Jeffrey Miner v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 16, 2003

JEFFREY MINER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-671

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF PULASKI COUNTY, FOURTH DIVISION, CR 99-1767, HON. JOHN W. LANGSTON]

MOTION DENIED

Jeffrey Miner, who is serving a sentence of twenty-five years' imprisonment for manufacturing a controlled substance and possession of drug paraphernalia, sought permission to file a belated appeal with this court. The motion pertained to the denial by the trial court of Miner's petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. He contended that he should be entitled to an appeal because his Rule 37 counsel, Mark Allan Jesse, improperly advised him that an appeal of the denial of his petition would be fruitless and that he should pursue habeas corpus relief in federal court instead. In his affidavit filed in response to the motion for belated appeal, Mr. Jesse stated that he discussed with Mr. Miner the options of pursuing an appeal or seeking relief in federal court, that he advised Mr. Miner of the deadline for filing an appeal, and that he was willing and ready to file a notice of appeal but Mr. Miner never requested that he do so.

Because the proper disposition of the motion for belated appeal required findings of fact which must be made in the trial court, we remanded the matter to the circuit court for an evidentiary hearing on the issue of whether counsel was informed by Mr. Miner within the time period allowed for filing a notice of appeal that he desired to appeal. The trial court was directed to enter Findings of Fact and Conclusions of Law and submit the findings and conclusions to this court with the transcript of the evidentiary hearing. Miner v. State, CR 02-6714 (Ark. September 26, 2002) (per curiam).

The trial court's Findings of Fact and Conclusions of Law and the transcript of the evidentiary hearing are now before us. Following the evidentiary hearing, the court concluded that Mr. Jesse advised Mr. Miner of his right to appeal from the adverse ruling but Mr. Miner failed to inform Mr. Jesse within the time allowed for filing a notice of appeal that he desired to appeal.

The merit of the motion for belated appeal rested on the credibility of the parties, and this court recognizes that it is the lower court's task to assess the credibility of witnesses and resolve any conflicts of fact. Accordingly, we accept the trial court's findings. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The motion for belated appeal is denied.

Motion denied