Summary
holding that the merit of the underlying petition was not at issue when determining whether a petitioner who failed to conform to procedural rules should be permitted to proceed with a belated appeal
Summary of this case from Hickman v. KelleyOpinion
CR 09-1209
Opinion Delivered January 21, 2010
Pro se Motions for Belated Appeal of Order and for Appointment of Counsel [Circuit Court of Miller County, Cr 2006-109, Hon. James Hudson, Judge], Motion for Belated Appeal Treated as Motion for Rule on Clerk and Denied; Motion for Appointment of Counsel Moot.
In 2007, judgment was entered reflecting that petitioner Edward Ray Burgess had entered a plea of guilty to murder in the second degree for which he was sentenced to 360 months' imprisonment. Subsequently, petitioner timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The petition was denied on September 4, 2008. Petitioner timely filed a notice of appeal from the order on September 17, 2008, but he did not tender the record to this court within ninety days of the date of the notice of appeal as required by Arkansas Rule of Appellate Procedure-Criminal 4(b) (2008). He now seeks leave to lodge the record belatedly and requests appointment of counsel to represent him on appeal. As the notice of appeal was timely, we treat the motion as a motion for rule on clerk pursuant to Arkansas Supreme Court Rule 2-2(b) (2009) to perfect the appeal rather than a motion for belated appeal. Ester v. State, 2009 Ark. 442 (per curiam), citing Mitchem v. State, 374 Ark. 157, 386 S.W.3d 679 (2008) (per curiam); Marshall v. State, 2009 Ark. 420 (per curiam).
Petitioner tendered the record 257 days after the notice of appeal was filed.
A petitioner has the right to appeal a ruling on a petition for postconviction relief. Young v. State, 2009 Ark. 556 (per curiam). With that right goes the responsibility of complying with our rules of procedure. Where the record was not filed within the time prescribed under Rule 4(b), this court may only act on and decide those cases where the petitioner shows good cause for the omission. Id.; Ark. R. App. P.-Crim. 2(e) (2009).
Petitioner contends that he was denied due process of law in the Rule 37.1 proceeding, but the Rule 37.1 proceeding and whether the petition had merit are not at issue. The sole question is whether petitioner has established good cause for the late tender of the record. In that regard, his only explanation for failure to perfect the appeal is the statement that he "did not know to tender the record to Supreme Court." The statement does not constitute good cause inasmuch as mere ignorance of appellate procedure in itself is not good cause to permit an appeal to go forward when the petitioner has failed to comply with procedural rules. See Raines v. State, 336 Ark. 49, 983 S.W.2d 424 (1999) (per curiam); see also Strawbridge v. State, 327 Ark. 679, 940 S.W.2d 477 (1997) (per curiam); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983) (per curiam).
It is well settled that all litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for not doing so. Marshall v. State, 2009 Ark. 420 (per curiam); Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986) (per curiam); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984) (per curiam); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424; see Tarry v. State, 353 Ark. 158, 114 S.W.3d 161 (2003) (per curiam). Petitioner here has not established good cause for failing to tender the record in a timely manner. Accordingly, the motion to proceed with the appeal is denied. As the motion is denied, the motion for appointment of counsel to represent petitioner on appeal is moot.
Motion for belated appeal treated as motion for rule on clerk and denied; motion for appointment of counsel moot.