Joe Boblett v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 27, 2001

JOE BOBLETT

Petitioner

v.

STATE OF ARKANSAS

Respondent

TEN 98-44

PRO SE MOTIONS FOR PHOTOCOPIES AT PUBLIC EXPENSE AND FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF BOONE COUNTY, NO. CR 98-12]

MOTION FOR PHOTOCOPIES AT PUBLIC EXPENSE DENIED; MOTION FOR APPOINTMENT OF COUNSEL GRANTED IN PART AND DENIED IN PART; OPINION REFERRED TO PROFESSIONAL CONDUCT COMMITTEE

In 1998, Joe Boblett was found guilty of sexual abuse in the first degree and sentenced to twenty years' imprisonment. His appointed attorney, Carl F. Moyer, filed a notice of appeal and tendered the record which our clerk correctly declined to lodge because it was not tendered in a timely manner. Attorney Moyer took no further action to perfect the appeal.

Mr. Boblett now asks that he be provided with a copy at public expense of the tendered transcript and all other material on file with this court with respect to the case. He also asks that a particular attorney be appointed to perfect the appeal.

Petitioner is not entitled to the photocopies at public expense because he has failed to state a compelling need for the material. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985). Indigency alone does not entitle a petitioner to free photocopying. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). It should be noted that when a record has been tendered to thiscourt, it remains permanently on file with our clerk. An attorney may checkout a record through the clerk's office for a period of time, and persons who are not attorneys may review a record in the clerk's office and photocopy all or portions of it. An incarcerated person desiring a photocopy of a record may write this court, remit the photocopying fee, and request that the copy be mailed to the prison. Moore, supra; Austin, supra.

As to petitioner's request that counsel be appointed, we find that Mr. Moyer, who is currently suspended from the practice of law in this State, has been entirely remiss in his responsibility to petitioner. When the clerk declined to lodge the record, it was counsel's duty to file promptly a motion for rule on clerk explaining the cause of the late tender of the record. Because he did not do so, the appeal has languished since 1998. A convicted criminal defendant is entitled to effective assistance of counsel on appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when his 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). To extinguish a defendant's right to appeal because of his attorney's failure to follow 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). If Moyer were in good standing, we would direct that he proceed with the motion for rule on clerk; but as he is not, petitioner's motion for appointment of counsel is granted. We decline, however, to appoint the particular attorney petitioner has named in his motion. The Sixth Amendment right to counsel entitles an appellant to effective assistance of counsel, not counsel of his choice. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995).

Our clerk is directed to lodge the appeal record and set a briefing schedule. AttorneyTerry Godwin Jones is appointed to represent petitioner Boblett on appeal.

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

Motion for photocopies at public expense denied; motion for appointment of counsel

granted in part and denied in part.