PERSHALL v. STATE
2017 OK CR 13
| Okla. Crim. App. | 2017Background
- Petitioner Amon Waldo Pershall Jr. pleaded guilty in 2012 to DUI, second and subsequent; received a ten-year sentence, all suspended; sentence was revoked March 24, 2016.
- Pershall filed an Application for Post-Conviction Relief on May 11, 2016; District Court denied relief June 29, 2016; Pershall did not timely appeal because he did not receive notice.
- First post-conviction appeal was dismissed for lack of timely notice; Pershall filed a second application seeking an appeal out of time on October 20, 2016.
- District Court granted relief allowing an appeal out of time (Oct. 26, 2016); Pershall filed a Notice of Post-Conviction Appeal in the District Court on Nov. 7, 2016 and filed a Petition in Error the same day but did not include the Notice copy.
- This Court previously granted an out-of-time appeal (PC-2016-1018) and directed compliance with Rule 5.2; the Notice Pershall later attached to his response related to the earlier out-of-time appeal, not the current appeal.
- This Court ordered Pershall to show cause why the current post-conviction appeal should not be dismissed for failure to file the required Notice of Post-Conviction Appeal; Pershall failed to show he filed the required post-November 30, 2016 Notice, so the Court dismissed the appeal.
Issues
| Issue | Pershall's Argument | State's Argument | Held |
|---|---|---|---|
| Whether failure to file a Notice of Post-Conviction Appeal deprives Court of jurisdiction and warrants dismissal | Pershall contended he complied with Rule 5.2(C) and attached a Notice he claimed was filed | State argued no timely, proper Notice was filed for this appeal; attached Notice pertained to a different, earlier appeal | The Court held filing the Notice is jurisdictional; absence of a timely Notice mandates dismissal |
| Whether the Notice Pershall attached salvages the appeal | Pershall argued the attached Notice initiated the appeal | State showed the attached Notice related to the prior out-of-time appeal (PC-2016-1018) and not to the current appeal | The Court held the attached Notice did not apply to the present appeal and could not save it |
| Whether the District Court clerk can assemble the record absent a timely Notice | Pershall suggested procedural compliance was sufficient | State argued the clerk’s duty to assemble and transmit the record is triggered by a timely Notice; without it record cannot be timely filed | The Court held the Notice triggers clerk duties; without it record filing deadlines cannot be met |
| Whether equitable considerations (lack of notice of denial) excuse failure to file Notice | Pershall relied on earlier lack of notice of denial that led to out-of-time relief | State relied on rule requirements and the sequence of filings required after this Court’s grant of out-of-time appeal | The Court found Pershall did receive an avenue for relief but still failed to file the required Notice for this appeal and dismissal was proper |
Key Cases Cited
- Pershall v. State, 400 P.3d 871 (Okla. Crim. App. 2017) (order dismissing post-conviction appeal for failure to file required notice)
- Blonner v. State, 127 P.3d 1135 (Okla. Crim. App. 2006) (notice requirements are jurisdictional in certain appeals)
- Burnham v. State, 43 P.3d 387 (Okla. Crim. App. 2002) (notice requirement discussed in revocation appeal context)
- State v. Young, 989 P.2d 949 (Okla. Crim. App. 1999) (notice requirements in State appeals)