Mitchael v. State
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Cite as 2009 Ark. 516
SUPREME COURT OF ARKANSAS
No.
CR 09-731
Opinion Delivered
October 22, 2009
PRO SE MOTION FOR BELATED
APPEAL [CIRCUIT COURT OF
CRAWFORD COUNTY, CR 2006-166,
HON. GARY R. COTTRELL, JUDGE]
RODNEY LEE MITCHAEL
Petitioner
v.
MOTION DENIED.
STATE OF ARKANSAS
Respondent
PER CURIAM
In 2006, a jury found petitioner Rodney Lee Mitchael guilty of rape and first-degree terroristic
threatening and sentenced him to an aggregate term of 780 months’ imprisonment in the Arkansas
Department of Correction. The Arkansas Court of Appeals affirmed. Mitchael v. State, CACR 07-98
(Ark. App. Jan. 16, 2008). On April 24, 2008, petitioner filed in the trial court a petition for
postconviction relief under Arkansas Rule of Criminal Procedure 37.1, which was denied by the trial
court as untimely. The partial record before us does not indicate that a timely notice of appeal was filed
in the trial court. Petitioner has now filed in this court a motion in which he seeks to proceed with an
appeal of the order denying postconviction relief.
In his motion before this court, petitioner asserts that he is indigent, that he mailed his petition
under Rule 37.1 on April 17, 2008, that he did not have control over the date that the petition was filed,
that he has grounds for relief under Rule 37.1, and that those grounds should be considered. Petitioner
does not, however, provide any reason for his failure to timely file a notice of appeal or otherwise
comply with our rules of procedure for perfecting an appeal. See Ark. R. App. P.–Crim. 2(a). If a
Cite as 2009 Ark. 516
petitioner fails to timely file a notice of appeal, a belated appeal will not be allowed absent a showing
by the petitioner of good cause for the failure to comply with proper procedure. Ark. R. App. P.–Crim.
2(e); Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam).
In addition, it is clear that petitioner could not be successful in any appeal of the order denying
postconviction relief. This court has consistently held that an appeal of the denial of postconviction
relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v.
State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam). The trial court dismissed the petition as not
timely filed under Arkansas Rule of Criminal Procedure 37.2(c) and petitioner would contest that
finding. Regardless as to the merits of petitioner’s claims concerning that issue, the petition also failed
to comply with Rule 37.1(c).
Petitioner did not verify the petition. Rule 37.1(c) provides a form of affidavit to be attached
to the petition. See Bunch v. State, 370 Ark. 113, 257 S.W.3d 533 (2007) (per curiam). Here, the petition
was not notarized and no affidavit was attached. The petition included a notation that the petitioner
was in isolation and that no notary was available. Under Rule 37.1(d), the circuit clerk is not to accept
for filing any petition that fails to comply with the requirements of Rule 37.1(c). The trial court could
not consider the issues in the petition. Id.; see also Shaw v. State, 363 Ark.156, 211 S.W.3d 506 (2005) (per
curiam). Under Rule 37.1(d), the circuit court and any appellate court must dismiss a petition that is not
verified as required by Rule 37.1(c). Because the trial court properly dismissed the petition for
postconviction relief, we deny petitioner’s motion for belated appeal.
Motion denied.
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