Johninson v. State
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ARKANSAS SUPREME COURT
No.
CR 08-1468
Opinion Delivered
STACY JOHNINSON
Petitioner
March 5, 2009
PRO SE MOTION FOR BELATED
APPEAL [CIRCUIT COURT OF
PULASKI COUNTY, CR 96-1347, HON.
CHRIS PIAZZA, JUDGE]
v.
STATE OF ARKANSAS
Respondent
MOTION DENIED.
PER CURIAM
On February 4, 1997, petitioner Stacy Johninson entered a plea of guilty to aggravated
robbery and was sentenced to 480 months’ imprisonment. On July 1, 2008, petitioner filed in the
trial court a pro se motion to vacate the plea, which was denied on July 8, 2008. Petitioner did not
timely file a notice of appeal, and he now seeks leave to proceed with a belated appeal from the order
pursuant to Arkansas Rule of Appellate Procedure--Criminal 2(e).
Petitioner contends that he should be permitted to proceed with a belated appeal because the
notice of appeal was placed in the mailbox where he was incarcerated before the time to file the
notice had elapsed. We have held, however, that a pleading or other item tendered to a court is
considered tendered on the date it is received by the clerk, not on the date it may have been placed
in the mail. See Hamel v. State, 338 Ark. 769, 1 S.W.3d 434 (1999) (per curiam).
The petitioner whose pleading is denied has the responsibility to file a timely notice of appeal
within thirty days of the date the order was entered in accordance with Arkansas Rule of Appellate
Procedure–Civil 4(a). If the petitioner fails to file a timely 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. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam). The fact that a
petitioner is proceeding pro se in itself 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).
We further note that even if petitioner had stated good cause to grant leave to proceed with
the appeal, he could not prevail on appeal inasmuch as the motion to vacate the guilty plea was filed
pursuant to Arkansas Rule of Civil Procedure 60. While Arkansas Rule of Civil Procedure 60(a)
allows for a circuit court to modify or vacate a judgment, order, or decree, within ninety days of its
having been filed with the clerk, we have emphatically stated that Rule 60(a) does not apply to
criminal proceedings. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). Nor have we allowed
for the application of Arkansas Rule of Civil Procedure 60(c), which allows a court to set aside a
judgment more than ninety days after the entry of judgment. See McArty v. State, 364 Ark. 517, 221
S.W.3d 332 (2006); Ibsen v. Plegge, supra.
This court has consistently held that an appeal from the denial of postconviction relief will
not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State,
338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13
(1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v.
State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam).
Motion denied.
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