IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-00336-COA
TREMAINE WHITTAKER A/K/A TREMAINE APPELLANT
WHITAKER A/K/A TREMAINE A.
WHITTAKER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/22/2014
TRIAL JUDGE: HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: TREMAINE WHITTAKER (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
JASON L. DAVIS
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR OUT-OF-TIME APPEAL
DISMISSED DUE TO LACK OF
JURISDICTION
DISPOSITION: REVERSED AND REMANDED FOR
EVIDENTIARY HEARING - 08/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Tremaine Whittaker appeals to this Court requesting permission to file an out-of-time
direct appeal of his criminal convictions and sentences. Whittaker asserts that his trial
counsel failed to file his notice of appeal, and that he was not informed of his potential right
to appointed appellate counsel based on indigency. We reverse and remand for the trial court
to conduct an evidentiary hearing on whether Whittaker should be granted an out-of-time
appeal, with particular consideration of whether Whittaker was aware of his potential right
to appointed counsel.
FACTS AND PROCEEDINGS BELOW
¶2. A jury convicted Whittaker of statutory rape, sexual battery, and gratification of lust
in September 2012. He was sentenced to two terms of thirty years and one term of fifteen
years, all to be served concurrently. Whittaker was represented at trial and sentencing by
attorney Andy Sumrall, who had been hired by Whittaker’s retained attorney, Michael Marks.
Whittaker was not informed by the trial court on the record at sentencing of his right to
appeal within thirty days of the entry of judgment or that if he was indigent he could be
appointed an attorney for appeal. A direct appeal was never taken.
¶3. On September 19, 2013, eleven months after the final entry of judgment, Whittaker
filed a post-conviction motion in the trial court requesting an out-of-time appeal. The trial
court entered an order denying Whittaker’s post-conviction motion on April 22, 2014,1 citing
lack of jurisdiction due to the motion being filed more than 180 days after entry of the
judgment of conviction. The trial court granted Whittaker’s motion for indigency status to
appeal the denial of post-conviction relief.
¶4. Whittaker asserts that, while talking to Marks prior to the sentencing hearing on
October 13, 2012, Whittaker told Marks that he wanted to appeal the conviction and that
Marks said that he would be in touch. Whittaker attached copies of two letters to his motion.
He asserts that, following the sentencing hearing, he sent a handwritten letter to Marks
1
The trial judge signed the order on April 21, which was entered by the clerk on
April 22, 2014.
2
through Whittaker’s girlfriend, Eumeka Martin, dated November 4, 2012. The body of the
letter states:
I have sent word that I would like to speak with you. I have yet to receive a
reply. I would very much like to know about motions for a retrial or appeal
process. I understand there are deadline[]s and you have other clients. This is
of the utmost importance. Attorney[]s do not have to schedule appointments.
I am housed at the downtown detention center on Pascagoula Street. Please
contact me or Eumeka Martin about this matter. Thank you for your time and
effort.
Whittaker states that he received a hand-delivered reply letter from Marks on November 7.
The body of the letter reads:
Herewith I hand you a copy of the Order of the Court overruling your Motion
for [a] New Trial. Please note the date the Order was filed. You have thirty
(30) days from that date to file your Notice of Appeal.
We talked once with your mother but she was not sure who she wanted to
employ to handle your appeal.
You must file your Notice of Appeal timely. If you wish to employ us to do the
appeal our fee is $10,000. It must be paid in full to our office two (2) days
before the final date to file the Notice of Appeal.
If you choose to hire another law firm you and/or your family need to seek
another counsel immediately.
A copy of this letter goes to Eumeka Martin who contacted us today.
Walker asserts that, up until the receipt of this letter, it was his understanding that Marks had
undertaken to represent him on appeal. The order denying the motion for a new trial had been
entered on October 22, 2012.
¶5. Transcripts of the jury verdict and the sentencing hearing are included in the appellate
record. Marks is now deceased.
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DISCUSSION
¶6. In criminal cases, Rule 2(c) of the Mississippi Rules of Appellate Procedure permits
this Court to suspend the thirty-day deadline found in Mississippi Rule of Appellate
Procedure 4(a) for good cause shown. M.R.A.P. 2(c). An out-of-time appeal is granted by
this Court “where a person is convicted of a crime and through no fault of his own is
effectively denied his right to perfect his appeal within the time prescribed by law by the acts
of his attorney or the trial court.” Havard v. State, 911 So. 2d 991, 993 (¶10) (Miss. Ct. App.
