Kenneth D. Williams v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 21, 2002

KENNETH D. WILLIAMS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-113

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 98-1113-2, HON. FRED DAVIS, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK AND DENIED

Kenneth D. Williams was found guilty by a jury of aggravated robbery, kidnapping, theft of property, and arson and sentenced to an aggregate term of 312 months' imprisonment. The court of appeals affirmed. Williams v. State, CACR 00-432 (November 29, 2000). Williams 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 Williams 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 Williams'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.

As grounds for the request to lodge the record belatedly, petitioner Williams contends that: (1) his trial attorney was obligated to assist him in perfecting the Rule 37 appeal but failed to do so; (2) he filed a motion to extend the time to lodge the record and a motion for appointment of counsel, neither of which was ever acted on by the court; (3) he asked in the notice of appeal for the record to be forwarded to the appellate court; and (4) the circuit clerk did not respond to his letter asking if he would be notified when the record was forwarded to the appellate court. First, the Rule 37petition filed by petitioner Williams was a pro se petition. The attorney who represented him at trial and who was accused in the Rule 37 petition of having rendered ineffective assistance to petitioner had no obligation to perfect an appeal of the Rule 37 order.

With respect to the motion for extension of time and motion for counsel which petitioner alleges were filed, it was petitioner's obligation to obtain a ruling on the motions. In the event petitioner could not tender the full record, his course was to lodge a partial record here 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.

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 petitioner 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 ofprocedure. 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). Petitioner failed to perfect the appeal and has not established that there was good cause for his failure to do so. 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 288 days after the notice of appeal was filed.