Appeal from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Sr., Trial Judge)
Before Rogers, Chief Judge, and Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge : Appellant Douglas H. Jackson pro se filed an appeal on April 20, 1992, from the judgment of conviction entered on February 7, 1992, revoking his probation and sentencing him to four to twelve years imprisonment. He was originally rehired to note an appeal from the judgment revoking his probation by March 9, 1992. D.C. App. R. 4 (b). Later, however, the trial Judge extended the time for appeal nunc pro tunc by thirty days, until April 13, 1992 (allowing for notice by mailing) pursuant to D.C. App. R. 4 (b)(3). Nevertheless, appellant failed to note an appeal until April 20, 1992, seven days beyond the time limit of Rule 4 (b). Accordingly, we hold that the appeal is untimely and we dismiss the appeal for lack of jurisdiction. This dismissal is without prejudice to appellant renewing his claim in the trial court of ineffective assistance of counsel pursuant to D.C. Code § 23-110, an issue not reached by the trial Judge in granting appellant's motion to extend the time to appeal for 30 days pursuant to D.C. App. R. 4 (b)(3).
Appellant's pro se notice of an appeal from the judgment of February 7, 1992, was filed on April 20, 1992. This was after the thirty-day period for noting a appeal under D.C. App. R. 4(b) had expired. However, pursuant to appellant's motion to extend the time to appeal on the grounds of excusable neglect due to trial counsel's refusal to file a notice of appeal, the trial Judge extended the period for an additional thirty days under D.C. App. A. 4 (b)(3). Thus, appellant was required to note an appeal from the February 7, 1992, judgment by April 13, 1992, at the latest. *fn1
The noting of a timely appeal is jurisdictional. Brown v. United States, 379 A.2d 708, 709 (D.C. 1977). D.C. App. R. 4 (b)(1) controls criminal appeals. *fn2 Williams v. United States, 412 A.2d 17, 19 (D.C. 1980).
In the instant case, five days after the trial Judge had revoked appellant's probation and imposed sentence, appellant, through trial counsel, filed a motion for reduction of sentence under Super. Ct. Crim. R. 35, which was denied on February 17, 1992 (order docketed February 19, 1992). In addition to appellant's pro se notice of appeal from the February 7, 1992, judgment that was received by the court on April 26, 1992, the court had also received an affidavit, sworn April 6, 1992, in support of a application to proceed in forma pauperis on appeal and a docketing statement to the effect that the appeal was filed April 4, 1992. New counsel was appointed by this court to represent appellant on May 12, 1992.
In response to an order of this court of June 26, 1992, to show cause why the appeal should not be dismissed as untimely filed, appellant, through new counsel, submitted two memoranda. In these submissions, appellate counsel represented that on July 26, 1992, the trial court had granted his motion of July 8, 1992, to extend the time to notice an appeal for thirty days nunc pro tunc on the grounds of excusable neglect. The trial court docket confirms that, after a hearing, the trial Judge granted the Rule 4 (b)(3) motion relief " nunc pro tunc for 30 days for counsel to effect appeal." In addition, appellate counsel advised that, alternatively, he had filed a motion under D.C. Code § 23-110 to vacate the sentence and for resentencing on the ground of ineffective assistance of counsel based on trial counsel's failure to file a notice of appeal as directed by appellant. Attached to the supplemental pleadings were affidavits by appellant and appellant's trial counsel. In his affidavit appellant stated that after the denial of his motion to reduce sentence, he had told his trial counsel in late February or early March that he wanted "to appeal my case," and trial counsel had responded that he would not do so. Appellate counsel's affidavit stated that on July 6, 1992, he had spoken with appellant's trial counsel, who had acknowledged having a telephone conversation with appellant some time after the denial of the motion for a reduction of sentence during which he informed appellant that he would not file a notice of appeal. According to appellate counsel, the trial Judge, having granted the Rule 4 (b)(3) motion, did not rule on appellant's alternative § 23-110 motion for resentencing. Appellate counsel represented in the pleading in this court that appellant's April 20, 1992, filing would fall within the thirty day extended filing deadline of D.C. App. R. 4 (b)(3).
This case is not like Fallen v. United States, 378 U.S. 139, 12 L. Ed. 2d 760, 84 S. Ct. 1689 (1964), where the record showed that the defendant, acting pro se, had given prison officials his notice of appeal before the time for appeal had expired (even as extended by the trial court by 20 additional days). See Butler v. United States, 388 A.2d 883, 885 (D.C. 1978) (untimely pro se appeal may fall within an exception for the most compelling circumstances enunciated in Fallen, supra). *fn3 Although, in the instant case, appellant's in forma pauperis affidavit was sworn April 6, 1992, and the docketing statement that appellant submitted states, incorrectly, that his notice of appeal was filed on April 4, 1992, appellate counsel did not proceed on a Fallen theory. Rather, the affidavits, viewed most favorably to appellant, raise a claim of ineffective assistance of counsel rather than a Fallen claim: appellant had counsel, but his counsel declined to act to preserve appellant's right to appeal.
