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APPELLEES MOTION TO DISMISS APPEAL [GRANT COUNTY CIRCUIT
COURT, NO. 27CR-14-106]
Edward
Joseph Reynolds, pro se appellant.
Leslie
Rutledge, Atty Gen., by: Rachel Kemp, Asst Atty Gen., for
appellee.
OPINION
JOSEPHINE
LINKER HART, Associate Justice
The
State asks this court to dismiss the pending appeal of an
order denying and dismissing appellant Edward Joseph
Reynoldss petition for postconviction relief under Arkansas
Rule of Criminal Procedure 37.1 (2017).[1] Although the file
mark on Reynoldss Rule 37.1 petition appears to indicate
that it was not timely filed, Reynolds asserted below that
under Rule 37.2(g) of our criminal-procedure rules, his
petition should be deemed filed on the date that it was
mailed. Because the circuit clerk was required by the Rule to
include in the record a copy of the envelope in which the
petition was received but failed to do so, we remand for a
supplemental record.
Reynolds appealed the judgment at issue here, which reflected
his convictions for aggravated assault and kidnapping and
imposed an aggregate sentence of life imprisonment. This
court affirmed. Reynolds v. State, 2016 Ark. 214,
492 S.W.3d 491. The mandate issued on June 7, 2016, and under
Rule 37.2(c)(ii), Reynoldss Rule 37.1 petition had to be
filed within sixty days of that date. Jackson v.
State, 2018 Ark. 209, 549 S.W.3d 346. The petition was
marked as filed on November 28, 2016, or 143 days after the
mandate issued. Reynoldss petition included an affidavit
that stated he was incarcerated and identified the unit
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where he was incarcerated; stated that he was proceeding pro
se; and indicated that the petition had been placed in the
units legal-mail system on July 3, 2016, with first-class
postage prepaid and addressed to the circuit clerk for
filing. July 3, 2016, was twenty-six days after the mandate
issued and well within the sixty-day limit in Rule
37.2(c)(ii).
The
time requirements in Arkansas Rule of Criminal Procedure
37.2(c) are mandatory, and when a petition under Rule 37.1 is
not timely filed, a trial court shall not consider the merits
of the petition and grant postconviction relief. Gardner
v. State, 2017 Ark. 230, 2017 WL 3300528. Although, as
the State notes, the court indicated at the postconviction
hearing that it did not believe that the petition was timely
filed, the court did not enter a written order addressing the
timeliness of the petition. It instead entered an order
addressing the merits of the Rule 37 petition, thereby
effectively finding that the petition was timely.
The
State contends that the Rule 37 petition did not fulfill the
conditions under Rule 37.2(g) for the petition to be deemed
filed on the date of its deposit in the prisons legal-mail
system because the record does not contain an envelope or
other post-marked documents to verify Reynoldss statement
concerning the date the petition was mailed. However, the
Rule requires that the circuit clerk, not Reynolds, retain
the envelope in which the Rule 37 petition was received and
include a copy in the record on appeal. This information is
needed for any review concerning whether Rule 37.2(g) has
been satisfied, but the duty to satisfy that particular
condition is the clerks and not one of Reynoldss duties to
fulfill.
The
State also contends that, because the date of swearing for
Reynoldss affidavit in support of his request to proceed in
forma pauperis on the Rule 37 petition was beyond the due
date, the petition could not have been timely received in the
condition necessary for filing. The State appears to believe
that the petition could not have been filed until the clerk
received Reynoldss application for in forma pauperis status.
Yet, the date that the petition was considered to have been
received by the clerk would be the correct filing date, even
if Reynolds had tendered the petition without having
submitted a request to proceed as a pauper, if he cured the
defect in form in a timely manner. See OFallon
v. OFallon, 335 Ark. 229, 980 S.W.2d 246 (1998).
There
are other, less obvious costs associated with the proceedings
that, at times, may require an application to proceed as a
pauper even in cases for which no filing fee is assessed.
Regardless of the reason that the application may have been
needed, a delay in the petitions filing that resulted from
the requirement of the form, without a reasonable opportunity
to cure the defect, is not acceptable in a criminal case with
time-sensitive filing requirements. Our own clerk follows a
practice of allowing a reasonable period of time in which to
remit an omitted filing fee or provide an appropriate
application for pauper status for those appellate records or
pleadings with time sensitivity, and when the applicable
filing fee or other cure is not received until after the
filing deadline, the filing date is the date tendered.
Id. This policy applies without regard to whether
the record or pleading was submitted through counsel or pro
se.
Because the clerk failed to provide a copy of the envelope in
which the petition was received, we remand for the circuit
clerk to provide a supplemental record with a copy of that
envelope. ...