JUSTIN R. SIMPSON PETITIONER
v.
STATE OF ARKANSAS RESPONDENT
PRO SE
MOTION AND AMENDED MOTION FOR BELATED APPEAL [POLK COUNTY
CIRCUIT COURT, NO. 57CR-18-47]
ROBIN
F. WYNNE, Associate Justice
Petitioner
Justin R. Simpson asked this court to allow him to proceed
with a belated appeal of a judgment reflecting his conviction
on charges of fleeing and two counts of endangering the
welfare of a minor. Because Simpson made representations
conflicting with those made by the attorney who represented
him, we remanded the matter to the trial court for findings
of fact as to whether Simpson was advised of his right to
appeal and, if so, whether Simpson timely notified his
attorney of his desire to appeal. Simpson v. State,
2019 Ark. 140. The supplemental record has been returned. The
trial court found that Simpson's testimony-in which he
stated that he had not entered a guilty plea, had not been
notified of his right to appeal, and was ignorant about what
was involved in an appeal until a fellow inmate helped
him-was simply not credible. We deny Simpson's pro se
motion and amended motion for belated appeal.
Arkansas
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. However, a defendant may waive
the right to appeal by failing 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). Cribbs v. State, 2019 Ark.
158.
When,
as here, a case is remanded to the trial court for a factual
determination regarding a motion for belated appeal, and the
merits of that motion rest on the credibility of the
witnesses, this court recognizes that it is the trial
court's task to assess the credibility of the witnesses.
Strom v. State, 348 Ark. 610, 74 S.W.3d 233 (2002).
This court does not attempt to weigh the evidence or assess
the credibility of the witnesses; that lies within the
province of the trier of fact. Id. We are bound by
the fact-finder's determination on the credibility of
witnesses, and we have long held that the trier of fact is
free to believe all or part of a witness's testimony.
Id. In determining whether to grant a motion for
belated appeal, this court does not reverse the trial
court's conclusion of law based on its findings of fact
unless the conclusion is clearly erroneous. Beene v.
State, 2018 Ark. 380, 562 S.W.3d 826.
The
trial court found that the public defender who represented
Simpson, Brandon Crawford, had testified credibly about
Simpson's entering a guilty plea followed by jury
sentencing.[1] Crawford testified that, after the jury
made its decision, he advised Simpson that he had a right to
appeal the sentencing order and that he had thirty days in
which to make the decision. Crawford said that Simpson told
him that he wanted to speak to his family about the appeal,
and that Simpson failed to advise him of his desire to appeal
before the time for filing a notice of appeal had expired.
The
merits of Simpson's motions for belated appeal rested
entirely on the credibility of the witnesses. See
id. The trial court found that, as Crawford testified,
Simpson was advised about his right to appeal-including the
time frame in which the notice of appeal must be filed. The
trial court further found that Simpson did not timely
articulate a desire to appeal, and its findings indicate that
Crawford had acted in a professionally reasonable manner by
not filing a notice of appeal. The trial court's
conclusions are supported by the transcript, and we therefore
accept the trial court's findings and deny the motions
for belated appeal. Strom, 348 Ark. 610, 74 S.W.3d
233.
Motions
denied.
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Notes:
[1]There was a discrepancy between
Crawford's statement in his affidavit that the jury
sentencing had followed Simpson's guilty plea and a
notation on the sentencing order in the record. We requested
that the supplemental record include the amended judgment
reflecting a correction, if there had in fact been a clerical
error in that regard. Simpson, 2019 Ark. 140. The
supplemental record includes a copy of a "6th
Amended" sentencing order that does reflect that Simpson
entered a plea and was sentenced as a habitual offender by
the jury. The supplemental record also includes ...