Delgado v. State (Per Curiam)

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Lydia Delgadio was convicted and sentenced for possession of drug paraphernalia and possession of methamphetamine with intent to deliver. The circuit court denied Delgado's petition for postconviction relief. Delgado filed a notice of appeal, nine days late. Delgado then filed a motion to file notice of appeal and designation of record out-of-time, which the Supreme Court treated as a motion for belated appeal. In the motion, Delgado stated that she mailed the notice of appeal before the deadline, and after the deadline the notice was returned for insufficient postage. The Court denied the motion, holding that the motion failed to establish good cause for not filing a timely notice of appeal.

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Cite as 2012 Ark. 9 SUPREME COURT OF ARKANSAS No. CR11-1252 LYDIA MARIE DELGADO Opinion Delivered January 12, 2012 APPELLANT V. MOTION TO FILE BELATED APPEAL STATE OF ARKANSAS APPELLEE MOTION TO FILE BELATED APPEAL DENIED. PER CURIAM On April 9, 2010, Lydia Marie Delgado was sentenced to serve 36 months imprisonment for possession of drug paraphernalia and 360 months imprisonment for possession of methamphetamine with intent to deliver, to be served concurrently. The court of appeals affirmed her conviction on February 16, 2011. Delgado v. State, 2011 Ark. App. 124. A petition for postconviction relief was sought by Delgado on May 6, 2011. The circuit court denied relief and entered an order to that effect on July 14, 2011. Delgado filed a notice of appeal on August 24, 2011, nine days late. Now before us is Delgado s motion to file notice of appeal and designation of record out-of-time. As the notice of appeal was untimely, we treat the motion as a motion for Cite as 2012 Ark. 9 belated appeal pursuant to Rule 2(a)(4) of the Rules of Appellate Procedure Criminal. In the motion, counsel for Delgado states that he mailed the notice of appeal on August 12, 2011. The deadline was Monday, August 15, 2011.1 Counsel states that on August 16, 2011, the notice was returned for insufficient postage. He then filed this motion with the clerk on August 24, 2011. We have held that a petitioner has a right to appeal an adverse ruling on a petition for postconviction relief. Daniels v. State, 2009 Ark. 607 (per curiam) (citing Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984) (per curiam)). With that right goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 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. Leavy v. Norris, 324 Ark. 346, 920 S.W.2d 842 (1996) (per curiam) (citing Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam)). Here, Delgado makes a base assertion that the notice of appeal was mailed. However, the rule does not contemplate that mailing is equivalent to filing with the clerk. An allegation that the notice of appeal was mailed is not good cause. The motion fails to establish that the clerk received the notice of appeal within thirty days of the order and fails to establish good 1 The time period to file the notice of appeal expired on Saturday, August 13, 2011. Therefore, the notice of appeal was due the following Monday. Ark. R. App. P. Crim. 17 (2011). 2 Cite as 2012 Ark. 9 cause for not filing a timely notice of appeal. Motion for belated appeal denied. 3

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