James Barnett v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 08-154
Opinion Delivered
JAMES BARNETT
Petitioner
March 20, 2008
PRO SE MOTION FOR BELATED
APPEAL [CIRCUIT COURT OF UNION
COUNTY, CR 2005-707, HON.
HAMILTON H. SINGLETON, JUDGE]
v.
STATE OF ARKANSAS
Respondent
REMANDED.
PER CURIAM
In 2006, petitioner James Barnett was found guilty by a jury of second-degree sexual assault
and was sentenced to eighty-four months’ incarceration. Petitioner was represented at trial by Gary
McDonald.1 No appeal was taken from the judgment of conviction, which was entered on November
22, 2006, and petitioner now seeks 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
contends that he asked Mr. McDonald to file an appeal from the judgment and counsel failed to 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 is no order relieving Mr. McDonald in the record filed in this case. The
1
It is unclear from the limited record tendered to this court whether Mr. McDonald was retained
by petitioner or was appointed by the trial court. Additionally, the judgment entered in this matter listed
another attorney as petitioner’s attorney of record, which appears from all other information before us to
be an error.
affidavit requested of trial counsel is 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 thirty-day period allowed for filing a notice of appeal under Ark. R. App. P.–Crim.
2(a)(4). Bankston v. State, 354 Ark. 473, 125 S.W.3d 146 (2003) (per curiam).
Mr. McDonald in his affidavit states that he thoroughly discussed whether to appeal with
petitioner and petitioner decided not to appeal. He further states that there was no communication
between them after the decision was made while petitioner was waiting to begin his sentence of
incarceration. It was only after petitioner had been incarcerated for several months that he wrote to
trial counsel asking about the status of the appeal.
Petitioner’s and counsel’s claims pertaining to whether petitioner advised counsel that he
desired counsel to appeal the judgment are in direct conflict. Because the proper disposition of the
motion for belated appeal in this case requires findings of fact which must be made in the trial court,
we remand this matter to the circuit 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 is directed to enter Findings of Fact and Conclusions of Law within ninety
days and submit the findings and conclusions to this court with the transcript of the evidentiary
hearing.
Remanded.
-2-
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