William Frank Colbert v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

WILLIAM FRANK COLBERT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR06-19

March 1, 2006

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 05-2478]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

APPEAL DISMISSED; MOTIONS MOOT

Per Curiam

On October 11, 2005, a judgment was entered reflecting that William Frank Colbert had entered a plea of guilty to rape for which a term of 240 months' imprisonment was imposed. Colbert, proceeding pro se, filed a notice of appeal from the judgment and lodged the appeal in this court. Now before us are the following pro se pleadings filed by appellant Colbert: motion for appointment of counsel, motion for extension of brief time, and request pursuant to the Freedom of Information Act for various materials at public expense related to his arrest and plea.1

Because appellant entered a plea of guilty and this appeal is from that judgment, the appeal is dismissed. Under Ark. R. App. P.--Crim. 1, there is no right to appeal a guilty plea, except for a conditional plea of guilty premised on an appeal of the denial of a suppression motion pursuant to Ark. R. Crim. P. 24.3. Seibs v. State, 357 Ark. 331, 166 S.W.3d 16

(2004). Appellant does not contend, and the record does not reflect, that his plea of guilty was conditional. There are two other recognized exceptions to the general rule, as set out in Seibs and Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). The two exceptions are: (1) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself; and (2) when the appeal is an appeal of a post-trial motion challenging the validity and legality of the sentence itself. The record does not indicate that appellant's plea falls within either exception. As the appeal is dismissed, the motion for appointment of counsel and the motion for extension of time are moot.

With respect to the request under the Freedom of Information Act, the request is also moot in that none of the material requested is in the possession of this court.2 Appellant appears to recognize to some extent that the material is not in this court's possession inasmuch as he specifically states that he desires documents maintained by the Circuit Clerk of Pulaski County. The request should be directed to the public official or officials maintaining the documents.

It should be noted that when an appeal has been lodged in either Arkansas appellate court, the appeal record and other material filed on appeal, such as motions, remain permanently on file with the clerk. Persons may review a record or other material in the clerk's office and photocopy all or portions of it. If appellant desires a copy of the record lodged in this appeal or the motions that he filed and he is incarcerated, he may write this court, remit the photocopying fee, and request that the copies be mailed to him. All persons, including those incarcerated, must bear the cost of photocopying. Moore v. State, supra. It is well settled that indigency alone does not entitle a petitioner or appellant to free photocopying. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980) (per curiam).

Appeal dismissed; motions for appointment of counsel and extension of brief time and request pursuant to the Freedom of Information Act moot.

1 The Freedom of Information Act, codified as Ark. Code Ann. §§ 25-19-101--25-19-109, does not require an appellate court to provide photocopying at public expense. See Moore v. State, 324 Ark. 453, 921 S.W.2d 606 (1996) (per curiam).

2 Appellant requests victim and witness statements, statements by experts, arrest warrant and report, circuit court docket entries, and the transcript of the hearing in which he entered his plea of guilty.