James William Wood v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-741

NOT DESIGNATED FOR PUBLICATION

JAMES WILLIAM WOOD

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 13, 2005

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL, FOR TRANSCRIPT, AND FOR EXTENSION OF BRIEF TIME [CIRCUIT COURT OF JACKSON COUNTY, CR 2003-101, CR 2003-166, HON. HAROLD S. ERWIN, JUDGE]

MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION FOR TRANSCRIPT TREATED AS MOTION FOR RECORD AND GRANTED; MOTION FOR EXTENSION OF BRIEF TIME GRANTED

PER CURIAM

James William Wood pleaded guilty to possession of a controlled substance, methamphetamine, with intent to deliver; possession of drug paraphernalia; possession of a controlled substance, methamphetamine; and possession of more than nine grams of pseudo ephedrine, and was sentenced to a total of 384 months' imprisonment in the Arkansas Department of Correction. He filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1 in the trial court, which was denied. The record on appeal from that order has been lodged here. Now before us are motions filed by appellant Wood that request appointment of counsel, a copy of or access to the transcript and additional time to file appellant's brief.

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 therefore denied.

Appellant has also requested a copy of or access to the transcript. There is not a transcript, as such, and we must assume appellant intended to reference the record lodged here on appeal. Accordingly, we treat this as a request to access the record. An appellant must abstract or include in the addendum of the brief those portions of the record pertinent to the appeal. The motion is granted as to access to the record. Our clerk will provide appellant with a copy of the record so that he may prepare his brief.

Appellant has also requested an extension of thirty days to file the appellant's brief, which is the first such request by appellant in this appeal. The request is granted, and appellant's brief is due here no later than thirty days from the date of this opinion. The copy of the record must be returned to this court when the brief is submitted.

Motion for appointment of counsel denied; motion for transcript treated as motion for record and granted; motion for extension of time granted.