ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 26, 2001

HERMAN FOLK

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 99-1319

PRO SE MOTION FOR RECONSIDERATION OF MOTION TO RELIEVE COUNSEL [CIRCUIT COURT OF DREW COUNTY, NO. CR 97-237-1-2, HON. SAMUEL B. POPE, JUDGE]

MOTION DENIED

On August 4, 1998, judgment was entered reflecting that Herman Folk had been found guilty by a jury of delivery of a controlled substance and sentenced to 120 months' imprisonment. Folk's retained attorney, John Kearney, did not perfect an appeal from the judgment, and Folk sought by pro se motion to proceed with a belated appeal pursuant to Rule 2(e) of the Rules of Appellate Procedure--Criminal. We determined that Mr. Kearney was responsible for proceeding with the appeal and granted the motion. Folk v. State, CR 99-1319 (November 30, 2000). Folk then filed a pro se motion asking that Kearney be relieved as counsel and other counsel appointed and that he permitted to proceed in forma pauperis. We declined to relieve Mr. Kearney but granted appellant leave to proceed in forma pauperis and appointed Kearney to represent appellant. Folk v. State, CR 99-1319 (February 15, 2001). The appeal was subsequently transferred to the court of appeals which has jurisdiction over criminal appeals inwhich the appellant was sentenced to a term of years.

Now before us is a motion for reconsideration filed by Folk.1 When this court denied Folk's request to relieve Kearney, we said that appellant's conclusory allegations were insufficient to demonstrate that Kearney was incapable of rendering effective assistance of counsel to appellant on appeal. In the motion for reconsideration, Folk provides more information about his past conflicts with Kearney.

Appellant Folk states that he also hired Kearney to represent him in a federal court matter and paid him $2,500. When Folk could not pay an additional fee, he alleges that Kearney refused to do any more work on the case and was eventually relieved by the federal court and ordered to return Folk's $2,500. Folk further asserts that Kearney returned only $1,500, and later failed to keep an appointment at the courthouse in Conway County with members of Folk's family who had traveled 100 miles to meet with him. He states that he and Kearney then "had words" over the telephone.

The Sixth Amendment to the United States Constitution guarantees effective assistance of counsel, not counsel of the defendant's or appellant's choosing. See Wheat v. United States, 486 U.S. 153 (1988). There is no cause to relieve an attorney absent a showing that the circumstances surrounding counsel's performance justify a presumption of ineffectiveness. See United States v. Cronic, 466 U.S. 648 (1984). Such a presumption must be supported by a showing of actual prejudice to the appellant arising out of counsel's representation. A showing of prejudice requiresa showing of specific errors or omissions by counsel. Id. The appropriate focus must be placed, not on the relationship between counsel and appellant, but rather on whether counsel renders the effective assistance guaranteed by the Sixth Amendment. Cronic, supra. The appellate advocate's role is to support his client's appeal by rendering effective and vigorous advocacy on appeal. See Jones v. Barnes, 463 U.S. 745 (1983), citing Anders v. California, 386 U.S. 738 (1967). While there may be considerable tension between appellant and Mr. Kearney, appellant Folk has pointed to no specific instance in which Kearney has failed to represent him adequately since he was appointed counsel by this court. Accordingly, he has stated no ground to relieve counsel.

Motion denied.

1 For clerical purposes, the appeal will retain the court of appeals' docket number even though this court rather than the court of appeals is ruling on the motion for reconsideration.