ANTHONY JEROME FITZGERALD v. GREGORY NEAL ROBINSON

2018 Ark. 391

• Court: Supreme Court of Arkansas
• Decided: December 20, 2018
• Docket: CR-07-8
• Status: Published

Opinion

Cite as 2018 Ark. 391 SUPREME COURT OF ARKANSAS No. CR-07-8

ANTHONY JEROME FITZGERALD Opinion Delivered DECEMBER 20, 2018 PETITIONER

V. PRO SE MOTION REQUESTING COPIES OF RECORDS; NOTICE OF GREGORY NEAL ROBINSON APPLICATION FOR JUDGMENT; AND RESPONDENT MOTION FOR DEFAULT JUDGMENT; MOTIONCR-07- REQUESTING LEAVE TO AMEND MOTION REQUESTING RECORDS [JEFFERSON COUNTY CIRCUIT COURT, NO. 35CR-06-272]

RESPONSE ORDERED; NOTICE OF APPLICATION FOR JUDGMENT MOOT; MOTION FOR DEFAULT JUDGMENT DENIED; MOTION REQUESTING LEAVE TO AMEND MOTION REQUESTING RECORDS DENIED.

JOSEPHINE LINKER HART, Associate Justice

Petitioner Anthony Jerome Fitzgerald has filed a pro se motion requesting copies of

records from his attorney pursuant to Rule 19(b) of the Arkansas Rules of Appellate

Procedure –Criminal (2017). Fitzgerald’s motion includes a certificate of service to his

attorney, Gregory Neal Robinson, at an address in Pine Bluff that is dated August 20,

2018. Fitzgerald’s motion was filed in this court on August 23, 2018. Robinson’s response

to the motion was due on September 10, 2018, twenty days from the date listed in the certificate of service. However, Robinson has not responded. Fitzgerald subsequently filed

a pro se pleading titled “Notice of Application for Judgment” wherein Fitzgerald asks this

court to grant his request because Robinson failed to respond. Fitzgerald also filed a

motion for default judgment alleging that this court should vacate his judgment of

conviction due to his counsel’s failure to respond or turn over copies of documents that

Fitzgerald insists his trial counsel is intentionally withholding. Finally, Fitzgerald filed a

motion requesting leave to amend his motion requesting copies and alleges that he is

entitled to a new trial if his attorney or the State are unable to produce the requested

records.

In his motion requesting copies of records, Fitzgerald alleges that he has requested

from Robinson copies of the transcripts of 911 calls that were made at the time of the

shooting which resulted in his being charged with a criminal offense. Fitzgerald further

alleges that Robinson has refused to provide the requested material.

This court has made clear that under Rule 19(b), the attorney who has been served

with a copy of the motion is required to respond. Having been properly served with the

motion, Robinson must respond, even if he believes the motion has no merit, as Rule 19

makes counsel’s response mandatory. Green v. State, 2017 Ark. 243, at 1–2 (citing Geatches

v. State, 2016 Ark. 452, 505 S.W.3d 691). Accordingly, Robinson is directed to file the

response required by Rule 19 within fourteen days stating (1) whether he has the requested

copies in his possession; (2) if so, whether the copies are on paper or in some other format;

(3) if he has the copies, whether the copies have been provided to Fitzgerald. See Ark. R.

2 App. P. –Crim. 19(b). Fitzgerald’s notice of application for judgment is therefore moot, his

motion for a default judgment to set aside his conviction and his motion to amend his

request for records to include an allegation of entitlement to a new trial are denied.

Response ordered; notice of application for judgment moot; motion for default

judgment and motion requesting leave to amend motion requesting records denied.

KEMP, C.J., WOOD and WOMACK, JJ., dissent.

RHONDA K. WOOD, Justice, dissenting. I dissent because Fitzgerald’s request is

outside the scope of Rule 19. Arkansas Rule of Appellate Procedure–Criminal 19 provides

that a convicted offender may petition this court for “a copy of an appellate brief, the trial

record, or a transcript” if certain circumstances are met. Fitzgerald, however, has filed a

Rule 19 motion to obtain, from his trial counsel’s file, a copy of a 911 call that was not

introduced at trial. His request is outside the purview of Rule 19. 1 As the reporter’s 2016

note to Rule 19 explains, the rule was amended to assist convicted offenders with access to

their appellate records and briefs. Ark. R. App. P.–Crim. 19 rep. notes 2016 amend. Thus,

even if his attorney filed a response admitting or denying he had the 911 transcript, it is

not a document this court can provide since it is not part of our appeal record.

Additionally, the face of Fitzgerald’s motion demonstrates that he has access to the

documents Rule 19 does provide. His motion includes citations to the trial record and

1 In addition, the affidavit from Attorney Steven Davis affirms that Fitzgerald’s counsel has on several occasions stated he does not have the 911 transcript petitioner seeks. 3 transcript from his appeal. It also references his receipt of the trial transcript from his

lawyer in 2009. See Fitzgerald v. Hobbs, No. 5:11CV00262 JLH/JTR, 2013 WL 3270528

(E.D. Ark. June 26, 2013). Therefore, I would deny Fitzgerald’s motion as there is no relief

we can afford him.

KEMP, C.J., and WOMACK, J., join in this opinion.