R.R. v. State

• Decision Date: 19 April 2012
• Docket Number: No. 12-222,12-222
• Citation: 2012 Ark. 168
• Parties: R.R. APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2012 Ark. 168

R.R.APPELLANT

v.STATE OF ARKANSASAPPELLEE

No. 12-222

SUPREME COURT OF ARKANSAS

Opinion Delivered April 19, 2012

CONCURRING OPINION.

ROBERT L. BROWN, Associate Justice

In the instant case, it is unclear whether R.R. notified attorney Michael Lameroux that he wished to pursue an appeal before proceeding to file a pro se notice of appeal.Mr. Lameroux's motion states that R.R., who is a minor, and his parents agreed that the scope of representation would not include an appeal.Such an agreement, however, does not release an attorney from the responsibility to preserve an appeal for a client in a criminal case where the client states that he or she wishes to appeal.Ark. R. App. P.—Crim. 16(a)(i)(2010)("Trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court or Arkansas Court of Appeals, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause.").Hence, it is doubtful that the parents of R.R. could file a notice of appeal on his behalf while he had retained counsel.SeeTrowbridge v. State, 368 Ark. 36, 38, 242 S.W.3d 613, 614(2006)(per curiam)("It is well settled that under nocircumstances may an attorney who has not been relieved by this court abandon an appeal.");Spillers v. State, 341 Ark. 749, 19 S.W.3d 35(2000)(per curiam)(holding that retained counsel is obligated to perfect and appeal unless the client waives his right to appeal).

This court has been inconsistent, however, in how we handle situations where a retained attorney or appointed counsel fails to file a timely notice of appeal or fails to perfect an appeal in a criminal case, absent any fault on the client's behalf.See, e.g., Trotter v. State, 2011 Ark. 116(2011)(per curiam)(granting motion for belated appeal where attorney candidly admitted fault for failing to file a timely notice of appeal and referring the attorney to the Committee on Professional Conduct);Childs v. State, 2010 Ark. 57(2010)(per curiam)(granting motion for rule on clerk where attorney candidly admitted to failing to timely file the record and forwarding a copy of the opinion to the Committee on Professional Conduct);Lawson v. State, 367 Ark. 235, 238 S.W.3d 931(2006)(per curiam)(findingappellant in criminal case was not at fault for his attorney's failure to file a timely notice of appeal, granting motion for belated appeal, and referring attorney to Committee on Professional Conduct);McDonald v. State, 356 Ark. 106, 146 S.W.3d 883(2004)(holding that an attorney is responsible for filing the appeal, cannot shift that responsibility to another, and referring the attorney to the Committee on professional Conduct).At times, when a notice of appeal is timely filed but the attorney of record subsequently fails to perfect the appeal, this court has treated a pro se motion for belated appeal as a motion for rule on clerk, granted the motion, and referred the attorney to the Committee on Professional Conduct.See, e.g., ...