Billy Mack Nichols v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 10, 2001

BILLY MACK NICHOLS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 01-331

PRO SE MOTION AND AMENDED MOTION FOR RULE ON CLERK AND MOTIONS FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-1586]

MOTION AND AMENDED MOTION FOR RULE ON CLERK DENIED; MOTIONS FOR APPOINTMENT OF COUNSEL AND PETITION FOR WRIT OF CERTIORARI MOOT

Billy Mack Nichols was found guilty by a jury of battery, kidnapping, aggravated robbery, and theft of property and sentenced as a habitual offender to an aggregate term of fifty years' imprisonment. The court of appeals affirmed. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). Nichols subsequently filed a pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court which was denied on November 7, 2000. Nichols did not file a notice of appeal from the order until Friday, December 8, 2000, which was not within the thirty-day period allowed for filing a notice of appeal under Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal.

When petitioner Nichols tendered the record here, our clerk correctly declined to lodge it because of the late notice of appeal. Now before us are petitioner's motion and amended

motion for rule on clerk asking to be allowed to proceed with a belated appeal of the order. Petitioner also filed two motions for appointment of counsel and a petition for writ of certiorari.

Petitioner contends that he should be permitted to proceed with a belated appeal because the late filing of the notice of appeal was the fault of the circuit clerk. He states that he "certified service" on the circuit clerk on November 24, 2000, which is an apparent reference to the fact that the notice was notarized that day and bears a Certificate of Service reflecting service on the prosecuting attorney, the circuit clerk, and this court. Petitioner offers no proof of having mailed the notice of appeal on November 24, 2000, however, and we note that this court never received from petitioner at any time a copy of the notice of appeal filed by the circuit clerk on December 8, 2000, despite the reference to this court in the Certificate of Service.

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 goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 2(a)(4). If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. 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 or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State,

297 Ark. 348, 760 S.W.2d 878 (1988). We have further held that the litigant who claims to have mailed an item has the burden of proving that he mailed it and that it reached the circuit clerk by the date it was due to be filed. See Leavy v. Norris, 324 Ark. 346, 920 S.W.2d 842 (1996). The bare allegation that a notice of appeal was mailed is not in itself good cause to grant a belated appeal. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). As we said in Skaggs,

If it [the allegation that a notice was mailed]

were [sufficient], there would be no point in setting up

rules of procedure since the procedural requirements

could be circumvented by a simple claim that the

petitioner's failure to comply with the rules was

caused by the post office.

It must be assumed that if the petitioner had mailed the notice to the clerk on time, it would have been delivered and filed. Leavy, supra. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from but did not file it and has stated no good cause for his failure to file a timely notice of appeal, the motion and amended motion for rule on clerk to proceed with a belated appeal are denied. The motions for appointment of counsel are moot.

Motion and amended motion denied; motions for appointment of counsel and petition for writ of certiorari moot.