KELLEY V. State Of Ark.

• Decision Date: 24 June 2010
• Docket Number: No. CR10-379,CR10-379
• Citation: 2010 Ark. 311
• Parties: DWIGHT SHANE KELLEY, APPELLANT, v. STATE OF ARKANSAS, APPELLEE,
• Court: Arkansas Supreme Court

2010 Ark. 311

DWIGHT SHANE KELLEY, APPELLANT,

v.STATE OF ARKANSAS, APPELLEE,

No. CR10-379

Supreme Court Of Arkansas

June 24, 2010

MOTION FOR BELATED APPEAL DENIED; APPEAL DISMISSED

PER CURIAM

AppellantDwight Shane Kelley was convicted ofone count ofaggravated robbery and sentenced to twenty years in prison.The judgment and commitment order was entered on September 11, 2009.Kelley's attorney at the time, John VanWinkle, filed a motion to be relieved as counsel on September 29, 2009, but the circuit court denied his motion.VanWinkle filed a second motion to be relieved as counsel on November 2, 2009, which the circuit court granted on November 16, 2009.The circuit court subsequently appointed the Sebastian County Public Defender's Office to represent Kelley on appeal.Attorney John Joplin of the Public Defender's Office filed a notice of appeal on Kelley's behalf on January 5, 2010 and tendered the record to this court on April 12, 2010.Because the notice of appeal was untimely, our clerk's office rejected the record, and Joplin filed a motion for rule on clerk and motion for belated appeal on April 13, 2010, as well as a motion to be relieved as counsel.

In a per curiam opinion handed down on May 13, 2010, this court granted the motion for rule on clerk pursuant to McDonald v. State, 356 Ark. 106, 146 S.W.3d 883(2004), permitting the clerk's office to accept the record and allowing the appeal to proceed for the time being.Kelley v. State, 2010 Ark. 229, at 3.¹In doing so, however, the court noted that we could not tell from the record whether there had been attorney error in the failure to file a timely notice of appeal, so as to warrant the granting of the motion for belated appeal:

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.SeeWilliams 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.

....

Because the trial court denied VanWinkle\'s September 30, 2009 motion to withdraw as counsel, it was VanWinkle\'s responsibility to ascertain whether his client wished to appeal his conviction.SeeRogers v. State, 353 Ark. 359, 107 S.W.3d 166(2003)(under no circumstances may an attorney who has not been relieved by the court abandon an appeal).The record is silent, however, as to whether Kelley informed VanWinkle that he wished to appeal; therefore, we remand the question of attorney error to the trial court.SeeThompson v. State, 2009 Ark. 342, __S.W.3d__.Upon receipt of the findings by this court, it will render a decision on attorney error.

Kelley, 2010 Ark. 229, at 3-5.

Upon remand, the circuit court held a hearing on June 11, 2010.At...