Morrisey v. State

Dan MORRISSEY v. STATE of Arkansas

CR 96-245                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


Appeal & error -- motion for belated appeal -- case remanded for
     evidentiary hearing. -- Where appellant contended in his
     motion for belated appeal that his failure to file a timely
     notice of appeal was predicated on erroneous advice from his
     trial counsel that constituted ineffective assistance of
     counsel, and where there was no evidence that appellant's
     trial counsel, who had not responded to the motion, was ever
     served with a copy of the motion, the supreme court remanded
     the case to the trial court for an evidentiary hearing and
     findings of fact and conclusions of law on the question
     whether appellant knowingly waived his right to appeal the
     conviction.


     Motion for Belated Appeal; remanded.
     J. Blake Hendrix, for appellant.
     No response.

     Per Curiam.MARCH 18, 1996.   *ADVREP13*








DAN MORRISSEY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.

CR96-245





MOTION FOR BELATED APPEAL,





REMANDED.



                           PER CURIAM



     Appellant Dan Morrissey was convicted in a bench trial in 1994
of attempted rape and sentenced to seven years imprisonment; no
appeal was taken.  Morrissey has filed a timely motion for belated
appeal.  See Rule 2(e) of the Revised Rules of Appellate Procedure
- Criminal; A.R.Cr.P. Rule 36.9 (predecessor of Rule 2(e)).  When
a good reason for the omission is shown by affidavit, this Court
may act upon and decide a case in which the notice of appeal was
not given.  Rule 2(e) of the Revived Rules of Appellate Procedure -
 Criminal; A.R.Cr.P. Rule 36.9 (superseded); see also Davis v.
State, 319 Ark. 171, 889 S.W.2d 769 (1994) (decided under A.R.Cr.P.
Rule 36.9).
     In the instant case, Morrissey contends his failure to file a
timely notice of appeal was predicated on erroneous advice by his
trial counsel.  Morrissey's affidavit states that he strongly
expressed to his trial counsel his desire to appeal.  However,
according to the affidavit, Morrissey's counsel informed him that
he stood the risk of being again charged with rape, rather than
only attempted rape, where he could face a life sentence. 
Morrissey also submits he was advised that appealing his sentence
would be futile because he would go before the same judge. 
Morrissey avers that his trial counsel did not advise him that the
trial judge could sentence him to a harsher sentence only if some
additional conduct had occurred since the sentencing.
     In sum, Morrissey submits that his trial counsel's advice
constituted ineffective assistance of counsel and such a reason
constitutes good cause for the failure to file a notice of appeal. 
Morrissey's trial counsel, Ed Webb, has not responded to the
motion.  However, there is no indication that Mr. Webb was ever
served with a copy of the motion.  Consequently, we remand this
case to the trial court for an evidentiary hearing and Findings of
Fact and Conclusions of Law on the question of whether Morrissey
knowingly waived his right to appeal the conviction.  See Salam v.
State, 300 Ark. 630, 781 S.W.2d 30 (1989).