JAMES D. CRIBBS PETITIONER
STATE OF ARKANSAS RESPONDENT
MOTION FOR BELATED APPEAL [PULASKI COUNTY CIRCUIT COURT,
SEVENTH DIVISION, NOS. 60CR-16-3944; 60CR-16-3964]
DAN KEMP, CHIEF JUSTICE
James D. Cribbs was found guilty of several drug charges and
fleeing. His bench trials were conducted on the same day in
two criminal cases. The judgments entered on February 21,
2018, reflect that he was sentenced, as a habitual offender
in both instances, to an aggregate sentence of 120
months' imprisonment. Cribbs filed a pro se motion for
belated appeal in which he contends that his retained trial
counsel, Josh Hurst, failed to pursue an appeal on his
behalf, and he requests permission to proceed as a pauper.
Because proper disposition of the matter requires findings of
fact, we remand the matter to the trial court for an
contends that, following the guilty verdict at trial, he
requested that Hurst file an appeal in the matter. Cribbs
alleges that Hurst agreed to do so and that Hurst indicated
about a month later that it had been done, but when
Cribbs's mother later made inquiries at this court
concerning the status of the appeal, she discovered that
Hurst had not filed anything. Cribbs indicates that, after
confirming that an appeal had been filed, Hurst
"disappeared" and that he has not heard from him.
pro se motion for belated appeal is filed in which the
petitioner contends that he made a timely request to appeal
and the record does not contain an order relieving trial
counsel, it is the practice of this court to request an
affidavit from the trial attorney in response to the
allegations in the motion. Beene v. State, 2018 Ark.
120. There is no order relieving Hurst in the partial record
affidavit, Hurst contends that, although he did initially
tell Cribbs that he would file a notice of appeal for the two
cases, in later discussions with Cribbs and Cribbs's
mother, a decision was made not to pursue an appeal. Hurst
alleges that he was given information from Cribbs's
mother concerning the Arkansas Department of Correction's
calculation of a release date and that the ultimate decision
was based on the risk that an appeal might result in a
potentially longer period of incarceration.
Rule of Appellate Procedure-Criminal 16 (2018) 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. Ark. R. App. P.-Crim. 16(a)(i). A
defendant may nevertheless waive his right to appeal by his
failure to inform counsel of his or her desire to appeal
within the thirty-day period allowed for filing a notice of
appeal under Arkansas Rule of Appellate Procedure-Criminal
2(a). Beene, 2018 Ark. 120.
Hurst concedes that he was initially directed to appeal in
the two cases, the claims pertaining to whether Cribbs
rescinded that direction and communicated to Hurst his desire
not to appeal are in direct conflict. There remains a
question of whether and when Cribbs communicated to Hurst
that he did not wish to appeal and whether Hurst complied
with Rule 16: that is, whether Hurst acted within an
objective standard of reasonableness in not pursuing an
appeal. See Strom v. State, 348 Ark. 610, 74 S.W.3d
233 (2002). Because proper disposition of the motion for
belated appeal in this case requires findings of fact, which
must be made in the trial court, we remand this matter to the
trial court for an evidentiary hearing on the issue of
whether and when counsel was informed by petitioner that
petitioner desired not to appeal and whether counsel complied
with Rule 16.
because Hurst was retained after another attorney was
initially appointed to represent Cribbs, additional findings
of fact are required concerning Cribbs's request to
proceed on appeal as a pauper. If there was a change in
Cribbs's circumstances or if Hurst was paid by someone
other than Cribbs, there are many factors to be considered.
See Berger v. Kelley, 2018 Ark. 381, 563 S.W.3d 557
(noting that the ability of bystanders such as friends and
family members to assist with expenses is not a factor in
determining a petitioner's indigency, although an
exception may be made if the petitioner has control or
complete discretionary use of funds raised by others);
see also Burmingham v. State, 342 Ark. 95, 27 S.W.3d
351 (2000) (setting out the criteria to be used in
determining the indigency of a defendant). The evidentiary
hearing should therefore also address Cribbs's claim that
he is indigent. The trial court is directed to enter
"Findings of Fact and Conclusions of Law" within
ninety days and submit those findings and conclusions to this
court with the transcript of the evidentiary hearing.
for findings of fact and conclusions of law.
Josephine Linker Hart, Justice, dissenting.
Cribbs has a constitutional right to appeal his criminal
conviction. The only strict time limitation on this right to
appeal is found in Rule 2(e) of the Arkansas Rules of
Appellate Procedure-Criminal, which states that a criminal
appeal must be pursued within eighteen months of a
conviction. However, even this deadline may be
"equitably tolled." Id. No matter what Mr.
Cribbs may have discussed with his attorney, those
discussions do not constitute a waiver of his right to appeal
because he filed his motion for a belated appeal well within
the eighteen months specified by Rule 2(e).
mindful that Mr. Cribbs's trial counsel is worried about
being sent to the Professional Conduct Committee. However, a
close reading of our case law shows that this is a practice
that we have quietly abandoned. The bottom line is Mr.
Cribbs's right to an appeal is not jeopardized by what
he-or his mother-may have told his retained counsel. In my
view, the evidentiary hearing that this court has ordered is
an abdication by this court of our ...