Counsel, heed thyself

NMC gives the rundown on the judicial ballots in Lafayette County, and mentions that Tom Levidiotis is running for circuit judge.

"Where did I see his name recently?" I wondered. Westlaw to the rescuse: Jones v. State, a MCOA decision on August 24:

¶ 3. At trial, Jones was represented by a court-appointed attorney, Thomas C. Levidiotis. On January 10, 2003, Levidiotis filed a motion for a judgment notwithstanding the verdict or, alternatively, a motion for a new trial. The motion was denied on January 24, 2003.

¶ 4. Now, Jones claims that he informed Levidiotis immediately following the verdict that he wanted to appeal his conviction and sentence to the Mississippi Supreme Court. However, a notice of appeal was not filed within thirty days. M.R.A.P. 4(e). Jones has provided copies of two letters he purportedly sent to Levidiotis, where he inquired about the status of his appeal--dated February 27, 2003, and November 19, 2003. These letters are included in the record, but neither letter is authenticated.

¶ 5. When he heard no response from Levidiotis, Jones filed a complaint against Levidiotis with The Mississippi Bar. In response, on February 15, 2004, Levidiotis sent a letter to Jones. Levidiotis told Jones that he had sent Jones a letter, dated January 12, 2003, that indicated his duties as Jones's counsel terminated upon Jones's conviction. Levidiotis said that the January 12th letter warned Jones that he would not file an appeal unless he received specific written instructions to do so. In addition, Levidiotis told Jones that it had been more than a year, and the time for Jones's appeal had passed. The letter also contained the following statement: “I advise you to ask the ... Court for leave to file an out of time appeal. Since I no longer represent you, I am unable to act on your behalf unless specifically instructed by the Court.”

¶ 6. Thereafter, on June 3, 2004, Jones filed a pro se motion for appointment of new counsel to file an appeal. A copy of Levidiotis's February 15th letter was attached to the motion. The only apparent purpose for Jones to request appointment of counsel was to appeal his conviction.

¶ 7. Two years later, on May 31, 2006, the circuit court entered an order that granted the motion. The order stated, in part, that “[t]he Court found the Defendant indigent and that he should be permitted to appeal, in forma pauperis, to the Supreme Court of Mississippi, and that the Court should appoint counsel for the Defendant for appeal purposes.” The circuit judge appointed Levidiotis to represent Jones “for appeal purposes.”

¶ 8. On June 2, 2006, Levidiotis filed a notice of appeal and other pleadings required by the Mississippi Rules of Appellate Procedure. Then, on June 5, 2006, Jones was granted permission from the circuit court to proceed with his appeal in forma pauperis.

¶ 9. On July 17, 2006, this Court on its own motion dismissed Jones's appeal as untimely filed. We determined that Jones's post-trial motion was denied on January 24, 2003, and the notice of appeal was not filed until June 2, 2006. Therefore, the notice was not timely filed. We also stated that the docket failed to indicate that a motion for permission to file an out-of-time appeal was filed or granted. As a result, Jones's appeal was dismissed. No further pleadings were filed with this Court.

¶ 10. On August 10, 2006, Levidiotis sent Jones a letter informing him that the appeal had been filed and subsequently dismissed by this Court as untimely filed. The letter stated: “Having done what my order of appointment required I regard my representation of you for appeal purposes as finally terminated and completed effective this day.” Levidiotis failed to note that he had failed to follow his own prior advice that a motion for permission to file an out-of-time appeal was necessary before Jones could proceed on appeal. * * *

¶ 17. Levidiotis's letter to Jones stated that his representation was complete upon Jones's conviction. This was not a correct statement of the law and Levidiotis's obligations to this client, Jones. Rule 6(b)(1) of the Mississippi Rules of Appellate Procedure states: “Appointed trial counsel shall continue as defendant's counsel on appeal unless relieved by order of the trial court, or, if the appeal has been perfected, by order of the Supreme Court or the Court of Appeals.” The record contains no order by the circuit court relieving Levidiotis of his duty to represent Jones on appeal. * * *

¶ 20. The circuit court determined that Jones was not entitled to relief under his motion for post-conviction collateral relief. We find this to be clearly erroneous. Levidiotis's own letter clearly set forth the procedural steps necessary to attempt to resurrect Jones's appeal. Upon his appointment as Jones's counsel for appeal purposes, Levidiotis should have promptly filed a motion for permission to file an out-of-time appeal. The filing of this motion would have required the circuit court to hold an evidentiary hearing to determine whether Jones could “show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal.” Dickey, 662 So.2d at 1108. Then, Jones would have to show that Levidiotis failed to perfect the appeal and that such failure was through no fault of his own. Id. Levidiotis failed to follow his own legal advice.

Win some, lose some, eh?