Opinion
No. CR-13-364
06-27-2013
JAMES BRIAN WRIGHT APPELLANT v. STATE OF ARKANSAS APPELLEE
James Brian Wright, pro se appellant. No response.
PRO SE APPELLANT'S MOTION FOR EXTENSION OF TIME TO FILE BRIEF [SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT, 66CR-05-744, 66CR-06-1258, HON. J. MICHAEL FITZHUGH, JUDGE]
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
In 2005, in 66CR-05-744, in the Sebastian County Circuit Court, Fort Smith District, appellant James Brian Wright entered a plea of guilty to failure to register as a convicted sex offender by virtue of a 1994 conviction in Oklahoma for rape. In 2006, in 66CR-06-1258, he entered a plea of guilty to the same charge.
In 2008, an Oklahoma court granted appellant's application for postconviction relief and vacated the 1994 rape conviction that had given rise to appellant's status as a sex offender. Thereafter, the circuit court entered an order in both 66CR-05-744 and 66CR-06-1258, noting that appellant was no longer required to register as a sex offender.
Despite the fact that appellant was lawfully required to register as a sex offender at the time he entered the pleas of guilty in 2005 and 2006, beginning in 2008, he filed a series of petitions for postconviction relief in 66CR-05-744 and 66CR-06-1258 to vacate the judgments. The basis for all the petitions was the claim that his convictions for failure to register as a sex offender were not valid because the rape conviction had been set aside.
After the trial court denied a petition that appellant had filed in 2010, appellant appealed to this court from the order. We affirmed. Wright v. State, 2011 Ark. 356 (per curiam). In the decision, we held that the trial court no longer had jurisdiction in the two cases to grant postconviction relief because the petition was properly considered as a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005), (2006), and it was not timely under the Rule. We also noted that the petition filed in 2010 was not the first petition for postconviction relief filed by appellant and that the Rule did not allow subsequent petitions unless the first was denied without prejudice to file a second. Wright, 2011 Ark. 356, at 2.
In 2013, appellant filed another challenge to the two convictions, which he labeled, "Motion to Dismiss Indictment and Convictions." In the motion, appellant raised the same ground as raised in the 2010 petition and also argued that he was not afforded effective assistance of counsel when the pleas of guilty were entered. The motion was denied, and appellant lodged an appeal from the order in this court. Now before us is appellant's motion for an extension of time to file his brief-in-chief.
We need not consider the motion because it is clear that appellant could not prevail on appeal. This court will not permit an appeal from an order that denied a petition for postconviction relief to go forward where it is clear that the appellant could not succeed on appeal. Murphy v. State, 2013 Ark. 243 (per curiam).
As with the 2010 petition, regardless of the label placed on the petition by appellant, it was a petition for postconviction relief, and such petitions under Arkansas law are governed by the time constraints set out in the Rule. See Holliday v. State, 2013 Ark. 47 (per curiam). Rule 37.2(c)(i) requires that, where an appellant entered a plea of guilty, a petition must be filed within ninety days of the date that the judgment was entered of record. Davis v. State, 2013 Ark. 189 (per curiam). The fact that circumstances may have arisen after that ninety-period elapsed that appellant desired to raise in a petition to vacate the judgments did not extend the time for him to proceed under the Rule.
Appeal dismissed; motion moot.
James Brian Wright, pro se appellant.
No response.