Bragg v. State

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760 S.W.2d 878 (1988)

297 Ark. 348

Lonnie BRAGG, Petitioner, v. STATE of Arkansas, Respondent.

No. RC 88-56.

Supreme Court of Arkansas.

December 12, 1988.

Lonnie Bragg, pro se.

Steve Clark, Atty. Gen., Little Rock, for the State.

PER CURIAM.

In 1987 petitioner Bragg filed in circuit court a pro se petition to proceed pursuant to Criminal Procedure Rule 37. The petition *879 was denied, and he subsequently filed a timely notice of appeal and designation of record but did not contact the court reporter about preparing the transcript on appeal. In 1988, after the time for lodging the record here had elapsed, petitioner filed in this court a petition for writ of mandamus in which he alleged that the lower court had not taken timely action to prepare the record on appeal. In an apparent reaction to the filing of the mandamus petition, the appeal record was prepared by the circuit court and forwarded to this court. Since the record was not tendered in a timely manner, petitioner could not lodge it in this court absent our granting a motion for rule on the clerk. In his motion, which is now before us, the petitioner relies primarily on the fact that there was a timely notice of appeal and that he relied on a fellow inmate for legal advice. There is no mention in the motion of petitioner's responsibility to order the record from the court reporter.

Criminal Procedure Rule 36.9 provides that a notice of appeal "shall include either a certificate by the appealing party or his attorney that the transcript of the trial record has been ordered from the court reporter or a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal." The notice of appeal filed by petitioner neither said that he had contacted the court reporter directly nor said that he was asking to obtain the record as a pauper. The record does not contain an order declaring him indigent for postconviction purposes or for an appeal of the denial of postconviction relief.

While Rule 37.3(b) affords a right to appointment of counsel for an appeal by an indigent, there is no requirement under the rule that the circuit clerk perfect the appeal for the petitioner. In fact, even on direct appeal of a judgment of conviction where the defendant is entitled to be informed of his right to appeal, there is no requirement that he be informed of every procedure to be followed. Petitioner Bragg said in the notice of appeal that he had "requested the circuit court to cause the transcript of the designated record on appeal deemed essential to be ordered," but he does not say he contacted the court reporter nor is there any other evidence that he did so.

All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for doing so. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); 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 Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). Petitioner here offers no explanation for his failure to contact the court reporter. His reliance on a fellow inmate for legal advice does not excuse him from following proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987).

MOTIONS DENIED.

HICKMAN and PURTLE, JJ., dissent.

HICKMAN, Justice, dissenting.

I agree with everything said in the majority opinion. But the decision is wrong because of what is not said.

The procedures in Arkansas for ordering transcripts in these kinds of cases are by no means uniform. In some counties, a pro se appellant, who is declared indigent, must only file a timely notice of appeal to receive a transcript at public expense. In some counties, the circuit judge informs the clerk that the appellant is indigent and, upon such notice, a record is prepared. In other counties, the circuit court does not take on this responsibility and the appellant himself must contact the court reporter.

So, if you are an indigent person in some counties, you get an appeal; if, unfortunately, you are like the petitioner, you lose. *880 Justice can never be administered that way. The result is irrational, and we have to remedy the situation.

Since we cannot, and perhaps should not, tell certain counties to stop doing appellants a favor, we should simply see that appellants not so fortunate do not suffer. I would allow the record to be filed. That does not mean I alter my stand that Rule 37 should be repealed. But as long as it exists, we should prevent unfair procedural technicalities from depriving a defendant of access to the appellate court.