David Wayne Cummins v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-647

NOT DESIGNATED FOR PUBLICATION

DAVID WAYNE CUMMINS

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 20, 2005

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL AND TO DUPLICATE AT STATE EXPENSE [CIRCUIT COURT OF LOGAN COUNTY, CR 2004-93A, HON. PAUL EDWARD DANIELSON, JUDGE]

MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION FOR DUPLICATION AT STATE EXPENSE DENIED

PER CURIAM

A judgment and commitment order entered February 11, 2005, reflects that David Wayne Cummins entered a plea of guilty to manufacture of methamphetamine and was sentenced to 180 months' imprisonment in the Arkansas Department of Correction, with 60 months of that sentence suspended. Cummins filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied. The record on appeal from the order has been lodged here. Now before us are motions filed by appellant Cummins that request appointment of counsel and duplication of his brief at state expense.

Postconviction matters, such as petitions pursuant to Criminal Procedure Rule 37.1, are considered civil in nature with respect to the right to counsel; there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986)(per curiam). Nevertheless, this court has held that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. See Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989) (per curiam). Because appellant makes no statement as to the merit of the appeal, we cannot find that he has demonstrated that he is entitled to appointment of counsel. The motion for appointment of counsel is denied.

Appellant has also filed a motion requesting duplication of his brief at public expense. There is no right under our rules or any constitutional provision to have a brief in a postconviction or a civil case duplicated at public expense. See Maxie v. Gaines, 317 Ark. 229, 876 S.W.2d 572 (1994) (per curiam). Nevertheless, in those cases where the indigent appellant makes a substantial showing in a motion to have the appellant's brief duplicated that the appeal has merit and that he cannot provide the court with a sufficient number of copies of the brief, we will request the Attorney General to duplicate the brief. In the motion before us, appellant has failed to offer any showing of substantial merit to the appeal. Accordingly, appellant's motion is denied.

Motion for appointment of counsel denied; motion for duplication at state expense denied.