Harmful Error

This is the third in a series of posts looking at proposed changes to the Nevada Rules of Appellate Procedure. The Nevada Supreme Court will hear public comment on October 6. The Court welcomes written comments about the proposed amendments.

Previous posts on this topic:
Proposed changes to NRAP 1, 2 and 3
Proposed changes to NRAP 3A, 3B and 3C

NRAP 3D Judicial Discipline: Right to Appeal; How Taken; Rules Governing (page 20 of the pdf)
There are a few stylistic changes. No substantive changes are proposed.

NRAP 3E: Fast Track Child Custody Appeals (page 21 of the pdf)
No changes are proposed.

NRAP 4: Appeal - When Taken (page 28 of the pdf)
Subsection (a): Appeals in civil cases
There are a few stylistic changes. No substantive changes are proposed.

Subsection (b): Appeals in criminal cases
Hold on: big changes proposed.

Subsection (b) (1):
old version
In a criminal case, the notice of appeal by a defendant shall be filed in the district court within thirty (30) days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within thirty (30) days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within thirty (30) days after entry of the judgment. When an appeal by the state is authorized by statute, the notice of appeal shall be filed in the district court within thirty (3) days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this rule when it is signed by the judge and filed with the clerk.
new version
(1) Time for Filing A Notice of Appeal.
(A) Appeal by Defendant or Petitioner. Except as otherwise provided in NRS 34.560(2), 34.575(1) and 177.055 and Rule 4(c), the notice of appeal by a defendant or petitioner in a criminal case shall be filed with the district court clerk within 30 days after the entry of judgment or order being appealed.
(B) Appeal by the State. Except as otherwise provided in NRS 34.575(2) and 177.015(2), when an appeal by the state is authorized by statute, the notice of appeal shall be filed with the district court clerk within 30 days after the entry of the judgment or order being appealed.
(2) Filing Before Entry of Judgment. A notice of appeal filed after the announcement of a decision, sentence or order -- but before entry of the judgment or order -- shall be treated as filed after such entry and on the day thereof.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 30 days after the entry of an order denying the motion.
(B) A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 30 days after entry of the judgment.
(4) Entry Defined. A judgment or order is ented for purposes of this Rule when it is signed by the judge and filed with the clerk.
analysis
The new version provides a welcome clarification of the old version as it is much easier to follow and addresses statutes with conflicting rules.

Former Subsection (b)(2)/New Subsection (b)(5):
Stylistic changes. No substantive changes are proposed. Although it should be noted that Rule 5(B) provides that the district court shall enter a written judgment or order finally resolving any post-conviction matter within 20 days of the district court's oral pronouncement of a final decision in such a matter, and also provides that the judgment or order must contain specific findings of fact and conclusions of law. This would be a good place to add that the district court must either write its own order or give the parties specific direction as to its findings, pursuant to Byford v. State. In addition, subsection (C) provides that the Nevada Supreme Court may impose sanctions on any counsel instructed by the district court to draft the judgment or order who does not submit the proposed judgment or order to the district court within 20 days. In my experience, there is sometimes a lag in submission of orders which is attributable to the delay in production of transcripts of the hearing and the district court's oral pronouncement of the order. There should be some provision which either mandates that the court reporter immediately produce a transcript or which grants 20 days following the filing of the relevant transcripts.

New Subsection (b)(6):
Withdrawal of Appeal. If an appellant no longer desires to pursue an appeal after the notice of appeal is filed, counsel for appellant shall file with the Supreme Court a notice of withdrawal of appeal. The notice of withdrawal of appeal shall substantially comply with Form 8 of the Appendix of forms.
analyis:
This new rule is a great addition as the previous rules did not address this issue.

New subsection (b)(6):
This section is lengthy, so I'm not going do retype it here. It begins at page 31 of the pdf. This may be the most substantive and largest change in the proposed rules.

