Jerry Lee Marshall v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 4, 2001

JERRY LEE MARSHALL

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-157

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF CLEVELAND COUNTY, NO. CR 99-87, HON. LARRY CHANDLER, JUDGE]

MOTION DENIED

On August 16, 2000, judgment was entered reflecting that Jerry Lee Marshall had been found guilty by a jury of aggravated assault for which a term of forty-eight months' imprisonment was imposed. Imposition of an additional twenty-four months' imprisonment was suspended. Marshall was represented at trial by his retained attorney, Don Gillaspie. No appeal was taken, and Marshall sought by pro se motion to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure--Criminal, which permits a belated appeal in a criminal case in some instances.

Petitioner Marshall contended in the motion for belated appeal that he advised Mr. Gillaspie within the thirty days allowed for filing a timely notice of appeal under Rule 2(a)(1) of the Rules of Appellate Procedure-Criminal that he desired to appeal from the judgment. In an affidavit in response to the motion, Mr. Gillaspie said that he discussed whether to appeal withpetitioner at length and that at no time did petitioner ever ask that he perfect an appeal. As petitioner's and attorney Gillaspie's claims pertaining to whether petitioner advised Gillaspie that he desired Gillaspie to appeal from the judgment were in direct conflict, we remanded the matter to the circuit court for an evidentiary hearing on the issue of whether counsel was informed by Gillaspie within the time period allowed for filing a notice of appeal that he desired to appeal. Marshall v. State, CR 01-157 (Ark. April 19, 2001.)

The trial court's Findings of Fact and Conclusions of Law and the transcript of the evidentiary hearing are now before us. The court took testimony at the hearing from petitioner, petitioner's sister, and Mr. Gillaspie on the question of fact to be resolved. After hearing the testimony, the court concluded that petitioner did not advise Gillapsie within the time allowed for filing a notice of appeal that he desired to appeal despite the opportunity to do so.

As the merit of the motion for belated appeal rested on the credibility of the witnesses and this court recognizes that it is the lower court's task to assess the credibility of witnesses and resolve any conflicts of fact, 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.