2005) (quoting Jones v. State, 355 So. 2d 89, 90 (Miss. 1978)).2 An evidentiary hearing is
necessary when a record contains no indication that an attorney responded to his client’s
request to appeal. Harris v. State, 578 So. 2d 617, 619-20 (Miss. 1991); Sellers v. State, 52
So. 3d 426, 430 (¶13) (Miss. Ct. App. 2009). The trial court lacks jurisdiction to consider a
request for an out-of-time appeal more than 180 days after the entry of the final judgment,
and denials of such requests will be reviewed for abuse of discretion. Edmond v. State, 991
So. 2d 588, 589 (¶5) (Miss. 2008); M.R.A.P. 2(c) & cmt.
¶7. In Triplett v. State, the Mississippi Supreme Court held that a defendant has the right
to be advised that if he has become indigent and cannot pay the court costs or his retained
trial lawyer, he can file a pauper’s affidavit and proceed with the appeal in forma pauperis.
Triplett v. State, 579 So. 2d 555, 558 (Miss. 1991) (overruling Bennett v. State, 293 So. 2d
1, 4 (Miss. 1974)). In Parker v. State, 921 So. 2d 397 (Miss. Ct. App. 2006), this Court
declined to grant post-conviction relief where a petitioner made an argument that he was
2
See also Miss. Code Ann. § 99-39-5(1)(i) (Rev. 2015).
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unaware of his potential right to court-appointed appellate counsel. Id. at 399 (¶6). However,
in Parker, the motion for an out-of-time appeal was filed ten years following the final entry
of judgment, and the petitioner provided only a cursory statement by affidavit to support that
he was uninformed of his right as an indigent to appellate counsel. See also Havard, 911 So.
2d at 992 (¶6) (denial of out-of-time appeal appropriate where no evidence presented to
support defendant’s claim that he never received notice of final judgment).
¶8. Here, Whittaker proposes to submit as evidence the two letters referenced above, and
we have before us the sentencing transcript demonstrating that he was not informed on the
record of his potential right to court-appointed counsel. Whittaker purportedly operated under
the assumption that his trial counsel was going to represent him on appeal until informed
otherwise two weeks before the deadline to file his notice of appeal, and at that time his
attorney purportedly only informed him of options involving hiring an attorney. If determined
credible below, this confluence of circumstances may support that Whittaker’s failure to
perfect an appeal was due to no fault of his own, and that he should be granted leave to file
an out-of-time appeal.
¶9. Mississippi’s appellate courts have consistently recommended that trial judges and
attorneys assist in creating a record that reflects a defendant’s awareness and decision
concerning rights to appeal. The Mississippi Supreme Court has stated:
Lawyers should assist the court [in making a record] by reducing decisions
whether to appeal a criminal conviction to a writing signed by the defendant.
We note with approval the steps taken by the defendant's attorney in Fair v.
State, 571 So. 2d 965 (Miss. 1990).
We . . . urge trial courts to advise criminal defendants of their rights
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concerning appeal on the record at the time of sentencing and to solicit a
decision in that regard. Should a decision be made on the record to appeal the
defendant should be advised that decision will stand unless a written statement
to the contrary, signed by the defendant and the attorney, is filed with the
court. Should the decision be made to waive appeal the defendant should,
nevertheless, be informed of the time limits for appeal and told that his
decision to waive shall stand unless he gives written notice to the court and his
attorney prior to the expiration of the time. Should no decision be made the
court should inform the defendant that his failure to express a desire to appeal
shall be considered a waiver of his right to appeal and that such waiver will
stand unless he gives written notice to the court and counsel prior to the
expiration of the time in which to perfect the appeal.
Wright v. State, 577 So. 2d 387, 390 (Miss. 1991).
¶10. Trial attorneys who have explicitly contracted to only represent a criminal defendant
at trial should still make every effort, along with trial judges, to assist in creating a record at
trial that reflects a defendant’s awareness of his rights concerning appeal. Clients who have
become indigent should be educated on the steps necessary to secure court-appointed
appellate representation. Indigence should not serve as a barrier to a criminal defendant
perfecting an appeal.
CONCLUSION
¶11. We reverse and remand for the trial court to conduct an evidentiary hearing on
whether Whittaker is entitled to an out-of-time appeal, with particular consideration of
whether Whittaker was aware of his potential right to court-appointed appellate counsel. If
the circuit court grants Whittaker’s motion for an out-of-time appeal and the State does not
appeal that ruling, Whittaker may file a direct appeal of his underlying convictions. Sellers,
52 So. 3d at 430 (¶13). If the circuit court denies Whittaker’s motion for an out-of-time
appeal, he would be entitled to appeal the circuit court’s decision with the necessary record
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of the evidentiary hearing. Id.
¶12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR AN
EVIDENTIARY HEARING ON WHETHER TO GRANT AN OUT-OF-TIME
DIRECT APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS
COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND
JAMES, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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