Bruce D. Winningham v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 5, 2002

BRUCE D. WINNINGHAM

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-976

PRO SE MOTION FOR RULE ON THE CLERK [CIRCUIT COURT OF STONE COUNTY, CR 98-87, HON. JOHN DAN KEMP, JR. JUDGE]

MOTION DENIED

Petitioner pleaded guilty to delivery of methamphetamine and delivery of marijuana. He was sentenced to fifteen years' imprisonment. Petitioner subsequently sought postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37, but his petition was dismissed for a lack of jurisdiction. This court affirmed that order. Winningham v. State, CR 00-597 (Ark. Dec. 20, 2001)(unpublished).

The petitioner then filed a pro se petition for writ of error coram nobis, which was denied on April 29, 2002. Petitioner filed a notice of appeal on May 22, 2002. Petitioner, however, untimely tendered the record on August 23, 2002, outside the allowed ninety day period following the filing of the notice of appeal. See Ark. R. App. P. -- Civ. 5(a); Ark. R. App. P. -- Crim. 4. He now seeks leave to proceed with a belated appeal of the circuit court's order of denial.

As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the appealrather than a motion for belated appeal. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 ( 2000); see also Magby v. State, 348 Ark. 415, 72 S.W.3d 508 (2002)(per curiam) (holding that all orders granting or denying coram nobis relief entered on or after April 25, 2002, would be by appeal rather than by writ of certiorari).

Petitioner contends that he placed the record on appeal in the prison mailbox on August 10, 2002, but that it was not mailed until August 22, 2002. He also states that he mailed a motion for extension of time to file the record to the circuit court on August 15, 2002. Petitioner finally requests that we adopt the federal "prison mailbox rule," which provides that a pro se inmate files a pleading at the time it was placed in the hands of prison officials for mailing.

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 abide by the rules of procedure. If a petitioner fails to follow procedural rules, 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 of procedure. See 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.

It was the responsibility of the petitioner to perfect the appeal. The record was certified by the circuit clerk on June 18, 2002, but petitioner offers no explanation as to why he did not place the record in the prison mailbox until August 10, 2002. Likewise, no order by the circuit court extending the time in which to lodge the record on appeal has been presented to us. Finally, thiscourt has declined to adopt the federal mailbox rule in the past, and we now do so again. See Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999). The petitioner has not established that there was good cause for his failure to perfect his appeal.

Motion denied.