Joe Edwin Clem v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

October 7, 2004

JOE EDWIN CLEM

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 04-672

PRO SE MOTION FOR RULE ON CLERK TO LODGE RECORD BELATEDLY AND PRO SE PETITION FOR WRIT OF CERTIORARI [CIRCUIT COURT OF CRAIGHEAD, WESTERN DISTRICT, CR 2001-319, HON. DAVID BURNETT, JUDGE]

MOTION DENIED; PETITION MOOT

Per Curiam

In 2001, Joe Edwin Clem was found guilty by a jury of one count of rape and three counts of accomplice to rape. Clem was sentenced to three terms of life imprisonment and one term of forty years' imprisonment. We affirmed. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

Clem subsequently filed a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in the trial court, which was denied on September 10, 2003. Petitioner Clem filed a timely notice of appeal on September 24, 2003, but he did not tender the record to this court until June 2, 2004, which was not within the ninety-day period allowed for lodging a record under Rule 5(a) of the Rules of Appellate Procedure-Civil.1

In the instant motion, petitioner seeks leave to lodge the record belatedly and proceed with an appeal of the order. He also asks that a petition for writ of certiorari be issued, ostensibly to bringup the remainder of the record, but he does not specify what is missing from the tendered record.

Petitioner contends that he should be permitted to lodge the record belatedly because he made a diligent effort to perfect the appeal but the circuit clerk refused to prepare the record and provide it to him to be lodged here.

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 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. Here, the petitioner places the entire blame for the late tender of the record on the circuit clerk. Placing blame on the clerk does not constitute

good cause for petitioner's failure to perfect the appeal. Accordingly, the motion for rule on clerk to lodge the appeal record belatedly is denied. The petition for writ of certiorari is moot.

Motion denied; petition moot.

1 The record was tendered here 252 days after the notice of appeal was filed.