DATE OF JUDGMENT: 11/27/2012.
DESOTO COUNTY CIRCUIT COURT, HON. GERALD W. CHATHAM, SR.,
FOR APPELLANT: WANDA ABIOTO.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.
BEFORE WALLER, C.J., CHANDLER AND KING, JJ. WALLER, C.J., DICKINSON, P.J., KITCHENS AND KING, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.
¶1. On appeal of Weissenger Newberry's felony convictions, we reverse and remand for a new trial due to the trial court's and counsel's failure to comply with Mississippi Rule of Appellate Procedure 46 governing the admission of foreign attorneys to practice pro hac vice. Most significantly, the trial court erred in waiving the now-mandatory requirement that associated local counsel be present at trial.
FACTS AND PROCEEDINGS BELOW
¶2. In 2011, Newberry was pulled over for suspicion of driving under the influence (DUI) after an officer observed him weaving between lanes. He resisted arrest and subsequently was indicted on two counts of assaulting a law-enforcement officer, possession of marijuana, possession of cocaine, and a first DUI. The indictment later was amended to reflect his habitual-offender status. The assault charges eventually were dropped.
¶3. Newberry engaged Gerald S. Green, a Tennessee attorney, to represent him. A scheduling order of May 14, 2012, listed Green as attorney of record. On June 15, 2012, Green submitted a verified application and affidavit to appear pro hac vice, listing the enumerated requirements of Mississippi Rule of Appellate Procedure 46(b)(5), including the statement that Green " has associated Attorney Daniel O. Lofton, a member in good standing of the Mississippi Bar as local counsel in this case . . . ." The application included a Certificate of Local Attorney signed by Daniel Lofton and a Certificate of Payment for the pro hac vice fee of $200 to the Clerk of the Mississippi Supreme Court. This was the complete extent of Lofton's involvement in the case.
¶4. Also on June 15, 2012, Green submitted a Motion to Dismiss Prosecution and a Request for Discovery on Newberry's behalf. These two motions were signed and submitted only by Green. Additionally, Green's bar number as listed next to his signature on these motions did not indicate in which state Green was licensed.
¶5. Green represented Newberry at an August 7, 2012, hearing in which the court denied the Motion to Dismiss and granted the State's Motion to Amend the Indictment charging Newberry as a habitual offender under Mississippi Code Section 99-19-81.
Green had not at that time been approved to proceed pro hac vice, and associated attorney Lofton was not present at the hearing. The court subsequently denied an August 17, 2012, Motion to Continue Trial filed by Green.
¶6. The trial occurred on August 22, 2012. After the jury was selected, the court approved Green's application to proceed pro hac vice and waived the requirement that local counsel be present during trial. The State had no objection to the trial proceeding without the presence of local counsel. The portion of the transcript from the start of trial granting Green's pro hac vice application and permitting the trial to move forward without the presence of local counsel reads as follows:
[STATE]: Your Honor, as a preliminary matter. . . [i]t's my understanding that the Supreme Court has approved him to proceed pro hac vice in the Mississippi court. The state has no objection to that.
Further, it's my understand of the rule that local counsel is not here. The rule expressly allows the defendant defense counsel to proceed without local counsel if the judge expressly allows that or makes a ruling as such. The state has no objection whatsoever to Mr. Green proceeding without local counsel being present.
THE COURT: All right. It's my understanding from looking at the court file myself that Mr. Green has complied with the Mississippi rules concerning the admission pro hac vice, and I do hereby rule that he is an attorney in good standing in Shelby County and has been accepted for practice here pursuant to our court rules.
He has paid the necessary fees to the State of Mississippi and to the Mississippi bar, and I'm going to excuse the local counsel from being here participating. . . .
¶7. After a one-day trial, Newberry was convicted of possession of marijuana, possession of cocaine, and first-offense DUI. Evidence was submitted showing that Newberry's blood alcohol level several hours after arrest was 0.13. In addition to the testimony of officers present at the scene, the dash-cam video of the incident was shown to the jury.
¶8. The Supreme Court never received an order approving Green's admission to proceed pro hac vice. Green stated at the post-trial motions hearing that " I didn't submit any order. I didn't think anything else was required after we had our proceedings in this court. They [Mississippi Supreme Court Clerk] sent back the cases that I had been in, and they approved that I had paid the money."
¶9. Daniel Lofton, the associated attorney, testified at the post-trial motions hearing that he understood his role and obligations to be limited to certifying that Green was an attorney in good standing in Tennessee on Green's pro hac vice application, and that he would be notified if his involvement was further required. Lofton never met or communicated with Newberry. Lofton stated that
Mr. Green is an experienced counsel, and I acted discretionarily under his advice. . . . I saw none of [the documents/motions filed on Newberry's behalf] nor was I aware that this matter was going to trial, nor was I aware of
the seriousness with which--the charges which Mr. Newberry faced, especially the habitual offender issue. I had no idea. . . I basically certified that Gerald Green was an attorney in good standing to the best of my knowledge, which I have direct knowledge of being a Tennessee attorney, as well, no, like I said, I was not part of the contract for services with Mr. Newberry. I didn't have any arrangement with him to be compensated.
At the post-trial motions hearing, Newberry asserted that he never knew Green was not licensed to practice in Mississippi. This contradicts Green's testimony that he told Newberry up front that he could not practice in Mississippi unless he was admitted pro hac vice and followed the rules governing admission. Newberry hired a new attorney immediately following the trial and was represented by the new attorney at the post-trial motions hearing, sentencing hearing, and on this appeal.
¶10. Deprivation of counsel and pro hac vice requirements are questions of law, which we review de novo. In re Williamson, 838 So.2d 226, 233 (Miss. 2002).
I. Newberry was not denied counsel under the Sixth Amendment.
¶11. Newberry argues that he was denied counsel under the Sixth Amendment due to Green's failure to comply with the requirements to practice pro hac vice, and in particular due to the absence of local counsel at trial. But failure of an out-of-state attorney to comply with the rules for pro hac vice admission is not a per se deprivation of counsel under the Sixth Amendment. Cole v. U.S., 162 F.3d 957, 958 (7th Cir. ...