Accordingly, appellant's April 20, 1992, notice of appeal would only be timely if the Rule 35 motion for a reduction of sentence stayed the running of the time to appeal. *fn4 See D.C. App. R. 4(b). Cf. Coleman v. Lee Washington Hauling Co., 388 A.2d 44, 46 (D.C. 1978) (motions "in the nature of a motion under" Super. Ct. Civ. R. 60(b), 52(b), 58 or 59 (a) are motions listed in D.C. App. R. 4 (a), and therefore toll time to note an appeal); Smith v. Canada, 305 A.2d 521, 522 (D.C. 1973) (motion for reconsideration under Super. Ct. Civ. R. 60 (b) does not toll time to note an appeal); In re A.B., 486 A.2d 1167, 1168 (D.C. 1984) (in neglect proceeding motion for reconsideration tolls time for appeal). The language of Rule 4 (b)(1) does not incorporate within its express terms a motion to reduce sentence under Super. Ct. Crim. R. 35 as one of the motions that would toll the time to file a notice of appeal. Nor can we reasonably view a Rule 35 motion as being "in the nature of the motions listed in" Rule 4 (b), which refers only to a motions in arrest of judgment *fn5 or for a new trial.
The court has held that the trial court is not deprived of jurisdiction to act on a Rule 35 motion during the pendency of an appeal. Johnson v. United States, 513 A.2d 798, 801 (D.C. 1986) (citing King v. United States, 271 A.2d 556, 559 (D.C. 1971)). This suggests, perhaps, that an appeal from the judgment of conviction must be noted within the time set by Rule 4 (b) without regard to the pendency of a motion to reduce sentence under Super. Ct. Crim. R. 35. See also District of Columbia v. Tschudin, 390 A.2d 986, 988-89 (D.C. 1978) (final judgments not limited to last order in a proceeding; finality exists if only "ministerial acts" are left).
Although, in filings motion in the trial court for relief under D.C. App. R. 4 (b)(3), appellate counsel apparently assumed that a Rule 35 motion would toll the time to appeal under D.C. App. R. 4 (b)(2), no authority has been cited to the court for this principle. *fn6 In interpreting our rules the court looks for guidance to federal decisions involving identical federal rules. *fn7 Under FED. R. APP. P. 4, a motion to reduce sentence under FED. R. CRIM. P. 35, does not toll the time to file an appeal. See Berman v. United States, 378 U.S. 530, 12 L. Ed. 2d 1012, 84 S. Ct. 1895 (1964) (time for appeal does not begin to run anew from a ruling on a Rule 35 motion); United States v. June, 503 F.2d 442, 444 (8th Cir. 1974) (motion to modify sentence is not similar to a motion in arrest of judgment or for a new trial, and does not toll the time for appeal). Cf. United States v. Janovich, 688 F.2d 1227, 1228 (9th Cir. 1982) (untimely motion for reconsideration does not toll time to file appeal); Government of the Canal Zone v. Castillo, 590 F.2d 114, 115 (5th Cir. 1979) (filing of § 2255 petition does not toll the time for filing a appeal).
Consequently, in view of the interest in finality, see Barnes v. United States, 513 A.2d 249, 252 (D.C. 1986) ("the orderly conduct of judicial business requires that the proper time for appeal be clear and fixed"); United States v. Robinson, 361 U.S. 220, 230, 4 L. Ed. 2d 259, 80 S. Ct. 282 (1960) (if courts could extend filing deadline, result would be indefinite delay, "intolerable uncertainty and confusion"); United States v. Mehrtens, 494 F.2d 1172, 1175 (5th Cir. 1974) ("drafters of Rule 35 were most interested in assuring definiteness and clear lines of demarcation so that all concerned would know exactly when the time for filing would expire"), we conclude that, absent a provision in Rule 4, or in a statute, for the tolling of the time to note an appeal upon filing a motion to reduce sentence under Super. Ct. Crim. R. 35, the provisions of Rule 4 (b) control and appellant's Rule 35 motion did not toll the time for noting an appeal from the revocation of his probation and imposition of sentence on February 7, 1992.
On the other hand, appellant would be able to perfect a timely appeal from the revocation of his probation and the imposition of sentence if he was denied a Sixth Amendment right to the effective assistance of counsel when trial counsel declined to note a timely appeal, as appellant requested, of "his case." Cf. Rodriquez v. United States, 395 U.S. 327, 330, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969); Thomas v. United States, 586 A.2d 1228, 1231 (D.C. 1991) (citing Samuels v. United States, 435 A.2d 392, 395 (D.C. 1981) (appeal from denial of a motion to vacate sentence)); Barnes, supra, 513 A.2d 249 (appeal from revocation of parole). Were the trial court to find that appellant timely instructed his trial counsel to file a notice of appeal from the revocation of his probation, and that trial counsel did not do so, appellant would be entitled to relief in the form of vacation of the sentence and resentencing, so as to restore his right to appeal. *fn8 Little v. United States, 438 A.2d 1264, 1267 (D.C. 1989); Samuels, supra, 435 A.2d at 392, 395 (appropriate remedy "is for the trial court to vacate sentence and resentence in order to permit a ...