Lawrence D. Eirvin v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 4, 2001

LAWRENCE D. EIRVIN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-794

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF WOODRUFF COUNTY, NO. CR 98-78, HON. HARVEY YATES, JUDGE]

MOTION DENIED

On February 8, 2000, judgment was entered reflecting that Lawrence D. Eirvin had been found guilty by a jury of capital murder for which a term of life imprisonment without parole was imposed. Eirvin was represented at trial by his appointed attorneys, Jerry J. Sallings and Danny W. Glover. No appeal was taken, and Eirvin now seeks 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 Eirvin concedes that Sallings and Glover advised him of his right to appeal from the judgment and that he signed an affidavit stating that he understood his appeal right and was waiving that right, but he contends that he acted out of the understanding that "if I did not sign the papers and pursued my direct appeal, the Supreme Court could give me the death penalty."

It is the practice of this court when a pro se motion for belated appeal is filed and therecord does not contain an order relieving trial counsel to request an affidavit from the trial attorney in response to the allegations in the motion. There is no order relieving either Sallings or Glover in the partial record filed with the motion in this case. This affidavit is required because 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. We have held, however, that a defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty-day period to file a timely notice of appeal. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988). In separate affidavits, Mr. Sallings and Mr. Glover both vigorously deny that they advised petitioner that he could receive the death penalty from the appellate court if he appealed. Instead, they state that the prosecutor had not pursued a penalty of death in the sentencing phrase of Eirvin's trial, and that they advised Eirvin that if he were successful on appeal, the prosecutor could on retrial elect to ask the jury to impose the death penalty. They aver that Eirvin decided after considering the matter not to appeal.

While it is the better practice for counsel to obtain leave from the lower court to be relieved as counsel if the convicted defendant chooses not to appeal, petitioner Eirvin signed a statement which set out that he was aware that he had an absolute right to appeal and that counsel were prepared to perfect an appeal if he desired. Petitioner further said that he understood that the prosecution could seek the death penalty on retrial and that he had reviewedall considerations in the matter and elected not to appeal. In these circumstances, we find that petitioner by signing the statement informed counsel that he did not desire them to effect an appeal of the judgment;

thus relieving them of any obligation to perfect an appeal.

Motion denied.