Newton v. State , 2013 Ark. 320 ( 2013 )

Cite as 2013 Ark. 320SUPREME COURT OF ARKANSAS
No. CV-13-498
Opinion Delivered September 5, 2013
PRO SE MOTION FOR EXTENSION
ARTHUR LEE NEWTON OF TIME TO FILE APPELLANT’S
APPELLANT BRIEF [LEE COUNTY CIRCUIT
COURT, 39CV-13-59, HON. L.T. SIMES,
v. JUDGE]
STATE OF ARKANSAS
APPELLEE
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2011, appellant Arthur Lee Newton was found guilty by a jury in the Drew County
Circuit Court of sexual indecency with a child and sexual assault in the second degree. He was
sentenced to an aggregate term of 288 months’ imprisonment. The Arkansas Court of Appeals
affirmed. Newton v. State, 2012 Ark. App. 91.
In 2013, appellant filed in the Lee County Circuit Court in the county where he was
incarcerated a pro se petition for postconviction relief. The petition was correctly docketed as
a civil matter inasmuch as appellant was not convicted in that county of the offenses being
challenged in the petition. In the petition, appellant alleged that his trial was flawed on the
grounds that he was not afforded effective assistance of counsel, that the prosecutor improperly
asked leading questions when examining a witness, and that he was made to sign a form
acknowledging that he was a sex offender before he was convicted. The petition was denied,
and appellant lodged an appeal in this court from the order.
Now before us is appellant’s pro se motion for extension of time to file his brief-in-chief.
As it is clear from the record that appellant could not prevail on appeal, we dismiss the appeal.
Cite as 2013 Ark. 320The motion is moot. An appeal from an order that denied a petition for postconviction relief
will not be permitted to go forward where it is clear that the appellant could not prevail. Watson
v. State, 2012 Ark. 27 (per curiam); Riddell v. State, 2012 Ark. 11 (per curiam).
The circuit court in this case did not have jurisdiction to consider the petition for
postconviction relief. In Arkansas, claims for postconviction relief are properly raised under
Arkansas Rule of Criminal Procedure 37.1 in a petition filed in the court where the judgment
of conviction was entered. Ark. R. Crim. P. 37.1(a)(iv) (2011). Even though appellant did not
label his petition as a petition under Rule 37.1, a pleading that mounts a collateral attack on a
judgment is governed by the provisions of our postconviction rule, Rule 37.1.1 Holliday v. State,
2013 Ark. 47 (per curiam); Evans v. State, 2012 Ark. 375 (per curiam).
Here, appellant filed his petition in the circuit court located in the county where he was
in custody; thus, he filed his petition in a court without jurisdiction to consider his claims.
Appeal dismissed; motion moot.
Arthur Lee Newton, pro se appellant.
No response.
1
The petition also contained allegations concerning the prosecutor’s questioning of the
witness and trial error that were a direct attack on the judgment that should have been raised in
the trial court at the time of trial. Trial error is a matter for the trial court to address. See
Nickelson v. State, 2013 Ark. 252 (per curiam).
2