Thompson v. State
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SUPREME COURT OF ARKANSAS
No.
CR09-249
Opinion Delivered April 9, 2009
DONALD THOMPSON,
APPELLANT,
MOTION FOR BELATED APPEAL
VS.
STATE OF ARKANSAS,
APPELLEE,
REMANDED.
PER CURIAM
Appellant Donald Thompson, by and through his attorney Cindy M. Baker, has filed
a motion for belated appeal. The State filed a petition to revoke Thompson’s suspended
sentence that had been entered on July 5, 2008, pursuant to a plea agreement. At a hearing
on July 21, 2008, the Carroll County Circuit Court revoked Thompson’s suspended
sentences and ordered him to report to the Carroll County Sheriff’s Office on July 28, 2008.
The judgment and commitment order reflecting the court’s decision was entered on July 28,
2008. However, on July 25, 2008, Thompson filed a motion for new trial, which was
denied in an order entered on August 5, 2008. The deadline for Thompson’s notice of
appeal thus fell on September 4, 2008. See Ark. R. App. P.—Crim. 2(a)(3).
According to Thompson’s motion, Baker notified Thompson that a notice of appeal
would need to be filed within thirty days, but he expressed reservations about whether he
would want to appeal. He further said that he would have his mother and girlfriend get
estimates of how much an appeal would cost and would “have them get back to” Baker.
CR09-249
Baker contacted Thompson’s mother and girlfriend on September 2, 2008, to ask whether
Thompson wanted to pursue an appeal. The mother and girlfriend both told Baker that
Thompson would be calling them that day with an answer, and they would contact Baker
before the end of the day. However, Baker never heard back from Thompson, his mother,
or his girlfriend.
On September 17, 2008, Thompson contacted Baker’s office. Although Baker was
out of the office at the time, Thompson left a message asking her to visit him in the jail the
next day. Baker went to the jail to meet with Thompson on September 18, 2008. At that
time, Thompson stated that he wanted to appeal and had the money to do so, but that he
had been on administrative lockdown at the time his answer was due and unable to have
visitors or make phone calls to anyone. That same day, Baker filed a notice of appeal on
Thompson’s behalf in Carroll County Circuit Court.1 The present motion for belated appeal
was filed in this court on March 10, 2009.
If a petitioner fails to timely file a notice of appeal, a belated appeal will not be
allowed absent a showing by the petitioner of good cause for the failure to comply with
proper procedure. Ark. R. App. P.—Crim. 2(e); Garner v. State, 293 Ark. 309, 737 S.W.2d
637 (1987) (per curiam). Relief from the failure to perfect an appeal is provided as part of the
appellate procedure granting the right to an appeal. McDonald v. State, 356 Ark. 106, 146
1
Thompson subsequently filed a motion in circuit court for an extension of time
in which to lodge the record. Although the order was purportedly granted, Thompson
alleges that the court reporter failed to include a copy of that order in the record and
asserts that, if this motion for belated appeal is granted, he will file a motion to correct the
record.
-2-
CR09-249
S.W.3d 883 (2004). Where it is plain from the motion, affidavits, and record that relief is
proper under Rule 2(e), based upon error or good reason, this court will grant a belated
appeal. Id. However, where a motion seeking relief from failure to perfect an appeal is filed,
and it is not plain from the motion, affidavits, and record whether there is attorney error, the
clerk of this court will be ordered to accept the notice of appeal or record, and the appeal
will proceed without delay. Id. The matter of attorney error will be remanded to the trial
court to make findings of fact.
Id. (citing Frazier v. State, 339 Ark. 173, 3 S.W.3d 334
(1999). Upon receipt by this court of the findings, this court will render a decision on
attorney error. Id.
In the instant motion for belated appeal, Baker asserts on Thompson’s behalf that his
inability to communicate his desire to appeal to his attorney constitutes good cause for
granting the motion. She does not admit fault. Because the allegations in the motion for
belated appeal raise questions of fact, we remand this matter to the trial court for an
evidentiary hearing on the circumstances surrounding Thompson’s alleged inability to
communicate with counsel. The circuit court is directed to provide findings of fact detailing
when and whether Thompson was placed in administrative lockdown and prohibited from
communicating with anyone, including his attorney. These findings are to be provided to
this court within forty-five days.
Remanded.
-3-
CR09-249
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