In the Matter of the Adoption of H.A.P., a Minor, and Tony Pennington v. Brent Charles Speaker

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
 

JANUARY 8, 2004

IN THE MATTER OF THE ADOPTION OF H. A. P., A MINOR

TONY PENNINGTON

Petitioner

v.

BRENT CHARLES SPEAKER

Respondent

03-822

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF SEBASTIAN COUNTY, FT. SMITH DISTRICT, NO. PR 2002-98 (II), HON. HARRY A. FOLTZ, JUDGE]

MOTION DENIED

Per Curiam

In 2002, Brent Charles Speaker filed a petition seeking to adopt H. A. P., a minor child and biological daughter of Tony Pennington. The petition was granted and a final decree of adoption was entered on January 17, 2003. Mr. Pennington, proceeding pro se, filed a timely notice of appeal. On June 24, 2003, one-hundred and forty-seven days after the notice of appeal was filed, petitioner tendered the record to this court. Our clerk correctly declined to lodge it because it was not tendered here within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a). Now before us is petitioner's motion for rule on clerk seeking to lodge the record belatedly.

As grounds for the request to lodge the record belatedly, petitioner contends that he received the record where he was incarcerated but did not tender it here because he was under the misapprehension that it had already been lodged (by whom is not specified). He contends that he lacked formal training in law and procedure and appears to ask that this be considered good cause to permit the belated lodging of the record.1

Even in a criminal matter where a convicted defendant who is proceeding pro se has an absolute right to appeal or where a petitioner has been denied postconviction relief, the burden is on the petitioner to make a showing of good cause for the failure to comply with proper procedure. See 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, circuit court, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra. It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). Petitioner failed to perfect the appeal and has not established that there was good cause for his failure to do so. Accordingly, the motion to proceed with the appeal is denied.

Motion denied.

1 Petitioner further states that he was misinformed by a fellow prison inmate with respect to when a record must be lodged and that he was also delayed in tendering the record by a mistake in the mail room where he was incarcerated. The misinformation from the inmate and the delay in mailing, however, appear to have occurred after the ninety-day period to lodge the record had elapsed. In any event, neither excuses the failure of the petitioner to act to perfect the appeal.