Kenneth Walker v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 1, 2003

KENNETH WALKER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-195

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF PULASKI COUNTY, CR 97-1196, CR 98-651, CR 98-3936, CR 98-4334, JOHN B. PLEGGE, JUDGE]

MOTION DENIED

In 2000, Kenneth Walker's probation was revoked, and he was found guilty of multiple felony offenses. Walker was sentenced as a habitual offender to an aggregate term of fifteen years' imprisonment. The court of appeals affirmed. Walker v. State, CACR 00-998 (Ark. App. June 13, 2001).

Walker subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37.1. The attorney who represented Walker in the postconviction proceeding did not appeal from the order, and Walker has now filed the instant pro se motion to proceed with a belated appeal of the order.

Petitioner Walker contends that he should be permitted to proceed with a belated appeal on the grounds that he believes himself to be entitled to appeal and that the appeal would be meritorious. He further states without further explanation that he was denied his right to appeal

through no fault of his own.

Rule 16 of the Rules of Appellate Procedure--Criminal provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. There is no order in the record relieving petitioner's Rule 37.1 counsel. We have held that Rule 16 applies to Rule 37 proceedings. Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989); see Thomas v. State, 335 Ark. 262, 983 S.W.2d 122 (1998).

It is well settled, however, that a defendant or petitioner may waive the right to appeal by his or her failure to inform counsel of the desire to appeal within the thirty days allowed for filing a timely notice of appeal under Rule 4 (a) of the Rules of Appellate Procedure. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

As the petitioner here does not contend that he advised counsel that he desired to appeal at any time, much less within the thirty-day period, he has failed to demonstrate that he is entitled to a belated appeal.

Motion denied.