Lenzy McCullough v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 6, 2002

LENZY McCULLOUGH

Petitioner

v.

STATE OF ARKANSAS

Respondent

TEN 94-113

PRO SE MOTION FOR RULE ON CLERK TO PROCEED WITH APPEAL OF JUDGMENT OF CONVICTION [CIRCUIT COURT OF CROSS COUNTY, NO. CR 93-170, HON. OLLY NEAL, JUDGE]

MOTION GRANTED IN PART AND DENIED IN PART

On February 8, 1994, judgment was entered in the Circuit Court of Cross County reflecting that Lenzy McCullough had been found guilty of aggravated robbery and felon in possession of a firearm and sentenced to an aggregate term of forty-six years' imprisonment. S. Kyle Hunter, the attorney who represented McCullough at trial, filed a timely notice of appeal from the judgment on February 24, 1994.1 On October 3, 1994, Hunter tendered the record to our clerk. The clerk correctly declined to lodge it because it was not tendered within seven months of the date the judgment was entered as required by Ark. R. Civ. P. 5(b). Attorney Hunter did not proceed further and file a motion for rule on clerk seeking to have the record belatedly, and eventually the tendered record was returned to him. McCullough has nowtendered a partial record, and a pro se motion for rule on clerk seeking to proceed with the appeal and asking that his appeal bond be reinstated. The pro se motion for rule on clerk is granted in part and denied in part.

We have held that an attorney may not simply tender a record in an untimely manner and take no further action to perfect the appeal. Atkins v. State, 308 Ark. 675, 827 S.W.2d 636 (1992). 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. Hunter filed a notice of appeal and was thus obligated to represent petitioner McCullough until such time as he was permitted by the appellate court to withdraw pursuant to Ark. Sup. Ct. R. 4-3(j)(1). Hunter 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 appellate rules. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836(1994); see Evitts v. Lucey, 469 U.S. 387 (1985). Accordingly, Hunter remains responsible for representing McCullough.

Our clerk will lodge the partial record, and counsel is directed to produce the record that was returned to him in 1994 or file within thirty days a petition for writ of certiorari to bring up the record, or that portion of it, necessary for the appeal.

With respect to petitioner's request that his appeal bond be reinstated if the appeal is permitted to go forward, the request is denied at this time. As petitioner is represented by counsel, counsel may file a motion to reinstate the bond if counsel deems it appropriate. Having accepted representation by counsel, petitioner is not entitled to be heard by himself and counsel. See Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991).

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

Motion granted in part and denied in part.

1 The judgment indicates that Hunter was appointed by the court to represent defendant McCullough.