics” favor a direct appeal, the defendant’s remedy under Crim.P. 35(c) is not so inadequate that mandamus is appropriate. Accordingly, I would discharge the rule.

I am authorized to say that Justice VOLLACK joins in this dissent.

1 . C.A.R. 4(b) is ambiguous, and does not clearly provide that a motion to file a notice of appeal out of time may be filed after the expiration of the 75-day period. If the defendant’s motion was untimely under C.A.R. 4(b) because it was not filed within seventy-five days after entry of judgment against the defendant, his motion must be treated as a motion under C.A.R. 26(b) to enlarge the time for filing a notice of appeal.

2 . Although the defendant’s motion may have been prepared "within a few working hours,” maj. op. at 737-38, the defendant's more leisurely prepared petition for a writ of mandamus also fails to allege excusable neglect.