Chapter 6 The Notice of Appeal – Criminal

LibraryHandling Appeals in Arkansas (2015 Ed.)

THE NOTICE OF APPEAL – CRIMINAL

Susan T. Lusby, Brenna Ryan, and David R. Raupp

A. Introduction: The Right to Appeal....................................................................... 6-1

B. Beginning the Appeal Process................................................................................ 6-5

1. Filing the Notice of Appeal......................................................................... 6-5

2. Preparing the Notice and Designating the Record............................ 6-10

3. Bail on Appeal.............................................................................................. 6-13

C. Special Circumstances on Appeal....................................................................... 6-15

1. Motion for Belated Appeal........................................................................ 6-15

2. Motion for Rule on the Clerk.................................................................... 6-17

3. Conditional Plea and Appeal................................................................... 6-18

4. Cross-Appeals............................................................................................... 6-21

5. Appeals in Criminal Cases Involving Juveniles................................. 6-22

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A. Introduction: The Right to Appeal

In Arkansas, the right to appeal a conviction is guaranteed by state statute and by court rule. ACA § 16-91-101; ARAP–Crim 1(a). Because the right to counsel includes the right to effective assistance of counsel, Strickland v. Washington, 466 U.S. 668 (1984), and Wright v. State, 326 Ark. 276, 931 S.W.2d 107 (1996), the Arkansas Supreme Court has long held that appellate counsel’s failure to perfect an appeal in a criminal case, when his client desires an appeal and has not waived his right to appeal, is ineffective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982).

Trial counsel is responsible for filing the notice of appeal and perfecting the appeal, unless the trial court, upon counsel’s motion, allows counsel to withdraw from the case after the trial but before the deadline for filing the notice of appeal, or unless the appellate court, upon counsel’s motion, allows counsel to withdraw after the notice of appeal is filed. ARAP–Crim 16 states:

Trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court or Arkansas Court of Appeals, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the appellate court shall have exclusive jurisdiction to relieve counsel and appoint new counsel.

(Emphasis added)

Thus, after the client is convicted and decides to appeal, trial counsel has only two choices: (1) file a notice of appeal, or (2) file a motion to withdraw prior to the expiration of the 30-day deadline for filing a notice of appeal. Doing nothing is not an option, regardless of whether counsel has been paid to pursue the appeal. Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000); Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). Further, unless the client has made an informed decision to waive his right to appeal, trial counsel is deemed by virtue of Rule 16 to be counsel on appeal and bears the responsibility of taking all of 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 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 (2000); Davis v. State, 317 Ark. 322, 877 S.W.2d 93 (1994); Plugge v. State, 295 Ark. 513, 750 S.W.2d 52 (1988).

The United States Supreme Court, in Roe v. Flores-Ortega, supra, held that an attorney’s performance is deficient under the Sixth Amendment if counsel fails to consult with his or her 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 demonstrated to counsel that he or she is interested in appealing. Unless the client has made an informed decision to waive his right to appeal, trial counsel continues as counsel on appeal under Rule 16 and must perfect the appeal.

If counsel was retained for the trial but has not been paid to handle the appeal and, if counsel knows his client wishes to appeal and can afford to hire counsel for an appeal, counsel should advise the client of his right to appeal and the time within which the notice of appeal must be filed. Counsel should then file a motion to withdraw in the trial court, stating his reasons for withdrawing and providing a copy of the motion (and the order, if the motion is granted) to the client. Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000); Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983). The key point to remember, however, is that counsel is not relieved unless the trial court enters an order relieving counsel before the deadline for filing the notice of appeal has expired. That is why counsel should file a motion to withdraw as soon after the trial as possible, so that the client has a reasonable amount of time to find another lawyer to handle the appeal before the 30-day deadline for filing the notice of appeal expires. Once counsel has filed the notice of appeal, the Arkansas Supreme Court is disinclined to permit counsel to withdraw solely on the ground of the client’s nonpayment of counsel’s fee. Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989); Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990); McDuffie v. State, 307 Ark. 518, 826 S.W.2d 809 (1992).

If trial counsel knows that his client wishes to appeal but cannot afford to pay, counsel should file a motion to withdraw and a motion asking that the client be declared indigent and counsel appointed. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). If counsel was appointed at the trial level, his client is deemed to be indigent on appeal as well, and, pursuant to ARAP–Crim 16, counsel is automatically deemed to be counsel for the appeal, unless the indigent client waives his right to appeal.

If trial counsel is a public defender, counsel may be allowed to withdraw from appellate representation of an indigent client. ACA § 19-4-1604(b)(2). To withdraw, counsel must meet the statutory requirements of § 19-4-1604(b)(2)—namely, that he or she is a full-time, state-salaried employee, provided with a state-funded secretary. Walters v. State, 355 Ark. 128, 132 S.W.3d 218 (2003). Presumably, the trial court could relieve the public defender of representation, prior to the filing of the notice of appeal, but the safer practice is to file the notice of appeal in the circuit court and file the motion to withdraw in the appellate courts, as they are more familiar with this issue.

If counsel fails to meet a filing deadline in perfecting the appeal (i.e., by failing to file a notice of appeal on time or lodge the transcript with the Supreme Court Clerk on time), the appeal can proceed only by counsel’s filing a motion for belated appeal, under ARAP–Crim 2(e), or a motion for rule on the clerk pursuant to ASCR 2-2.

B. Beginning the Appeal Process1

1. Filing the Notice of Appeal

The notice of appeal should be filed with the circuit clerk within 30 days from the date that the judgment of conviction is entered–that is, within 30 days from the date the judgment is file-marked by the circuit clerk. ARAP–Crim 2(a)(1). Supreme Court Administrative Order No. 2 (b)(2) requires the clerk to note the date and time that a judgment, decree, or order is filed, by marking or stamping the order with the date, the time, and the word “filed.” A judgment, decree, or order is “entered,” within the meaning of ARAP–Crim 2(a), at the time the clerk marks or stamps it, in accordance with Administrative Order No. 2.

ARAP–Crim 2(b)(1) provides that a notice of appeal filed after the trial court has announced its decision, but before the judgment has been entered, will be treated as file-marked on the day after the date of the entry of the judgment. The timely filing of a notice of appeal is a jurisdictional requirement. Henry v. State, 49 Ark. App. 16, 894 S.W.2d 610 (1995). If the record tendered to the Supreme Court Clerk does not contain a timely notice of appeal, the Supreme Court Clerk will not accept the record for lodging. The appeal can be perfected only if counsel files a motion for belated appeal, addressed to the Arkansas Supreme Court. See Section C1, infra.

There is one important exception to the 30-day rule. If a post-trial motion is filed (i.e., a motion for a new trial), the 30-day period within which the notice of appeal must be filed begins to run from (1) the date that the motion is actually denied by written order filed of record, or (2) the date that the post-trial 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 caused confusion among attorneys and has caught some off guard. It operates as follows: If a post-trial motion is filed within 30 days of the entry of the judgment (as required in ARCrP 33.3(b)), the trial...

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