Robert Lee Stewart v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-894

NOT DESIGNATED FOR PUBLICATION

ROBERT LEE STEWART

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered January 12, 2006

PRO SE MOTION FOR BELATED APPEAL [CIRCUIT COURT OF BENTON COUNTY, CR 2000-662, HON. DAVID CLINGER, JUDGE]

MOTION DENIED

PER CURIAM

In 2000, Robert Lee Stewart entered a plea of guilty to six counts of commercial burglary. He was sentenced to serve twenty-four months' imprisonment for each count with imposition of ninety-six months' imprisonment suspended on each.

On August 26, 2004, probation was revoked by the trial court, and Stewart was sentenced to 576 months' imprisonment. Stewart was represented in the revocation proceeding by appointed counsel Bruce Bennett. No appeal was taken from the revocation order, and Stewart filed a motion in this court seeking to proceed with a belated appeal 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 Stewart contended that he asked Bennett to file an appeal from the revocation order "after the revocation hearing." It is the practice of this court when a pro se motion for belated appeal is filed in which the petitioner contends that he made a timely request to appeal 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. There was no order in the record relieving Bennett. The affidavit is requested of trial counsel 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, 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) (per curiam); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988) (per curiam). Bennett in his affidavit stated that "no conversation took place between Appellant and [him] with respect to an appeal . . . ." Bennett further stated that he had a conversation with petitioner's father about an appeal, but it was after the time to file a notice of appeal had elapsed.

As petitioner's and Bennett's claims pertaining to whether petitioner advised counsel that he desired counsel to appeal the order of the trial court revoking probation were in direct conflict, we remanded the matter to the trial court for an evidentiary hearing on the issue of whether counsel was informed by petitioner within the time period allowed for filing a notice of appeal that he desired to appeal. The trial court was directed to enter Findings of Fact and Conclusions of Law and submit the findings and conclusions to this court with a transcript of the evidentiary hearing. 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. Bennett.1 After hearing the testimony, the court concluded that Mr. Bennett's testimony that he was not asked to appeal from the revocation order was more credible than petitioner's testimony.

As the merit of the motion for belated appeal rests entirely 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 Frazier v. State, 339 Ark. 173, 3 S.W.3d 334 (1999) (per curiam), citing Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982) (per curiam). The motion for belated appeal is denied.

Motion denied.

1 The court gave petitioner the opportunity to call other witnesses, but he declined.