Brian A. Crossno v. State of Arkanas
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SUPREME COURT OF ARKANSAS
No. CR06-849
Opinion Delivered March 15, 2007
BRIAN A. CROSSNO,
APPELLANT,
UPON REMAND OF FINDINGS OF
FACT ON ATTORNEY ERROR.
VS.
STATE OF ARKANSAS,
APPELLEE,
NO ATTORNEY ERROR.
PER CURIAM
In Crossno v. State, ___ Ark. ___, ___ S.W.3d ___ (Dec. 14, 2006) (“Crossno I”),
we treated a motion for rule on clerk, filed by appellant, Brian A. Crossno, as a motion for
belated appeal, granted appellant’s request to pursue a belated appeal under Ark. R. App.
P.–Crim. 2(e), and denied a motion to be relieved as counsel filed by Mr. James Dunham of
the Arkansas Public Defender Commission. In Crossno v. State, ___ Ark. ___, ___ S.W.3d
___ (Jan. 25, 2007) (“Crossno II”), we granted a petition for rehearing filed by appellant to
reconsider our per curiam opinion and remanded the matter to the circuit court for findings
of fact on the issues surrounding Dunham’s assignment to the case and petitioner’s request
to file an appeal. The circuit court’s findings and a transcript of the hearing are now before
us.
On February 22, 2007, the circuit court entered its order and made the following
findings of fact:
1. Attorney James Dunham was never individually appointed to
represent Brian Crossno.
2. Brian Crossno never advised attorney James Dunham to appeal the
Order Denying Motion for Reconsideration (filed April 26, 2006), or any order
of this court.
3. Attorney James Dunham never had notice of any request by any
person to appeal the Order Denying Motion for Reconsideration because
Brian Crossno never made any such request.
4. Attorney James Dunham’s first notice of the existence of this case
occurred on the afternoon of Friday, May 19, 2006, and he immediately faxed
the clerk that day the Motion to Set Aside Order and Motion to Extend time
to file the record on appeal which the clerk received May 19, 2006, and filemarked May 22, 2006 and May 23, 2006.
5. Based upon the previous hearings and findings of fact in this case
and orders of the Arkansas Supreme Court, it is the law of the case in this
matter that the Defendant Crossno’s failure to file his pro se notice of appeal
in a timely manner constituted a waiver of his right to appeal from the same.
Since the defendant’s motion for reconsideration relates back to the original
order not timely appealed, then the said motion is moot.
Considering the findings of the circuit court, we conclude that there was no attorney
error on the part of Mr. Dunham. Accordingly, we set aside our December 14, 2006 per
curiam opinion finding attorney error and referring Dunham to the Committee on
Professional Conduct. This opinion is referred to the Committee to correct their record.
Further, we note that, in Crossno I, we granted appellant’s motion for belated appeal, and
we denied Dunham’s motion requesting this court to relieve him as counsel. We abide by
our previous holding in Crossno I.
Attorney error excused.
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