For background, many of you will recall that many years ago the Court created "Lozada appeals" in response to a federal court decision. Under the current procedure, if a defendant does not file a timely notice of appeal, he is to file a post-conviction petition in which he contends that his trial counsel failed to file a timely notice of appeal under circumstances where counsel knew that the client wanted to appeal from his judgment. If the district court finds that the counsel failed to file a timely notice of appeal under these circumstances, post-conviction counsel is appointed and then counsel files a supplemental post-conviction petition in which both direct appeal and post-conviction issues are raised. If the petition is dismissed, an appeal may be taken from that order. Many of us have argued for years that this procedure is bad in that a direct appeal should not be heard by the trial judge who is the subject of the rulings challenged, the standards of reviews differ, delay in inherent, and it forces successive habeas petitions because the defendant is entitled to make arguments of ineffective assistance of counsel on direct appeal and counsel cannot be expected to raise issues of his own ineffectiveness within the first petition and the facts supporting a claim of ineffectiveness may not be known until after the appeal is decided. To date, the Nevada Supreme Court has rejected these arguments and has found the Lozada appeal remedy to be adequate.

But now the good news, under proposed subsection(c), a new procedure is created. The title of the subsection is Untimely Direct Appeal from a Judgment of Conviction and Sentence.

Subsection (c)(1) would provide that an untimely notice of appeal from a judgment of conviction and sentence may be filed if (a) a post-conviction petition has been properly filed, asserting a viable claim that the petitioner was unlawfully deprived of the right to a timely direct appeal and (b) the district court enters an order with specific findings that the petitioner has established a valid appeal-deprivation claim and is entitled to a direct appeal with the assistance of appointed or retained counsel; ordering that if the petitioner is indigent, directions for the appointment of appellate counsel, other than counsel for the defense in the proceedings leading to the conviction; and directing the district court clerk to prepare and file within 5 days of entry of the order, a notice of appeal from the judgment of conviction and sentence on behalf of the petitioner.

Subsection (c)(2) would provide that district court clerk shall serve copies of the order and notice of appeal on the petitioner, petitioner's post-conviction counsel, the respondent, the Attorney General, the district attorney, the appellate counsel appointed to represent the petitioner, and the clerk of the Supreme Court.

Subsection (c)(3) would provide that the State may challnege a district court's order granting an appeal-deprivation claim by filing a motion to dismiss the appeal with the clerk of the Nevada Supreme Court.

analysis:
The substantive change is most welcome and will cure many of the defects created by the Lozada appeal system. A couple of issues remain outstanding which are not addressed by this rule. First, presumably a defendant would include other post-conviction claims in addition to the claim concerning his appeal-deprivation. Those other claims should be stayed and held in abeyance by the district court pending resolution of the appeal from the judgment of conviction and the defendant should be allowed to supplement his post-conviction claims with claims of ineffective assistance of appellate counsel following resolution of the appeal issue. This new rule could have signficant impact on the filing deadlines of federal court. I suggest that federal habeas practioners weigh in with their thoughts on how these issues should be addressed. Second, this rule does not address the situation where it is a federal district court which finds that a defendant was deprived of his appeal. This issue should also be addressed.

New subsection (d):
Appeal by an Inmate Confined in an Institution. If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice of appeal is timely if it is delivered to a prison official for mailing on or before the last day for filing. If the institution has a notice-of-appeal log or another system designed for legal mail, the inmate must use that log or system to receive the benefit of this rule.
analysis:
I believe this proposed amendment follows existing case law on the prison mailbox rule.

New subsection (e):
If a notice of appeal to the Supreme Court in either a civil or criminal case is mistakenly filed in the Supreme Court rather than the district court, the clerk of the Supreme Court must note on the notice the date when it was received and send it to the district court clerk. The notice is then considered filed in the district court on the date so noted.
analysis:
I like it.

Old subsection(c)/New subsection (f): Expenditing Criminal Appeals:
No changes, other than the new subsection letter.