Nelson v. State

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                   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, 

, 

.

       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, 

 (per curiam); Johnson v. State, 

 (per

curiam); Cummings v. State, 

 (per curiam); Hale v. State, 

 (per curiam);

see Garner v. State, 

, 

 (1987) (per curiam). We have consistently held
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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, 

; Smith v. State, 

 (per curiam); Cummings, 

; Hale, 

 (citing Daniels v. State, 

 (per curiam)); see also Peterson

v. State, 

, 

 (1986) (per curiam); Walker v. State, 

, 

 (1984) (per curiam); Thompson v. State, 

, 

 (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, 

; Robinson v. State, 

 (per curiam); Johnson, 

; Atkins

v. State, 

 (per curiam); Cummings, 

; Hale, 

 (citing Tarry

v. State, 

, 

 (2003) (per curiam)). The rule is intended to “provide for

prompt, consistent notice to petitioners.” See Scott v. State, 

, 

 (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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notified. Miller, 

; Robinson, 

; Johnson, 

; Fernandez v. State,

 (per curiam); Atkins, 

; Cummings, 

; Hale, 

(citing Porter v. State, 

, 

 (1985) (per curiam)); see also Kelly v. State, 

, 

 (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, 

; Robinson, 

; Johnson, 

; Fernandez, 

; Atkins, 

; Cummings, 

; Hale, 

; Chiasson v. State, 

, 

 (1990) (per curiam); see also Porter, 

, 

. 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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