Newberry v. MississippiAnnotate this Case
In 2011, defendant 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. Defendant engaged Gerald Green, a Tennessee attorney, to represent him. 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 hoc vice fee of $200 to the Clerk of the Mississippi Supreme Court. Green submitted a Motion to Dismiss Prosecution and a Request for Discovery on defendant'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. Green represented defendant 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 defendant 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. 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. After a one-day trial, defendant was convicted of possession of marijuana, possession of cocaine, and first-offense DUI. 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." 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 hoc vice application, and that he would be notified if his involvement was further required. Lofton never met or communicated with defendant. At the post-trial motions hearing, defendant asserted that he never knew Green was not licensed to practice in Mississippi. Defendant 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. The Supreme Court reversed defendant's convictions and remanded 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 hoc vice. Most significantly, the trial court erred in waiving the now-mandatory requirement that associated local counsel be present at trial.