                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 95-KA-00048-SCT
JOHN K. OSBORN A/K/A JOHN KENNY OSBORN
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              12/20/94
TRIAL JUDGE:                                   HON. GEORGE C. CARLSON JR.
COURT FROM WHICH APPEALED:                     PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        DAVID WALKER
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:                             WILLIAMS, ROBERT L.,
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   AFFIRMED - 4/10/97
MOTION FOR REHEARING FILED:                    4/17/97
MANDATE ISSUED:                                6/12/97




     BEFORE DAN LEE, C.J., McRAE AND SMITH, JJ.


     McRAE, JUSTICE, FOR THE COURT:




¶1. John Kenny Osborn appeals a December 20, 1994 order of the Panola Circuit Court denying his
Motion for Leave to File an Out-of-Time Appeal in Forma Pauperis pursuant to Miss. Code Ann. §
99-39-1. Finding that Osborn was advised by the circuit court of his right to appeal and that after
discussing the matter with his attorney following his sentencing hearing, he signed a statement
indicating that he did not wish to appeal his case, we deny the relief now sought and affirm the order
of the circuit court.

                                                  I.

¶2. John Kenny Osborn was found guilty of murder by a jury of the Panola County Circuit Court on
September 24, 1991, and sentenced by the court to life in prison. At the October 31, 1991 post-trial
motion and sentencing hearing, the circuit court overruled Osborn's motion for a j.n.o.v. or, in the
alternative, for a new trial. The circuit court advised Osborn of his right to appeal, stating:
     So, based on the murder conviction, and the life sentence you now have, and recognizing that
     certainly you would have every right to appeal this matter to the Supreme Court of Mississippi,
     then if the matter be appealed, then the Court would at this point have to deny bail. So, I'll turn
     you back over to Panola County authorities.

Immediately after the sentencing hearing, Osborn and his sister, Betty Osborn, were advised by his
attorney of his right to appeal. He signed a handwritten statement, witnessed by his sister, stating:

     I, John Kenny Osborn, have this day been sentenced to serve a term of life imprisonment for
     murder in Cause #CR-91-22-C (P1). I have been advised by my Attorney, Paul R. Scott, that I
     have a right to appeal this conviction and sentence to the Mississippi Supreme Court. I have
     discussed my case with my said attorney and do not desire to file an appeal in this case.

¶3. On May 24, 1993, nearly two years after his sentencing hearing and subsequent incarceration at
Parchman, Osborn filed a Motion for Leave to File an Out-of-Time Appeal in the Panola County
Circuit Court. He asserted that he had not been advised of his right to appeal and now desired to
appeal his sentence and conviction. The circuit court requested a response from the State and on
December 12, 1994, an evidentiary hearing was held.

¶4. Osborn's privately-retained trial attorney, Paul Scott, testified at the hearing that he discussed
Osborn's right to appeal with him as well and shared with him his opinion, based on his experience as
a criminal defense attorney, that there was very little likelihood of a successful appeal:

     Q. Okay, sir. Now what did Mr. Osborn tell you about an appeal, his desire to appeal this
     murder conviction?

     A. Of course, after the trial I filed post-trial motions for a new trial and JNOV. And I believe
     those motions were heard in this courtroom. And that motion was overruled by the Court and
     he was sentenced at that time. I talked with Mr. Osborn after the sentencing. I talked with him
     and his sister, Betty, right back in this little holding cell area over here. And we discussed it, his
     right to appeal, and whether or not he -- you know, as I say, the Mississippi Supreme Court
     could do whatever they wanted to do. But the issue in this trial, from the onset, was not
     whether or not there was a homicide, it was whether or not it was murder or manslaughter. And
     that was -- I mean, that was really what the trial was about. It was my opinion that the
     likelihood of success on an appeal was slim, to say the very least. And we discussed that. At
     that point in time he did not want to appeal it. I advised him that he had a right to appeal it,
     with him and his sister, you know, just to clarify that. Because normally, particularly in the
     years that I had been a Public Defender, I had appealed a number of cases, I mean numerous
     convictions that were appealed. But as we talked, and he did not want to appeal the conviction.
     And, of course, I put it in writing that he had been advised that he had a right to appeal and he
     didn't desire to do that. He signed it, his sister witnessed it, and so I didn't proceed with filing
     the appeal.

Scott testified that he didn't recall who brought up the idea of appealing, but he was sure that he did
since "that's something to be considered in every case." Asked why Osborn didn't want to appeal, his
attorney responded that, "He just didn't want to fight it any more, he didn't want to appeal." He
further added that as an attorney, he had a responsibility not to bring an appeal that "he knows or
firmly believes" is without merit.

¶5. Osborn testified at the hearing that although he had the funds available to appeal his conviction,
Scott had advised him that "it wouldn't do no good." He alternately didn't recall and denied that Scott
had advised him of his right to appeal. Betty Osborn stated that Scott advised her brother not to
appeal and he accepted his attorney's advice.

