McCulley v. State

2013 Ark. 515

• Court: Supreme Court of Arkansas
• Decided: December 12, 2013
• Docket: CR-13-715
• Status: Published

Opinion

Cite as 2013 Ark. 515

SUPREME COURT OF ARKANSAS No. CR-13-715

TROY LAWRENCE MCCULLEY Opinion Delivered December 12, 2013

APPELLANT MOTION FOR RULE ON CLERK

V.

STATE OF ARKANSAS GRANTED. APPELLEE

PER CURIAM

Troy Lawrence McCulley, by and through his attorney, Steven Ray Davis, has filed

his second motion for rule on clerk. On September 5, 2013, we remanded his prior motion

to the circuit court for a determination whether the attorney for McCulley had been asked

to perfect this appeal.

On February 22, 2013, McCulley was convicted of one count of rape and four counts

of possession of drug paraphernalia. He was sentenced to a total of 360 months’

imprisonment on the rape conviction and fined $1000 on each of count of possession of drug

paraphernalia. McCulley’s trial counsel, John May, filed a notice of appeal on March 12,

2013. More than 90 days elapsed following the filing of the notice of appeal, and attorney

May did not file an extension to complete the record. After the filing of the notice of appeal,

the appellate courts of this state have exclusive jurisdiction to relieve counsel. Ark. R. App.

P.–Crim. 16(a)(ii).

McCulley’s family procured a transcript and tendered it to this court with the motion Cite as 2013 Ark. 515

we have before us. McCulley has retained Attorney Steven Ray Davis. He contends that the

appeal is filed late solely as a result of Attorney May’s failure to request an extension of time

for the court reporter to complete the record as provided by Rule 5(b) of the Arkansas Rules

of Appellate Procedure–Civil.

After Attorney Davis filed McCulley’s first motion for rule on clerk, we remanded the

case to the circuit court for a determination of whether Attorney May was asked to perfect

the appeal. On October 2, 2013, the circuit court conducted a hearing.

At the conclusion of the testimony, the circuit court found that two parties, McCulley

and Timmons, had requested Attorney May to perfect the appeal, that the parties gave

Attorney May money for the transcript, and had taken steps to see that the transcript was

prepared and filed. The Circuit Court noted further that there was no indication that a

request to be relieved had been filed by Attorney May.

The circuit court has complied with our September 5, 2013 order. In accordance with

Rule 16(a)(iii) of the Arkansas Rules of Appellate Procedure–Criminal, we relieve Attorney

May and recognize Attorney Davis as the counsel of record for this appeal. Further, in

accordance with Rule 2(e), we grant McCulley’s motion for rule on clerk as he has shown

good cause to proceed.

The failure to perfect this appeal appears to lie with McCulley’s trial counsel, Attorney

John May. Therefore, a copy of the opinion will be forwarded to the Committee on

Professional Conduct. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004).

Motion granted.

2 Cite as 2013 Ark. 515

HANNAH, C.J.; DANIELSON, GOODSON, JJ., concur.

PAUL E. DANIELSON, Justice, concurring. I respectfully concur. On August 15,

2013, appellant Troy Lawrence McCulley, by and through attorney Steven R. Davis,

tendered the record and moved this court for rule on clerk. In his motion, McCulley stated

that his retained trial counsel, John May, had timely filed a notice of appeal, but had not

perfected McCulley’s appeal by timely filing the record with this court’s clerk. McCulley

stated that Mr. May had not been permitted to withdraw from his representation, but that

McCulley had since retained Mr. Davis to represent him on appeal. Per order of this court

on September 5, 2013, the matter was remanded to the circuit court for a determination of

whether Mr. May had been requested to perfect an appeal on McCulley’s behalf. The record

on remand was filed with this court on November 15, 2013, and McCulley’s motion for rule

on clerk is before this court once more.

In its findings made on remand, the circuit court specifically found that McCulley had

indeed requested Mr. May to perfect an appeal on his behalf. Arkansas Rule of Appellate

Procedure–Criminal 16(a)(i) (2013) requires that trial counsel, whether retained or court-

appointed, continue to represent a defendant throughout any appeal unless permitted by the

trial court or this court to withdraw in the interest of justice or for other sufficient cause.

Accordingly, Mr. May was responsible for perfecting McCulley’s appeal once he was

requested to do so.

This court clarified its treatment of motions for rule on clerk and motions for belated

appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:

3 Cite as 2013 Ark. 515

Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires

an affidavit admitting fault before we will consider the motion, an attorney should candidly

admit fault where he or she has erred and is responsible for the failure to perfect the appeal.

See id. When it is plain from the motion, affidavits, and record that relief is proper under

either rule based on error or good reason, the relief will be granted. See id. If there is

attorney error, a copy of the opinion will be forwarded to the Committee on Professional

Conduct. See id.

It is plain from the instant motion and record that there was error on Mr. May’s part.

Pursuant to McDonald, supra, I concur in granting McCulley’s motion for rule on clerk and

the forwarding of a copy of this opinion to the Committee on Professional Conduct. I would

further relieve Mr. May and permit Mr. Davis to substitute as counsel for McCulley. Under

the foregoing analysis, I respectfully concur.

HANNAH, C.J., and GOODSON, J., join.