Sellers v. State
| Docket Number: | 2009-CP-01366-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-11-2011 Opinion Author: Roberts, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Post-conviction relief - Evidentiary hearing - Right to out-of-time appeal Judge(s) Concurring: King, C.J., Lee, P.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 07-20-2009 Appealed from: Rankin County Circuit Court Judge: William E. Chapman, III Disposition: Denied Motion for Extention of Time to Appeal Case Number: 18403 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Nathan Sellers |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Evidentiary hearing - Right to out-of-time appeal |
| Summary of the Facts: | Nathan Sellers was convicted of aggravated assault. Sellers filed a motion for an out-of-time appeal which was denied. Sellers appeals. |
| Summary of Opinion Analysis: | Sellers argues that the circuit court erred when it summarily denied his motion for an extension of time to appeal. The substantial issue in this case is whether Sellers is entitled to an evidentiary hearing to determine whether Sellers asked his attorney to appeal Sellers’s aggravated assault conviction. To prove his right to an out-of-time appeal, the movant must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal. Moreover, the movant must show that the attorney failed to perfect the appeal and that such failure was through no fault of the movant. An evidentiary hearing is necessary when a record contains no indication that an attorney responded to his client’s request to appeal. No hearing is required when the record contains letters from trial counsel that provide documentary evidence sufficient to contradict an affidavit submitted by one who seeks post-conviction relief. Here, there is no documentary evidence that contradicts Sellers’s claim that he asked his attorney to appeal the aggravated-assault conviction. Consequently, an evidentiary hearing is necessary. If the circuit court grants Sellers’s motion for an out-of-time appeal and the State does not appeal that ruling, then Sellers may file a direct appeal of his underlying aggravated-assault conviction. If the circuit court denies Sellers’s motion for an out-of-time appeal, he would be entitled to appeal the circuit court’s decision with the necessary record of the evidentiary hearing. |
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