Cecil Ballew v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 4, 2001

CECIL BALLEW

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-881

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 95-2034, HON. DAVID BOGARD, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK AND GRANTED

On August 15, 1996, judgment was entered reflecting that Cecil Ballew had been found guilty in a bench trial of violating statutes governing controlled substances and sentenced to an aggregate term of eighteen years' imprisonment.1 Ballew was represented at trial by his retained attorney Stuart Vess. Mr. Vess filed a timely notice of appeal from the original judgment on September 9, 1996. The appeal was not perfected, and Ballew now seeks to proceed with a belated appeal of the judgment. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the appeal rather than a motion for belated appeal. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 ( 2000); see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997).

The partial record filed with the motion does not contain an order entered in the trial

court relieving Mr. Vess before he filed the notice of appeal. It is well settled that under no

circumstances may an attorney who has not been relieved by the court abandon an appeal. Johnson, supra; Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000); Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000); Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997); Muhammad, supra; James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997); Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996).

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. Mr. Vess filed a notice of appeal and was thus obligated to represent appellant Ballew until such time as he was permitted by the appellate court to withdraw pursuant to Ark. Sup. Ct. R. 4-3(j)(1). Vess did not act to protect appellant's right to appeal, and thus appellant was left without the effective appellate representation guaranteed to a convicted criminal defendant by the Sixth Amendment. See Pennsylvania v. Finley, 481 U.S. 551 (1987). The direct appeal of a conviction is a matter of right, and a State cannot penalize a criminal defendant by declining to consider his or her first appeal when counsel has failed to follow mandatory appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); see Evitts v. Lucey, 469 U.S. 387 (1985).

Because Mr. Vess has never been relieved as counsel, he remains attorney-of-record and responsible for the appeal. Our clerk is directed to lodge the appeal. Counsel is directed to lodge the remainder of record if it has been prepared or file a petition for writ of certiorari in this courtwith thirty days to bring up the record, or that portion of it, necessary for the appeal. Upon the filing of the complete appeal record, a briefing schedule will be set.

A copy of this opinion shall be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.

Motion treated as motion for rule on clerk and granted.

1 On September 23, 1996, the judgment was amended to reflect that Ballew was sentenced as a habitual offender to an aggregate term of 212 months' imprisonment.