Frank Watts II v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 28, 2000

FRANK WATTS II

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-201

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-2871, HON. MORRIS THOMPSON, JUDGE]

MOTION DENIED

On December 15, 1998, Frank Watts II was found guilty by a jury of multiple felony offenses for which an aggregate term of life imprisonment was imposed. The jury also found Watts to be a habitual offender. Watts was represented at trial by his appointed attorney, Chris Tarver. Judgment was entered-of-record on January 21, 1999. No appeal was taken, and Watts filed a pro se motion here to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure--Criminal, which permits a belated appeal in a criminal case in some instances.

Petitioner Watts contended in the motion that after sentencing he immediately requested in open court that Tarver perfect an appeal.1 As it is the practice of this court when a pro semotion for belated appeal is filed 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, Mr. Tarver was asked to submit an affidavit. The affidavit is needed to act on a motion for belated appeal because, while Rule 16 of the Rules of Appellate Procedure--Criminal 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 that a defendant may waive his right to appeal by his failure to inform counsel of his desire to appeal within the thirty days allowed for filing a timely notice of appeal under Rule 4 (a) of the Rules of Appellate Procedure. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

Mr. Tarver in his affidavit stated that the trial court relieved him of the duty to represent petitioner on appeal after petitioner accused him of being a part of a conspiracy, presumably against him, and insisted that he be allowed to proceed pro se on appeal. Again, the partial record was silent on whether an order was entered relieving Tarver and whether petitioner in fact declared his desire to proceed pro se. As the record did not reflect that Mr. Tarver was relieved as counsel, he was obligated to perfect the appeal, unless petitioner Watts waived his right to appeal by not informing him that he desired an appeal within the thirty days allowed to file a timely notice of appeal. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). See also Davis v.

State, 293 Ark. 203, 736 S.W.2d 281 (1987). It may be assumed that petitioner desired to appeal from his filing of a pro se notice of appeal, but the notice was untimely and thus Tarver had no cause to be aware of it unless petitioner informed him of it. See Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986). If counsel knew that petitioner desired to appeal and an order had not been entered by the trial court relieving him, it was his responsibility to file a timely notice of appeal and perfect the appeal.

Because petitioner and attorney Tarver's claims pertaining to whether petitioner advised Tarver that he desired Tarver to appeal were in direct conflict, the proper disposition of the motion for belated appeal in this case required findings of fact which had to be made in the trial court. Accordingly, we remanded the matter to the circuit court for an evidentiary hearing on the issue of whether counsel was informed by Watts within the time period allowed for filing a notice of appeal that he desired to appeal. 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. Watts v. State, CR 00-201 (April 27, 2000).

The trial court's Findings of Fact and Conclusions of Law and the transcript of the evidentiary hearing are now before us. The court took testimony at the hearing from Watts and Tarver on the question of fact to be resolved. After hearing the testimony, the court concluded that Watts did not advise Tarver within the time allowed for filing a notice of appeal that he desired to appeal despite the opportunity to do so.

As the merit of the motion for belated appeal rested on the credibility of the witnesses and this court recognizes that it is the lower court's task to assess the credibility of witnesses and

resolve any conflicts of fact, we accept the trial court's finding. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The motion for belated appeal is denied.

Motion denied.

1 Watts stated that he filed a pro se notice of appeal before the judgment was entered and that the circuit clerk erroneously refused to prepare the appeal record on the ground that the notice was not timely, having been filed before the judgment; but at the time Watts was convicted, Ark. R. App. P.-Crim. 2 (b) provided that a notice of appeal was invalid if filedbefore the judgment was entered. On June 24, 1999, the rule was amended by per curiam order to provide that a notice of appeal filed after the verdict but before judgment is entered is timely.