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Clemons v. State

Supreme Court of Arkansas

October 30, 2014

JAMES E. CLEMONS, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

UNION COUNTY CIRCUIT COURT. NO. 70CR-08-156. HONORABLE HAMILTON H. SINGLETON, JUDGE.

James E. Clemons, Pro se, petitioner.

Hamilton Hobbs Singleton, Attorney General.

OPINION

Page 620

PRO SE PETITION AND AMENDED PETITION FOR BELATED APPEAL

PER CURIAM

Petitioner James E. Clemons filed in this court a pro se petition for belated appeal and an amended petition for belated appeal. He seeks to lodge the record and proceed belatedly with an appeal of two orders filed in the Union County Circuit Court. The first order denied a petition under Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2006), and the second denied a motion for reconsideration of the order denying relief. We treat the petitions as a motion for rule on clerk and deny it.

In 1992, Billy Ponder was stabbed to death at his flower shop in El Dorado. In 2007, testing of certain physical evidence from the crime scene provided a DNA match to petitioner's DNA sample on file in CODIS, the national DNA databank. In 2009, petitioner was convicted of capital murder for Ponder's death and received a sentence of life imprisonment without parole. This court affirmed the judgment. Clemons v. State, 2010 Ark. 337, 369 S.W.3d 710.

In 2012, petitioner filed a habeas petition in the circuit court seeking scientific testing of certain evidence. A writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark. Code Ann. § 16-112-201; Winnett v. State, 2013 Ark. 482 (per curiam). The circuit court initially dismissed the petition for lack of jurisdiction, but this court reversed and remanded for the trial court to consider the petition. Clemons v. State, 2013 Ark. 18 (per curiam). On remand, the circuit court entered an order denying the petition on April 11, 2013. In that order, the circuit court referenced a response filed by the State on February 25, 2013, and adopted that response, incorporating it into its order as setting forth the basis for the decision.

On April 17, 2013, petitioner filed a motion for reconsideration that asserted that the order did not include the findings of facts and conclusions of law required under the statute. Petitioner filed a notice of appeal from the April 11, 2013 order on May 29, 2013. He also filed, on September 4, 2013, a " second notice of appeal" from an order entered on September 5, 2013, denying the motion for reconsideration. The September 4, 2013 notice of appeal did not reference the earlier order or indicate that the previous notice of appeal had been amended. On December 16, 2013, which was 101 days after the date the second notice of appeal was deemed filed, the record was tendered to this court's clerk, and the clerk declined to lodge it. See Ark. R. App. P.--Crim. 2(b)(1) (2014) (" A notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated

Page 621

as filed on the day after the judgment or order is entered." ).

The two notices of appeal were timely, and the petition is therefore appropriately treated as a motion for rule on clerk to lodge the record under Arkansas Supreme Court Rule 2-2 (2013). Mitchael v. State, 2012 Ark. 256 (per curiam). Arkansas Rule of Appellate Procedure--Criminal 4(b) (2013) requires that the record be tendered to this court within ninety days of the date of the notice of appeal. When a petitioner fails to perfect an appeal in accordance with the prevailing rules of procedure, the burden is on the petitioner, even if he is proceeding pro se, to establish good cause for failure to comply with the procedural rules. Martin v. State, 2014 Ark. 187 (per curiam).

As grounds to excuse the procedural default, petitioner alleges that his representative was reassured in person by the circuit-court clerk about one week before the deadline to lodge the record that the record would be prepared and lodged on time, and he attached an affidavit to the amended petition in support of that claim. This court has consistently held that it is the appellant who is to perfect an appeal. Id. We need not consider the asserted basis for good cause, however, because it is clear from the record that petitioner could not prevail on appeal if he were allowed to proceed. An appeal from an order that denied a petition for postconviction relief, ...


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