Cook v. State ( 2016 )

Cite as 2016 Ark. 143
SUPREME COURT OF ARKANSAS.
No. CR-16-58
DOUGLAS COOK Opinion Delivered March 31, 2016
PETITIONER
PRO SE MOTION FOR BELATED
V. APPEAL AND CERTIORARI TO
COMPLETE THE RECORD
STATE OF ARKANSAS [POPE COUNTY CIRCUIT COURT,
NO. 58CR-14-276]
RESPONDENT
REMANDED WITH DIRECTIONS.
PER CURIAM
On October 27, 2014, petitioner Douglas Cook pleaded guilty to four counts of rape
and was sentenced to an aggregate sentence of 720 months’ imprisonment in the Arkansas
Department of Correction. On July 8, 2015, a petition for leave to proceed in forma
pauperis to file a Rule 37.1 petition and an affidavit in support of request to proceed in
forma pauperis was filed in the Pope County Circuit Court. The tendered record contains
an unsigned order granting the petition for leave to proceed in forma pauperis, a Rule 37.1
petition, and a motion for transcript of Rule 37 proceedings that bear no file-mark. On
July 27, 2015, the trial court entered an order denying Cook’s Rule 37.1 petition, his
motion for transcript, and his petition to proceed in forma pauperis as untimely. Cook filed
a notice of appeal on August 18, 2015, from the denial.
After filing his notice of appeal, Cook filed on October 20, 2015, a motion to compel
the circuit clerk to designate the entire record to the Arkansas Supreme Court pursuant to
Arkansas Rule of Appellate Procedure—Civil 5(a). In an October 20, 2015 order, the trial
Cite as 2016 Ark. 143
court denied Cook’s motion, finding it was “without jurisdiction to grant this motion as
this matter is subject to an appeal as evidenced by a Notice of Appeal filed in this [c]ourt
August 18, 2015” and that “[i]n any event, the transcript of the proceedings subject to this
appeal are [sic] being prepared by the Court Reporter[.]”
On January 25, 2016, Cook filed a motion for belated appeal and certiorari to
complete the record and tendered a partial record. In his motion for belated appeal, Cook
contends that the circuit clerk erred by not file-marking his Rule 37.1 petition, which
prevented this court’s clerk from lodging the record for his appeal.1 He also asks that the
“errors in the record be corrected[.]” Specifically, he asks that his Rule 37.1 petition be
file-marked as of July 27, 2015, which was the date his petition to proceed in forma pauperis
was file-marked,2 so he may lodge a complete record with this court. As the notice of
appeal was timely with respect to the order denying Rule 37.1 relief, the motion for belated
appeal is properly treated as a motion for rule on clerk to perfect the appeal pursuant to
Arkansas Supreme Court Rule 2-2(b) (2015) rather than as a motion for belated appeal. See
Wilmoth v. State, 2010 Ark. 315 (per curiam).
Proper consideration cannot be given to Cook’s motion without a file-marked copy
of the Rule 37.1 petition. A trial court cannot grant relief on an untimely Rule 37.1
petition; thus, a circuit clerk “may not decline to file, or delay the filing of, a Rule 37.1
1
On October 22, 2015, Cook attempted to timely tender the partial record in this
court. See Ark. R. App. P. –Crim. 4(b) (2015). However, because the record did not
contain a file-marked copy of the Rule 37.1 petition, the clerk of this court declined to
lodge the record.
2
The petition to proceed in forma pauperis was file-marked on July 8, 2015.
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Cite as 2016 Ark. 143
petition while awaiting the trial court’s decision of whether to grant or deny a motion for
leave to proceed in forma pauperis in the matter, a motion for appointment of counsel or for
any other reason.” Meraz v. Crow, 2009 Ark. 369, at 2 (per curiam). The filing of a petition
for postconviction relief with the circuit clerk is critical in that the date of filing such a
petition determines whether the trial court has jurisdiction to consider the petition on the
merits. Benton v. State, 325 Ark. 246, 248, 925 S.W.2d 401, 402 (1996) (per curiam).
Cook’s petition for Rule 37.1 relief bears no file-mark or notation evincing its date of
tender, and this court cannot presume its filing date from the tendered record. See Meraz
v. State, 2010 Ark. 121, at 4 (per curiam) (noting that this court cannot find that the
postconviction petition should have been filed was supported by the record if there was no
evidence of a timely tender to the circuit clerk).
It is well settled that all litigants, including those who proceed pro se, must bear the
responsibility of conforming to the rules of procedure. McDaniel v. Hobbs, 2013 Ark. 107
(per curiam). While a petitioner, particularly if he or she is incarcerated, may bear certain
burdens that challenge his or her ability to abide by procedural rules, the fact remains that
“this court cannot assume jurisdiction of a matter without an adequate record.” Bannister
v. State, 2013 Ark. 412, at 2 (per curiam). Without a certified record, we are left to rely on
a petitioner’s statements and copies of documents that may or may not be true or accurate
copies of the material filed in the trial court as a foundation for assuming jurisdiction. Id.;
see Young v. State, 2009 Ark. 608 (per curiam). We have consistently held that, “without a
certified record to establish jurisdiction, a motion for belated appeal cannot be acted on by
this court.” Bannister, 2013 Ark. 412, at 2.
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Cite as 2016 Ark. 143
Because proper consideration cannot be given to Cook’s motion without a file-
marked copy of the Rule 37.1 petition, we remand the matter to the trial court with
direction that the Pope County Circuit Clerk determine the correct file-mark date for
Cook’s Rule 37.1 petition. See generally Halfacre v. Kelley, 2016 Ark. 71 (per curiam); Penn
v. Gallagher, 2015 Ark. 354 (per curiam). Upon the filing of the Rule 37.1 petition, the
trial court should determine whether it has jurisdiction of the matter and can reach the
merits of the petition for Rule 37.1 relief and issue an order accordingly ruling on and
disposing of the Rule 37.1—an order from which Cook may or may not subsequently seek
to perfect an appeal.
Remanded with directions.
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