Guy Anthony Johnson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 25, 2002

GUY ANTHONY JOHNSON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 02-152

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF SALINE COUNTY, NO. CR 98-109-2, HON. GARY M. ARNOLD, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK AND DENIED

Guy Anthony Johnson was found guilty by a jury of rape and sentenced to a term of 336 months' imprisonment. The court of appeals affirmed. Johnson v. State, CACR 98-1531 (Ark. App. September 29, 1999). Johnson subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied after a hearing, and Johnson filed a timely pro se notice of appeal on May 21, 2001, but he did not tender the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a).1

Now before us is Johnson's motion for belated appeal of the order. As the notice of appeal was timely, we will treat the motion as a motion for rule on clerk to lodge the record.

As grounds for the request to lodge the record belatedly, petitioner Johnson first contends that on August 1, 2001, he filed a motion for rule on clerk in the circuit court, seeking an order compelling the circuit clerk to prepare the Rule 37 appeal record, but it was never acted on by the court. It was, however, petitioner's responsibility to obtain a ruling on the motion. Moreover, if he recognized that the record would not be prepared within the ninety-day period,

proper procedure would require the filing in circuit court of a motion for extension of time to lodge the record. In the event petitioner could not tender the full record, his course was to lodge a partial record here within ninety days of the date of the notice of appeal as required by Rule 5(a) with a petition for writ of certiorari to complete the record.

Petitioner next states that an attorney was appointed to represent him at the Rule 37 hearing but relieved by letter order before the notice of appeal was filed. He argues that he was entitled to appointment of counsel for the appeal. Contrary to petitioner's assertion, Rule 37.3(b) makes appointment of counsel for the Rule 37 hearing and a subsequent appeal discretionary with the trial court. The rule specifically permits the court to relieve counsel after the hearing.

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). With that right, however, goes the responsibility to file a timely notice of appeal and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petition to make a showing of good cause for the failure to comply with proper procedure. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se on appeal in itself does not constitute good cause for the failure to conform to the prevailingrules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990). This court has specifically held that it is not the responsibility of the circuit clerk, circuit court, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra. It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). Petitioner failed to perfect the appeal and has not established that there was good cause for his failure to do so. Accordingly, the motion to proceed with the appeal is denied.

Motion treated as motion for rule on clerk and denied.

1 The record was tendered here 268 days after the notice of appeal was filed.