The Timeline of Jerry’s Case

Jerry filed a motion in Arkansas Circuit Court to substitute post conviction counsel. A proposed precedent was exchanged with the prosecuting attorney’s office for submission to the court.

See the case files HERE.

Arkansas County Judge Donna Galloway entered a second order denying the motion for a new trial.

See the case files HERE.

Jerry filed a notice of appeal. The transcript and record were ordered. After the transcript was received by the clerk, the record was prepared and both were transmitted to counsel. A scheduling order was issued by the court and a brief was filed.

Only upon review of the actual paper record, certified by the clerk of the court, did it reveal what was marked as a proposed precedent or order in the electronic file materials and likewise indexed as a proposed precedent (to which an objection was timely filed by prior counsel) did it appear that the proposed precedent had actually been signed by the trail judge and filed of record in 2019. That was not simply a precedent, but a final appealable order 

The time to file an appeal from that order ran out in 2019, more than 2 years before Jerry hired a new lawyer to pursue the matter further.

This leads to multiple problems.

If the original order is considered jurisdictional, then the time to file the appeal had run out. That leads to whether a second order having been entered and appealed separately salvaged the missed deadline.

But even more concerning is the fact that the order was from a motion for a new trial.

Whether an order was entered or not, the motion for a new trial, if untimely, was subject to dismissal (and thus a jurisdictional question) rendering any appeal from the same moot.

Since procedural default is always addressed by the appeals court prior to any consideration of the merits of the case and can be raised by the State at any time (if not waived) the states argument is twofold. One, that the appeal is untimely as a result of the failure of Jerry’s prior counsel to file a notice of appeal within 30 days of the entry of the original order, but moreover, that the very motion for a new trial was filed untimely, thus denying the trial court of jurisdiction in the first place.

That means the confusion about whether the precedent was actually entered as an appealable order, Jerry’s lawyer at the time contacted his previous lawyer to determine whether he had any additional correspondence or contact with the prosecuting attorney’s office back in 2019 which would support any further argument that the missed deadline should be waived. He was unable to provide any further correspondence.

We are simply left with the problem that a proposed precedent was sent to the court with a 5 day letter back in 2019 and that unbeknownst to both Jerry’s lawyer then and the prosecuting attorney’s office, the order was actually entered without either side realized it. The issue was exacerbated by it being indexed on AOC Court Connect not as a final order, but merely a proposed order.

And without an actual review of the paper file, the error was not caught.

As Jerry’s new lawyer at the time, Mark Alan Jesse, was approached and advised by both Jerry and Jerry’s former attorney that the primary issue was that an order had never been entered so that an appeal could be filed, counsel set about getting a new order entered.

Even at that juncture, neither the current prosecutor, the past prosecutors, or the current trial court, advised or notified counsel that what appeared on the record as a proposed precedent was an actual final order. It was only after the second order was entered (from which an appeal could be filed and was filed) and a certified copy of the record ordered that it was determined that the proposed order was an actual final order.

By that point, the appeal was in process, a scheduling order entered, and a brief deadline set 

What should have occurred, even if a mistake was made by all current counsel in 2019, is that a file marked copy of the final order should have been transmitted to trial counsel for both parties. It does not appear that ever occurred based on their continued actions (supportive of the fact that they were acting as if an order had not been entered).

Why neither the prosecutors office, or the new judge made any reference to the previous order having been entered during the course and scope of the proceedings, leaves one to wonder whether it was actually ever entered at all.

However, the clerk certified the record as official (even though noting the order was a proposed precedent and not a final order).

An attorney is bound by the official record and it’s imputed to counsel. Meaning, counsel is supposed to be aware of what is in the file (even if factually asserting they were not aware). That rule is designed to address the very issue in this case.

By the time Mr. Jesse obtained the official certified record from the court, and assuming the final order was entered in 2019, it was too late for this counsel to correct that error and thus attempting to proceed on the record as lodged was all that was left to do.

In some cases, even in the face of procedural default, the court will still analyze an issue and issue an opinion either as to the merits of the underlying claims, or while in the process of dismissing the matter on procedural draft grounds, suggest why the underlying appealable issue is without merit (thereby nulling the default as inconsequential to the analysis.

The order was entered. A notice of appeal was filed. The record and transcripts were ordered, received and lodged with the clerk. A brief was filed, and a response received.

See the notice of appeal HERE.

A motion for an extension of tie for the record to be prepared was filed and an order was entered granting the extension and setting the deadline for filing of record to May 11, 2022.

See the motion for extension HERE.