Colorado’s trial courts must stop committing a common clerical error that results in convicted defendants running out of time to appeal, the Court of Appeals ordered on Thursday.
When people file requests with district courts asking for a review of their conviction or sentence, for reasons that could include new evidence or changes in the law, the courts occasionally notify the defendant’s former lawyers, who no longer represent them, of the decision. As a result, there is a delay for defendants in hearing about the court’s order that affects their window to appeal.
“We understand the volume of cases district court judges handle. But that cannot excuse courts from establishing procedures to remove counsel from a file once representation terminates or, at the very least, taking steps to ensure that postconviction orders are not served on counsel who is no longer representing the defendant,” wrote Judge Ted C. Tow III in the opinion of the three-member appellate panel.
The admonishment came after the panel considered the petition of Timothy Parks, whom was convicted by a Denver jury of drug crimes in 2013. Parks, representing himself, challenged the proportionality of his 64-year prison sentence, which the trial court judge denied. But the court transmitted the order to Parks’ former attorneys still listed on the case file. Parks later sent a letter asking about the status of his request, but the court once again sent its response to the lawyers, not to Parks.
Parks was therefore forced to provide notice of his appeal 197 days after the court made its decision — and 148 days after the legal deadline. There are circumstances, however, in which the appeals court may extend the deadline, including for "excusable neglect."
The appellate panel, in deciding to accept Parks’s late-filed request, chose to publish its nine-page opinion because the Denver District Court’s failure to remove the attorneys from the case at the conclusion of sentencing was not an isolated occurrence.
Judges on the Court of Appeals “are frequently faced with requests from pro se defendants throughout the state to accept untimely appeals after they failed to receive notice that their postconviction petitions had been denied,” wrote Tow. “The delays created by this recurring mistake — not to mention the drain on this court’s resources from having to repeatedly remedy this problem — are unnecessary and avoidable.”
Publishing the decision makes it available online and sets a precedent for future cases. Tow ended with a request to solve the "recurring problem."
“We respectfully urge trial courts and the State Court Administrator’s Office to develop protocols to ensure the routine and timely removal of counsel of record,” he added.
A spokesperson for the Judicial Department said the State Court Administrator’s Office “appreciates the Court’s thoughtful recommendation” and will need time to review the opinion.