Hawthorne v. State
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Cite as 2009 Ark. 137
SUPREME COURT OF ARKANSAS
No.
CR09-154
Opinion Delivered
MELVIN HAWTHORNE,
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
STATE OF ARKANSAS,
APPELLEE,
GRANTED.
PER CURIAM
Appellant Melvin Hawthorne, by and through his attorney, Mark S. Frazier, has filed
a motion for rule on clerk.
Hawthorne was charged with numerous offenses in two separate criminal proceedings.
Although he was initially represented by the Garland County public defender’s office,
Hawthorne retained private counsel in August of 2007. However, Hawthorne’s private
attorney moved to withdraw in April of 2008. The Garland County Circuit Court granted the
motion in May of 2008, and, on June 2, 2008, appointed Mark Frazier of the public
defender’s office to represent Hawthorne. Hawthorne was convicted by a Garland County
jury on September 3, 2008, and sentencing was set for September 8, 2008. On that date, the
circuit court sentenced him to fifteen years on each count, with his sentences to run
consecutively. The judgment and commitment order was entered on September 11, 2008.
Cite as 2009 Ark. 137
On September 12, 2008, Hawthorne filed a pro se notice of appeal. In addition,
Hawthorne notified Frazier that he no longer wanted Frazier to represent him or file any
further pleadings on his behalf. As a consequence, Frazier filed a motion to be relieved as
counsel on September 17, 2008. At a hearing on September 22, 2008, the circuit court
granted Frazier’s motion to be relieved. However, the circuit court later reconsidered that
decision and caused a docket entry to be made on October 10, 2008, reflecting that the public
defender’s office would be reappointed to represent Hawthorne; the court also noted that
Frazier had a conflict of interest and that the Arkansas Public Defender Commission would
be contacted to provide a new attorney for Hawthorne.
On December 1, 2008, attorney Patrick Benca filed a motion with the circuit court
seeking an extension of time to lodge the record on appeal, noting that the record was due
to be lodged with this court on December 11, 2008. The court granted the motion the same
day, stating, however, that the “transcript is due to be lodged with the Arkansas Supreme
Court on or before the 12th day of December, 2008,” and granting an “additional sixty days
in which to lodge the transcript[.]” The record was tendered to this court on February 10,
2008. On February 12, 2008, the clerk’s office contacted Frazier to inform him that the
record had been tendered one day late and that he would need to file a motion for rule on
clerk. Frazier filed the instant motion on February 17, 2008.
We first note that attorney Frazier was correctly identified as the attorney to
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Cite as 2009 Ark. 137
accomplish this task. Although the circuit court granted Frazier’s motion to be relieved on
September 22, 2008, the notice of appeal had already been filed on September 12, 2008.
Once the notice of appeal has been filed, this court has exclusive jurisdiction to relieve
counsel and appoint new counsel. See Ark. R. App. P.–Crim. 16(a) (2008); Gipson v. State,
343 Ark. 44, 31 S.W.3d 834 (2000). Accordingly, Frazier was not properly relieved by the
circuit court and remained counsel of record.
This court clarified its treatment of motions for rule on clerk in McDonald v. State,
356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons
for an appeal not being timely perfected: either the party or attorney filing the appeal is at
fault, or, there is “good reason.” McDonald, 356 Ark. at 116, 146 S.W.3d at 891. We
explained:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely perfected. The
party or attorney filing the appeal is therefore faced with two options. First, where the
party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed
with the motion or in the motion itself. There is no advantage in declining to admit
fault where fault exists. Second, where the party or attorney believes that there is good
reason the appeal was not perfected, the case for good reason can be made in the
motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit
admitting fault before we will consider the motion, an attorney should candidly admit fault
where he has erred and is responsible for the failure to perfect the appeal. See id. When it is
plain from the motion, affidavits, and record that relief is proper under either rule based on
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Cite as 2009 Ark. 137
error or good reason, the relief will be granted. See id.
In this case, the circuit court’s order incorrectly recited that the record was due to be
lodged with this court on December 12, 2008. The notice of appeal was filed on September
12, 2008, so the record would have been due on December 11, 2008. Accordingly, the sixty
days afforded by the trial court’s order granting the extension of time expired on February
9, 2009. For that reason, the tender of the record on February 10, 2009, was untimely.
Frazier’s motion for rule on clerk makes no mention of fault. In some cases in which
attorneys have not admitted fault for errors in tendering the record, we have concluded that
counsel’s fault was clear from the record; in those cases, we granted the motion for rule on
clerk, directed the clerk to docket the appeal, and referred the matter to the Committee on
Professional Conduct. See, e.g., Bond v. State, 373 Ark. 257, 283 S.W.3d 186 (2008); Morris
v. State, 373 Ark. 190, 235 S.W.3d 520 (2008). Frazier was technically at fault on this record
because he should have realized that he had not been properly relieved as counsel of record.
The motion for rule on clerk is, therefore, granted. We decline, however, to refer this matter
to the Committee on Professional Conduct.
Motion for rule on clerk granted.
Mark S. Frazier, for appellant.
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