Ross v. State
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Petitioner Archie Ross was found guilty by a jury of attempted second-degree murder and attempted manslaughter. He was sentenced as a habitual offender to an aggregate term of 432 months' imprisonment. The court of appeals affirmed. Petitioner filed in the trial court a pro se petition for postconviction relief. The court denied the order. Petitioner did not timely file a notice of appeal and sought leave to proceed with a belated appeal pursuant to Ark. R. App. P.-Crim. 2(e). The Supreme Court denied the motion, holding that petitioner failed to act to preserve his right to appeal the postconviction order and did not meet his burden of demonstrating that there was good cause for the failure to do so.
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Cite as 2011 Ark. 270
SUPREME COURT OF ARKANSAS
No.
CR 11-503
Opinion Delivered
ARCHIE L. ROSS
Petitioner
v.
June 16. 2011
PRO SE MOTION FOR BELATED
APPEAL OF ORDER [CRITTENDEN
COUNTY CIRCUIT COURT, CR
2009-753, HON. RALPH E. WILSON,
JR.]
STATE OF ARKANSAS
Respondent
MOTION DENIED.
PER CURIAM
In 2009, petitioner Archie L. Ross was found guilty by a jury of attempted seconddegree murder and attempted manslaughter. He was sentenced as a habitual offender to an
aggregate term of 432 months’ imprisonment. The Arkansas Court of Appeals affirmed. Ross
v. State, 2010 Ark. App. 734.
Petitioner subsequently filed in the trial court a timely verified pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The court
entered an order denying the petition on December 29, 2010. Petitioner did not timely file
a notice of appeal from the order and now seeks leave to proceed with a belated appeal.
Arkansas Rule of Appellate Procedure–Criminal 2(a)(4) (2011) requires that a notice
of appeal be filed within thirty days of the date an order denying postconviction relief was
entered. The record lodged with the motion for belated appeal reflects that a copy of the
Cite as 2011 Ark. 270
order was mailed to petitioner on the day it was entered, and petitioner does not claim that
he did not receive it in time for him to file a timely notice of appeal. He filed the notice of
appeal on Monday, February 28, 2011, which was sixty-one days after the order was entered.
Arkansas Rule of Appellate Procedure–Criminal 2(e) (2011) permits a belated appeal
when good cause for the failure to file a timely notice of appeal is shown. If a notice of appeal
is not timely filed, the burden is on the petitioner to establish good cause for the failure to
comply with proper procedure. Atkins v. State, 2010 Ark. 392 (per curiam); Cummings v. State,
2010 Ark. 123 (per curiam); Hale v. State, 2010 Ark. 17 (per curiam); see Garner v. State, 293
Ark. 309, 737 S.W.2d 637 (1987) (per curiam). We have consistently held that this burden
applies even where the petitioner proceeds pro se, as all litigants must bear the responsibility
for conforming to the rules of procedure or demonstrating good cause for not so conforming.
Wright v. State, 2010 Ark. 474 (per curiam); Cummings, 2010 Ark. 123; Hale, 2010 Ark. 17
(citing Daniels v. State, 2009 Ark. 607 (per curiam)); see also 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).
Petitioner argues that he should be allowed to proceed with an appeal because his
failure to file a timely notice of appeal from the Rule 37.1 order stemmed from his lack of
legal knowledge. He explains that he erroneously believed that he had sixty days to file the
notice of appeal.
We do not find that petitioner has established good cause for his failure to conform to
procedural rules. This court has specifically held that the mere declaration of ignorance of the
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Cite as 2011 Ark. 270
rules of procedure does not constitute good cause for the failure to comply with procedural
rules. Wright, 2010 Ark. 474; Burgess v. State, 2010 Ark. 34 (per curiam). If it were good cause
to excuse lack of compliance, it would be just as well to have no rules, as an appellant could
simply bypass the rules by claiming a lack of knowledge. See Garner v. State, 293 Ark. 309,
737 S.W.2d 637 (1987).
It is not the responsibility of anyone other than the appellant to perfect an appeal.
Wright, 2010 Ark. 474; see Ester v. State, 2009 Ark. 442 (per curiam) (citing Sullivan v. State,
301 Ark. 352, 784 S.W.2d 155 (1990)). Here, petitioner failed to act to preserve his right to
appeal the postconviction order, and he has not met his burden of demonstrating that there
was good cause for the failure to do so.
Motion denied.
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