James Ricky Mauldin v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

October 7, 2004

JAMES RICKY MAULDIN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 04-162

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT OF CONVICTION [CIRCUIT COURT OF FAULKNER COUNTY, NO. CR 2001-918, HON. CHARLES E. CLAWSON, JUDGE

MOTION DENIED

Per Curiam

On November 13, 2002, judgment was entered reflecting that James Ricky Mauldin had been found guilty of six felony offenses for which an aggregate sentence of 120 months' imprisonment in the Arkansas Department of Correction was imposed.1 Retained attorney Kenny Fuchs represented Mauldin at trial.

On December 11, 2002, retained attorney Robert Bush filed a notice of appeal from the judgment. On March 11, 2003, Bush filed a motion to dismiss the notice of appeal on the grounds that he had evaluated the record and determined that there were no appealable issues. He also said that Mauldin had agreed to dismiss the appeal. On March 13, 2003, the trial court granted the motion.

On February 11, 2004, Mauldin filed pro se motion in this court seeking to proceed with a belated appeal of the judgment. As the notice of appeal was timely, we treated the motion as a motion for rule on clerk to lodge the record.

Petitioner Mauldin made no reference in his motion to having agreed to dismiss the appeal. He contended instead that he desired to appeal, but Bush refused to work further on his case after Bush became upset with petitioner's brothers' conduct at a party in December 2002.

Mr. Bush filed a response to the motion for belated appeal in which he averred that petitioner entered into a contract stating that Bush was employed for the purpose of perfecting an appeal but that Bush would be relieved of all responsibility for doing so if Bush determined that there would be no merit to an appeal. A copy of the contract of employment dated December 3, 2002, signed by petitioner and Bush was appended to the response. Only Bush's signature appeared on the motion to dismiss appeal filed in the trial court, and there was no notation on it indicating that a copy of it was provided to petitioner by counsel.

Rule 2(f) of the Rules of Appellate Procedure--Criminal provides in pertinent part:

Dismissal of Appeal. If an appeal has not been docketed in the

Supreme Court, the parties, with the approval of the trial court,

may dismiss the appeal ...upon a motion and notice by the appellant.

Mr. Bush filed a motion in the trial court before the appeal was docketed in this court stating that petitioner had agreed to dismiss the appeal. The motion was not, however, accompanied by a statement signed by petitioner verifying that he had made the decision to drop the appeal. See Noggle v. State, 332 Ark. 79, 962 S.W.2d 368 (1998). As stated, petitioner contended in his motion that he desired to appeal.

As petitioner and counsel's assertions were in contradiction and the resolution of those contradictions required findings of fact that could only be made in the trial court, we remanded the matter to the circuit court for an evidentiary hearing on the issue of whether petitioner consented to the filing of the motion to dismiss appeal by Mr. Bush. The trial court was directed to enter Findings of Fact and Conclusions of Law and submit the findings and conclusions to this court with the transcript of the evidentiary hearing. Maulding v. State, CR 04-162 (Ark. April 1, 2004) (per curiam). The Findings of Fact and Conclusions of Law and the transcript of the evidentiary hearing are now before us.

The court took testimony at the hearing from petitioner and Mr. Bush. After hearing the testimony, the court concluded that petitioner entered into a contract with Bush specifically allowing Bush to dismiss the appeal if counsel determined that the appeal would be without merit. The court further found that Bush engaged another attorney to examine the record and that it was that attorney's professional opinion that there was no merit to the appeal. Petitioner and his family were made aware that Bush and the attorney who reviewed the record found no meritorious issues to be raised on appeal. Moreover, the court found that petitioner had retained another attorney to advise him and that his retained attorney was also aware that petitioner had decided to forego an appeal.

Under these circumstances, the court concluded that petitioner consented to the dismissal of the appeal.

As the merit of the motion for belated appeal rested on the credibility of the witnesses and this court recognizes that it is the lower court's task to assess the credibility of witnesses and resolve any conflicts of fact, we accept the trial court's findings. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). We further accept the court's conclusions of law. The motion for belated appeal is denied.

Motion denied.

1 On February 3, 2003, an amended judgment was entered to correct a clerical error.