MOTION FOR BELATED APPEAL AND RULE ON CLERK AND MOTION FOR
APPOINTMENT OF COUNSEL [PULASKI COUNTY CIRCUIT COURT, NO.
60CR-14-2219] HONORABLE JAMES LEON JOHNSON, JUDGE
A. WOMACK, Associate Justice
Don Michael Cox filed in this court a pro se motion for
belated appeal and rule on clerk. He later filed a pro se
motion for appointment of counsel to represent him in this
court on the motion. Cox seeks to appeal a judgment entered
September 16, 2016, that reflects Cox's conviction on ten
counts of distribution, possession, or viewing of matter
depicting sexually explicit conduct involving a child. The
judgment indicates that Cox entered a guilty plea and was
sentenced by a jury to thirty-six months' imprisonment
for each of the ten counts, with four of the counts to run
consecutively, for an aggregate sentence of 144 months'
incarceration. Cox filed a pro se notice of appeal on October
28, 2016, and on November 1, 2016, his retained attorney,
Stuart Vess, filed a motion to be relieved. There is no order
in the record lodged with the instant motion effective to
grant Vess's motion to be relieved.
the record was tendered to this court, our clerk declined to
lodge it because the notice of appeal was not timely. Under
Arkansas Rule of Appellate Procedure-Criminal 2(a) (2016),
Cox was required to file his notice of appeal within thirty
days of the date of the entry of the judgment, or no later
than October 16, 2016. If the notice of appeal was filed
late, a motion to proceed with the appeal is properly treated
as one for belated appeal. Davis v. State, 2016 Ark.
47, 481 S.W.3d 764 (per curiam).
pro se motion, Cox alleges that he advised counsel that he
wished to appeal before the sentencing order was entered,
that he could not pay the additional compensation his
attorney required for an appeal, that his notice of appeal
was mailed to the circuit clerk in a timely fashion and
should have been filed by the clerk before the deadline, and
that any error that may have occurred concerning the
notice's delivery to the wrong court was clerical error
and not an indication that he did not wish to appeal. Cox
attached to the motion an affidavit in support of a request
to proceed in forma pauperis. The record does not reflect
that Cox's notice of appeal included a notarized
statement as required under Rule 2(b)(3) so that the notice
would be deemed filed as of the date it was deposited in the
detention facility's legal mail system, but the postmark
on the envelope contained in the record indicates that the
notice was posted on October 6, 2016, well before the
expiration of the deadline for filing.
motion to be relieved in the trial court, Vess disputed the
allegation that he was advised of Cox's desire to appeal.
Because Cox is entitled to a direct appeal for the sentencing
phase of his trial, we grant the motion without regard to
whether Cox timely notified his attorney of his desire to
appeal. See Davis v. State, 2016 Ark. 366 (per
curiam) (holding that, although a defendant may waive his
right to appeal by failing to inform counsel of his desire to
appeal within the time for filing a notice of appeal, when
counsel had not been relieved and the defendant is entitled
to a direct appeal as a matter of right, the motion for
belated appeal should be granted).
record does not reflect that Cox entered a conditional plea,
and our rules of appellate procedure generally do not allow
an appeal of a guilty plea. Ark. R. App. P.- Crim. 1(a)
(2016). However, an appeal may be taken after a guilty plea
when it alleges evidentiary errors which arose after the plea
and during the sentencing phase. Johnson v. State,
2010 Ark. 63. Cox is therefore entitled to a direct appeal of
his sentencing hearing only.
the partial record before this court includes a transcript of
a posttrial hearing that indicates that the trial court
granted counsel's motion to be relieved, the record, as
stated, does not contain a written order relieving counsel
from his responsibility to represent Cox on appeal. Under
Arkansas Supreme Court Administrative Order 2(b)(2), an oral
order announced from the bench does not become effective
until reduced to writing and filed of record. Carr v.
Nance, 2010 Ark. 25.
clerk is directed to lodge the partial record. Although the
motion before us was filed by Cox pro se, Vess remains
attorney of record, and the appeal is to be docketed
reflecting as much. See Davis, 2016 Ark. 366, at 1
(noting that Arkansas Rule of Appellate Procedure-Criminal 16
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). As we
grant the motion to proceed with the appeal and Cox is
represented on appeal, his pro se motion for appointment of
counsel is moot.
State has not contested Cox's request to proceed as a
pauper, and we accordingly grant in forma pauperis status to
Cox. Because Vess is attorney of record, he is responsible
for proceeding with the appeal as counsel. Counsel Vess is
directed to file an appropriate petition for writ of
certiorari to complete the record lodged for the appeal
within fourteen days from the date of this order. When the
supplemental record is received, our clerk will set the
briefing schedule for the appeal.
for belated appeal and rule on clerk treated as motion for
belated appeal and granted; in forma pauperis status granted;
writ of certiorari to be filed within fourteen days; motion
for appointment of counsel moot.
 If Mr. Vess would seek appointment as
counsel by this court so that he may be eligible to file a
motion for fees in the matter, he should file an appropriate