Nelson v. State

2013 Ark. 316

• Court: Supreme Court of Arkansas
• Decided: September 5, 2013
• Docket: CR-12-920
• Status: Published

Opinion

Cite as 2013 Ark. 316

SUPREME COURT OF ARKANSAS No. CR-12-920

Opinion Delivered September 5, 2013

BRIAN N. NELSON PETITIONER’S PRO SE MOTION FOR PETITIONER BELATED APPEAL OF ORDER [GRANT COUNTY CIRCUIT COURT, V. 27CR-09-6, HON. PHILLIP SHIRRON, JUDGE] STATE OF ARKANSAS RESPONDENT MOTION GRANTED.

PER CURIAM

Petitioner Brian N. Nelson was found guilty by a jury of four counts of sexual assault of

a minor and sentenced to an aggregate term of 672 months’ imprisonment. We affirmed. Nelson

v. State, 2011 Ark. 429, 384 S.W.3d 534.

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 trial

court denied the petition. No appeal was taken, and petitioner now seeks leave to proceed with

a belated appeal of the order.

Arkansas Rule of Appellate Procedure–Criminal 2(e) (2012) 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. Miller v. State, 2013 Ark. 182 (per curiam); Johnson v. State, 2012 Ark. 47 (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 Cite as 2013 Ark. 316

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. Miller, 2013 Ark. 182; Smith v. State, 2011 Ark. 367 (per curiam); 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 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 held that the language of Rule 37.3(d) is mandatory.

Miller, 2013 Ark. 182; Robinson v. State, 2013 Ark. 46 (per curiam); Johnson, 2012 Ark. 47; Atkins

v. State, 2010 Ark. 392 (per curiam); 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 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 is silent,

and the respondent is unable to provide an affidavit from the clerk of the circuit court or some

other proof that the order was mailed, we must assume that the petitioner was not properly

2 Cite as 2013 Ark. 316

notified. Miller, 2013 Ark. 182; Robinson, 2013 Ark. 46; Johnson, 2012 Ark. 47; Fernandez v. State,

2011 Ark. 17 (per curiam); 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., Miller, 2013 Ark. 182; Robinson, 2013 Ark. 46; Johnson, 2012 Ark.

47; Fernandez, 2011 Ark. 17; 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.

359, 698 S.W.2d 801. Our clerk is directed to lodge the record and set a briefing schedule for

the appeal.

Motion granted.

Brian N. Nelson, pro se petitioner.

No response.