Opinion
No. CR 10-410
Opinion Delivered June 17, 2010
Pro Se Motions for Appointment of Counsel and Extension of Time to File Appellant's Brief [Circuit Court of Pulaski County, CR 2007-3368, Hon. Willard Proctor, Jr., Judge], Motion for Appointment of Counsel Denied; Motion for Extension of Time to File Appellant's Brief Granted in Part and Denied in Part.
In 2008, appellant Willie Clay Smith was found guilty by a jury of theft of property and sentenced as a habitual offender to a term of 300 months' imprisonment. The Arkansas Court of Appeals affirmed. Smith v. State, 2009 Ark. App. 151 (unpublished).
Appellant subsequently filed in the trial court a timely verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). A hearing was held on the petition, and it was denied. Appellant has lodged an appeal from the order in this court and now seeks appointment of counsel to represent him on appeal and an extension of ninety days' time to file his brief-in-chief.
The motion for appointment of counsel is denied. Postconviction matters, such as petitions pursuant to Arkansas Rule of Criminal Procedure 37.1, are considered civil in nature, and there is no absolute right to appointment of counsel in postconviction or civil matters. Rogers v. State, 2010 Ark. 46 (per curiam); see Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986) (per curiam). Nevertheless, we have held that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. Rogers, 2010 Ark. 46; see Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989) (per curiam). As the appellant here offers nothing to demonstrate that there is substantial merit to the appeal, he has not met his burden of establishing that he is entitled to appointment of counsel.
The motion for extension of time is granted, but not for the ninety days requested by appellant. The appellant's brief is due forty days from the date of this opinion.
Motion for appointment of counsel denied; motion for extension of time granted in part and denied in part.
CORBIN, J., not participating.