James Anderson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-809

NOT DESIGNATED FOR PUBLICATION

October 14, 2004

JAMES ANDERSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered

PRO SE MOTIONS FOR ACCESS TO RECORD, TO SUPPLEMENT RECORD, AND FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF MILLER COUNTY, NO. CR 98-598-2, HON. JAMES HUDSON, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

PER CURIAM

In 1999, James Ken Anderson entered a plea of guilty to murder in the second degree and was sentenced to 480 months' imprisonment. In 2004, Anderson filed in the trial court a petition and an amended petition to correct sentence pursuant to Ark. Code Ann. §16-90-111 (Supp. 2003) and a motion for a copy of the transcript of the hearing at which he entered his plea of guilty and "bench trial contemporaneous objection." The court denied the petition, amended petition, and the motion. The record has been lodged here on appeal.

Now before us is appellant Anderson's motion for an extension of time to file his brief, motion for access to the record to prepare the brief, and motion to supplement the record. Because we find that the trial court did not err when it denied relief on either the petition and amended petition to correct sentence pursuant to Ark. Code Ann. 16-90-111 or the motion for transcript, we dismiss the appeal. The motions are moot.

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 appellant could not prevail. Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); 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).

Appellant was procedurally barred from proceeding under Ark. Code Ann. § 16-90-111 (Supp. 2003) in that the petition and amended petition filed in the trial court were untimely. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 2003); Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37.2(b) provides that all grounds for postconviction relief, including the assertion that a sentence is illegal, must be raised in a petition under the rule filed within ninety days of the date that the judgment was entered following a plea of guilty. The appellant here filed the petition and amended petition challenging the judgment nearly five years after the judgment was entered in his case. The time limitations imposed in Rule 37.2(b) are jurisdictional in nature, and a circuit court may not grant relief on a untimely postconviction petition whether it be filed under Rule 37 or Ark. Code Ann. 16-90-111 (Supp. 2003). See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

As to the motion seeking a copy at public expense of the transcript of the plea hearing and "bench trial contemporaneous objection," appellant contended that the material was necessary so that he could abstract a record on appeal. If he had reference to the instant appeal which will not go forward, the matter is moot. If appellant had reference to some other undesignated appeal, his conclusory statement that he was entitled to a copy of the material at public expense was not sufficient to demonstrate that the trial court was obligated to provide it to him. The mere fact that petitioner is indigent does not entitle him to a copy of the transcript at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980).

Appeal dismissed; motions moot.