Neal v. State

Supreme Court of Arkansas

Neal v. State

868 S.W.2d 32, 314 Ark. 409, 1993 Ark. LEXIS 549

CourtSupreme Court of Arkansas

DecidedOctober 11, 1993

DocketCR 93-424

StatusPublished

This text of 868 S.W.2d 32 (Neal v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Neal v. State, 868 S.W.2d 32, 314 Ark. 409, 1993 Ark. LEXIS 549 (Ark. 1993).

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Opinion

Per Curiam.

In 1992 the petitioner Rickey Neal was found guilty by a jury of manslaughter and was sentenced to ten years imprisonment. He was represented at trial by Jerry Sailings, a deputy public defender. No appeal was taken, and petitioner sought a belated appeal pursuant to Criminal Procedure Rule 36.9. Mr. Sailings filed an affidavit in response to the motion. As the statements of petitioner and Sailings were in conflict as to whether petitioner informed Sailings of his desire to appeal within the time for filing a timely notice of appeal, the matter was remanded to the trial court for an evidentiary hearing. The transcript of that hearing and the trial court’s written Findings of Fact and Conclusions of Law are now before us.¹

Petitioner contended in the motion for belated appeal that he advised counsel of his desire to appeal immediately after the guilty verdict was entered and that he did not learn until six months after sentencing that an appeal had not been perfected. He stated that he did not sign a waiver of appeal, but that if he did sign such a waiver, it was not a “willful and intelligent” waiver.

Sailings averred in an affidavit filed in response to the motion for belated appeal that he thoroughly explained the right to appeal to petitioner after trial and that petitioner chose not to appeal. Sailings attached to his affidavit an undated statement signed by the petitioner without notarization stating that he was waiving his right to appeal.

The trial court heard testimony from petitioner, who was represented by counsel, and Sailings on the fact question to be resolved. The contentions of petitioner and Sailings were essentially those made to this court. The court concluded that Sailing’s testimony was the more credible. This court recognizes that it is the trial court’s task to hear witnesses and assess their credibility. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). We accept the trial court’s finding that petitioner voluntarily chose not to appeal. As a result, the motion for belated appeal is denied.

Motion denied.

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Per Curiam.

In 1992 the petitioner Rickey Neal was found guilty by a jury of manslaughter and was sentenced to ten years imprisonment. He was represented at trial by Jerry Sailings, a deputy public defender. No appeal was taken, and petitioner sought a belated appeal pursuant to Criminal Procedure Rule 36.9. Mr. Sailings filed an affidavit in response to the motion. As the statements of petitioner and Sailings were in conflict as to whether petitioner informed Sailings of his desire to appeal within the time for filing a timely notice of appeal, the matter was remanded to the trial court for an evidentiary hearing. The transcript of that hearing and the trial court’s written Findings of Fact and Conclusions of Law are now before us.¹

Petitioner contended in the motion for belated appeal that he advised counsel of his desire to appeal immediately after the guilty verdict was entered and that he did not learn until six months after sentencing that an appeal had not been perfected. He stated that he did not sign a waiver of appeal, but that if he did sign such a waiver, it was not a “willful and intelligent” waiver.

Sailings averred in an affidavit filed in response to the motion for belated appeal that he thoroughly explained the right to appeal to petitioner after trial and that petitioner chose not to appeal. Sailings attached to his affidavit an undated statement signed by the petitioner without notarization stating that he was waiving his right to appeal.

The trial court heard testimony from petitioner, who was represented by counsel, and Sailings on the fact question to be resolved. The contentions of petitioner and Sailings were essentially those made to this court. The court concluded that Sailing’s testimony was the more credible. This court recognizes that it is the trial court’s task to hear witnesses and assess their credibility. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). We accept the trial court’s finding that petitioner voluntarily chose not to appeal. As a result, the motion for belated appeal is denied.

Motion denied.

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Bluebook (online)

868 S.W.2d 32, 314 Ark. 409, 1993 Ark. LEXIS 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-state-ark-1993.

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