Johnson v. State (Per Curiam)

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Appellant was convicted of theft of property and sentenced to eight years imprisonment. Appellant, by and through her attorney, subsequently filed a motion for rule on clerk seeking to appeal the sentencing order. Appellant’s attorney admitted that the notice of appeal was untimely filed due to his error. The Supreme Court treated the motion for rule on clerk as a motion for belated appeal and granted the motion, as Appellant’s attorney candidly admitted fault in accordance with McDonald v. State for the appeal not being timely perfected. In addition, a copy of this opinion will be forwarded to the Committee on Professional Conduct.

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Cite as 2015 Ark. 195 SUPREME COURT OF ARKANSAS No. CR-15-313 JESSICA DENAE JOHNSON APPELLANT V. Opinion Delivered May 7, 2015 MOTION FOR RULE ON CLERK MOTION TREATED AS MOTION FOR BELATED APPEAL; GRANTED. STATE OF ARKANSAS APPELLEE PER CURIAM Appellant Jessica Denae Johnson, by and through her attorney, Omar F. Greene, has filed a motion for rule on clerk with this court. She is seeking to appeal the sentencing order entered on January 5, 2015, reflecting a conviction for theft of property and a sentence of eight years in prison. Greene, in the motion for rule on clerk, admits that the notice of appeal was untimely filed on February 6, 2015, due to his error with no fault attributable to the appellant. Because a timely notice of appeal was not filed, we treat the motion for rule on clerk as a motion for belated appeal, pursuant to Rule 2(e) of the Rules of Appellate Procedure–Criminal (2014). Holcomb v. State, 2013 Ark. 313 (per curiam); Gray v. State, 2010 Ark. 216 (per curiam); Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000) (per curiam). This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). In that case, 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, Cite as 2015 Ark. 195 146 S.W.3d at 891. We explained as follows: 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 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. (footnotes 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. Here, in accordance with McDonald, Greene has candidly admitted fault. Therefore, the motion for belated appeal is granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. It is so ordered. 2 CR-15-313

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