McCulley v. State , 2015 Ark. LEXIS 621 ( 2015 )

Cite as 2015 Ark. 415
SUPREME COURT OF ARKANSAS
No. CR-15-817
TROY L. McCULLEY Opinion Delivered November 5, 2015
APPELLANT
MOTION FOR RULE ON CLERK
V.
STATE OF ARKANSAS
APPELLEE MOTION GRANTED.
PER CURIAM
Appellant Troy McCulley was convicted of one count of rape and four counts of
possession of drug paraphernalia in the Poinsett County Circuit Court. Those convictions
were affirmed on direct appeal, McCulley v. State, 2014 Ark. App. 330, and through counsel,
McCulley subsequently filed a petition for postconviction relief pursuant to Rule 37 of the
Arkansas Rules of Criminal Procedure. After the circuit court denied his petition, McCulley
filed a pro se notice of appeal on April 28, 2015, and his counsel filed a notice of appeal on
May 8, 2015. The record was not timely lodged with the clerk of our court. McCulley’s
counsel, Mr. Steven R. Davis, has filed a motion for rule on clerk, asserting that he (counsel)
learned after filing the notice of appeal that appellant would be unable to pay him and that
he informed appellant that he should pursue his appeal pro se. Counsel admits that he did
not tender the record in this case and states that he has no knowledge of how the record
arrived at the clerk’s office on September 28, 2015.
In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), this court clarified its
treatment of motions for rule on clerk and motions for belated appeal. We said that there are
Cite as 2015 Ark. 415
only two possible reasons for an appeal not to be timely perfected—either the party or
attorney filing the appeal is at fault or there is good reason. Id. at 116, 146 S.W.3d at 891.
In the present case, counsel does not expressly admit fault, nor does he offer good
reason for the record being tendered late. He mistakenly believes that he could cease
representing McCulley without permission from the court. However, this court has
explained that when an attorney represents someone in a Rule 37 proceeding, he or she is
obligated to remain as the petitioner’s attorney until relieved by the trial court or this court;
this rule applies to appeals of orders denying postconviction relief. See Sanders v. State, 329
Ark. 363, 952 S.W.2d 133 (1997). It is plain from the motion and record before us that
there was error on Mr. Davis’s part in failing to timely lodge the record. Accordingly, the
motion for rule on clerk is granted, and a copy of this opinion will be forwarded to the
Committee on Professional Conduct.
Motion granted.
HART, J., dissents.
JOSEPHINE LINKER HART, JUSTICE, dissenting. After the denial of his petition for
postconviction relief, Troy L. McCulley filed his pro se notice of appeal. His counsel, Steven
R. Davis, also filed a notice of appeal. In a motion for rule on clerk filed by Davis, he states
that he filed the notice of appeal at the request of McCulley’s sister, but after filing the notice
of appeal, Davis learned that neither McCulley nor his sister would be able to pay for the
appeal. In his motion, Davis further states that he advised McCulley in writing that he would
not represent him on appeal and advised him how to file a pro se appeal. Davis notes further
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that McCulley filed his own notice of appeal and indicated to him that he would pursue the
appeal himself. Davis further states that he did not attempt to lodge the record and does not
know how the record arrived at the clerk’s office. Nonetheless, Davis states that he does not
want McCulley to lose his right to appeal and further states that if the motion for rule on clerk
is granted, he intends to file a motion for leave to withdraw.
The majority cites Sanders v. State, 329 Ark. 363, 952 S.W.2d 133 (1997) (holding
limited by Hammon v. State, 347 Ark. 267, 65 S.W.3d 853 (2002)), for the proposition that,
when an attorney represents a petitioner in a postconviction proceeding, the attorney is
obligated to file the record and remain as attorney until relieved. The majority then concludes
that is was error on Davis’s part in failing to timely lodge the record, grants the motion for
rule on clerk, and forwards a copy of the opinion to the Committee on Professional Conduct.
I note that the opinion relied on by the majority does not explain who requested the record
in that case, who paid for it, or when or if it came into counsel’s possession.
In Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978), counsel for a postconviction
petitioner was similarly faced with a client who did not have funds for an appeal and advised
the client how to pursue an appeal. In Houston, we stated, “An attorney should not be
required to order the transcribed record at his own expense,” and held that because the
petitioner delayed before he took affirmative action to pursue an appeal, any delay was caused
solely by the petitioner and was without justification. Id. at 609, 566 S.W.2d at 404. Further,
in Hammon, 347 Ark. 267, 65 S.W.3d 853 (relieving a public defender who could not be
compensated for work in a postconviction appeal), we stated that there is no constitutional
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right to counsel in state postconviction proceedings and held that the inability to receive
compensation is sufficient cause to be relieved from representation of a petitioner.
Postconviction matters are considered civil in nature. See, e.g., Henson v. State, 2015
Ark. 302, 468 S.W.3d 264. A motion for rule on clerk is rarely granted in civil matters, and
none of those rare exceptions apply here. See Williams v. Helena Reg’l Med. Ctr., 2012 Ark.
126. Nevertheless, the majority permits the record to be filed, imposes on Davis the obligation
to obtain a record in a civil appeal and continue to represent McCulley, without
compensation, even though McCulley was pursuing the appeal pro se, and even though Davis
was entitled to be relieved as counsel. This court has held that the services of an attorney are
subject to Fifth and Fourteenth Amendment protection. Arnold v. Kemp, 306 Ark. 294, 813
S.W.2d 770 (1991). By imposing this obligation on Davis, the majority takes Davis’s property.
In accordance with the above, the duty to perfect the appeal by filing the record was
on McCulley, not on Davis. Thus, there is no basis for sending a copy of this opinion to the
Committee on Professional Conduct. I respectfully dissent.
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