Lyons v. State , 2016 Ark. 367 ( 2016 )

Cite as 2016 Ark. 367
SUPREME COURT OF ARKANSAS.
No. CR-16-624
DANIEL LYONS Opinion Delivered October 27, 2016
PETITIONER
PRO SE MOTION FOR BELATED
V. APPEAL
[VAN BUREN COUNTY CIRCUIT
STATE OF ARKANSAS COURT, NO. 71CR-13-67]
RESPONDENT
REMANDED.
PER CURIAM
In 2015, petitioner Daniel Lyons was found guilty by a jury of second-degree sexual
assault and sentenced to 120 months’ imprisonment. Lyons was represented at trial by his
appointed attorney, Ralph J. Blagg. No appeal was taken from the judgment of conviction,
which was entered on January 30, 2015, and Lyons now seeks to proceed with a belated
appeal pursuant to Arkansas Rule of Appellate Procedure–Criminal 2(e) (2015), which
permits a belated appeal in a criminal case in some instances.
Lyons contends that he notified Blagg on January 30, 2015, that he desired to appeal,
that it was his belief that a notice of appeal had been filed, that he never received any
information, and that Blagg had asked to be relieved as counsel in his case. Lyons asserts
that he was unaware until June 14, 2016, that no appeal had been perfected.
When a 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
Cite as 2016 Ark. 367
response to the allegations in the motion. There is no order relieving Blagg in the record
filed in this case. The affidavit requested of trial counsel is required because Arkansas Rule
of Appellate Procedure–Criminal 16 (2015) 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. We have held, however, that a
defendant may waive his right to appeal by his failure to inform counsel of his desire to
appeal within the thirty-day period allowed for filing a notice of appeal under Arkansas Rule
of Appellate Procedure–Criminal 2(a)(4). Sanders v. State, 330 Ark. 851, 956 S.W.2d 868
(1997) (per curiam); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988) (per curiam).
Blagg avers in his affidavit that Lyons did not express his desire to appeal within the
time period to file a timely notice of appeal, nor did Lyons correspond with him regarding
the status of the appeal. He states that Lyons instead wrote a letter to the circuit clerk almost
eighteen months after the judgment had been entered inquiring as to which attorney was
appointed to represent him on appeal, which suggests that Lyons did not expect Blagg to
perfect the appeal. Blagg also denies Lyons’s claims that Lyons corresponded with him after
he had been convicted. Blagg states that he had no contact with Lyons until he received a
letter from Lyons dated June 9, 2016.
Lyons’s and counsel’s claims pertaining to whether Lyons communicated his desire
to appeal to Blagg within the time to file a timely notice of appeal are in direct conflict.
Because the 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
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Cite as 2016 Ark. 367
an evidentiary hearing on the issue of whether counsel was informed by petitioner within
the time period allowed for filing a notice of appeal that he desired to appeal. The trial
court is directed to enter “Findings of Fact and Conclusions of Law” within ninety days and
submit the findings and conclusions to this court with the transcript of the evidentiary
hearing.
Remanded.
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