Andrew Ross, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 23, 2002

ANDREW ROSS, JR.

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-302

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF MISSISSIPPI COUNTY, CHICKASAWBA DISTRICT, CR 99-334-F, HON. JOHN N. FOGLEMAN]

MOTION DENIED

Andrew Ross, Jr., was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. We affirmed. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Ross subsequently filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court which was denied on January 7, 2002. Ross did not file a notice of appeal until February 14, 2002, 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. He now seeks leave to proceed with a belated appeal of the order.

Petitioner Ross 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 "submitted" the notice of appeal, by which it may be assumed that it was mailed, to the clerk on January 9, 2002, but the clerk waited to file it until February 14, 2002.

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 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, supra. 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. There is no proof offered that the notice of appeal was mailed to the circuit clerk in time to reach the clerk for filing within the thirty-day period allowed to file a timely notice of appeal. 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 to proceed with a belated appeal is denied.

Motion denied.