Brennan v. State

David G. Brennan was convicted in 1992 of two counts of child molestation and one count of aggravated child molestation. On December 28, 1999, Brennan filed a pro se motion for permission to file an out-of-time appeal, alleging that his court-appointed attorney failed to file an appeal after agreeing to do so, failed to respond to Brennan’s requests for information regarding the status of the appeal, and abandoned the case without notifying Brennan. Brennan also requested an evidentiary hearing at which he could examine his attorney regarding the failure to file an appeal. The trial court summarily denied the motion for an out-of-time appeal without holding a hearing, stating in a one-sentence order that the motion “fails to state a claim for which relief can be granted.” For reasons discussed below, we vacate the trial court’s ruling and remand for further consideration.1

A defendant may be entitled to an out-of-time appeal if he was deprived of his right to appeal by his attorney’s negligence or ignorance, or if he was not adequately informed of his appeal rights.2 The defendant may, however, “by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights.”3 The disposition of a motion for out-of-time appeal thus turns on the issue of “who bore the ultimate responsibility for the failure to file a timely appeal.”4 “Where the record does not indicate that the trial court adequately addressed this dispositive issue, we will remand for a hearing to consider it.”5