Thompson v. State
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SUPREME COURT OF ARKANSAS
No.
CR09-249
Opinion Delivered June 4, 2009
DONALD THOMPSON,
APPELLANT,
MOTION FOR BELATED APPEAL
VS.
STATE OF ARKANSAS,
APPELLEE,
GRANTED.
PER CURIAM
Appellant Donald Thompson, by and through his attorney, Cindy M. Baker, has filed
a motion for belated appeal.
Thompson’s notice of appeal in this case was due on September 4, 2008. In his
original motion for belated appeal, filed on March 10, 2009, Thompson argued that his
notice of appeal had not been filed until September 18, 2008, because he had been placed
on administrative lockdown at the jail and had not been permitted to contact his attorney to
tell her that he wanted to appeal. At that time, we determined that it was not plain from the
motion, affidavits, or record whether there was attorney error, and we remanded the matter
to the circuit court for entry of findings of fact regarding Thompson’s alleged inability to
communicate with his attorney during a period in which he was on administrative lockdown
at the jail. See Thompson v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 9, 2009) (per curiam).
Following this court’s remand, the circuit court conducted an evidentiary hearing at
which the court heard the testimony of Appellant Thompson; attorney Cindy Baker;
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Thompson’s mother, Sharon Benda; Captain Archie Rousey of Carroll County Sheriff’s
Office; Sergeants Patricia Wood and Juan Cribbs and retired Sergeant Walter Noftsger of the
Sheriff’s Office; and Corporal Christine Clark of the Sheriff’s Office. After the hearing, the
circuit court entered an order in which it found that Thompson had been on lockdown from
August 19 to August 25, 2009, and that during that time, Thompson had not been prohibited
from contacting his attorney. The court also noted that, during the first three weeks of
Thompson’s incarceration, he had spoken to and attempted to speak with his attorney, and
that his attorney was made aware of his desire to see her and discuss the appeal.
The court pointed to the testimony of the Sheriff’s Office personnel. Captain Rousey
indicated that even when a prisoner is on lockdown, he is not denied access to his attorney
and may speak to his attorney on the phone or communicate by mail. Captain Rousey also
testified that the only time attorney Baker spoke to Thompson at the jail was on September
18, 2008. However, the jail staff also noted that Thompson never asked to speak to his
attorney while he was in lockdown, apparently assuming that he would not be allowed to
speak to her.
The court described the testimony of Thompson’s mother, Sharon Benda, who stated
that she had spoken to her son twice weekly at the jail, and that she had communicated her
son’s desire to appeal to Baker. Benda said that she had the money for the appeal as early as
July, but she was not aware that Baker wanted the money before the appeal was filed. The
court stated that it believed that Benda had the money to pay Baker for the appeal before
Thompson went to jail; that Thompson had initially been uncertain about the appeal but
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later communicated his desire to appeal; and that Thompson repeatedly asked Benda to have
Baker contact him.
Cindy Baker also testified at the hearing. She stated that she had spoken to Thompson
after he was incarcerated, and he advised her that his girlfriend and mother would be trying
to get the money for his appeal; however, the court noted that this testimony contradicted
Benda’s testimony, described above, that Thompson had the money for the appeal earlier.
Although Baker testified that she was communicating with Benda and had no reason to
believe that Benda would not communicate Thompson’s wishes, the court found that her
testimony contradicted Thompson and Benda’s assertions that Thompson asked to speak with
Baker and that Benda had communicated Thompson’s desire to appeal. The court noted
Thompson’s testimony that he had been permitted to use the phone at the booking desk to
call Baker’s office on August 26, 2008, as soon as he was released from lockdown, but Baker
offered no explanation for her failure to go to the jail and see her client until September 28,
2008. The court described Baker as an “experienced attorney who concentrates her practice
in the area of criminal law” and stated its belief that she was “familiar with the jail policies
and . . . knew she could see her client at any time.”
Regarding the original motion for belated appeal, the circuit court found that Baker’s
statements in that motion that Thompson had been in lockdown when the appeal was due
were untrue. The court further found that Baker’s statement in the motion to the effect that
Thompson had no access to a telephone or mail during that time were also untrue. The
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court determined that the statements in the motion were “unsupported by the testimony of
the defendant, his mother, and law enforcement.”
Moreover, the court credited Thompson’s testimony that Baker’s secretary brought
the affidavit in support of the motion to the jail and waited for Thompson to sign it. Many
of the statements in the affidavit, however, the court found to be untrue. For example, the
court pointed to the averments that Thompson was in lockdown and could not
communicate with anyone for a week, and the statement that Thompson was unable to
secure funding for his appeal until September 18, 2008. The circuit court stated flatly that
these statements were false.
The court concluded its factual findings by stating that Thompson had been placed
in lockdown from August 19, 2008, until August 25, 2008, and that he was not prohibited
from calling or seeing his attorney during this time. The court found that the testimony
given in open court did not support the allegations made in the motion for belated appeal
and that the statements made in the affidavit in support of the motion were untrue.
From the circuit court’s findings of fact, we conclude that Thompson did timely
communicate his desire to appeal to his attorney via his mother and had the funds available
to pay counsel to pursue the appeal. However, his attorney did not contact him until well
after the time for filing the notice of appeal had expired. In support of this conclusion, we
note the trial court’s crediting of Thompson’s testimony that he called Baker on August 26,
as soon as he was released from lockdown. Baker, however, undisputedly did not contact
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Thompson until September 18, 2008, and she gave no explanation for her failure to visit her
client in order to ascertain his wishes regarding his appeal.
When the judgment is entered in a criminal case and the trial attorney is made aware
by the convicted defendant that the defendant desires to appeal within the thirty-day period
from the date of judgment for filing a notice of appeal, counsel is obligated to file a timely
notice of appeal. Spillers v. State, 341 Ark. 749, 19 S.W.3d 35 (2000) (per curiam). The
obligation to file the notice of appeal and to preserve the appeal by lodging at least a partial
record in the appellate court is not affected by counsel’s inexperience with appellate work,
the convicted defendant’s financial status, or counsel’s belief that the defendant could not
prevail on appeal. See Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997) (per curiam); see
also James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997) (per curiam).
The obligation to preserve the appeal also exists if retained counsel believes the
appellant to be capable, but unwilling, to pay the costs of the appeal. In no event may
counsel simply abandon an appeal. It is well settled that under no circumstances may an
attorney who has not been relieved by the trial court fail to preserve an appeal when the
convicted defendant timely communicates to counsel his desire to appeal. Ragsdale v. State,
341 Ark. 744, 19 S.W.3d 622 (2000) (per curiam); Langston v. State, 341 Ark. 739, 19
S.W.3d 619 (2000) (per curiam).
Given the facts as found by the circuit court, we conclude that Thompson’s motion
for belated appeal should be granted, and we direct the clerk of this court to accept the
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record and docket this appeal. However, we refer his attorney, Cindy Baker, to the Supreme
Court Committee on Professional Conduct.
Motion for belated appeal granted.
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