Kelley v. State, 2010 Ark. 283 (Ark. 6/3/2010)
| Decision Date | 03 June 2010 |
| Docket Number | CR 10-473. |
| Citation | 2010 Ark. 283 |
| Parties | Dwight Shane KELLEY, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Appellant Dwight Shane Kelley, by and through his attorney, John Joplin, has filed a motion for rule on clerk and a motion for belated appeal. In addition, attorney Joplin has filed a motion to be relieved as counsel on appeal or, in the alternative, if that motion is denied, a motion for extension of time.
Kelley was represented below by attorney John VanWinkle in the instant case, CR2007-1460, and in two other criminal matters, cases No. CR2007-1461 and CR2007-494. On September 29, 2009, VanWinkle filed a motion to withdraw as counsel in all three criminal cases. At a hearing on September 30, 2009, the circuit court denied VanWinkle's motion to withdraw. Case No. CR2007-1460 then proceeded to a jury trial on October 6 in prison. The judgment and commitment order was entered on October 8, 2009. VanWinkle did not file a notice of appeal at that time, although the criminal docket does not reflect that he was allowed to withdraw as counsel by the circuit court.
The docket does reflect, however, that the circuit court conducted an "inquiry" on December 30, 2009, and appointed the Sebastian County Public Defender's Office to represent Kelley on appeal in CR2007-1460. Attorney John Joplin of the Sebastian County Public Defender's Office filed a notice of appeal on Kelley's behalf on January 5, 2010. In addition, on March 30, 2010, Joplin filed in the circuit court a motion for extension of time to lodge the record, which the circuit court granted on April 1, 2010. Joplin tendered the record to our clerk's office on May 10, 2010.
Joplin filed the instant motion for rule on clerk and motion for belated appeal on May 10, 2010. Relief from the failure to perfect an appeal is provided as part of the appellate procedure granting the right to an appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). In McDonald, we clarified our treatment of motions for rule on clerk and motions for belated appeal in criminal cases, explaining:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he or she has erred and is responsible for the failure to perfect the appeal. Id.; Rasmussen v. State, 375 Ark. 242, 289 S.W.3d 465 (2008). When it is plain from the motions, affidavits, and record that relief is proper based on error or good reason, the relief will be granted. Rasmussen, supra. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. Id.
Where, however, a motion seeking relief from the failure to perfect an appeal is filed, and it is not plain from the motion, affidavits, and record whether there is attorney error, the clerk of this court will be ordered to accept the notice of appeal or record, and the appeal will proceed without delay. The matter of attorney error will be remanded to the trial court to make findings of fact. McDonald, 356 Ark. at 117, 146 S.W.3d at 892 (citing Frazier v. State, 339 Ark. 173, 3 S.W.3d 334 (1999)). Upon receipt by this court of the findings, this court will render a decision on attorney error. Id.
When a criminal defendant requests a belated appeal, good reason is established where the defendant is not at fault, and his or her attorney has failed to file a timely notice of appeal following a request to do so received within the requisite time to file a notice of appeal. See Williams v. State, 366 Ark. 583, 237 S.W.3d 93 (2006). In the present case, no reason for the failure to file a notice of appeal is cited in the motion; fault is not admitted, and we cannot tell from the record whether there was attorney error. The circuit court's docket sheet reflects that a hearing was held on VanWinkle's motion to withdraw on September 30, 2009, at which time the court told Kelley that counsel had done an "excellent job" for him; the notation on the docket sheet further informs that Kelley reconsidered and advised that he did not wish to fire VanWinkle.
There is no further notation on the docket...
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