Mercouri v. State

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SUPREME COURT OF ARKANSAS
No. CR-14-636
MICHAEL ANTHONY MERCOURI Opinion Delivered February 5, 2015
PETITIONER
PRO SE MOTION TO APPOINT NEW
V. COUNSEL
[PULASKI COUNTY CIRCUIT COURT,
NO. 60CR-13-1755]
STATE OF ARKANSAS
RESPONDENT HONORABLE HERBERT T. WRIGHT,
JR., JUDGE
MOTION GRANTED; WRIT OF
CERTIORARI ISSUED.
PER CURIAM
On January 26, 2014, a judgment-and-commitment order was entered in the Pulaski
County Circuit Court reflecting that petitioner Michael Anthony Mercouri had been found guilty
by a jury of aggravated robbery and was sentenced to 120 months’ imprisonment. Petitioner was
represented at trial by privately retained counsel, David Littlejohn. Though represented by
counsel, petitioner timely filed a pro se notice of appeal on his own behalf on February 5, 2014.
On February 6, 2014, the circuit court entered an order noting that petitioner had attempted to
file a pro se petition for leave to proceed in forma pauperis on appeal and admonishing
petitioner that, until Littlejohn was relieved as the attorney of record, petitioner was not
permitted to file any pro se pleadings on his own behalf.1
On May 2, 2014, petitioner tendered a partial record to the Clerk of the Arkansas Court
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The partial record before us does not contain an order relieving Littlejohn as the
attorney of record.
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of Appeals. The clerk declined to lodge the record, and Littlejohn was notified by the clerk’s
office on May 5, 2014, that he remained the attorney of record. On July 22, 2014, Littlejohn
filed in this court a petition for writ of certiorari to complete the record and a motion to
withdraw as counsel. Both the petition and the motion were denied without prejudice by Per
Curiam Order on September 4, 2014. No further action has been taken by Littlejohn to perfect
the appeal.
Now before us is petitioner’s pro se motion to appoint new counsel. Appended to the
motion is an affidavit setting forth petitioner’s indigent status pursuant to Arkansas Supreme
Court Rule 6-6 (2014). In the motion, petitioner requests that Littlejohn be relieved as the
attorney of record and that new counsel be appointed to represent petitioner in connection with
his direct appeal. Neither Littlejohn nor the State has filed a response to the motion.
Arkansas Rule of Appellate Procedure–Criminal 16(a) provides 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. When judgment is entered in a criminal case and the trial
attorney is made aware by the convicted defendant that the defendant desires to appeal within
the thirty-day period from the date of judgment allowed by Arkansas Rule of Appellate
Procedure–Criminal 2(a) (2014) for filing a notice of appeal, counsel is obligated to file a timely
notice of appeal. Charland v. State, 2010 Ark. 233 (per curiam); Spillers v. State, 341 Ark. 749, 19
S.W.3d 35 (2000) (per curiam). Under no circumstances may counsel simply abandon the
convicted defendant if timely advised of the desire to appeal from the judgment. Camp v. State,
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2010 Ark. 193 (per curiam); Thompson v. State, 2009 Ark. 342, 322 S.W.3d 12 (per curiam).
There is no question here that petitioner desired to appeal the judgment of conviction
as of February 5, 2014, when he timely filed a notice of appeal on his own behalf, and Littlejohn
was thus obligated to represent petitioner until such time that he was permitted by the appellate
court to withdraw. See Ark. R. App. P.–Crim. 16(a)(iii) (“If a notice of appeal of a conviction
has been filed with the trial court, the appellate court shall have exclusive jurisdiction to relieve
counsel and appoint new counsel.”). Littlejohn failed to protect petitioner’s right to appeal as
he has yet to perfect the appeal by lodging a complete record in the appellate court, thereby
leaving petitioner without the effective appellate representation guaranteed to a convicted
criminal defendant by the Sixth Amendment. Holland v. State, 358 Ark. 366, 190 S.W.3d 904
(2004) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). The direct appeal of a conviction is a
matter of right, and a state cannot penalize a criminal defendant by declining to consider his or
her first appeal when counsel has failed to follow mandatory appellate rules. Id.; Charland, 2010
Ark. 233.
Due to Littlejohn’s lack of diligence in perfecting petitioner’s appeal, we hold that justice
requires us to relieve Littlejohn as the attorney of record in the instant case, and, inasmuch as
the State has not filed a response contradicting petitioner’s asserted indigency, we find that
petitioner is indigent and therefore grant his request for the appointment of new counsel. We
appoint John Ogles to represent him in connection with this appeal.
Because petitioner’s newly appointed attorney will be unfamiliar with the facts of the case
and because of the necessity of a full record for the appeal of the judgment of conviction, a writ
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of certiorari will issue to the Pulaski County Circuit Court to bring up the remainder of the
record for the appeal within thirty days of the date of this opinion. We direct our clerk to accept
the complete record and to permit the appeal to proceed. A briefing schedule will be set for the
appeal upon receipt of the full record.
A copy of this opinion shall be forwarded to the Committee on Professional Conduct.
Motion granted; writ of certiorari issued.
Michael Anthony Mercouri, pro se petitioner.
No response.
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