McDonald v. State

• Decision Date: 12 February 2004
• Docket Number: No. CR 03-957.,CR 03-957.
• Citation: 356 Ark. 106,146 S.W.3d 883
• Parties: Randolph McDONALD v. STATE of Arkansas.
• Court: Arkansas Supreme Court

146 S.W.3d 883

356 Ark. 106

Randolph McDONALD v.STATE of Arkansas.

No. CR 03-957.

Supreme Court of Arkansas.

February 12, 2004.

Jeff Rosenzweig, Little Rock, for respondent, Laura Cunningham.

No response.

JIM HANNAH, Justice.

This matter arises from contempt proceedings against attorney Laura L. Cunningham regarding a motion for rule on the clerk filed by her in her representation of Randolph McDonald.Cunningham asserts that this court erred in finding her notice of appeal untimely although it was filed more than six months after entry of the order appealed from in the notice.A notice of appeal must identify the order appealed from and must be filed within thirty days of the entry of the order appealed from.Cunningham failed to file a notice of appeal within thirty days of the order appealed from and is at fault for failing to do so.

Cunningham argues, however, that the filing was not untimely because her error was only a failure to note the correct order in the notice of appeal, that the doctrine of substantial compliance makes the notice adequate even if there are failings in the notice of appeal, and that the court's reading of the rule on filing a notice of appeal violates due process.There is no merit to these arguments.Cunningham's motion for rule on the clerk is granted as a motion for belated appeal, and a copy of this decision will be forwarded to the Committee on Professional Conduct.Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(1, 5)(2003).

Facts

The essential facts regarding the notice of appeal are not in dispute.Cunningham filed a notice of appeal more than six months after entry of the order appealed from.

McDonald is appealing the denial of a motion to suppress under Ark. R.Crim. P. 24.3(2002).McDonald moved to suppress evidence seized in a vehicle stop and inventory search.That motion was denied by a pretrial order entered November 4, 2002.The Plea Agreement and Order was not entered until April 14, 2003.The Judgment and Commitment Order was not filed until June 4, 2003.An order attempting to preserve the right to appeal from the denial of the motion to suppress was filed May 5, 2003.

The Notice of Appeal was filed May 7, 2003, and states that appeal is taken from the "Order and Opinion denying his Motion to Suppress entered herein on the 4th of November, 2002."The clerk of this court rejected the appeal because the Notice of Appeal was not filed within thirty days of the November 4, 2002, order appealed from as required by Ark. R.App. P.—Crim. 2(2003).

Cunningham filed a motion for rule on the clerk.She denied any fault for the late notice of appeal.This court issued a per curiam on September 11, 2003, providing that the motion for rule on the clerk would be granted when Cunningham filed an affidavit accepting responsibility for failing to timely file the notice of appeal.Cunningham filed a motion for reconsideration of the denial of her motion for rule on the clerk stating that she would not accept fault and would not file an admission of fault.By a per curiam dated November 6, 2003, Cunningham was ordered to appear before this court on November 20, 2003, to show cause why she should not be held in contempt for failing to comply with the September 11, 2003, per curiam.At the hearing, Cunningham plead not guilty to contempt, and this court ordered that Cunningham file a brief to assist this court in making its decision.

The Notice of Appeal was Untimely

Cunningham identified the order or judgment appealed from in her notice of appeal as the November 4, 2002, order on the motion to suppress.A notice of appeal must identify the order appealed from and be filed within thirty days of that order.Ark. R.App. P.—Crim. 2.Cunningham filed the notice of appeal on May 7, 2003, more than six months after the order appealed from.The notice of appeal was untimely under Ark. R.App. P.—Crim. 2.Cunningham asserts, however, that she is in substantial compliance.She did file the notice of appeal within thirty days of the entry of the Plea Agreement and Order as well as the judgment; however, the clerk of this court received a notice of appeal showing that McDonald was attempting to appeal from a November 2002 order in May 2003.The notice of appeal was properly rejected by the clerk.The rule requires that the notice of appeal be filed within thirty days of the order appealed from.This was not done.Substantial compliance does not apply under these facts.

