Raymond Sanders v. State of Arkansas

Raymond SANDERS v. STATE of Arkansas

CR 97-679                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 7, 1997


1.   Appeal & error -- postconviction relief -- original attorney obligated to
     continue representation and to lodge record. -- Had petitioner had
     been proceeding pro se throughout his A.R.Cr.P. Rule 37
     proceeding, or had the record reflected that the attorney who
     filed the original Rule 37 petition had been relieved as
     counsel, the supreme court would not have hesitated to find
     that petitioner, who did not tender the Rule 37 record in a
     timely manner, had failed to exercise diligence in pursuing
     the appeal; because, however, he was not proceeding pro se
     orginally, his attorney was obligated to obtain a ruling on
     the Rule 37 petition and remain as petitioner's attorney until
     relieved by the trial court or the supreme court; even though
     petitioner filed an pro se amended petition and a pro se
     notice of appeal, his attorney had not been relieved and was
     thus obligated to continue representing him, which included
     lodging the Rule 37 record.  

2.   Appeal & error -- postconviction relief -- appeal of order denying --
     appellate rule providing for continued representation of counsel
     applicable. -- Rule 16 of the Rules of Appellate Procedure--
     Criminal, which provides that counsel, whether retained or
     court-appointed, shall continue to represent a convicted
     defendant throughout any appeal to the Arkansas Supreme Court,
     unless permitted by the trial court or the supreme court to
     withdraw, applies to appeals of orders denying postconviction
     relief.

3.   Appeal & error -- motion for rule on clerk granted. -- Where another
     attorney had undertaken to represent petitioner pro bono, the
     supreme court accepted his appearance as counsel, relieved the
     attorney who filed the original Rule 37 petition, and granted
     the motion for rule on clerk.


     Pro Se Motion for Rule on the Clerk; granted.
     Petitioner, pro se.
     No response.

     Per Curiam. 
     Raymond Sanders was found guilty of capital felony murder in
the death of Frederick LaSalle and sentenced to life imprisonment
without parole.  We affirmed the judgment.  Sanders v. State, 310
Ark. 510, 838 S.W.2d 359 (1992).  The mandate was issued October
23, 1992.
     On December 4, 1992, Tona M. DeMers, counsel for Sanders,
filed in the trial court a petition pursuant to Criminal Procedure
Rule 37 challenging the judgment.  On October 1, 1996, Sanders
filed a pro se amended petition under Rule 37.  There is no order
in the record relieving DeMers as counsel and nothing which
explains why the original petition remained pending for nearly four
years.  The trial court entered an order on October 10, 1996,
declaring the Rule 37 petition to be untimely and dismissing it. 
A timely pro se notice of appeal was filed by Sanders on November
8, 1996.  The record was not tendered to this court within ninety
days as required by Rule 5(a) of the Rules of Appellate Procedure,
and Sanders, by his attorney Jeff Rosenzweig who is representing
him pro bono, now seeks a rule on clerk to have the record lodged
belatedly.
     The sole issue before us at this juncture is whether
petitioner Sanders has established good cause for the failure to
lodge the record in a timely manner.  If petitioner had been
proceeding pro se throughout the Rule 37 proceeding, or if the
record reflected that the attorney who filed the original Rule 37
petition had been relieved as counsel, we would not hesitate to
find that petitioner had failed to exercise diligence in pursuing
the appeal.  He was, however, not proceeding pro se orginally, and
his attorney, Tona M. DeMers, was obligated to obtain a ruling on
the Rule 37 petition and remain as petitioner's attorney until
relieved by the trial court or this court.  Rule 16 of the Rules of
Appellate Procedure--Criminal provides that counsel, whether
retained or court-appointed, shall continue to represent a
convicted defendant throughout any appeal to the Arkansas Supreme
Court, unless permitted by the trial court or this court to
withdraw.  The rule applies to appeals of orders denying
postconviction relief.  Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989).  Even though petitioner Sanders filed an pro se amended
petition and a pro se notice of appeal, his attorney had not been
relieved and was thus obligated to continue representing him, which
included lodging the Rule 37 record here.
     Because attorney Jeff Rosenzweig has undertaken to represent
Sanders pro bono, we will accept his appearance as counsel and
relieve Ms. DeMers.  The motion for rule on clerk is granted.
     A copy of this opinion will be forwarded to the Committee on
Professional Conduct.
     Motion granted.