Paul Emery v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 5, 2001

PAUL EMERY

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-49

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF JACKSON COUNTY, NO. CR 96-187, HON. HAROLD S. ERWIN, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK AND DENIED

Paul Emery was found guilty of rape and sexual abuse in the first degree and sentenced to an aggregate term of 600 months' imprisonment. We affirmed. Paul Emery, CR 97-993 (November 4, 1999). Emery subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and Emery filed a timely notice of appeal but did not tender the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a).1

Now before us is Emery's motion for belated appeal of the order. As the notice of appeal was timely, we will treat the motion as a motion for rule on clerk to lodge the record. Petitioner Emery contends that he should be permitted to lodge the record belatedly because the circuit

clerk declined to lodge the record for him.

A petitioner has the right to appeal a ruling on a petition for postconviction relief. 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 and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petition 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; Bragg v. State, supra. It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). In the event petitioner could not tender the full record, his course was to lodge a partial record here within within ninety days of the date of the notice of appeal as required by Rule 5(a) with a petition for writ of certiorari to complete the record. Petitioner did not pursue the course available to him and has not established that there was good cause for his failure to perfect the appeal. Accordingly, the motion to proceed with the appeal is denied.

Motion treated as motion for rule on clerk and denied.

1 The record was tendered here 286 days after the notice of appeal was filed.