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Click here for the full text of this decision FACTS:In February 2000, the trial court accepted James Hail Benson’s guilty plea and placed him on five years’ deferred adjudication community supervision for aggravated assault. About four years later, the state filed a motion to adjudicate Benson’s guilt, alleging that he committed another aggravated assault with a deadly weapon. Benson, who was represented by appointed attorney John Clark, pleaded not true to the allegation. Following an evidentiary hearing, the trial court found the allegation true. In the punishment phase of the hearing, no additional evidence was introduced, but each side made a closing argument, with the state requesting a sentence near the maximum of 20 years and Benson’s attorney asking for a sentence in the range of five or six years. The trial court sentenced Benson to 12 years in prison and a $500 fine on July 20, 2004. Benson’s trial attorney neither objected to the sentence nor filed a motion to withdraw from the case or anything else with the trial court. Nine days after sentencing, Benson filed a pro se notice of appeal. Benson’s pro se notice of appeal states, “Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL.” On Jan. 14, 2005, almost five months after Benson filed his notice of appeal, the trial court certified Benson’s right of appeal, which included the notation that Benson’s attorneys were “J. Clark/J. Guerinot.” On Feb. 18, 2005, Benson filed a pro se motion before the 1st Court of Appeals requesting an extension of time to file a pro se brief. On March 7, 2005, the 1st Court abated the appeal. It stated: “The problem is that appellant is not represented by counsel on appeal.” The court ordered the trial court to conduct a hearing to determine whether Benson wished to pursue the appeal and whether Benson was indigent. The 1st Court’s order required the trial court to appoint appellate counsel if Benson desired to pursue the appeal and was indigent. At a hearing on April 15, 2005, the trial court found Benson to be indigent and appointed appellate counsel for him. Also at the hearing, the trial court judge stated that he did not know why Benson was not initially appointed a lawyer on appeal. The hearing did not address whether Benson was represented by an attorney during the 30-day-window for filing a motion for new trial. After the 1st Court reinstated Benson’s appeal, Benson’s newly appointed appellate attorney filed an appellate brief that requested a second abatement of the case. On July 19, 2006, the 1st Court issued an order that abated this cause for a second time. Our order stated: “We abate the appeal and remand the cause for a hearing to determine whether appellant had counsel, and whether he received ineffective assistance of counsel, during the 30-day period for filing a motion for new trial.” The 1st Court stated that: “Once the appeal is reinstated, we will rule on appellant’s request to file an out-of-time motion for new trial.” The state filed a motion to reconsider the order that abated the case for a second time. Upon the state’s motion requesting rehearing, and after requesting a response from Benson, the 1st Court withdrew the order abating this case and reinstated the appeal on Sept. 6, 2006. In his first issue on appeal, Benson contended that he was denied his right to counsel at a critical stage of the proceedings against him � the period of time for filing a motion for new trial � because the trial court failed to appoint appellate counsel immediately after sentencing. Benson also requested remand of the cause to the trial court with instructions that he be permitted to file a motion for new trial. The state responded that the 1st Court should discontinue its practice of abating appeals for the trial court to determine whether appellants were deprived of counsel during the period of time for filing a motion for new trial, because it lacked statutory or procedural authority to do so, and because the Court of Criminal Appeals disapproved of the practice. HOLDING:Affirmed. The court stated that a presumption exists that a defendant’s trial attorney continued to effectively represent the defendant during the 30-day window for filing a motion for new trial. Furthermore, the court stated, the presumption assumes that the reason the trial attorney did not file a motion for new trial was “because the appellant considered filing it but opted not to file it.” The court noted that Benson’s pro se notice of appeal, filed nine days after he was sentenced, included the statement, “NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING [Benson] also prays for the APPOINTMENT OF APPELLATE COUNSEL.” The court deemed this statement conclusory and insufficient to rebut the presumption that Benson’s trial counsel acted effectively. In short, the court found that Benson did not demonstrate that his trial attorney: failed to advise him of his right to file a motion for new trial; failed to appeal from the trial court’s judgment or the necessity of giving notice of appeal; or refused to take such actions after discussing them with Benson. The filing of the notice of appeal, the court stated, is evidence that the Benson’s attorney informed him of at least some of his appellate rights. Thus, the court held that the record showed that Benson’s trial attorney represented him at all times in the litigation and that Benson failed to overcome the presumption that his attorney acted effectively at all times. OPINION:Alcala, J., writing for the majority of the en banc 1st Court, joined by Radack, C.J., and Taft, Nuchia, Hanks, Higley and Bland, J.J. DISSENTS:Jennings, J. “Here, appellant’s case ‘slipped through a crack,’ and the trial court’s failure to timely appoint appellant counsel deprived him of the ability to present his appeal in a”meaningful time’ and in a ‘meaningful manner.’ Rather than recognizing the simple fact that the record, as it stands, demonstrates that appellant was not represented by counsel during the time period for filing a motion for new trial, the majority misconstrues as”conclusory’ the statement of appellant made in his pro se notice of appeal that he had not been represented ‘SINCE SENTENCING.’” Keyes, J. “I would hold . . . that appellant has overcome the presumption that he was represented by counsel during the running of appellate timetables and that his appellate counsel is now seeking the appropriate remedy under [1987's CCA opinion] Ward [v. State], namely, remand to start the appellate timetable running again so that he can file a motion for new trial to build a record to substantiate appellant’s claims of ineffective assistance of counsel.”

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