Jeffrey Brown v. State of Arkansas

2021 Ark. 189

• Court: Supreme Court of Arkansas
• Decided: October 28, 2021
• Status: Published

Opinion

Cite as 2021 Ark. 189 SUPREME COURT OF ARKANSAS No. CV-21-120

Opinion Delivered: October 28, 2021 JEFFREY BROWN PETITIONER MOTION FOR BELATED APPEAL V. [LINCOLN COUNTY CIRCUIT COURT, NO. 40CV-20-39] STATE OF ARKANSAS

RESPONDENT REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW.

JOHN DAN KEMP, Chief Justice

Petitioner Jeffrey Brown has filed a motion for belated appeal requesting that this

court accept his appeal of a Lincoln County Circuit Court order dismissing his petition for

writ of habeas corpus. Because the record does not contain an order relieving Brown’s trial

counsel, we remand to the circuit court for findings of fact and conclusions of law.

I. Facts

On March 4, 2020, attorney Josh Q. Hurst filed a petition for writ of habeas corpus

on Brown’s behalf, and on May 5, the circuit court denied the petition. On March 15, 2021,

a partial record on appeal was tendered to this court, and on that same date, Brown filed the

instant motion for belated appeal requesting leave to proceed with a belated appeal of the

circuit court’s denial of his habeas petition. In his motion, Brown alleges that counsel did

not send him the order until after the time had expired for filing an appeal of the order.

Brown’s motion for belated appeal was filed within the eighteen-month time limitation. See Ark. R. App. P.–Crim. 2 (2020) (applying to appeals of orders denying postconviction relief);

Smith v. State, 2016 Ark. 202 (per curiam).

On May 20, 2021, this court ordered Hurst to respond to the allegations in Brown’s

motion for belated appeal. In his response, Hurst disputed the allegations in Brown’s motion

and stated that he sent Brown the order denying the habeas petition on two occasions. Hurst

does not state that he informed Brown of his right to appeal the denial of a postconviction

petition, nor did Hurst state that Brown had informed him that he did not want to pursue

an appeal of the circuit court’s order. Brown contends that he was not aware that the habeas

petition had been denied until the time for exercising his right to appeal had expired.

Because proper disposition of this case requires findings of fact, the matter is remanded to

the circuit court for an evidentiary hearing.

Arkansas Rule of Appellate Procedure–Criminal 16 provides in pertinent part that

“[t]rial counsel, whether retained or court appointed, shall continue to represent a convicted

defendant throughout any appeal . . . , unless permitted by the trial court or the appellate

court to withdraw in the interest of justice or for other sufficient cause.” Ark. R. App. P.–

Crim. 16(a)(i) (2020). A defendant may waive the right to appeal by failing to inform counsel

of his or her desire to appeal within the thirty-day period allowed for filing a notice of appeal

under Arkansas Rule of Appellate Procedure –Criminal 2(a). Beene v. State, 2018 Ark. 120.

According to Brown, he did not waive his right to appeal because he was not aware

of the circuit court’s denial of the petition until it was too late. Additionally, the record on

appeal does not contain an order relieving Hurst as counsel. Therefore, we cannot ascertain

2 (1) whether Brown communicated to Hurst that he wished to appeal any adverse ruling by

the circuit court and (2) whether Hurst complied with Rule 16—that is, whether Hurst acted

within an objective standard of reasonableness in not pursuing an appeal or otherwise

advising Brown regarding his appellate rights. Marek v. State, 2020 Ark. 203. Because proper

disposition of the motion for belated appeal in this case requires findings of fact, which must

be made by the circuit court, we remand this matter to the circuit court for an evidentiary

hearing to determine whether Hurst complied with Rule 16. We direct the circuit court to

enter “Findings of Fact and Conclusions of Law” and submit those findings and conclusions

to this court with the transcript of the evidentiary hearing within 120 days.

Remanded for findings of fact and conclusions of law.