Cite as 2017 Ark. 45

No. CR

- 16

- 609

KENNETH SILER PETITIONER
V.
STATE OF ARKANSAS RESPONDENT Opinion Delivered February 16, 2017
PRO SE MOTION FOR BELATED APPEAL [ POLK COUNTY CIRCUIT COURT , NO. 57 CR

- 1 2

- 58 ]

MOTION DENIED

. PER CURIAM
I n 2015 , petitioner Kenneth Siler was found guilty by a jury of manufacturing a
control l ed substance, possession of drug paraphernalia, and being a felon in possession of a
firearm. He was sentenced to an aggregate sentence of 432 months’ imprisonment . Siler was represented at trial by his appointed attorney , Brandon Crawford. No appeal was taken from the judgment of conviction, which was entered on June 2 6 , 2015 , and Siler sought in
this court t o proceed with a belated appeal pursuant to Ark ansas R ule of App ellate
P rocedure

– Crim inal 2(e) (201 6 ) , which permits a belated appeal i n a criminal case in some
instances. Siler contend ed that he asked Crawford at the time of sentencing to appeal from the judgment , but Crawford failed to file a notice of appeal

. It is the practice of this court when a pro se motion for belated appeal i s filed in which the petitioner contends that he made a timely request to appeal, 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 no order relieving Crawford in the record filed in this case. The affidavit requested of trial counsel is required because Ark ansasCite as 2017 Ark. 45

2 R ule of App ellate P rocedure

– Crim inal 16 (201 6 ) 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 cau se. 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

- day period allowed for filing a notice of appeal under Ark ansas R ule of App ellate P rocedure

– Crim inal 2(a)( 4). Jones v. State , 294 Ark. 659, 748 S.W.2d 117 (1988) (per curiam).
I n his affidavit , Crawford state d that Siler expressed his desire to appeal on July 16, 2015, but that in a telephone conversation on July 23, 2015, Siler said that he had decided

to forgo an appeal and accept a plea offer in other pending cases. Crawford f urther a verred
that he would have pursued an appeal if Siler had preferred that course of action.
Because Siler ’s claims pertaining to whether Siler co mmunicated his final decision to Crawford on whether to appeal the judgment within the time to file a timely notice of appeal were in direct conflict with his counsel’s claim s , t he proper disposition of the motion for belated appeal require d findings of fact , which must be made in the trial court . For that

reason , we remand ed th e matter to the trial court for an evidentiary hearing on the issue of
whether counsel had been informed by petitioner within the time period allowed for filing

a not ice of appeal that he desired to appeal. Siler v. State , 2016 Ark. 330 (per curiam)

. The
trial court was directed to enter f indings of f

act and c onclusions of l aw and submit the findings and conclusions to this court with the transcript of the evidentiar y hearing. The
f indings of f

act and c onclusions of L aw and the transcript of the hearing are now before us.Cite as 2017 Ark. 45

3 The trial court took testimony at the hearing from Siler , two witnesses called by Siler, and Brandon Crawford on the questions of fact to be resolved. In its f indings of f

act and c onclusions of l aw, the trial court found that there was no neglect or mistake on Crawford’s part in his explanation to Siler on whether an appeal was the best course of action in Siler’s c ase. The court further found that Siler understood counsel’s advice that it was better not to appeal from the judgment, and Siler voluntarily and knowingly agreed to forgo an appeal. In determining whether a motion for belated appeal should be granted, t his court does not reverse the trial court’s conclusions unless the conclusions are clearly erroneous.
Strom v. State , 348 Ark. 610, 616, 74 S.W.3d 233, 237 (2002) . I t is well settled that the trier of fact is free to believe all or part of any witness ’ s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id , 348 Ark. 610, 74 S.W.3d 233

. This court will accept the trial court’s decision on questions of credibility. Frazier v. State , 339 Ark. 173, 3 S.W.3d 334 (1999) (per curiam)

. As the merit of Siler’s motion for belated appeal rested entirely on the credibility of the witnesses, we accept the trial court ’ s findings that Siler did not articulate a desire to appeal within the time allowed for counsel to file a timely notice of appeal

. See Smith v.
State , 2013 Ark. 166, at 4 (per curiam) ; see also Strom , 348 Ark. 610, 74 S.W.3d 233; Frazier , 339 Ark. 173, 3 S.W.3d 334. The motion for belated appeal is denied.
Motion denied.