Summary
The Supreme Court of Arkansas granted Brian Crossno's petition for rehearing and remanded the case to the Johnson County Circuit Court. The circuit court was directed to determine whether appointed counsel had notice of the assignment, the petitioner's request to appeal, and the relevant orders and proceedings concerning the untimely appeal.
Topics
Practice areas
Questions Presented
- Whether the prior findings that counsel failed to timely file a notice of appeal should be set aside when the record and submissions did not establish whether counsel had notice of his appointment, the case, or Crossno's request to appeal.
- Whether unresolved factual questions concerning attorney error in failing to perfect an appeal should be remanded to the circuit court for findings.
Holdings
- When it is not plain from the motion, affidavits, and record whether attorney error caused the failure to perfect an appeal, the appellate clerk should accept the notice of appeal or record, the appeal should proceed without delay, and the issue of attorney error should be remanded to the trial court for factual findings.
- The petition for rehearing should be granted, and the case should be remanded to the Johnson County Circuit Court for a full determination of the relevant notice and appointment facts.
Key quotations
“However, where a motion seeking relief from failure to perfect an appeal is filed and it is not plain from the motion, affidavits, and record whether there is attorney error, the clerk of this court will be ordered to accept the notice of appeal or record, and the appeal will proceed without delay.” (247 S.W.3d at 845)
“Petition granted; case remanded to the circuit court.” (247 S.W.3d at 845)
Factual background
The circuit court entered an order denying Crossno's pro se motion for reconsideration and petition for alternative public service work on April 5, 2006, and filed it on April 21, 2006. On April 26, 2006, the court appointed the Arkansas Public Defender Commission to represent Crossno and stated that a copy of the order had been sent to James Dunham. Dunham asserted that he never received the appointment order, was never appointed by the Supreme Court, and first received notice of the case on May 23, 2006, when he moved for additional time to file the appellate record.
Procedural history
The Supreme Court had previously treated Crossno's motion for rule on clerk as a motion for belated appeal, denied counsel's motion to withdraw, granted permission to pursue a belated appeal, found that counsel had failed to file a timely notice of appeal, and referred the matter to the Committee on Professional Conduct. On rehearing, the court found that the record did not plainly establish whether counsel had notice of his appointment, the case, or Crossno's request to appeal. The court therefore remanded to the Johnson County Circuit Court for factual findings.
Remand instructions
The Johnson County Circuit Court must make full factual findings on whether James Dunham had notice of his assignment to the case, notice of Crossno's request to file an appeal, and notice of the case between April 21, 2006, and May 23, 2006. After receiving those findings, the Supreme Court will decide the issue of attorney error.