Walker M. Smith

2019 Ark. 295

• Court: Supreme Court of Arkansas
• Decided: October 24, 2019
• Status: Published

Opinion

Cite as 2019 Ark. 295 SUPREME COURT OF ARKANSAS No. CR-18-915

Opinion Delivered October 24, 2019 WALKER M. SMITH PETITIONER PRO SE MOTION FOR BELATED APPEAL V. [DESHA COUNTY CIRCUIT COURT, NO. 21ACR-16-77] STATE OF ARKANSAS RESPONDENT REMANDED FOR EVIDENTIARY HEARING.

COURTNEY RAE HUDSON, Associate Justice

On July 5, 2017, an amended sentencing order was entered reflecting that

petitioner Walker M. Smith had been convicted of possession of methamphetamine with

purpose to deliver; two counts of possession of paraphernalia; and four additional counts

of possession of controlled substances. Concurrent sentences were imposed by the trial

court for an aggregate sentence of 240 months’ imprisonment. On November 6, 2018, a

partial record was tendered in this court consisting of the amended sentencing order, and

on the same date, Smith filed the motion for belated appeal that is now before this court,

requesting leave to proceed with a belated appeal of his convictions. Smith’s motion for

belated appeal was filed within the eighteen-month time limitation to file the motion. See

Ark. R. App. P.–Crim. 2 (2018).

In his motion, Smith alleges that he was tried by and convicted at a bench trial and

alleges that he had informed his retained counsel, John Hall, that he “was financially unable to pay him for any possible needed appeal.” However, Smith attached to his

belated-appeal motion an affidavit asserting that he had instructed Hall to perfect an

appeal from his convictions, but Smith fails to reveal in his affidavit if the alleged request

for an appeal was made within the requisite time frame for filing a notice of appeal. See

Cribbs v. State, 2019 Ark. 158 (A defendant waives his right to appeal by his failure to

inform counsel of his or her desire to appeal within the thirty-day period allowed for filing

a notice of appeal.).

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, it is the practice of this court to request an affidavit from trial counsel in

response to the allegations in the motion. Id. As stated above, the trial record consists

solely of the amended sentencing order and there is no evidence that trial counsel was

relieved from representing Smith.

In his affidavit, Hall contends that Smith admitted guilt to the trial court, and the

bench trial consisted of an attempt to mitigate any sentence that would be imposed. Hall

further contends that he informed Smith of his right to appeal but also that the appeal

would likely consist of a “no merit” brief as Smith had admitted his guilt to the trial court,

and the sentence was well within the sentencing range set by statute. Finally, Hall avers

that “[n]ever once did anybody, Mr. Smith or his mother or father, say anything about

appealing after being told of the absolute right to appeal.” (Emphasis in original.)

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

2 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).

In view of the above, there remains a question of fact whether Smith communicated

to Hall that he wished to appeal, and whether his request to appeal was made within the

required thirty-day time period. Further, there remains a question whether Hall complied

with Rule 16 and acted within an objective standard of reasonableness in not pursuing an

appeal. Cribbs, 2019 Ark. 158 (citing 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 trial court, we remand this matter to the trial court for

an evidentiary hearing to determine whether and when petitioner informed counsel that

he did not wish to appeal and whether counsel complied with Rule 16. The court is

directed to enter findings of fact and conclusions of law within ninety days of the date of

this opinion and submit the findings and conclusions to this court with the transcript of

the evidentiary hearing.

Remanded for evidentiary hearing.