Rhodes v. State
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SUPREME COURT OF ARKANSAS
No.
CR 09-306
TERRANCE M. RHODES,
Opinion Delivered
APPELLANT,
April 16, 2009
MOTION FOR BELATED APPEAL
VS.
STATE OF ARKANSAS,
APPELLEE,
GRANTED.
PER CURIAM
Terrance M. Rhodes, by his attorney, J. Brent Standridge, has filed a motion for
belated appeal.
The record reflects the following facts. During Rhodes’s trial, he was represented by
Paul K. Lancaster. On July 14, 2008, the circuit court entered a judgment and commitment
order convicting Rhodes of murder and aggravated robbery and sentencing him to 720
months’ imprisonment. Rhodes’s notice of appeal would have been due by August 13, 2008,
but none was filed. On August 15, 2008, at 2:23 p.m., an order substituting and appointing
J. Brent Standridge as counsel for Rhodes was filed, and at 2:24 p.m., Mr. Standridge filed
a notice of appeal on Rhodes’s behalf. Rhodes’s record would have been due to this court
by November 13, 2008; however, Rhodes timely filed a motion for extension of time, which
was granted by the circuit court, extending the time in which to file the record until January
9, 2009. On January 8, 2009, the record was tendered to this court, and Rhodes now moves
this court for a belated appeal.
In the instant motion, Mr. Standridge takes responsibility for failing to ensure that a
timely notice of appeal was filed. However, Mr. Standridge, at the time Rhodes’s notice of
appeal was to be filed, was not counsel of record for Rhodes. Arkansas Rule of Appellate
Procedure–Criminal 16 (2008) provides, in pertinent part, that “[t]rial 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.” Accordingly, until relieved by the trial court, Mr.
Lancaster was charged with the responsibility of filing a timely notice of appeal on Mr.
Rhodes’s behalf, not Mr. Standridge.1
This court clarified its treatment of motions for rule on clerk and motions for belated
appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said:
Where an appeal is not timely perfected, either the party or attorney filing the
appeal is at fault, or there is good reason that the appeal was not timely
perfected. The party or attorney filing the appeal is therefore faced with two
options. First, where the party or attorney filing the appeal is at fault, fault
should be admitted by affidavit filed with the motion or in the motion itself.
There is no advantage in declining to admit fault where fault exists. Second,
where the party or attorney believes that there is good reason the appeal was
not perfected, the case for good reason can be made in the motion, and this
court will decide whether good reason is present.
1
We note, though, that because Mr. Standridge was substituted and appointed counsel
for Rhodes prior to any notice of appeal being filed, the circuit court was within its
jurisdiction to appoint Mr. Standridge, and his appointment stands. See Ark. R. App.
P.–Crim. 16(a) (“After the notice of appeal of a judgment of conviction has been filed, the
appellate court shall have exclusive jurisdiction to relieve counsel and appoint new
counsel.”).
-2CR 09-306
356 Ark. at 116, 146 S.W.3d at 891 (footnote omitted). While this court no longer requires
an affidavit admitting fault before we will consider the motion, an attorney should candidly
admit fault where he or she has erred and is responsible for the failure to perfect the appeal.
See id. When it is plain from the motion, affidavits, and record that relief is proper under
either rule based on error or good reason, the relief will be granted.
See id. If there is
attorney error, a copy of the opinion will be forwarded to the Committee on Professional
Conduct. See id.
It is plain from the record that Mr. Lancaster was at fault for failing to file a timely
notice of appeal. Pursuant to McDonald v. State, supra, we grant Rhodes’s motion for
belated appeal and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted.
-3-
CR 09-306
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