Relief For Failure To Perfect An Appeal

We take this opportunity to clarify the application of our rules providing for relief for failure to perfect an appeal.A brief discussion of the history predating the current rules is pertinent to our discussion.The remedy for failure to perfect an appeal is granted by this court under Ark. R.App. P.—Crim. 2 and Ark. Sup.Ct. R. 2-2(2003) as a part of the right to a criminal appeal.Rule 2 provides relief where a notice of appeal is not timely filed, and Rule 2-2 provides relief where the record is not timely docketed.

We first note that this court sets the terms for obtaining relief from the failure to perfect an appeal.Relief from failure to perfect an appeal is provided as part of the appellate procedure granting the right to an appeal.The State is not required under the United States Constitution to grant a criminal appeal.Gilliam v. State,305 Ark. 438, 808 S.W.2d 738(1991);Griffin v. Illinois,351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891(1956).However, this state has granted the right to appeal for many years.

This court, long before Griffin v. Illinois,351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891(1956), andDouglas v. California,372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, reh. den.373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200(1963), permitted paupers to appeal their convictions, a full transcript of the proceedings at the trial being furnished without cost, with court appointed counsel directed to handle such appeals.

Manning v. State,246 Ark. 1013, 1016, 442 S.W.2d 207(1969).

Even though there is no mandate for a State to provide an appeal, restraints are imposed by the United States Constitution when the right to appeal is granted.Smith v. Robbins,528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756(2000).For example, to the extent that a right of appeal is granted, equal protection applies.Gilliam, supra.Also, where a right to appeal is granted, there is a consequent right to counsel under the Sixth Amendment to the United States Constitution.Anders v. California,386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), Douglas v. California,372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811(1963);Griffin, supra.These restraints also apply to our rules on relief from failure to perfect an appeal.Under Ark. R. App—Crim. 2 and Ark. Sup.Ct. R. 2-2, this court provides an attorney or a party the right to argue that there is good reason why the appeal was not timely perfected and also the right to concede error.

We first clearly distinguish our rules.If the issue of failure to perfect an appeal involves a notice of appeal, then relief must be sought under Ark. R.App. P.—Crim. 2.If the issue of failure to perfect an appeal involves docketing the record, then relief must be sought under Ark. Sup.Ct. R. 2-2.

Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure is titled "Time and method of taking appeal," and provides in pertinent part, that a notice of appeal must be filed within thirty days from the date of entry of a judgment.Ark. R.App. P.— Crim. 2(a)(1). Rule 2(e) provides:

Failure to pursue appeal.Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal.The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit.However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken.If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced.

Ark. R.App. P.—Crim. 2(e)(2003).Under Ark. R.App. P.—Crim. 2, an attorney or a criminal defendant may seek relief when he or she is not at fault for the failure to perfect the appeal and where good reason can be shown.Examples where "good reason" was shown and the motion was granted may be split into two types of cases.

The first type is where the court makes the error causing the appeal to be untimely.For example, in Kelly v. State,301 Ark. 294, 783 S.W.2d 369(1990), the record failed to show that the circuit clerk notified Kelly of the denial of his petition for postconviction relief.This court stated that when the record is silent on whether the clerk complied with the rule requiring notice, and the Attorney General in his response to a motion for belated appeal is unable to provide the clerk's affidavit or some other proof that the order was mailed, it will be assumed that the petitioner was not notified of the denial of his motion.In Kelly, the motion to file a belated appeal was granted.See alsoPorter v. State,287 Ark. 359, 698 S.W.2d 801(1985).

The second type of case where "good reason" is found under Ark. R.App. P.Crim.—R. 2(e) includes motions for belated appeal filed by parties where the attorney has failed to timely file the notice of appeal.In these cases, it is the party, and not the attorney, who has good reason to show why the notice of appeal was...