¶6. Although Osborn testified that he changed his mind about filing an appeal several days after his
October 31, 1991 sentencing, he indicated that he got the idea to file an out-of-time appeal several
months later at Parchman:

     I go to the law library and, you know, do a little reading, and talking with different guys that
     work there. And they told me, you know, that I had a right, you know, he was supposed to
     been filing me an appeal. Anybody in their right mind with a life sentence would want to appeal.
     And I was thinking after he had told me that it wouldn't do no good that he was, you know --
     So, you know, I just took his word, after he said it wouldn't do no good.

Osborn had a writ writer send an undated letter to Scott, complaining that a life sentence was
unwarranted for what he considered to be the "justifiable" killing of Anthony Montgomery. He
requested that Scott file an out-of-time appeal. Scott responded with a November 5, 1992 letter to
Betty Osborn, explaining that under the circumstances, there was nothing he could do to reduce her
brother's sentence.

                                                  II.

¶7. Osborn first asserts that the circuit court was required not only to advise him of his right to
appeal his conviction and sentence and the details of the appeals process, but also to elicit responses
from him regarding his desire to appeal his case, his understanding of the time frame in which he
could make an appeal and his financial ability to pursue an appeal. Because the circuit judge merely
advised him of his right to appeal, he asserts that he now is entitled to an out-of-time appeal.
Osborn's argument is based on Wright v. State, 577 So. 2d 387 (Miss. 1991), which he construes as
a "mandate" by this Court, "analogous to a statutory scheme." In Wright, we found that an
evidentiary hearing should have been ordered to determine whether the defendant's attorney had
advised him of his right to appeal his sentence and conviction because the affidavits which were
submitted contained conflicting statements about material facts. We further made "note" of suggested
procedures for attorneys and trial judges to follow so as to ensure that defendants were fully advised
of their right to appeal.

     Finally, we note that disputes between lawyer and client over instructions to take or not to take
     an appeal are difficult to resolve without a record. Lawyers should assist the court in this regard
     by reducing decisions whether to appeal a criminal conviction to a writing signed by the
     defendant. We note with approval the steps taken by the defendant's attorney in Fair v. State,
     571 So.2d 965 (Miss. 1990).

     We also urge trial courts to advise criminal defendants of their rights concerning appeal on the
     record at the time of sentencing and to solicit a decision in that regard. Should a decision be
     made on the record to appeal the defendant should be advised that decision will stand unless a
     written statement to the contrary, signed by the defendant and the attorney, is filed with the
     court. Should the decision be made to waive appeal the defendant should, nevertheless, be
     informed of the time limits for appeal and told that his decision to waive shall stand unless he
     gives written notice to the court and his attorney prior to the expiration of the time. Should no
     decision be made the court should inform the defendant that his failure to express a desire to
     appeal shall be considered a waiver of his right to appeal and that such waiver will stand unless
     he gives written notice to the court and counsel prior to the expiration of the time in which to
     perfect the appeal.

Wright, 577 So. 2d at 390. While Wright "urges" trial judges to elicit from a defendant some
decision regarding the desire to appeal at the time of sentencing, which we encourage them to do to
the extent it is practicable, nothing in the language of the opinion "mandates" the judge to ascertain
the intentions of the defendant (who may not have had a chance to confer with his attorney regarding
the advisability of an appeal) or requires him to make inquiry into whether the defendant understands
the time limit for making an appeal or has the financial ability to pursue an appeal. The sentencing
hearing is usually the last opportunity the trial court has to meet with the defendant. As a practical
matter, the decision to appeal is not made until afterward. The trial court only can ascertain whether
the defendant is aware of his right to appeal and the time frame in which he can raise his appeal.

¶8. Osborn's attorney discussed the right to appeal with his client immediately following the
sentencing hearing. His attorney properly obtained a signed and witnessed statement indicating that
Osborn did not wish to appeal. While it is preferable for the circuit court also to make some inquiry
into whether the defendant understands the rights of which he has been advised, where, as in the case
sub judice, there has been a full-scale evidentiary hearing as to whether an out-of-time appeal should
be allowed, the fact that the trial judge merely advised the defendant of his right to appeal does not,
in and of itself, warrant the grant of an out-of-time appeal.

¶9. Knowledge that an appeal exists is not the same as knowledge that there is a right to appeal.
Summerville v. State, 667 So. 2d 14, 15 (Miss. 1996); Wright, 577 So. 2d at 390. In those cases
where there has been some question as to whether the defendant was advised of his right to appeal,
we have held that he is entitled to an evidentiary hearing on the matter. Summerville, 667 So. 2d at
15 (where affidavits of attorney and client were contradictory, defendant's signed statement that he
was not going to appeal his conviction was not equivalent to knowledge that he had right to appeal);
Wright, 577 So. 2d at 390. Since Osborn was provided with a full-scale evidentiary hearing on his
entitlement to an out-of-time appeal, that requirement was met in this case.

