CHAPTER 6 THE NOTICE OF APPEAL—CRIMINAL

• Jurisdiction: Arkansas

CHAPTER 6 THE NOTICE OF APPEAL—CRIMINAL

Chief Judge Brandon J. Harrison and Martha Tucker Ayres¹

A. Introduction: The Right to Appeal

B. Beginning the Appeal Process

1. Filing the Notice of Appeal

2. Preparing the Notice of Appeal and Designating the Record

3. Bail on Appeal

C. Special Circumstances on Appeal

1. Motion for Belated Appeal

2. Motion for Rule on the Clerk

3. Conditional Plea and Appeal

4. Cross-Appeals

5. Appeals in Criminal Cases Involving Juveniles

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 § 16-91-101; 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).

More specifically, ARAP-Crim 16(a) provides that trial counsel, whether retained or court appointed, must continue to represent a convicted defendant throughout any appeal, unless permitted by the circuit court or appellate court to withdraw in the interest of justice or for other sufficient cause. Mercouri v. State, 2015 Ark. 39, at 2-3. When judgment is entered in a criminal case and the defendant makes the trial attorney aware that the defendant desires to appeal within 30 days from the date of judgment allowed by ARAP-Crim 2(a) for filing a notice of appeal, counsel must file a timely notice of appeal. Charland v. State, 2010 Ark. 233, at 2-3 (per curiam); Spillers v. State, 341 Ark. 749, 750, 19 S.W.3d 35, 35 (2000) (per curiam). Under no circumstances may counsel abandon the convicted defendant if the defendant has timely advised counsel of the desire to appeal an adverse judgment. Camp v. State, 2010 Ark. 193, at 2 (per curiam); Thompson v. State, 2009 Ark. 342, at 5, 322 S.W.3d 12, 15 (per curiam).

Consequently, after the defendant-client has been 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, 480-87 (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 (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 therefore 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 § 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 filing of a notice of appeal is jurisdictional and strict compliance is required for an appellate court to review your case. Johnson v. Carpenter, 290 Ark. 255, 259, 718 S.W.2d 434, 437 (1986). 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 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 "deemed denied" on the 30th day, and the notice of appeal must be filed within 30 days from that date. ARAP-Crim 2(a)(3); ARAP-Crim 2(b)(1).

Practitioner's Note: Be sure to appeal the original sentencing order and the deemed-denied posttrial motion if you want to raise the motion's points on appeal. If you do not identify both "events" in your notice, then you risk waiving some arguments on appeal. The takeaway here is that counsel who files a posttrial motion in a criminal case should calendar several dates. First, mark the date the sentencing order being appealed was file-marked by the circuit clerk. This date starts the filing period, if no posttrial motions are filed. Second, mark the date when the posttrial motion was filed (no later than 30 days following entry of the sentencing order). Third, count 30 days from the date the posttrial motion was filed and mark that date as the day on which the posttrial motion is "deemed denied" by operation of law. Fourth, calendar 30 days from the deemed-denied date; that's the deadline to file a notice of appeal.

Counsel should also watch the mail (and check periodically with the circuit clerk and the circuit court's office) for a written order denying the posttrial motion; if the order is filed-marked before 30 days expires, then the 30th day thereafter will be the last day to file a...