Johnson v. State , 2015 Ark. 195 ( 2015 )

Cite as 2015 Ark. 195
SUPREME COURT OF ARKANSAS
No. CR-15-313
JESSICA DENAE JOHNSON Opinion Delivered May 7, 2015
APPELLANT
MOTION FOR RULE ON CLERK
V.
MOTION TREATED AS MOTION
FOR BELATED APPEAL; GRANTED.
STATE OF ARKANSAS
APPELLEE
PER CURIAM
Appellant Jessica Denae Johnson, by and through her attorney, Omar F. Greene, has
filed a motion for rule on clerk with this court. She is seeking to appeal the sentencing order
entered on January 5, 2015, reflecting a conviction for theft of property and a sentence of
eight years in prison. Greene, in the motion for rule on clerk, admits that the notice of appeal
was untimely filed on February 6, 2015, due to his error with no fault attributable to the
appellant. Because a timely notice of appeal was not filed, we treat the motion for rule on
clerk as a motion for belated appeal, pursuant to Rule 2(e) of the Rules of Appellate
Procedure–Criminal (2014). Holcomb v. State, 2013 Ark. 313 (per curiam); Gray v. State, 2010
Ark. 216 (per curiam); Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000) (per curiam).
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). In that case, we said that
there are only two possible reasons for an appeal not being timely perfected: either the party
or attorney filing the appeal is at fault, or, there is “good reason.” McDonald, 356 Ark. at 116,
Cite as 2015 Ark. 195
146 S.W.3d at 891. We explained as follows:
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 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.
Id. (footnotes 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 has erred and
is responsible for the failure to perfect the appeal. Here, in accordance with McDonald, Greene
has candidly admitted fault. Therefore, the motion for belated appeal is granted, and a copy
of this opinion will be forwarded to the Committee on Professional Conduct.
It is so ordered.
2 CR-15-313