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In re Babson

Supreme Court of Vermont

August 29, 2014

In re Babson

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Bennington Unit, Civil Division. Katherine A. Hayes, J.

Lamar Enzor, Rutland, for Petitioner-Appellant.

Christina Rainville, Chief Deputy State's Attorney, Bennington, for Respondent-Appellee.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Crawford, Supr. J., Specially Assigned[1]

OPINION

Dooley, J.

[¶1] By filing this second post-conviction relief (PCR) petition, petitioner sought to reinstate the appeal from his first PCR on the ground that his court-appointed counsel failed to file a timely notice of appeal. The trial court dismissed petitioner's request, concluding petitioner had no constitutional right to counsel in his PCR. On appeal, the State supports petitioner's request to reverse the trial court and reinstate the first appeal.[2] Because this case presents an egregious example of injustice, we reverse the dismissal and remand the case to the superior court with directions that petitioner's initial PCR be reinstated

Page 340

with a renewed opportunity for petitioner to file a notice of appeal.

[¶2] The record reveals that petitioner's state-appointed counsel filed an untimely notice of appeal from the trial court's denial of petitioner's first PCR petition. A notice of appeal must be filed within thirty days of entry of judgment, V.R.A.P. 4(a)(1), and the timely filing of a notice of appeal is a jurisdictional requirement. In re Lund, 2004 VT 55, ¶ 4, 177 Vt. 465, 857 A.2d 279 (mem.). It is uncontested that by failing to timely file a notice of appeal counsel performed well below any recognized standard of care. This Court has held that where counsel negligently fails to perfect an appeal and the defendant has not knowingly and intelligently waived the appeal " there is per se ineffective counsel." In re Savo, 139 Vt. 527, 529, 431 A.2d 482, 484 (1981) (per curiam).

[¶3] The question is whether petitioner has a remedy for his counsel's failure to perfect his PCR appeal. Petitioner argues that his first PCR should be reinstated because the statutory right to PCR counsel includes a minimal level of competence, which was plainly violated in this case.[3] We need not, however, reach the question of whether petitioner is entitled to relief based on a statutory or constitutional right because we conclude that the facts are so glaring as to warrant reinstatement of petitioner's right of appeal from his first PCR pursuant to this Court's authority to issue " orders that may be necessary to the furtherance of justice." 4 V.S.A. § 2(b). We have used this authority on other occasions to protect or create a right of appeal that would otherwise have been lost. See In re A.D.T., 174 Vt. 369, 375, 817 A.2d 20, 25 (2002) (reaching substance of mother's untimely appeal of termination decision as " 'necessary to the furtherance of justice' " (quoting 4 V.S.A. § 2(b))); In re J.C., 169 Vt. 139, 145, 730 A.2d 588, 592 (1999) (concluding that although time had expired for filing appeal, cause could be transferred for such appeal to avoid injustice); see also In re Estate of Johnson, 158 Vt. 557, 560, 613 A.2d 703, 705 (1992) (directing that to avoid injustice case should be transferred to superior court for appeal to that court where appeal was improperly filed in Supreme Court).

[¶4] Other states have adopted a similar remedy when faced with facts similar to these. See Whitney v. State, 334 Ark. 581, 976 S.W.2d 391, 392 (Ark. 1998) (per curiam) (granting request for belated appeal from denial of post-conviction relief where appellant's attorney accepted full responsibility for untimely filing); Rosado v. State, 864 So.2d 533, 534 (Fla. Dist. Ct. App. 2004) (allowing out-of-time appeal where indigent defendant requested that attorney appeal denial of post-conviction relief and attorney refused because defendant did not forward filing fee, which indigents were not required to pay); Brown v. State, 278 Kan. 481, 101 P.3d 1201, 1203-04 (Kan. 2004) (granting belated appeal from order denying post-conviction relief where appointed counsel failed to notify defendant of counsel's ...


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