Opinion
CR 10-1135
Opinion Delivered January 20, 2011
Pro Se Motion for Belated Appeal of Order [Grant County Circuit Court, CR 2008-81, Hon. Chris E Williams, Judge], Motion Granted.
In 2009, petitioner Jose Luis Fernandez was found guilty by a jury of rape and sentenced to life imprisonment. We affirmed. Fernandez v. State, 2010 Ark. 148, ___ S.W.3d ___.
Subsequently, petitioner timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The court entered an order denying the petition on June 23, 2010. Petitioner did not file a notice of appeal from the order and now seeks leave to proceed with a belated appeal.
A petitioner desiring to appeal to this court from the denial of postconviction relief is required to file a notice of appeal with the circuit clerk within thirty days of the entry of the trial court's order. Ark. R. App. P.-Crim. 2(a)(4) (2010).
Arkansas Rule of Appellate Procedure-Criminal 2(e) (2009) permits a belated appeal when good cause for the failure to file a 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. Atkins, 2010 Ark. 392; 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 states that he was not aware that the Rule 37.1 petition had been denied until he was transported to the circuit court on September 8, 2010, and informed orally that the order denying the petition had been entered June 23, 2010. The record submitted with the instant motion for belated appeal supports the claim in that it contains an order entered August 12, 2010, directing the county sheriff to transport petitioner to the court in Grant County on September 8, 2010, for "the purposes of postconviction relief."
Petitioner also contends that the circuit court failed to send him a copy of the order denying petitioner's Rule 37.1 petition, which the court is required to do under Arkansas Rule of Criminal Procedure 37.3(d). We have previously held that the language of Rule 37.3(d) is mandatory. Atkins, 2010 Ark. 392; Cummings, 2010 Ark. 123; Hale, 2010 Ark. 17 (citing Tarry v. State, 353 Ark. 158, 114 S.W.3d 161 (2003) (per curiam)). The rule is intended to "provide for prompt, consistent notice to petitioners." See Scott v. State, 281 Ark. 436, 438, 664 S.W.2d 475, 476 (1984) (per curiam).
Nothing in the record suggests that petitioner was properly notified under Rule 37.3 that the order had been entered, and the August 12, 2010 order contained in the record substantiates petitioner's assertion that he was not informed of the court's order until after the time to file a notice of appeal had elapsed. The Attorney General, representing the respondent State, has not filed a response to petitioner's instant motion to refute the allegations contained in it, including the alleged failure to give notice that the order was entered. Where the record does not show that a petitioner was duly informed that his or her Rule 37.1 petition had been denied, and the respondent is unable to provide an affidavit from the clerk or some other proof that the order was mailed, we must assume that the petitioner was not properly notified. Atkins, 2010 Ark. 392; Cummings, 2010 Ark. 123; Hale, 2010 Ark. 17 (citing Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985) (per curiam)); see also Kelly v. State, 301 Ark. 294, 783 S.W.2d 369 (1990) (per curiam). We have consistently held that failure of the circuit court to abide by Rule 37.3(d) may establish good cause for a petitioner's failure to timely file a notice of appeal. See, e.g., Atkins, 2010 Ark. 392; Cummings, 2010 Ark. 123; Hale, 2010 Ark. 17; Chiasson v. State, 304 Ark. 110, 798 S.W.2d 927 (1990) (per curiam); see also Porter, 287 Ark. at 360, 698 S.W.2d at 802. Our clerk is directed to lodge the record and set a briefing schedule for the appeal.
Motion granted.