Nicholas Brown v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 07768
Opinion Delivered
NICHOLAS BROWN
Petitioner
v.
January 31, 2008
PRO SE MOTION FOR BELATED
APPEAL OF JUDGMENT OF
CONVICTION [CIRCUIT COURT OF
CLEVELAND COUNTY, CR 20065,
HON. LARRY W. CHANDLER,
JUDGE]
STATE OF ARKANSAS
Respondent
MOTION DENIED.
PER CURIAM
On February 20, 2007, petitioner Nicholas Brown was found guilty by a jury of attempted
theft of property, a felony, and misdemeanor theft of property. An aggregate sentence of seventytwo
months’ imprisonment was imposed. Petitioner was represented at trial by his retained attorney Don
E. Warren, Sr. No appeal was taken from the judgment of conviction, which was entered on
February 28, 2007, and petitioner sought to proceed with a belated appeal pursuant to Ark. R. App.
P.–Crim. 2(e), which permits a belated appeal in a criminal case in some instances. Petitioner
contended that he asked Mr. Warren to file an appeal from the judgment and was assured that counsel
would do so.
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 relieving Mr. Warren in the record filed in this case. The affidavit
requested of trial counsel was required because Ark. R. App. P.–Crim. 16 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 thirtyday period allowed for filing a notice of appeal under Ark. R. App. P.–Crim. 2(a)(4).
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).
Mr. Warren in his affidavit stated that he thoroughly discussed whether to appeal with
petitioner and petitioner decided not to appeal. He further stated that there was no communication
between them after the decision was made.
As petitioner’s and counsel’s accounts of whether counsel was asked to appeal were in direct
conflict and required findings of fact, we remanded the matter to the trial court for an evidentiary
hearing on whether counsel was informed by petitioner within the time period allowed for filing a
notice of appeal that he desired to appeal. Brown v. State, CR 07768 (Ark. Oct. 11, 2007) (per
curiam). The findings and the transcript of the evidentiary hearing are now before us.
The court took testimony at the hearing from petitioner, petitioner’s mother, and Mr.
Warren. After hearing the testimony, the court concluded that Mr. Warren’s testimony that he was
not asked to appeal from the judgment was more credible than the testimony of petitioner. 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
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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.
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