Nelson v. State

Cite as 2013 Ark. 316SUPREME 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. 316that 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
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Cite as 2013 Ark. 316notified. 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.
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