Siler v. State

2017 Ark. 45

• Court: Supreme Court of Arkansas
• Decided: February 16, 2017
• Docket: CR-16-609
• Status: Published

Opinion

Cite as 2017 Ark. 45

SUPREME COURT OF ARKANSAS. No. CR-16-609

KENNETH SILER Opinion Delivered February 16, 2017 PETITIONER PRO SE MOTION FOR BELATED V. APPEAL [POLK COUNTY CIRCUIT COURT, STATE OF ARKANSAS NO. 57CR-12-58] RESPONDENT

MOTION DENIED.

PER CURIAM

In 2015, petitioner Kenneth Siler was found guilty by a jury of manufacturing a

controlled substance, possession of drug paraphernalia, and being a felon in possession of a

firearm. He was sentenced to an aggregate sentence of 432 months’ imprisonment. Siler

was represented at trial by his appointed attorney, Brandon Crawford. No appeal was taken

from the judgment of conviction, which was entered on June 26, 2015, and Siler sought in

this court to proceed with a belated appeal pursuant to Arkansas Rule of Appellate

Procedure–Criminal 2(e) (2016), which permits a belated appeal in a criminal case in some

instances. Siler contended that he asked Crawford at the time of sentencing to appeal from

the judgment, but Crawford failed to file a notice of appeal.

It is the practice of this court when a pro se motion for belated appeal is filed in

which the petitioner contends that he made a timely request to appeal, and the record does

not contain an order relieving trial counsel, to request an affidavit from the trial attorney in

response to the allegations in the motion. There was no order relieving Crawford in the

record filed in this case. The affidavit requested of trial counsel is required because Arkansas Cite as 2017 Ark. 45

Rule of Appellate Procedure–Criminal 16 (2016) 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. We have held, however,

that a defendant may waive his right to appeal by his failure to inform counsel of his desire

to appeal within the thirty-day period allowed for filing a notice of appeal under Arkansas

Rule of Appellate Procedure–Criminal 2(a)(4). Jones v. State, 294 Ark. 659, 748 S.W.2d

117 (1988) (per curiam).

In his affidavit, Crawford stated that Siler expressed his desire to appeal on July 16,

2015, but that in a telephone conversation on July 23, 2015, Siler said that he had decided

to forgo an appeal and accept a plea offer in other pending cases. Crawford further averred

that he would have pursued an appeal if Siler had preferred that course of action.

Because Siler’s claims pertaining to whether Siler communicated his final decision to

Crawford on whether to appeal the judgment within the time to file a timely notice of

appeal were in direct conflict with his counsel’s claims, the proper disposition of the motion

for belated appeal required findings of fact, which must be made in the trial court. For that

reason, we remanded the matter to the trial court for an evidentiary hearing on the issue of

whether counsel had been informed by petitioner within the time period allowed for filing

a notice of appeal that he desired to appeal. Siler v. State, 2016 Ark. 330 (per curiam). The

trial court was directed to enter findings of fact and conclusions of law and submit the

findings and conclusions to this court with the transcript of the evidentiary hearing. The

findings of fact and conclusions of Law and the transcript of the hearing are now before us.

2 Cite as 2017 Ark. 45

The trial court took testimony at the hearing from Siler, two witnesses called by

Siler, and Brandon Crawford on the questions of fact to be resolved. In its findings of fact

and conclusions of law, the trial court found that there was no neglect or mistake on

Crawford’s part in his explanation to Siler on whether an appeal was the best course of

action in Siler’s case. The court further found that Siler understood counsel’s advice that it

was better not to appeal from the judgment, and Siler voluntarily and knowingly agreed to

forgo an appeal.

In determining whether a motion for belated appeal should be granted, this court

does not reverse the trial court’s conclusions unless the conclusions are clearly erroneous.

Strom v. State, 348 Ark. 610, 616, 74 S.W.3d 233, 237 (2002). It is well settled that the trier

of fact is free to believe all or part of any witness’s testimony and may resolve questions of

conflicting testimony and inconsistent evidence. Id, 348 Ark. 610, 74 S.W.3d 233. This

court will accept the trial court’s decision on questions of credibility. Frazier v. State, 339

Ark. 173, 3 S.W.3d 334 (1999) (per curiam).

As the merit of Siler’s motion for belated appeal rested entirely on the credibility of

the witnesses, we accept the trial court’s findings that Siler did not articulate a desire to

appeal within the time allowed for counsel to file a timely notice of appeal. See Smith v.

State, 2013 Ark. 166, at 4 (per curiam); see also Strom, 348 Ark. 610, 74 S.W.3d 233; Frazier,

339 Ark. 173, 3 S.W.3d 334. The motion for belated appeal is denied.