                                                   III.

¶10. Osborn next contends that his attorney's post-trial performance was deficient because of his
failure to appeal the conviction based on an alleged discovery violation at trial; his failure to advise
his client that there was a thirty-day limit on his time for appeal; and his failure to pursue an out-of-
time appeal for him within the three-year limit of the post-conviction relief law. He further asserts
that he was prejudiced by his attorney's failure to contact him within the thirty-day period to see if he
had changed his mind about his desire to appeal.

¶11. To demonstrate that he is entitled to an out-of-time appeal, Osborn must show by a
preponderance of the evidence that he asked his attorney to file an appeal within the time limit for
doing so and that through no fault of Osborn's, his attorney failed to file the appeal. Miss. Code Ann.
§ 99-39-23(7); Dickey v. State, 662 So. 2d 1106, 1109 (Miss. 1995); Harris v. State, 624 So. 2d
100, 101 (Miss. 1993). The record from the evidentiary hearing indicates that after his sentencing
hearing, Osborn signed a statement indicating that his attorney had advised him of his right to appeal
his conviction and sentence, and that after discussing his case with Scott, he did not wish to pursue
an appeal. Although Osborn testified at the evidentiary hearing that he changed his mind several days
later, there is no evidence that he tried to contact his attorney and advise him of his change of heart
until nearly a year later. The record indicates only that sometime in 1992, after he had been at
Parchman for several months and had learned about various forms of post-conviction relief from
other inmates, he had a writ-writer send an undated letter to his attorney complaining about his life
sentence and requesting, in a round-about way, that he file an out-of-time appeal. Apparently in
response to that letter, his attorney wrote a letter to Osborn's sister stating that there was nothing
further he could do to reduce his sentence. The record, therefore, simply does not support Osborn's
motion for an out-of-time appeal.

¶12. In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that
his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-96 (1984); Wilcher v. State,
479 So. 2d 710, 713 (Miss. 1985); Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984). This Court
looks at the totality of circumstances to determine whether counsel's efforts were both deficient and
prejudicial. Carney v. State, 525 So. 2d 776, 780 (Miss. 1988); Read v. State, 430 So. 2d 832, 839
(Miss. 1983). "Judicial scrutiny of counsel's performance [is] highly deferential." Strickland, 466
U.S. at 689. There is a strong but rebuttable presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Carney, 525 So. 2d at 780; Gilliard v. State, 462 So. 2d
710, 714 (Miss. 1985). Only where it is reasonably probable that but for the attorney's errors, the
outcome of the trial would have been different, will this Court find that counsel's performance was
deficient. Dickey, 662 So. 2d at 1106; Reed v. State, 536 So. 2d 1336, 1339 (Miss. 1988).

¶13. Osborn's claim of ineffective assistance of counsel is based on his attorney's alleged failure to file
an appeal, to advise him of the thirty-day time period in which an appeal must be filed, and to file a
motion for an out-of-time appeal. There is no evidence in the record, however, that Osborn ever
asked his attorney to file an appeal. To the contrary, the record indicates that he signed a statement
showing that he had been advised of his right to appeal and did not desire to do so. As we explained
in Fair, where the defendant signed an affidavit indicating that he had discussed his right to appeal
with his attorney and did not desire to pursue an appeal, this Court stated, "[t]he sworn waiver
functions in this context as substantial credible evidence that Fair did, in fact, receive
contemporaneous advice regarding his right to appeal and that he did knowingly and intelligently
waive same." Fair, 571 So. 2d at 967. Because of Osborn's failure to prove the existence of an
agreement to perfect an appeal, his attorney's performance cannot be found deficient based on his
failure to appeal the case. Dickey, 662 So. 2d at 1109. Further, none of our cases place a duty on an
attorney whose client has provided a written waiver of his right to appeal to keep checking with him
during the thirty-day period during which an appeal may be brought to make sure he has not changed
his mind. From the evidence presented, therefore, it appears to us that Osborn's attorney acted within
the "wide range of reasonable professional assistance" in his advice to Osborn and his sister.

                                                   IV.
¶14. Since in the case sub judice, there has been a full-scale evidentiary hearing on the issue of
whether the defendant is entitled to an out-of-time appeal, the fact that the circuit court, at trial,
merely advised him of his right to an appeal rather than making a detailed inquiry into his
understanding of that right, we do not find that an out-of-time appeal is warranted. Further, since the
record indicates that Osborn did not seek an appeal of his case, his attorney's failure to perfect an
appeal certainly does not amount to ineffective assistance of counsel. We therefore affirm the circuit
court's order denying Osborn's motion for an out-of-time appeal.

¶15. LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS, SMITH
AND MILLS, JJ., CONCUR.
