Jeffrey Brown v. State of Arkansas

2022 Ark. 101, 644 S.W.3d 247

• Court: Supreme Court of Arkansas
• Decided: May 19, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 101 SUPREME COURT OF ARKANSAS No. CV-21-120

Opinion Delivered: May 19, 2022 JEFFREY BROWN PETITIONER MOTION FOR BELATED APPEAL V. [LINCOLN COUNTY CIRCUIT COURT, NO. 40CV-20-39] STATE OF ARKANSAS

RESPONDENT MOTION FOR BELATED APPEAL GRANTED.

JOHN DAN KEMP, Chief Justice

Petitioner Jeffrey Brown filed a motion for belated appeal from a circuit court order

dismissing a petition for writ of habeas corpus that had been filed on his behalf by attorney

Josh Q. Hurst. Following a remand of the matter to the circuit court for findings of fact and

conclusions of law, we grant the motion for belated appeal.

I. Facts

On May 8, 1982, Brown entered a negotiated plea of guilty to first-degree murder and

was sentenced to life imprisonment. On March 4, 2020, Hurst filed a petition for writ of

habeas corpus on Brown’s behalf. The circuit court denied the petition on May 5, 2020. On

March 15, 2021, Brown filed a motion for belated appeal. Brown alleged in his motion that

Hurst did not send him the order dismissing the petition until the time to file an appeal had expired and that Brown had not waived his right to appeal. 1 A partial record was tendered

to this court also on March 15, 2021. The partial record reflected that Hurst did not file a

motion to be relieved as counsel for Brown.

On May 21, 2021, this court directed Hurst by per curiam order to file a response to

the motion for belated appeal. Accordingly, Hurst responded, disputing the allegations in

Brown’s motion and stating that he had sent the order denying the habeas petition to Brown

on two occasions. However, Hurst did not state that he had 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 from the circuit court’s order.

As a result of the conflicting allegations in the motion for belated appeal and the

affidavit submitted by Hurst, the matter was remanded to the circuit court for a hearing and

entry of an order setting out findings of fact and conclusions of law on whether Hurst had

acted in keeping with Rule 16 of the Arkansas Rules of Appellate Procedure–Criminal

(2020). Brown v. State, 2021 Ark. 189, at 1–3. The circuit court held a hearing that included

the testimony of Hurst and Brown and the admission of two letters that Hurst sent to Brown

following the dismissal of the habeas petition.

On February 16, 2022, the circuit court entered its order, and the supplemental

record was filed in this court the following day. The circuit court concluded that Hurst did

not act within an objective standard of reasonableness in not pursuing the appeal or

1 Brown’s motion for belated appeal was filed within the eighteen-month time limitation to file the motion. See Ark. R. App. P.–Crim. 2 (2020).

2 otherwise advising Brown of his appellate rights. The circuit court’s finding was based on the

following: (1) Hurst did not establish that he had entered into an agreement with Brown

that approved limited representation of Brown that did not encompass appellate

representation, (2) Hurst had failed to withdraw from representation after the order

dismissing the petition was entered, and (3) there was no evidence that Brown had

affirmatively waived the right to appeal the order dismissing the habeas petition. The circuit

court also noted that the second letter, sent by Hurst to Brown after Hurst became aware

that Brown had not received his first letter, did not inform Brown of the right to appeal. The

circuit court further noted inconsistencies between statements made in Hurst’s affidavit and

Hurst’s testimony at the hearing. We now consider Brown’s motion.

II. Motion for Belated Appeal

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

trial 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). However, 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). Smith v. State, 2020 Ark. 171,

at 2–3.

This court recognizes that when a case is remanded to the circuit court for a factual

determination regarding a motion for belated appeal, and the merits of that motion rest on

3 the credibility of the witnesses, it is the circuit court’s task to assess the credibility of the

witnesses. Strom v. State, 348 Ark. 610, 614, 74 S.W.3d 233, 235 (2002). This court does not

attempt to weigh the evidence or assess the credibility of the witnesses; that lies within the

province of the trier of fact. Id., 74 S.W.3d at 235. Likewise, we have long held that the trier

of fact is free to believe all or part of a witness’s testimony. Id., 74 S.W.3d at 235. In

determining whether to grant a motion for belated appeal, this court does not reverse the

circuit court’s conclusion of law on the basis of its findings of fact unless the conclusion is

clearly erroneous. Smith, 2020 Ark. 171, at 3.

Here, the circuit court’s findings and conclusions were not clearly erroneous. Thus,

for the reasons articulated by the circuit court, we grant the motion for belated appeal. Our

clerk is directed to lodge the tendered record. Because Hurst is attorney of record, he is

responsible for proceeding as counsel.

Motion for belated appeal granted.