PETITION FOR REVIEW EN BANC OF THE CLERK'S DECISION
[WASHINGTON COUNTY CIRCUIT COURT, NO. 72CR-13-912] HONORABLE
MARK LINDSAY, JUDGE
COURTNEY HUDSON GOODSON, Associate Justice
James Edward Whitney filed in this court a pro se
"petition for review en banc of the clerks [sic]
decision" in which he requests permission to proceed
with an appeal of an order dismissing his pro se petition
under Arkansas Rule of Criminal Procedure 37.1 (2017). We
need not consider Whitney's proposed bases for cause to
allow the appeal to go forward because it is clear that the
appeal cannot succeed. We therefore treat the petition as a
motion for rule on clerk, and we dismiss the motion.
Washington County jury convicted Whitney on eighteen counts
of possession of child pornography, and he appealed. On May
24, 2017, the Arkansas Court of Appeals affirmed the
judgment. Whitney v. State, 2017 Ark.App. 341, 520
S.W.3d 326. On the same day that the decision on direct
appeal was handed down, but prior to issuance of the mandate
on June 21, 2017, Whitney filed his pro se petition under
Rule 37.1 in the trial court. The court entered an order that
disposed of the petition on May 30, 2017, and it is this
order dismissing the Rule 37.1 petition that Whitney wishes
this court to review.
filed a timely notice of appeal of the order, but the record
was tendered to our clerk 116 days after the notice of appeal
had been filed, and our clerk declined to file the record
because it was not timely tendered. Whitney then filed the
instant petition in which he alleges that this procedural
default should be excused because the trial court failed to
timely provide approval for Whitney's request to proceed
as a pauper on appeal, and that he should not be held
responsible for the resulting delay by the circuit clerk in
preparing the record on appeal.
petitioner fails to perfect an appeal in accordance with the
prevailing rules of procedure, the burden is on the
petitioner, even if he or she is proceeding pro se, to
establish good cause for failure to comply with the
procedural rules. Marshall v. State, 2017 Ark. 208,
521 S.W.3d 456. This court need not consider a
petitioner's claims for good cause for a delay in
submitting the record on appeal, however, when the petitioner
cannot prevail on appeal. Id. An appeal from an
order that denied a petition for a postconviction remedy will
not be permitted to go forward where it is clear that the
petitioner could not prevail. Justus v. State, 2012
37.2 provides that no proceeding under Rule 37 shall be
entertained while the direct appeal of a judgment is pending,
and a Rule 37.1 petition filed after the judgment is affirmed
but before the mandate is issued, as Whitney's petition
was, is to be treated as filed on the day after the mandate
was issued. Ark. R. Crim. P. 37.2(a) & (c)(ii) (2017).
The trial court lacked authority to act on the merits of the
petition until the mandate issued. Morton v. State,
208 Ark. 492, 187 S.W.2d 335 (1945). When the court acted, it
could do no more with respect to a Rule 37 petition than
examine it to see if it had the authority to act on it.
Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303
trial court addressed the merits of the Rule 37.1 petition,
and it also determined that the petition did not include a
verified affidavit as required by Rule 37.1(c). To the extent
that the trial court addressed the merits of the petition,
the order was premature, and this court can not address the
trial court's rulings. Ark. R. Crim. P. 37.1(d); see
State v. Richardson, 2010 Ark. 207 (dismissing appeal
when the order appealed was a nullity and there was therefore
no appealable order).
record demonstrates, the trial court correctly found that the
petition filed did not have the necessary affidavit under
Rule 37.1(c). Without the affidavit, neither the trial court
nor this court has the authority to reach the merits of the
Rule 37.1 petition. See Bradley v. State, 2015 Ark.
144, 459 S.W.3d 302 (holding that the appellate court must
dismiss the appeal when the petitioner's Rule 37.1
petition was not accompanied by an affidavit that was sworn
before a notary or other officer authorized to administer
oaths; in substantially the form noted in Rule 37.1(c); and
attesting that the facts stated in the petition are true,
correct, and complete to the best of the petitioner's
knowledge and belief). Therefore, even if the trial court had
waited until the Rule 37.1 petition was deemed filed to enter
an order that was appealable, the trial court did not have
authority to consider the merits of the petition as filed,
because the petition was unverified. Because the trial court
did not have authority to consider the merits of the petition
when it did or later, Whitney cannot succeed on appeal.
treated as motion for rule on clerk and dismissed.
Josephine Linker Hart, Justice, dissenting.
inartfully styled, all that is before this court is Mr.
Whitney's motion for rule on clerk. See Marshall v.
State, 2017 Ark. 208, 521 S.W.3d 456. As the majority
notes, Mr. Whitney's notice of appeal was timely filed,
but his transcript was tendered some 26 days late.
See Ark. R. Crim. P. 4(b). Accordingly, the only
issue before this court is whether Mr. Whitney has shown
"good cause" for failing to file his record within
the time specified by Rule 4(b). Because Mr. Whitney has not
yet perfected his appeal, we have no jurisdiction to consider
totally disingenuous for the majority to dispose of this case
on the merits. Whether or not Mr. Whitney has raised a
meritorious ground for Rule 37 relief relies on information
that is contained in the transcript ...