ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 17, 2001

JEFFERY JACKSON

a/k/a Jeffrey Jackson

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-1147

PRO SE MOTION FOR BELATED APPEAL OF JUDGMENT [CIRCUIT COURT OF GRANT COUNTY, NO. CR 99-14-2, HON. PHILLIP H. SHIRRON, JUDGE]

MOTION DENIED

On April 13, 1999, judgment was entered reflecting that Jeffery Jackson had been found guilty by a jury of rape and violation of a minor in the first degree. An aggregate sentence of 120 months' imprisonment and a fine of $5,000 were imposed. Jackson was represented at trial by his appointed attorney, Philip C. Wilson. No appeal was taken, and Jackson filed a pro se motion here to proceed with a belated appeal of the judgment pursuant to Rule 2(e) of the Rules of Appellate Procedure--Criminal.

Petitioner Jackson contended that the day after he was convicted he contacted Mr. Wilson and asked him to file a notice of appeal. It is the practice of this court when a pro se motion for belated appeal is filed and the record does not contain an order relieving trial counsel to request an affidavit from the trial attorney in response to the allegations in the motion. There was noorder relieving Wilson in this case. This affidavit is required because Rule 16 of the Rules of Appellate Procedure--Criminal 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 days allowed for filing a timely notice of appeal under Rule 4 (a) of the Rules of Appellate Procedure. Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997; Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

In his affidavit, Mr. Wilson stated that he and attorney Paul Lancaster were appointed by the trial court to represent petitioner. As Mr. Lancaster's name did not appear on the judgment and petitioner made no reference to Lancaster in the motion for belated appeal, no affidavit was requested from him. Nevertheless, if Lancaster was indeed included in the order appointing counsel, his obligation would have been the same as that of Wilson.

Because petitioner's and attorney Wilson's claims pertaining to whether petitioner advised Wilson that he desired Wilson to appeal were in direct conflict, the proper disposition of the motion for belated appeal required findings of fact which must be made in the trial court. Accordingly, we remanded the matter to the circuit court for an evidentiary hearing on the issue of whether Wilson was informed by Jackson within the time period allowed for filing a notice of appeal that he desired to appeal. The court was also asked to address whether attorney Lancaster was co-counsel; and, if so, whether petitioner contacted him in a timely manner about perfecting an appeal. Jackson v. State, CR 00-1147 (February 22, 2001).

The trial court's Findings of Fact and Conclusions of Law and the transcript of the

evidentiary hearing are now before us. The court took testimony at the hearing from petitioner, Wilson, and Lancaster on the questions of fact to be resolved. After hearing the testimony, the court concluded that both Wilson and Lancaster were appointed to represent petitioner at trial and that petitioner did not advise either attorney within the time allowed for filing a notice of appeal that he desired to appeal despite the opportunity to do so.

As the merit of the motion for belated appeal rested on the credibility of the witnesses and this court recognizes that it is the lower court's task to assess the credibility of witnesses and resolve any conflicts of fact, we accept the trial court's findings. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The motion for belated appeal is denied.

Motion denied.