Johnny Ray Miller v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 12, 2000

JOHNNY RAY MILLER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-577

PRO SE MOTION AND AMENDED MOTION FOR RULE ON CLERK [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 98-128-2, CR 98-557-2, CR 98-671-1, CR 98-701-1, CR 98-701-2, CR 98-821-2, CR 98-844-2, CR 98-847-2, HON. FRED DAVIS, JUDGE]

MOTION FOR RULE ON CLERK DENIED

In January 1999, Johnny Ray Miller pleaded guilty to eleven felony offenses for which an aggregate term of 240 months' imprisonment was imposed. In February 1999, the judgment was amended to reflect that Miller was sentenced as a habitual offender. The aggregate sentence remained 240 months' imprisonment. Miller subsequently filed a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 claiming that the sentence imposed was illegal and asking that it be corrected. In response to the petition, on January 12, 2000, the court again entered an amended judgment deleting the habitual offender reference. Miller did not file a timely notice of appeal from the amended judgment. Now before us is Miller's pro se motion for rule on clerk seeking to proceed with a belated appeal.

Petitioner Miller contends that he should be permitted to proceed with a belated appeal because the late filing of the notice of appeal was the fault of the circuit clerk. He states that he mailed the notice of appeal to the clerk on February 9, 2000, but for some unexplained reasonthe clerk did not file it until March 16, 2000. He relies heavily on the fact that he mailed a copy of the notice to our staff attorney who acknowledged by return letter having received it on February 10, 2000. He suggests that this constitutes proof that the circuit clerk also received the notice on that day but failed to file it.

A petitioner has the right to appeal a ruling on a petition for postconviction relief which in this case was the amended judgment entered January 12, 2000. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 4(a) of the Rules of Appellate Procedure. If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

This court has specifically held that it is not the responsibility of the circuit clerk or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra.

We have further held that the litigant who claims to have mailed an item has the burden of proving that he mailed it and that it reached the circuit clerk by the date it was due to be filed. See Leavy v. Norris, 324 Ark. 346, 920 S.W.2d 842 (1996). The bare allegation that a notice of appeal was mailed is not in itself good cause to grant a belated appeal. Skaggs v. State, 287 Ark.259, 697 S.W.2d 913 (1985). As we said in Skaggs,

If it [the allegation that a notice was mailed]

were [sufficient], there would be no point in setting up

rules of procedure since the procedural requirements

could be circumvented by a simple claim that the

petitioner's failure to comply with the rules was

caused by the post office.

It must be assumed that if the petitioner had mailed the notice to the clerk on time, it would have been delivered. Leavy v. Norris v. State, supra. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from but did not file it and has stated no good cause for his failure to file a timely notice of appeal, the motion to proceed with a belated appeal is denied.

Motion denied.