In Re Fountain

—Edward A. Fountain, through his attorney, petitions this court for a writ of habeas corpus to relieve him from the consequences of failing to file a timely notice of appeal from a judgment convicting him of possessing a controlled substance for sale (Health & Saf. Code, § 11351). Fountain had pleaded guilty and was sentenced tó prison. This court issued an order to show cause returnable before the superior court with directions to report back findings of fact and conclusions of law.

Fountain was represented by appointed counsel in the trial court. That counsel did not file a notice of appeal nor is it anywhere suggested in the records of this proceeding he was requested to do so. Fountain’s mother, however, paid $500 to present counsel within the 60-day period to file a notice of appeal. That fee clearly related to the processing of an appeal. No other justification for it appears in the record.

The attorney failed to file a notice of appeal until too late, and then filed an inadequate notice which did not meet the requirements of Penal Code section 1237.5 or California Rules of Court, rule 31(d).

Petitioner’s attorney alleges Fountain’s mother asked if he would…