WILLIE R. PORCHIA, SR. PETITIONER
STATE OF ARKANSAS RESPONDENT
MOTION FOR BELATED APPEAL OF ORDER [OUACHITA COUNTY CIRCUIT
COURT, NO. 52CR-10-162] HONORABLE EDWIN KEATON, JUDGE
2013, petitioner Willie R. Porchia, Sr., was found guilty by
a jury of four counts of delivery of a controlled substance
within 1, 000 feet of a church. He was sentenced as a
habitual offender to a 120-month term of imprisonment for
each of the four offenses and 120 months' imprisonment on
each of the proximity enhancements, to be served
consecutively. The Arkansas Court of Appeals affirmed.
Porchia v. State, 2014 Ark.App. 662. The court of
appeals mandate issued on December 9, 2014.
February 19, 2015, which was seventy-two days after the
mandate had been issued, Porchia filed in the trial court a
pro se petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37.1 (2013). The petition
was dismissed on March 20, 2015, on the ground that it had
not been timely filed. On June 1, 2015, seventy-three days
after the dismissal of the Rule 37.1 petition, Porchia filed
a "petition for review, " disagreeing with the
trial court's decision that the petition was untimely.
The trial court denied the petition for review on December
17, 2015, and Porchia filed a notice of appeal on January 8,
2016. Because Porchia did not file a timely notice of appeal
within thirty days of the date his Rule 37.1 petition was
dismissed, he now seeks leave to proceed with a belated
appeal of the March 20, 2015 order.
Arkansas Rule of Appellate Procedure-Criminal 2(a) (2015),
Porchia was required to file a notice of appeal within thirty
days of the date of the entry of the March 20, 2015 order
dismissing his petition for postconviction relief. Dennis
v. State, 2016 Ark. 44, at 2, 481 S.W.3d 432, 433 (per
curiam), reh'g denied (Mar. 10, 2016). The
filing of a petition for review seventy-three days after the
order was entered did not substitute for filing a timely
notice of appeal. See Shoemate v. State, 339 Ark.
403, 5 S.W.3d 446 (1999) (per curiam).
respect to the order of December 15, 2015, the notice of
appeal filed January 8, 2016, was timely as to it, but under
Rule 37.2, the decision of the trial court is final when
rendered, and no petition for rehearing shall be considered.
Ark. R. Crim. P. 37.2(d); Green v. State, 2015 Ark.
198, at 2 (per curiam). There is an exception to Rule
37.2(d)'s prohibition of any motion for reconsideration
or rehearing, and that exception allows filing of a motion
requesting modification of an order to address omitted
issues. Lovett v. State, 2013 Ark. 8 (per curiam).
There can be no question that the exception did not apply to
Porchia's petition for review filed June 1, 2015, because
it was filed far outside the time to file a timely notice of
appeal, and he was also challenging the correctness of the
court's ruling, not asking for a ruling on an issue that
had been omitted from the order.
contends that he had good cause for filing a timely notice of
appeal because, under Martinez v. Ryan, 566 U.S. 1
(2012) and Trevino v. Thaler, 569 U.S.___, 133
S.Ct.1911 (2013), an attorney should have been appointed to
represent him in the Rule 37.1 proceeding. He further argues
that he did not have the advantage of the "prison
mail-box rule" that this court adopted nine months after
he had filed his untimely petition.
claim is cause to grant a belated appeal of the Rule 37.1
order. Neither Martinez nor Trevino
requires appointment of counsel in every postconviction
proceeding. This court has addressed the application of
Martinez and Trevino and rejected the
argument that a petitioner under the Rule is entitled to
appointment of counsel. E.g., Watson v. State, 2014
Ark. 203, 444 S.W.3d 835; see also Mancia v. State,
2015 Ark. 115, 459 S.W.3d 259.
this court's adoption of a form of the federal
courts' "prison mail-box rule, " Porchia has
not established that he was entitled to avail himself of the
provisions of the rule with respect to the untimely filing of
his notice of appeal. The crux of an action seeking to proceed
with a belated appeal is the filing of the notice of appeal,
and Porchia does not contend that he did not promptly receive
a copy of the order that denied his Rule 37.1 petition from
the circuit clerk and was thus prevented from filing a timely
notice. A petitioner has the right to appeal a ruling on a
petition for postconviction relief. Bean v. State,
2014 Ark. 440 (per curiam). If a petitioner fails to file a
timely notice of appeal, a belated appeal will not be allowed
absent a showing by the petitioner of good cause for the
failure to comply with proper procedure. Id.
Regardless of the merits of the Rule 37.1 petition or any
claim Porchia may have had with respect to the timeliness of
the petition, he has not demonstrated good cause for his
failure to file a timely notice of appeal. See
Dennis, 2016 Ark. 44, 481 S.W.3d 432. The duty to
conform to procedural rules applies even when 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 doing so. Miller v.
State, 2013 Ark. 182 (per curiam).
 This court adopted limited
implementation of that rule through amendments effective
September 1, 2015. In re Ark. Sup. Ct. Comm. on Criminal
Practice-Ark. R. App. P.-Crim. 2 & Ark. R. Crim. P.
37.2, 2015 Ark. 296 (per curiam). See Moody ...