Chapter 6 The Notice of Appeal — Criminal

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 6 THE NOTICE OF APPEAL — CRIMINAL
David R. Raupp and Kathryn Henry

A. Introduction: The Right to Appeal

In Arkansas, the right to appeal a felony or misdemeanor conviction obtained in any circuit court is guaranteed by statute and court rule. ACA § 1691-101; ARAP-Crim 1(a). Because the right to counsel is the right to effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984), the Arkansas Supreme Court has long held that counsel's failure to perfect an appeal in a criminal case, when the client desires an appeal and has not waived the right, is ineffective assistance of counsel. Wright v. State, 326 Ark. 276, 276, 931 S.W.2d 107, 107 (1996).

Trial counsel is responsible for filing the notice of appeal and perfecting the appeal, unless the circuit court, upon a motion, allows counsel to withdraw from the case before the notice of appeal is filed. But if the notice of appeal has already been filed, only the appellate court can allow counsel to withdraw. ARAP-Crim 16(a).

Thus, after the client is convicted and decides to appeal, trial counsel has two options: (1) file a notice of appeal, or (2) file a motion to withdraw before the 30-day deadline for filing a notice of appeal expires. Doing nothing is not an option, regardless of whether counsel has been paid to pursue the appeal. Langston v. State, 341 Ark. 739, 742, 19 S.W.3d 619, 621 (2000). Further, unless the client has made an informed decision to waive the right to appeal, trial counsel is deemed by virtue of Rule 16 to be counsel on appeal and must take the necessary steps to perfect the client's appeal. Counsel's failure either to (1) file a notice of appeal and perfect the appeal or (2) file a motion to withdraw will haunt him or her later, if the client seeks a belated appeal on the ground that counsel was ineffective for failing to perfect the appeal. Roe v. Flores-Ortega, 528 U.S. 470, 48087 (2000); Davis v. State, 317 Ark. 322, 323-24, 877 S.W.2d 93, 94 (1994).

The United States Supreme Court, in Roe, 528 U.S. at 480, held that an attorney's performance is deficient under the Sixth Amendment if counsel fails to consult with the client about the advantages and disadvantages of an appeal and does not make a reasonable effort to discover the client's wishes if there is reason to think either (1) that a rational defendant would want to appeal, or (2) that the client has expressed an interest in appealing. The bottom line is that unless the client has made an informed decision to waive the right to appeal, trial counsel continues as counsel on appeal under Rule 16 and must perfect the appeal.

The attorney's obligation continues even if the client has not paid the attorney for handling the trial. If that's the case, file the notice of appeal and then file a partial record on appeal consisting of at least the judgment and notice of appeal along with two motions with the appellate court: one to withdraw as counsel and one asking that the client be declared indigent and counsel be appointed. Evans v. State, 370 Ark. 427, 427-28, 260 S.W.3d 265, 265-66 (2007) (per curiam); Parker v. State, 303 Ark. 185, 187, 792 S.W.2d 619, 620 (1990).

If counsel was retained for the trial but has not been paid to handle the appeal and knows the client wishes to appeal and can afford to hire appellate counsel, trial counsel should advise the client of the right to appeal and the time within which the notice of appeal must be filed. Trial counsel should then file a motion to withdraw in the circuit court, state the reasons for withdrawing, and give a copy of the motion (and the order, if the motion is granted) to the client. Lewis v. State, 279 Ark. 143, 144-45, 649 S.W.2d 188, 189 (1983). The key point to remember is that counsel is not relieved until the circuit court enters an order relieving counsel before the deadline to file the notice of appeal expires. Counsel should thus file a motion to withdraw as soon as possible after trial to give the client a reasonable amount of time to find another lawyer to handle the appeal before the 30 days run for filing the notice of appeal.

Public defenders may be allowed to withdraw from appellate representation of an indigent client if they meet the statutory requirements of ACA § 19-4-1604(b)(2), namely, that the defender is a full-time, state-salaried employee with a state-funded secretary. McCullough v. State, 374 Ark. 137, 138, 286 S.W.3d 167, 168 (2008) (per curiam). Presumably, the circuit court could relieve the public defender of representation before the filing of the notice of appeal, but the safer practice is to file the notice of appeal in the circuit court and then file the motion to withdraw in the appellate courts, as they are more familiar with this issue.

If counsel misses a filing deadline in perfecting the appeal (that is, by failing to timely file a notice of appeal or timely lodge the record with the Supreme Court Clerk), the appeal can proceed only by counsel filing a motion for belated appeal under ARAP-Crim 2(e) or a motion for rule on the clerk under ASCR 2-2.

B. Beginning the Appeal Process

1. Filing the Notice of Appeal

The notice of appeal must be filed with the circuit clerk within 30 days from the date the sentencing order is entered. ARAP-Crim 2(a)(1). A sentencing order is "entered" when the clerk marks or stamps it in accordance with Administrative Order No. 2(b)(2).

Under ARAP-Crim 2(b)(1), a notice of appeal filed after the circuit court has announced its decision, but before the sentencing order has been entered, will be treated as file-marked on the day after the date the sentencing order was entered. The timely filing of a notice of appeal is a jurisdictional requirement. Hiang v. State, 89 Ark. App. 285, 287, 202 S.W.3d 550, 551 (2005). If the record tendered to the Supreme Court Clerk does not contain a timely notice of appeal, the clerk will not file the record. The appeal can then be perfected only if counsel files a motion for belated appeal, addressed to the Arkansas Supreme Court, and the motion is granted. See Part C1.

There is one important exception to the 30-day rule. If a posttrial motion is filed under ARCrP 33.3, the 30-day period within which the notice of appeal must be filed begins to run from (1) the date the motion is denied in a filed written order or (2) the date the posttrial motion is "deemed denied," whichever comes first. ARAP-Crim 2(a)(2) and (a)(3); ARAP-Crim 2(b)(1). The "deemed denied" rule has confused attorneys. It operates as follows: if a posttrial motion is filed within 30 days of the entry of the sentencing order (ARCrP 33.3(b)), the circuit court has 30 days from the date the motion is filed to rule on the motion. Posttrial motions that are filed before the sentencing order is entered become effective and are treated as filed on the day after the sentencing order is entered. ARCrP 33.3(b). If the circuit court does not rule on the motion within 30 days after it's filed, the motion is...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT