Taylor Milton Todd v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

September 19, 2002

TAYLOR MILTON TODD

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-385

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF OUACHITA COUNTY, NO. CR 2001-4, CR 2001-6, HON. CAROL CRAFTON ANTHONY, JUDGE]

MOTION DENIED

On September 11, 2001, Taylor Milton Todd was found guilty by a jury of aggravated robbery and theft of property for which an aggregate term of 120 months' imprisonment was imposed. The judgment was entered September 17, 2001, and an amended judgment correcting a clerical error was entered September 24, 2001.1 Todd was represented at trial by his appointed attorney, David W. Talley, Jr. No appeal was taken, and Todd now seeks 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 Todd states that he informed Mr. Talley of his desire to appeal, but he does not specify when he did so. It is the practice of this court when a pro se motion for belated appeal isfiled 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 is no order relieving Mr. Talley in the partial record filed with the motion in this case. This affidavit is required because 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, 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 to file a timely notice of appeal. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

In his affidavit, Talley avers that he discussed whether to appeal with petitioner at the conclusion of the trial and told petitioner to think it over and he would check back with him. On September 24, 2001, he again met with petitioner who said that he had decided against appealing. To make a record of the decision, Talley and petitioner appeared before the circuit court at which time petitioner said under oath that he had decided to waive his right to appeal. Talley has appended a transcript of that proceeding to his affidavit.

While it is the better practice for counsel to obtain leave from the lower court to be relieved as counsel if the convicted defendant chooses not to appeal, petitioner Todd advised the court under oath that he had chosen to forego an appeal. There is nothing in the record or in the motion filed by petitioner in this court to indicate that petitioner reconsidered and later advised Talley within the time for filing a timely notice of appeal that he desired to appeal. In these

circumstances, we find that petitioner has failed to establish that he is entitled to a belated appeal of the judgment of conviction.

Motion denied.

1 The judgment was amended again to correct several errors on the face of the judgment on August 6, 2002.