State v. Tien

STATE of Arkansas v. TIEN Ngoc Doan and Trung
Do

CR 96-348                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


Appeal & error -- motion to affirm trial court's order affirmed --
     interlocutory appeal dismissed. -- Where, in its appeal of a
     pretrial order suppressing appellees' confessions, the State
     first obtained a seven-day clerk's extension, and then the
     supreme court granted the State six extensions of time in
     which to file its brief, designating the last a final
     extension; where the State's brief was not filed by the
     specified deadline; and where, in a per curiam opinion handed
     down well before the final deadline granted in the instant
     case, the supreme court stated that it would not entertain
     appeals by the State when the State's brief is not filed in
     accordance with the specified deadline in the final extension,
     the supreme court affirmed the trial court's pretrial order
     granting appellees' motion to suppress their statements and
     dismissed the State's interlocutory appeal.


     Motion to Affirm; granted.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Deputy Att'y
Gen., for appellant.
     Sam Sexton III and Jeanne Ann Whitmire, for appellees.

     Per Curiam.    
     The appellees in this case, Tien Ngoc Doan and Trung Do, move
to affirm the pretrial order of the Sebastian County Circuit Court
suppressing their confessions.  The State appealed the order, and
on March 18, 1996, the record was filed with the clerk of this
court.  The State's original brief was due on April 27, 1996. 
According to the records of the Clerk of this court, a seven-day
clerk's extension was first obtained and then this court granted
the State six extensions of time in which to file its brief: (1)
May 6, 1996; (2) May 22, 1996; (3) June 10, 1996; (4) June 21,
1996; (5) July 2, 1996, and (6) July 13, 1996.  The extension
granted on July 13, 1996, was designated a final extension and
required that the State's brief be filed by July 26, 1996.  The
State's brief was not filed by that deadline.
     On June 3, 1996, this court issued a per curiam opinion in a
case where the State had obtained nine extensions in which to file
its brief in a State appeal.  State v. Parkman, 325 Ark. 35, 923 S.W.2d 281 (1996).  In Parkman, we noted that the State had
obtained three extensions beyond the date of the final extension. 
We concluded that if the State's brief was not filed by a date
certain, the appeal would be dismissed.  The brief was not filed by
that date, and the appeal was dismissed on June 24, 1996.  We
stated in Parkman: 
     Henceforth, we will not entertain appeals by the State
     when the State's brief is not filed in accordance with
     the specified deadline in the final extension granted by
     this Court.
325 Ark. at 36, 923 S.W.2d   at 282.
     The Attorney General in the case before us has filed a
response to the appellees' motion to affirm in which it is stated
that the staff attorney assigned to the case has been replaced. 
The Attorney General states that he cannot explain why the original
counsel missed the deadline and apologizes for the lapse.  We note,
nonetheless, that the Parkman per curiam opinion was handed down on
June 3, 1996, which was well before the final deadline granted by
this court in the instant case of July 26, 1996.  In accordance
with our clear directive in the Parkman per curiam, we affirm the
order of the trial court and dismiss the State's appeal.
     Glaze, J., dissents.
                  TOM GLAZE, Associate Justice
     Appellees Tien Ngoc Doan and Trung Do are charged with the
murder of Thavone Mousom and with engaging in violent criminal
group activity.  Appellees retained an Oklahoma attorney who first
advised them to refuse to give any statement.  After charges were
actually filed against appellees, they executed a waiver-of-rights
form on advice of their attorney and gave incriminating statements. 
Doan and Do then plead guilty, but the trial court later set aside
their pleas because their attorney was not licensed in Arkansas. 
The trial court granted appellees' motion to suppress their
statements, and the State filed this interlocutory appeal.
     In this appeal, the Attorney General's office has been granted
six extensions for a total of eighty-nine days in order to file its
brief.  The last extension was designated final extension.  The
State has now tendered its brief, but the majority court has
refused the brief and dismissed the State's appeal.
     I write to point out that this court has never dismissed an
appeal in a criminal case because a brief was tendered late.  Over
the past two years, this court has routinely allowed belated briefs
to be filed by appellants who were convicted defendants with
counsel.  For some reason, the court now unfairly dismisses the
State's appeal because it was eighty-nine days late.  In 1994 and
1995, this court allowed defendants, who were convicted and
appealed, to file briefs that were later than eighty-nine days and
after final extensions were granted.  Examples of those cases are
as follows:
         1994                                    1995
Case No.       Days                     Case No.       Days
CR94-0030      105                      CR95-0150      134
CR94-0113      180                      CR95-0296      111
CR94-0238      180                      CR95-0408      149
CR94-0267      134                      CR95-0546      120
CR94-0322      156                      CR95-0645      150
CR94-0358      209                      CR95-0711       90
CR94-0558       90                      CR95-1027      120
CR94-0590       92                      CR95-1039      138
CR94-0838       90                      CR95-1309      118
CR94-0848      202
CR94-0995      270
CR94-1183      120
CR94-1340      112
CR94-1389       99

     No reason exists for treating the State more harshly when it
files a late brief than a convicted defendant when his or her
attorney is late.  Nonetheless, under today's decision, when an
attorney representing a convicted defendant is late, as described
above, this court still accepts the brief, but not so, if the
attorney represents the State.  Obviously, it is the public, not
the State's attorney, who will unjustifiably suffer the
consequences.  In simple terms, the majority court's per curiam is
wrong.