Edward Loveless v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-648

NOT DESIGNATED FOR PUBLICATION

EDWARD LOVELESS

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered January 26, 2006

PRO SE MOTION FOR RECONSIDERATION OF MOTION TO STAY THE APPEAL, PETITION FOR WRIT OF CERTIORARI, AND PETITION FOR JOINDER [CIRCUIT COURT OF POPE COUNTY, CR 2002-658, CR 2003-115, HON. DENNIS CHARLES SUTTERFIELD, JUDGE]

MOTION FOR RECONSIDERATION DENIED; PETITIONS MOOT; APPEAL DISMISSED

PER CURIAM

A jury found Edward Loveless guilty of possession of drug paraphernalia with intent to manufacture methamphetamine and manufacture of methamphetamine. The jury sentenced him to a term of 120 months' imprisonment and a $5,000.00 fine on the possession charge, and to a term of 240 months' imprisonment and a $5,000 fine on the manufacturing charge. The court of appeals affirmed. Loveless v. State, CACR 04-525 (Ark. App. March 2, 2005). Loveless subsequently filed a timely petition in the trial court for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The trial court dismissed the petition.

Appellant Loveless lodged the record on appeal in this court from the denial of the petition for postconviction relief. Appellant, proceeding pro se, subsequently filed a motion to stay the appeal so that a petition for writ of error coram nobis could be filed in the trial court, a petition for writ of certiorari, and a petition to join the postconviction relief appeal with the writ of certiorari and the related writ of error coram nobis. We denied the motion and the petition for writ of certiorari, and held the petition for joinder to be moot. Loveless v. State, CR 04-648 (Ark. October 20, 2005) (per curiam). Our decision hinged on appellant's improperly filing a writ of error coram nobis in the circuit court, citing Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam). A writ of error coram nobis may be considered by a circuit court only after completion of the direct appeal from this judgment, and only after we grant permission.

Now before us is appellant's pro se motion seeking reconsideration of that decision.1 Appellant essentially claims that he erroneously filed the writ of error coram nobis in the circuit court based upon "misinformation" in a 1994 article from The Arkansas Lawyer magazine "supplied" to him by the Arkansas Department of Correction as an "instructional booklet." As with all matters before this court, if an appellant fails to follow correct procedural requirements, the burden lies with the appellant 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) (per curiam). The fact that an appellant is proceeding pro se 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) (per curiam); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983) (per curiam); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990) (per curiam).

As we stated in our original opinion, appellant failed to follow the proper procedure with regard to the writ of error coram nobis; that is, he failed to obtain this court's permission before proceeding in circuit court. The motion for reconsideration does not establish that there was any error in our opinion denying the motions, and thus no ground for reconsideration of the pleadings.

Appellant's appeal from the denial of his petition for postconviction relief remains pending before this court. Postconviction remedies pursuant to Ark. R. Crim. P. 37.1 are civil in nature. McArty v. State, __ Ark. __, __ S.W.3d __ (Ark. January 5, 2006), citing Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). This court may dismiss an appeal in a civil matter for failure to file a brief. Ark. Sup. Ct. R. 4-5. The appellant's brief was due to be filed in this appeal on or before July 25, 2005. Appellant failed to submit this brief and sought no extension of time to file the brief. Therefore, appellant's appeal from the denial of the petition for postconviction relief is dismissed for failure to file a brief.

Motion for reconsideration denied; petitions moot; appeal dismissed.

1 Appellant filed a single document with this court consisting of two parts: petition for review and petition for rehearing. Appellant represented his intention that the two pleadings be treated as a single pleading seeking a motion for reconsideration. A staff attorney with the court informed appellant by return letter that the petition will be filed as one motion for reconsideration of the motions denied on October 20, 2005, and that if appellant's intent has been misunderstood, appellant was required to inform this court. Appellant did not respond to the letter.