2015 ARK 195 - Johnson v. State

                                    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