ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
 

OCTOBER 23, 2003

JOHNNY WARREN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-21

PRO SE MOTION TO REVERSE APPEAL (sic) AND MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF PULASKI COUNTY, CR 2001-4160, HON. WILLARD PROCTOR, JUDGE]

MOTION TO REVERSE APPEAL TREATED AS MOTION TO PERMIT APPEAL AND DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED

Per Curiam

On July 1, 2002, Johnny Warren was found guilty by the court in a trial to the bench of misdemeanor driving while intoxicated, driving with a suspended license, refusal to submit to a blood analysis, and failure to wear a seatbelt. A fine of $500 was imposed. Warren was represented at trial by his appointed attorney, Gina Reynolds. The judgment was entered on July 15, 2002. On July 30, 2002, Warren filed a pro se "Motion for Post-Trial Relief," asking the court to reverse the conviction. The motion was deemed denied on August 29, 2002. An order denying the motion on the ground that the judgment was on appeal was not entered until November 7, 2002. On August 28, 2002, Warren had timely filed a notice of appeal.1

The record was tendered to the clerk of this court on December 11, 2002. Because the record was not received within ninety days of the effective date of the notice of appeal, Ms. Reynolds was advised that a motion for rule on the clerk would be necessary. Ms. Reynolds was considered Warren's attorney of record because there was no order in the record relieving her as counsel before the notice of appeal was filed. See Ark. R. App. P.-Crim. 16. On January 26, 2003, we directed Reynolds to file within thirty days of the date of the opinion a motion and affidavit accepting fault for the untimely tender of the record. Warren v. State, 351 Ark. 563, 97 S.W.3d 386 (2023) (per curiam).

On February 20, 2003, Reynolds requested that this court reconsider its January 26, 2003, decision because Warren had refused to communicate with her and never requested that she perfect an appeal. Warren responded that he had asked Reynolds to appeal. We remanded the matter to the trial court for an evidentiary hearing to determine whether Warren had requested counsel to appeal and whether Reynolds had complied with Ark. R. App. P.-Crim. 16, which sets out the obligations of trial attorney following entry of a judgment of conviction. Warren v. State, 352 Ark. ___, 101 S.W.3d 247 (2003) (per curiam).

The trial court held a hearing and found that Warren did not instruct Reynolds to lodge an appeal and that Reynolds had complied with Rule 16. We subsequently adopted the court's findings and granted the motion for reconsideration filed by Reynolds. We relieved Reynolds as counsel for Warren and directed Warren to show cause within forty-five days of the date of the opinion why the appeal should not be dismissed. Warren v. State, 353 Ark. ___, ___ S.W.3d ___ (June 26, 2003) (per curiam).

Within the forty-five day period, Warren filed the instant "motion to reverse appeal" in which he asks that the appeal be permitted to go forward. He also filed a motion for appointment of counsel. As grounds for the motion to continue the appeal, petitioner Warren contends that: he was not afforded effective assistance of counsel by Reynolds at trial; he was denied "various civil and constitutional rights" at trial; Reynolds was responsible for perfecting the appeal and failed to do so; and he could not have lodged the record in the appellate court in a timely manner because it had not been prepared and Reynolds had failed to request that an extension of time to lodge the record be granted.

This court has accepted the trial court's findings that Ms. Reynolds complied with Rule 16 and we have relieved her as counsel for petitioner. Petitioner's claims that he was not afforded effective assistance of counsel at trial are a matter for our postconviction rule, Criminal Procedure Rule 37.1. Theallegations of error at trial could have been addressed to the appellate court had the appeal been perfected but are not a basis for determining whether the appeal should be permitted to proceed. Here, petitioner failed to communicate with counsel and elected to file a pro se notice of appeal without advising counsel that he desired to appeal. Under these circumstances, it can be concluded that petitioner was responsible for perfecting the appeal but failed to do so. As he has failed to state a good cause for the failure to lodge the record in a timely manner, the motion to proceed with the appeal and motion for appointment of counsel are denied.

Motion to reverse appeal treated as motion to permit appeal and denied; motion for appointment of counsel denied.

1 A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Ark. R. App. P.-Crim. 2(b)(2).