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In re Loftis

In re Loftis
06:10:2006

In re Loftis


Filed 6/1/06 In re Loftis CA5


NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA




FIFTH APPELLATE DISTRICT












In re



F049483



DERRICK LOFTIS,


On Habeas Corpus.




THE COURT*


ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.


Derrick Loftis, in pro per., for Petitioner.


Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, and Catherine G. Tennant, Deputy Attorney General, for Respondent.


-ooOoo-


STATEMENT OF FACTS


On June 5, 2005, petitioner entered a negotiated plea of no contest to one count of second degree murder. The plea was conditioned on petitioner receiving a prison term of 15 years to life. In exchange, another case against petitioner was dismissed. Petitioner was sentenced on July 15, 2005. The time for filing a notice of appeal from the judgment and sentence expired on September 13, 2005.


According to petitioner, immediately after sentencing on July 15, 2005, he informed his attorney, David Lee (Lee), that he wanted to appeal. Lee told petitioner he would not represent him on appeal, and according to petitioner, this statement came about after he confronted Lee about Lee's irrational behavior. Petitioner noted Lee was constantly pacing, sniffing nonstop, and talking endlessly. Petitioner became so suspicious of the representation he was receiving, he began to think he should move to withdraw his plea. Although Lee told petitioner he would not represent him on appeal (which is not an uncommon statement for appointed counsel to make), petitioner believed Lee would file the notice of appeal on his behalf. Lee never told petitioner how to file a notice of appeal, or where to file it. Similarly, Lee never told petitioner he would not file the notice of appeal or that he was abandoning petitioner's case.


Petitioner was transferred to Wasco and never saw Lee again within the 60-day period for filing the notice of appeal. Petitioner did not hear any more from Lee or anything about his case. He then received a letter from his mother with a newspaper article indicating Lee had been suspended, and later convicted of driving under the influence of methamphetamine. Petitioner attached a copy of the article as an exhibit to the present petition.


Petitioner attempted to file a notice of appeal on his own behalf. The notice was received by the superior court on November 23, 2005. In a letter dated November 28, 2005, petitioner was informed the notice was late and that he should seek relief in this court.


The present petition was filed on January 3, 2006.


On January 5, 2006, this court sent a letter to Lee, along with a copy of the petition, inviting a response to the allegations of ineffective assistance of counsel. The letter was returned. A check with the California State Bar indicated Lee remained on active status and his address with the Bar was the same address used on the letter. Attempts to locate Lee by telephone were also unsuccessful.


On March 3, 2006, this court granted the Attorney General leave to file a response to the petition. On March 17, 2006, the Attorney General filed a response arguing the petition should be denied.


On April 3, 2006, petitioner filed a reply. In the reply, petitioner stated he believes Lee is in a treatment center and currently suspended from practice.


DISCUSSION


Petitioner argues that under the facts, he should be allowed to file a belated notice of appeal. We agree.


The Attorney General argues there is no duty by a trial court or trial attorney to advise a defendant of his right to appeal from a conviction after a guilty plea and that counsel's only duty is to provide advice as to whether arguably meritorious grounds exist for an appeal. (Pen. Code, § 1240.1, subd. (a); Cal. Rules of Court, rule 4.470; People v. Serrano (1973) 33 Cal.App.3d 331, 337-338.) The Attorney General further argues petitioner appears to be suffering from â€





Description A decision regarding second degree murder.
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