Whiteman v. State , 2002 N.D. LEXIS 91 ( 2002 )

SANDSTROM, Justice,

concurring specially.

[¶ 27] I write separately to note that this opinion does not mean a defendant is always entitled to an evidentiary hearing— regardless of how tardy the claim — by asserting an instruction to counsel to appeal.

[¶ 28] Flores-Ortega sought to file his own appeal about forty days after the deadline. Roe v. Flores-Ortega, 528 U.S. 470, 474, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). He had been unable to communicate with his lawyer for thirty of those days. Id.

[¶ 29] Rodriquez sought to file his own appeal about thirty-eight days after the deadline. Rodriquez v. United States, 395 U.S. 327, 328, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). “He alleged that he had told his counsel to perfect an appeal, but that counsel had failed to do so.” Id.

[¶ 30] In Flores-Ortega and Rodriquez, the defendants promptly sought to appeal when it became clear their lawyers had not appealed.

[¶ 31] If a defendant does not attempt to appeal within a reasonable time or does not assert within a reasonable time that counsel failed to follow a direction to appeal, the defendant’s own conduct may concede that counsel’s alleged failure to act was not responsible for the lack of a timely appeal.

[¶ 32] Here, Whiteman’s September 15, 1998, letter to the trial court — about three and a half months after the appeal deadline — arguably evidenced a belief that an appeal was under way. When this is coupled with the trial court’s knowledge that no appeal had been filed, I agree there are sufficient grounds to remand for an evi-dentiary hearing.

[¶ 33] Dale V. Sandstrom