Seaton v. State

William L. SEATON v. STATE of Arkansas

CR 96-65                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 22, 1996


1.   Criminal procedure -- postconviction relief -- appeal of
     denial of relief not permitted to go forward where appeal is
     without merit. -- An appeal of the denial of postconviction
     relief will not be permitted to go forward where it is clear
     that the appeal is wholly without merit.

2.   Criminal procedure -- postconviction relief -- ninety-day
     period for filing Rule 37 petitions also applies to pleas of
     nolo contendere -- judgment based on nolo contendere plea may
     be challenged under Rule 37. -- Arkansas Rule of Criminal
     Procedure 37.2 (b) provides that a petition under the rule is
     untimely if not filed within ninety days of the date judgment
     was entered after a plea of guilty; the ninety-day period for
     filing petitions also applies to pleas of nolo contendere; the
     plea of nolo contendere to a charge in a criminal case is an
     admission of guilt in the case; A.R.Cr.P. Rules 24, 25, and
     26, which govern pleas of guilty and nolo contendere, make no
     distinction between the pleas; a judgment founded on a plea of
     nolo contendere may be challenged in a proceeding under the
     postconviction rule.

3.   Criminal procedure -- postconviction relief -- Rule 37 time
     limitations are jurisdictional -- appellant filed untimely
     petition and was entitled to no relief. -- The time
     limitations imposed in Rule 37 are jurisdictional in nature;
     the circuit court may not grant relief on an untimely petition
     for postconviction relief; where appellant did not file his
     Rule 37 petition within ninety days, he was entitled to no
     relief; the supreme court denied appellant's motion for
     appointment of counsel and dismissed his appeal.


     Pro Se Motion for Appointment of Counsel; Sebastian Circuit
Court; Don R. Langston, Judge; motion denied and appeal dismissed.
     Appellant, pro se.
     No response.

     Per Curiam.April 22, 1996   *ADVREP8*






WILLIAM L. SEATON
     Appellant



v.



STATE OF ARKANSAS
     Appellee

CR 96-65



PRO SE MOTION FOR APPOINTMENT
OF COUNSEL (CIRCUIT COURT OF
SEBASTIAN COUNTY, NO. CR 94-858
III), HON. DON R. LANGSTON,
JUDGE




MOTION DENIED AND APPEAL
DISMISSED





                           Per Curiam.


     On May 12, 1995, judgment was entered reflecting that 
William L. Seaton had entered a plea of nolo contendere to four
counts of sexual abuse and been sentenced to an aggregate term of
twenty years imprisonment.  On September 11, 1995, Seaton filed in
the trial court a pro se petition pursuant to Criminal Procedure
Rule 37 to vacate the judgments.  The trial court denied the
petition, and appellant Seaton has lodged the record in this court
on appeal.  He now seeks by motion appointment of counsel.
     The motion is denied and the appeal dismissed.  It is clear
that the appellant could not prevail on appeal because the Rule 37
petition filed in the trial court was not timely.  This court has
consistently held that an appeal of the denial of postconviction
relief will not be permitted to go forward where it is clear that
the appeal is wholly without merit.  See Chambers v. State, 304
Ark. 663, 803 S.W.2d 932 (1991);  Johnson v. State, 303 Ark. 560,
798 S.W.2d 108 (1990);  Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987). 
     Criminal Procedure Rule 37.2 (b) provides that a petition
under the rule is untimely if not filed within ninety days of the
date judgment was entered after a plea of guilty.  The ninety-day
period for filing petitions also applies to pleas of nolo
contendere.  The plea of nolo contendere to a charge in a criminal
case is an admission of guilt in the criminal case.  See Patterson
v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995), citing Hudson v.
U.S., 272 U.S. 451 (1926).  Criminal Procedure Rule 24, Rule 25,
and Rule 26, which govern pleas of guilty and nolo contendere, make
no distinction between the pleas for the purposes of the rule.  See
Ashby v. State, 297 Ark. 315, 761 S.W.2d 912 (1988).  A judgment
founded on a plea of nolo contendere may be challenged in a
proceeding under our postconviction rule.  See Cusick v. State, 259
Ark. 720, 536 S.W.2d 119 (1976).  
     Here, judgment was entered on May 5, 1995, but the petition
for postconviction relief was not filed until September 11, 1995,
which was more than four months after the judgment was entered. 
The time limitations imposed in Rule 37 are jurisdictional in
nature, and the circuit court may not grant relief on an untimely
petition for postconviction relief.  Maxwell v. State, 298 Ark.
329, 767 S.W.2d 303 (1989).  As the appellant did not file his
petition for postconviction relief within the ninety-day period set
by Rule 37 to raise such claims, he was entitled to no relief under
the rule.  Smith v. State,  321 Ark.195, 900 S.W.2d 939 (1995).
     Motion denied and appeal dismissed.