Young v. State
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Cite as 2009 Ark. 556
SUPREME COURT OF ARKANSAS
No.
CR 09-945
Opinion Delivered
LESLIE A. YOUNG
Petitioner
v.
STATE OF ARKANSAS
Respondent
November 5, 2009
PRO SE MOTIONS FOR BELATED
APPEAL, FOR COPY OR USE OF
TRANSCRIPT, AND FOR
APPOINTMENT OF COUNSEL
[CIRCUIT COURT OF SHARP
COUNTY, CR 2006-06, HON. HAROLD
S. ERWIN, JUDGE]
MOTION FOR BELATED APPEAL
TREATED AS MOTION FOR RULE
ON CLERK AND DENIED; MOTIONS
FOR COPY OR USE OF TRANSCRIPT
AND FOR APPOINTMENT OF
COUNSEL MOOT.
PER CURIAM
In 2006, a jury found petitioner Leslie A. Young guilty of capital murder, aggravated robbery,
attempted arson, and two counts of theft of property, and sentenced her to an aggregate term of life
imprisonment without parole plus 53 years. This court affirmed the judgment in part, but remanded
for a new suppression hearing. Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007). We later affirmed
the trial court’s decision following remand to deny the motion to suppress. Young v. State, 373 Ark. 41,
281 S.W.3d 255 (2008). The mandate issued on April 8, 2008.
Petitioner filed in the trial court a petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37.1 that was denied by order entered on February 27, 2009. Petitioner filed a
notice of appeal on March 23, 2009. On August 24, 2009, petitioner tendered a partial record of the
Cite as 2009 Ark. 556
Rule 37.1 proceedings and filed in this court a motion for belated appeal, seeking to proceed with an
appeal of the order denying postconviction relief. Petitioner additionally filed a motion in which she
sought a copy of, or access to, the transcript of the hearing on the Rule 37.1 petition. She later filed a
motion for appointment of counsel.
Where the notice of appeal was timely,1 we treat the motion to proceed with the appeal as a
motion for rule on clerk to lodge the record rather than a motion for belated appeal. Ester v. State, 2009
Ark. 442 (per curiam) (citing Mitchem v. State, 374 Ark. 157, 286 S.W.3d 679 (2008) (per curiam)).
Because we hold that petitioner has failed to state good cause for failure to conform with our rules of
procedure, the motion for rule on clerk is denied and petitioner’s remaining motions are moot.
Rule 4(b) of the Arkansas Rules of Appellate Procedure--Criminal requires that the record must
be tendered to this court within ninety days of the date of the notice of appeal, unless the circuit court
granted an extension of time. Petitioner requests that she be permitted to proceed with her appeal
because she has unsuccessfully sought to have the circuit clerk, circuit judge, prison law library
supervisor, and the inmate’s attorney “designate” the record, because she is entitled to appellate review
and her appeal is meritorious, and because she is indigent.
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) (per curiam). Along with that right, however, goes the
responsibility to comply with our rules of procedure. Where the transcript was not filed within the time
prescribed under Rule 4(b), this court may only act upon and decide those cases where the movant
1
Under Rule 2(a)(4) of the Arkansas Rules of Appellate Procedure–Criminal, the notice of appeal
must be filed within thirty days of the date of entry of an order denying a petition for postconviction relief
such as petitioner filed. Petitioner filed the notice of appeal twenty-four days after the order entered on
February 27, 2009.
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Cite as 2009 Ark. 556
shows good cause for the omission. Ark. R. App. P.–Crim. 2(e).
Petitioner did not lodge the transcript within the time required and the record does not indicate
that any extension was granted. She does not provide in the motion a reason for the delay, and, instead,
appears to indicate that others were responsible for lodging the transcript in this court. Petitioner does
not demonstrate good cause for the failure to timely file the transcript by placing the blame upon other
individuals. It is not the responsibility of the circuit clerk, circuit court, or anyone other than the
appellant, to perfect an appeal. Branning v. State, 363 Ark. 369, 214 S.W.3d 237 (2005) (per curiam). All
litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of
procedure or demonstrating a good cause for not doing so. Marshall v. State, 2009 Ark. 420 (per curiam);
Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986) (per curiam); 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 Tarry v. State, 353 Ark. 158, 114 S.W.3d 161 (2003) (per curiam). We note that indigent, pro se
appellants routinely pursue appeals to this court and comply with our rules concerning the lodging of
the transcript.
Moreover, it is not clear from the partial record before us that this court could assume
jurisdiction over an appeal. The partial record does not demonstrate that petitioner’s Rule 37.1 petition
was timely filed.
Where the judgment was appealed, Rule 37.2(c) of the Arkansas Rules of Criminal Procedure
requires that the petition for postconviction relief must be filed within sixty days of the date the mandate
issued. Here, the only petition contained in the record was filed marked on August 20, 2008, indicating
that it was filed in the trial court 134 days after the mandate issued. The time limitations imposed in
Rule 37.2(c) are jurisdictional in nature, and the circuit court may not grant relief on an untimely
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Cite as 2009 Ark. 556
petition. Womack v. State, 368 Ark. 341, 245 S.W.3d 154 (2006) (per curiam).
The trial court found that the petition was timely, but the record before us does not demonstrate
that the court could have considered the merits of the petition. A petitioner who seeks relief in this court
has the burden to bring up a sufficient record upon which to grant that relief. See Davidson v. State, 363
Ark. 86, 210 S.W.3d 887 (2005).
Petitioner has not demonstrated that we would be able to assume jurisdiction over an appeal,
even had petitioner demonstrated good cause for her failure to comply with procedure. Because
petitioner has not shown cause to grant her motion for rule on clerk, the motions for appointment of
counsel and for access to the transcript of the trial court proceedings so that she might pursue an appeal
are moot.
Motion for belated appeal treated as motion for rule on clerk and denied; motions for copy or
use of transcript and for appointment of counsel moot.
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