Consequences of Failure to File a ''Statement of Appeal''

In Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S. Ct. 830, 836-37, 83 L. Ed. 2d 821, (1985), the defendant's counsel failed to file "a statement of appeal" in accordance with Kentucky Rule of Appellate Procedure 1.095(a)(1) when he filed his brief and record with the Court of Appeals of Kentucky. Due to this failure, the Commonwealth filed a motion to dismiss the appeal for failure to file the requisite moved for reconsideration, arguing that all the necessary information was included within his brief and tendering a formal statement of appeal. Reconsideration was summarily denied. Defendant sought discretionary review before the Supreme Court of Kentucky, which affirmed the conviction. Defendant then made one last attempt to obtain state appellate review when he moved the trial court to grant him the right to file an appeal nunc pro tunc. This request was also denied. The defendant then sought federal habeas corpus relief on the grounds that counsel's failure to file a timely statement of appeal resulted in dismissal of his direct appeal and, thus, deprived him of the right to effective assistance of counsel guaranteed by the Fourteenth Amendment. On appeal, the Supreme Court of the United States noted that there was no dispute that counsel was ineffective in failing to file the statement of appeal. Evitts, 469 U.S. at 392, 105 S. Ct. at 833-34. The Supreme Court further observed: To prosecute the appeal, a criminal appellant must face an adversary proceeding that-like a trial-is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant--like an unrepresented defendant at trial--is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on appeal as of right--like nominal representation at trial--does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. The Supreme Court then affirmed the Sixth Circuit's grant of the right to appeal, stating: "A system of appeal as of right is established precisely to assure that only those who are validly convicted have their freedom curtailed. A State may not extinguish this right because another right of the appellant--the right to effective assistance of counsel--has been violated." Evitts, 469 U.S. at 399-400, 105 S. Ct. at 838.