Tony Ray Reeves v. State of Arkansas

2020 Ark. App. 351

Opinion

Cite as 2020 Ark. App. 351 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-07 13:05:02 Foxit PhantomPDF Version: 9.7.5 No. CR-20-299

Opinion Delivered: July 15, 2020 TONY RAY REEVES APPELLANT APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT V. [NO. 01DCR-17-47]

PRO SE MOTIONS FOR BELATED APPEAL AND FOR APPOINTMENT STATE OF ARKANSAS OF COUNSEL APPELLEE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

Tony Ray Reeves filed pro se motions for a belated appeal and for appointment of

counsel. Reeves alleged that after he was convicted of delivery of methamphetamine, a Class

C felony, he advised his attorney, Kyle Stoner, that he wished to appeal the conviction but

that Mr. Stoner did not file a timely notice of appeal. Mr. Stoner has responded in an

affidavit, and he disputes that account, contending that Reeves did not advise him that he

wished to appeal the conviction. In the sentencing order, the circuit court checked the box

indicating that Reeves was not informed of his appellate rights. Because proper disposition

of the matter requires findings of fact, we remand the matter to the circuit court for an

evidentiary hearing. Arkansas Rule of Appellate Procedure–Criminal 16 (2019) 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 circuit 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). A defendant may nevertheless waive the right to appeal by the

defendant’s 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). Beene v. State, 2018 Ark. 120.

The record on appeal does not contain an order relieving Mr. Stoner, so the question

remains whether and when Reeves communicated to Mr. Stoner that he wished to appeal

and whether Mr. Stoner complied with Rule 16—that is, whether Mr. Stoner acted within

an objective standard of reasonableness in not pursuing an appeal. See Strom v. State, 348

Ark. 610, 74 S.W.3d 233 (2002). Because proper disposition of the motion for belated

appeal in this case requires findings of fact, which must be made in the circuit court, we

remand this matter to the circuit court for an evidentiary hearing on the issue of whether

and when Reeves informed Mr. Stoner that he wished to appeal his conviction and whether

Mr. Stoner complied with Rule 16. Marek v. State, 2020 Ark. 203. The circuit court is

directed 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 ninety days.

Remanded for findings of fact and conclusions of law.