Jackson v. State

Deloris JACKSON v. STATE of Arkansas

CR 96-333                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 3, 1996


1.   Appeal & error -- representation by trial counsel continues
     until permission to withdraw given by trial or appellate
     court. -- Rule 16 of the Rules of Appellate Procedure--
     Criminal provides that trial counsel, whether retained or
     court appointed, shall continue to represent a convicted
     defendant throughout appeal, unless permitted by the trial
     court or this court to withdraw; once the notice of appeal is
     filed with the circuit clerk, only the appellate court can
     relieve counsel of the obligation to proceed with the appeal.

2.   Appeal & error -- convicted defendant may waive right to
     appeal -- no such waiver here. -- A convicted defendant can
     waive her right to appeal by not informing counsel that she
     desires to appeal, but the timely filing of a notice of appeal
     in the instant case clearly demonstrated that petitioner did
     not waive her appeal right.

3.   Appeal & error -- direct appeal of conviction is matter of
     right -- cannot be denied because counsel has failed to follow
     appellate rules. -- The direct appeal of a conviction is a
     matter of right, and a criminal defendant cannot be denied her
     first appeal because counsel has failed to follow mandatory
     appellate rules; to extinguish a defendant's right to appeal
     because of an attorney's failure to follow procedural rules
     would violate the Sixth Amendment right to effective
     assistance of counsel.

4.   Attorney & client -- attorney cannot abandon convicted
     defendant because there is no money for appeal -- attorney's
     obligation -- motion to be relieved. -- Even if there are
     insufficient funds to pay for an appeal transcript, an
     attorney cannot abandon the convicted defendant solely because
     there is no money for an appeal; an attorney, knowing that the
     convicted defendant desires to appeal, is obliged under Ark.
     R. App. P.--Crim. 16, regardless of the defendant's financial
     circumstances, to file the notice of appeal and then to file
     in the appellate court a partial record, consisting of at
     least the judgment and notice of appeal, with a motion to be
     relieved containing a statement of the reasons for the request
     to withdraw; a copy of the motion to be relieved should be
     mailed to the defendant.

5.   Attorney & client -- trial attorney did not receive permission
     to be relieved -- appointed for appeal -- writ of certiorari
     issued. -- Where petitioner's trial attorney did not receive
     permission from the appellate court to be relieved of his
     obligation to proceed with his client's appeal, he remained
     attorney-of-record; because petitioner contended, and the
     State did not contest, that she was indigent, the supreme
     court appointed her trial attorney to represent her on appeal,
     granted her motion for rule on the clerk, and issued a writ of
     certiorari to bring up within ninety days the entire record as
     designated in the notice of appeal.


     Pro Se Motion for Rule on the Clerk (Garland Circuit Court;
Walter Wright, Judge); granted; Writ of Certiorari issued.
     Petitioner, pro se.
     No response.

     Per Curiam.*ADVREP*SC7*






DELORIS JACKSON
     Petitioner


v.


STATE OF ARKANSAS
     Respondent
CR 96-333




PRO SE MOTION FOR RULE ON CLERK
(CIRCUIT COURT OF GARLAND
COUNTY, NO. CR 94-362), HON.
WALTER WRIGHT, JUDGE



MOTION GRANTED; WRIT OF
CERTIORARI ISSUED





                           Per Curiam.


     In 1994, Deloris Jackson was found guilty by a jury of murder
in the second degree and sentenced to 240 months imprisonment.  Ms.
Jackson was represented at trial by her retained attorney, J. Sky
Tapp, who filed a timely notice of appeal of the judgment.  The
appeal was not perfected, and petitioner Jackson has now tendered
to this court a partial record of the lower court proceedings with
a motion for rule on clerk and an affidavit of indigency, asking
that the appeal be allowed to proceed.  Petitioner contends that
the appeal was not perfected because she did not have the money to
pay for the transcript.  
     Rule 16 of the Rules of Appellate Procedure--Criminal provides
that trial counsel, whether retained or court appointed, shall
continue to represent a convicted defendant throughout appeal,
unless permitted by the trial court or this court to withdraw. 
Once the notice of appeal is filed with the circuit clerk, only the
appellate court can relieve counsel of the obligation to proceed
with the appeal.  Sup. Ct. Rule 4-3 (j) (1).  A convicted defendant
can waive her right to appeal by not informing counsel that she
desires to appeal, but the timely filing of a notice of appeal in
the instant case clearly demonstrates that the petitioner here did
not waive her appeal right.  Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994).   The direct appeal of a conviction is a matter
of right, and a criminal defendant cannot be denied her first
appeal because counsel has failed to follow mandatory appellate
rules.  See Reagan v. State, 316 Ark. 511, 872 S.W.2d 369 (1994),
citing Evitts v. Lucey, 469 U.S. 387 (1985).  To extinguish a
defendant's right to appeal because of an attorney's failure to
follow procedural rules would violate the Sixth Amendment right to
effective assistance of counsel.  Evitts v. Lucey, supra.  See also
Pennsylvania v. Finley, 481 U.S. 551 (1987).
     Even if there are insufficient funds to pay for the appeal
transcript, an attorney cannot abandon the convicted defendant
solely because there is no money for an appeal.  Parker v. State,
303 Ark. 185, 792 S.W.2d 619 (1990).  An attorney, knowing the
convicted defendant desires to appeal, is obliged under Rule 16,
regardless of the defendant's financial circumstances, to file the
notice of appeal and then file a partial record, consisting of at
least the judgment and notice of appeal, in the appellate court
with a motion to be relieved containing a statement of the reasons
for the request to withdraw.  A copy of the motion to be relieved
should be mailed to the defendant. See  Lewis v. State, 279 Ark.
149, 649 S.W.2d 188 (1983).    
     Attorney Tapp did not receive permission from the appellate
court to be relieved of his obligation to proceed with the appeal
in this case and thus remains attorney-of-record.  As petitioner
Jackson contends that she is now indigent and the State has not
contested that assertion, Mr. Tapp is appointed to represent her in
this appeal.  A writ of certiorari is issued to bring up within
ninety days the entire record as designated by Mr. Tapp in the
notice of appeal.  A copy of this opinion shall be forwarded to the
Committee on Professional Conduct.
     Motion granted; writ of certiorari issued.  
     Dudley, J., not participating.