dissenting.
Largely on the basis of the trial court's failure to fully inform the defendant of his right to appellate representation-onee his trial counsel's duty to perfect an appeal had been completed-as well as the defendant's allegation that his trial counsel agreed to file a pro se notice of appeal on his behalf but failed to do so, the majority finds that the court of appeals was not only permitted, but in fact required, to accept the defendant's notice of appeal more than two years out of time. Because I believe the law provides the defendant an adequate remedy but requires him first to establish both his factual allegations and the meritoriousness of his appeal; and because I firmly believe that the liberties taken by the majority with our prior interpretations of the appellate rules will return to haunt the appellate courts of this jurisdiction, I respectfully dissent.
*899The majority finds that good cause for purposes of C.A.R. 26(b) was necessarily established because the defendant would prevail on a motion for post-conviction relief claiming ineffective assistance of counsel anyway, and because his efforts to file a timely appeal were frustrated by the trial court's failure to advise him according to Crim. P. 82(c). As to the former ground, this court has in the past flatly rejected any reading of Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), that would dictate a finding of ineffectiveness of counsel without some showing of prejudice, beyond a mere inability to appeal. See People v. Valdez, 789 P.2d 406, 409-10 (Colo.1990). With regard to the latter ground, the majority revives and relies on a split court of appeals holding that has lain dormant for twenty-five years, the underlying rationale of which was at least questionable at the time and has since been superseded by rule changes reallocating the responsibility for perfecting an appeal.
Although neither the defendant nor his former trial counsel has testified under oath or been subject to cross-examination, the sequence of filings and the content of their written communications strongly suggest that trial counsel's failure to understand his obligation to perfect an appeal, and therefore his substandard representation in this regard, could be established at an evidentiary hearing. Even if so, however, we have previously held that ineffective assistance at the appellate level, just as at the trial level, requires a showing of prejudice. Id. at 410. In addition to a demonstration that he communicated his intent for counsel to perfect an appeal, and presumably that he did not abandon that appeal during the intervening two years, the defendant would be required to demonstrate that he in fact had meritorious grounds for an appeal. Id. We therefore cannot predict with any degree of certainty that he would be able to establish ineffective assistance of counsel such as to entitle him to reinstatement of an appeal.
Similarly, with regard to Crim. P. 82(c), the trial court informed the defendant, after sentencing, of his right to appeal; the defendant was not only aware of his right to representation but actually requested appellate representation by the public defender and was informed that his request would be considered upon filing a motion; and the defendant was represented by an attorney at the time. Although information concerning a defendant's right to appeal and to be represented on appeal remains a requirement of Crim. P. 32, that information is no longer essential to perfecting an appeal because Crim. P. 44(e) now assigns to trial counsel the obligation to ensure that his client's appeal is perfected, if the client so desires, before counsel's representation is terminated.
Whether or not the trial court sufficiently complied with the requirements of the rule, under these circumstances, it is clear that the defendant understood his right to appeal and, for whatever reason, relied on his trial counsel to file a pro se notice of appeal rather than moving for representation by the public defender. His efforts to perfect an appeal were clearly not frustrated by any failure of the sentencing court. At most his failure resulted from the ineffective assistance of his counsel, which he should be entitled, and required, to establish.
In Estep v. People, 753 P.2d 1241 (Colo.1988), we extended the "good cause" exception of C.A.R. 26(b) to include, without a hearing on the effectiveness of counsel's representation, a filing that was only days late, and was the undisputed product of a communication failure resulting at least in part from an attempt by defense counsel to cooperate with the district attorney's request to first finalize related motions. Under those circumstances, this court was able to express confidence that the state was not prejudiced by such a short delay. I strongly disagree, however, with any suggestion, see maj. op. at -- n. 2, that we have also taken it upon ourselves to find an absence of prejudice in filings that were years late. Cf. Swainson v. People, 712 P.2d 479 (Colo.1986) (remand for hearing and factual findings concerning defendant's claims of ineffective assistance and excusable neglect); People v. Allen, 182 Colo. 395, 513 P.2d 1060 (1973) (dismissal of appeal for late filing, without prejudice for defendant to file motion in trial court pursuant to CAR. 26(b) to assert good cause there); People v. Boivin, 632 P.2d 1038 (Colo.App. *9001981) (permitting late filing where People failed to meet their burden of demonstrating compliance with Crim. P. 82(c) at factual hearing on motion for post-conviction relief).
Where the effectiveness of defense counsel, or either good cause or excusable neglect for that matter, is contingent upon the communicated intent of the defendant or lack of prejudice to the People, there are salutary reasons for requiring a factual determination. Because an appellate court is without any effective means of resolving such factual questions, a motion for post-conviction relief and a hearing in the district court are an appropriate procedural vehicle for doing so. At least where a defendant has rested on his laurels for several years, without actively prosecuting his own, pro se appeal, or even inquiring whether it was properly initiated and remains active, I do not consider it overly burdensome, or a mere technicality, to require him to establish his bona fides. I fear that today's holding will effectively force appellate courts to simply accept the self-serving allegations of defendants who fail to perfect a timely appeal.
I therefore respectfully dissent.
I am authorized to state that Justice KOURLIS joins in this dissent.