Charles Randle Jones v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

CHARLES RANDLE JONES,

APPELLANT,

v.

STATE OF ARKANSAS,

APPELLEE,

CR 00-53

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION,

NO. CR 98-437,

HON. JOHN W. LANGSTON,

JUDGE

AFFIRMED.

Appellant Charles Randle Jones pled guilty in the Pulaski County Circuit Court to one count each of possession of methamphetamine with intent to deliver; possession of marijuana with intent to deliver; possession of drug paraphernalia; and maintaining a drug premises. He was sentenced to one term of fifteen years' imprisonment; one term of ten years' imprisonment; and two terms of thirty-six months' imprisonment, respectively. Judgment was entered on October 13, 1998.

On September 16, 1999, Appellant filed a motion seeking to file a belated petition for postconviction relief, pursuant to Ark. Cr. P. R. 37. Appellant argued that due process requires that the court notify a defendant who is pleading guilty that he has ninety days in which to file a petition for postconviction relief. Appellant then stated that neither the court, nor his counsel, ever notified him that he had the right to seek postconviction relief, or the time constraints imposed on such relief. The trial court denied Appellant's petition, finding that the time requirements of Rule 37 are

jurisdictional in nature, and thus, the trial court was without authority to hear a belated petition. From this order, comes the instant appeal.

On appeal, Appellant argues that there is a constitutional requirement to notify a defendant who pleads guilty that he only has ninety days after the entry of judgment in which to file a petition for postconviction relief challenging the effectiveness of counsel in entry of a plea. Appellant concedes that his motion to file a belated petition, and the petition itself, were filed well outside the ninety day time limit. Appellant also concedes that this court has held that the requirements of Rule 37 are jurisdictional in nature. See Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1996). Appellant contends, however, that the failure to notify him of his right to seek postconviction relief implicates his right of due process, and therefore, overcomes any jurisdictional limit imposed by Rule 37. Porter also argues that this court has previously allowed exceptions to the ninety-day rule, and therefore, should allow an exception in his case. We disagree.

This court has held that there is no constitutional right to a postconviction proceeding, but when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988)). It is true that this court has allowed an inmate on death row to file a belated Rule 37 petition in Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999). We noted in Porter that our holding applied only to those situations where the death penalty was involved. This limited exception was again recognized in Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001). There, this court stated, "[i]f the present case were a non-capital case, then the general rule would certainly be that the time limits set forth in Rule 37 are jurisdictional in nature and would apply; further, that rule would necessitate that this Court affirm the circuit court's order." Id. at 616, 37 S.W.3d at 597. Here, Appellant, does not face a sentence of death. Moreover, this court haspreviously recognized a distinction between a defendant's right to a direct appeal and his right to pursue a collateral attack on a judgment. See Hill v. State, 293 Ark. 310, 737 S.W.2d 636 (1987). In Hill, we stated that a collateral attack on a judgment "does not carry with it every procedural safeguard provided for a first appeal of the judgment of conviction. Id. at 311, 737 S.W.2d at 637. Accordingly, the trial court did not err in denying Appellant's motion to file a belated petition.

Affirmed.