Jessie D. Page v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 18, 2002

JESSIE D. PAGE

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-204

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF GREENE COUNTY, NO. CR 2000-79, HON. DAVID LASER, JUDGE]

MOTION DENIED

On March 1, 2001, judgment was entered reflecting that Jessie D. Page had been found guilty by a jury of possession of a controlled substance and possession of drug paraphernalia. An aggregate term of 336 months' imprisonment was imposed. Page was represented at trial by attorney Jon A. Williams. No appeal was taken, and Page 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 Page contends that he advised Mr. Williams that he desired to appeal and that Williams said that he could not appeal because there existed a "conflict of interest, i.e. effective assistance of counsel." Page does not contend that he told Williams of his desire to appeal within the thirty days allowed for filing a timely notice of appeal under Rule 2(a)(1) of the Rules of Appellate Procedure-Criminal. As further grounds to grant the motion for belated appeal, petitioner asserts that Williams made certain trial errors in his representation such that he was not afforded effective assistance of counsel at trial. The merit of the appeal, however, is not at issue. At issue is whether petitioner advised his attorney that he desired to appeal within the thirty-day period to file a timely notice of appeal. See Zucco v. State, 318 Ark. 386, 885 S.W.2d 675 (1994). It is the practice of this court when a pro se motion for belated appeal is filed and the record does not contain an order relieving trial counsel to request an affidavit from the trial attorney in response to the allegations in the motion. 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 repeatedly, 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).

Mr. Williams in his affidavit states that he visited petitioner in the county jail on March 13, 2001, and discussed whether to appeal, and that petitioner said he did not wish to appeal. Williams has appended to his affidavit a letter from him to petitioner dated March 14, 2001, setting out a summary of what was discussed, including petitioner's decision not to appeal, and advising petitioner that the time to file a notice of appeal would elapse on March 31, 2001.1

Williams states that he heard no more from petitioner until April 24, 2001, when petitioner contacted him, stating that he had decided that he wished to appeal after all.

As stated earlier, petitioner does not claim that he asked Williams to appeal his conviction within the thirty-day period to file a timely notice of appeal, and Williams has averred in his sworn affidavit that the request to appeal was not made in that period. Under these circumstances, petitioner has not met his burden of demonstrating that there is good cause to grant the motion to proceed with a belated appeal.

Motion denied.

1 The final date to file a notice of appeal would have been Monday, April 2, 2001, because March 31 fell on a Saturday. While there is no order relieving Williams in the partial record filed with the motion in this case, Williams has appended to his affidavit a copy of an order entered April 24, 2001, relieving him as counsel. The order in itself is not dispositive of

the issue of whether petitioner advised Williams of his desire to appeal within the thirty-day period because it was entered after the period elapsed.