                                  Cite as 2018 Ark. 380
                  SUPREME COURT OF ARKANSAS
                                      No.   CR-18-107


 CECIL D. BEENE                                Opinion Delivered:   December 20, 2018
                             PETITIONER

 V.                           PRO SE MOTION FOR BELATED
                              APPEAL AND RULE ON CLERK
 STATE OF ARKANSAS            [PULASKI COUNTY CIRCUIT
                   RESPONDENT COURT, FOURTH DIVISION, NO.
                              60CR-14-3278]

                                               MOTION TREATED AS MOTION FOR
                                               BELATED APPEAL AND DENIED.


                    COURTNEY HUDSON GOODSON, Associate Justice

      Petitioner Cecil D. Beene was convicted of sexual assault in the second degree as

reflected in a judgment-and-commitment order entered on August 9, 2016. On February

6, 2018, Beene filed in this court a pro se motion for belated appeal and rule on clerk

seeking to proceed with a belated appeal of the judgment pursuant to Arkansas Rule of

Appellate Procedure–Criminal 2(e) (2017).1 In his motion, Beene contended that his trial

counsel, Hugh Laws, failed to pursue an appeal on his behalf in that he requested an

appeal from Laws on the “day [of his] conviction and through [Beene’s] mother”; that


      1
        The motion is treated as a motion for belated appeal under Arkansas Rule of
Appellate Procedure –Criminal 2(e), rather than as a motion for rule on clerk, because no
notice of appeal was filed. Arkansas Rule of Appellate Procedure –Criminal 2(a) provides
that a notice of appeal must be filed within thirty days of the date of entry of the order
from which the appeal is taken.
Beene had attempted to contact Laws numerous times to “get an update [ ] to no avail”;

and that Beene’s mother had requested transcripts to assist in perfecting the appeal and

was told that she could not afford them. Beene further alleged that he learned that no

notice of appeal had been filed and no appeal had been perfected, which was “expressly

contrary to his desire.”2

       When a pro se motion for belated appeal is filed in which the petitioner contends

that he or she 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.3 The affidavit requested of trial

counsel is required because Arkansas Rule of Appellate Procedure–Criminal 16 (2017)

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. The right to appeal may be waived by the defendant’s 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).               See generally

McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004).




       2
           Beene makes no specific claim as to when he learned that no appeal was perfected.
       3
           There was no order relieving Laws in the record filed in this case.
                                                 2
       Laws, in his affidavit, averred that immediately after the trial on August 3, 2016, he

met with Beene and Beene’s family and informed them that that there was a thirty-day

period from the entry of the judgment for the filing of a notice of appeal. Laws contended

that he consulted with Beene about an appeal and made an effort to determine whether

Beene wanted to appeal and that Beene and Beene’s sister, Trisha Bailey, informed him

that Beene did not want to pursue an appeal and that nothing had indicated since that

time that Beene had changed his mind about his desire to seek an appeal.

       We remanded the matter for an evidentiary hearing and directed the trial court to

enter “Findings of Fact and Conclusions of Law” and submit the findings and conclusions

to this court with the transcript of an evidentiary hearing. Beene v. State, 2018 Ark. 120.

The remand was returned, and the findings of fact and conclusions of law and the

transcript of the evidentiary hearing were filed here on June 27, 2018.

       The trial court took testimony at the hearing from Beene, Patricia Chamberlain

(Beene’s sister), Carla Mae Beene (Beene’s wife), and Laws. In its findings of fact, the trial

court noted that evidence and testimony showed that Beene “never indicated to [Laws] that

he wanted to file an appeal.” The findings of fact also referenced a letter from Laws to

Beene introduced by the State that was dated two days after the sentencing order had been

filed. The letter noted the deadline for filing a notice of appeal and expressed Laws’s

understanding that Beene did not wish to file an appeal. The trial court found Laws’s

testimony more credible than Beene’s.



                                              3
       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. Strom v. State, 348 Ark. 610, 74 S.W.3d 233 (2002). It is well settled

that the trier of fact is free to believe all or part of any witness’s testimony and may resolve

questions of conflicting testimony and inconsistent evidence. Id. As the merits of Beene’s

motion for belated appeal rested entirely on the credibility of the witnesses, we accept the

trial court’s findings that Beene did not articulate a desire to appeal within the time limit

allowed for counsel to file a timely notice of appeal. Id.

       Motion treated as motion for belated appeal and denied.




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