CASEY v. STATE (2004)

MOTION FOR RULE ON CLERK

Danyel Casey, by her attorney, Charles D. Hancock, has filed a motion for rule on clerk.

On July 9, 2004, a judgment and commitment order was entered convicting Casey of one count of sexual assault in the second degree and sentencing her to twenty-four months' imprisonment.   A timely notice of appeal was filed by Mr. Hancock on July 15, 2004.   In the instant motion, Mr. Hancock avers that a secretary in the Lonoke County Public Defender's office, Sara Talbert, failed to inform him that an extension had not been granted until after the ninety days in which to file the record had already passed.   Mr. Hancock further points to the fact that during the course of the proceeding, he experienced two deaths in his family.   He states that he believes that there is good reason that the appeal was not perfected based on all the circumstances.

 This court recently 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).   There we said:

․ 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 that 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.

356 Ark. at 116, 146 S.W.3d at 891 (footnote 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.   See id.   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.   See id.   At that time, the matter of attorney error will be remanded to the trial court to make findings of fact.   See id.   Upon receipt of the findings by this court, it will render a decision on attorney error.   See id.

In the present case, we cannot say that there is good reason that the appeal was not perfected.   Because the motion and accompanying record fail to reveal plainly whether there was attorney error by Mr. Hancock, we direct the clerk to accept the appeal, and we remand the matter of attorney error to the circuit court to make findings of fact.

On November 8, 2004, Danyel Casey, by her attorney, Charles D. Hancock, filed a motion for rule on clerk in which she claimed that there was good reason her appeal had not been perfected.   Her counsel claimed that his secretary failed to inform him that no extension had been granted until after the time had run in which to file the record and, further, that during the course of the proceedings, counsel and his wife had both experienced deaths of parents within a thirty-day period.

 On December 2, 2004, this court remanded this matter to the circuit court for findings of fact on attorney error.   See Casey v. State, 359 Ark. 522, 199 S.W.3d 56 (2004) (per curiam ).   Those findings have been returned by the circuit court and include the following:

1.  This Court has ascertained that Charles D. Hancock asserts that Sara Talbert, a Public Defender secretary for Lonoke County was to assist in obtaining an extension of time to lodge the record.

2. That Sara Talbert has written this Court stating that she did not know about a request for extension of time and therefore did not request one.

3. That Mr. Hancock did indeed lose a parent and his wife lost a parent within thirty days of each other.

4. While the lack of communication between Mr. Hancock and Sara Talbert might be considered neglect in the strict sense of the rules, but [sic] this Court would find that it is excusable neglect and request the Clerk allow the lodging of the record without sanctions against Mr. Hancock.

We conclude that while there was attorney error on the part of Mr. Hancock in failing to seek a timely extension of time in which to file the record, such error was excusable based upon the findings of the circuit court.

Attorney error excused.

PER CURIAM.