APPELLEE'S MOTION TO DISMISS APPEAL [GRANT COUNTY CIRCUIT
COURT, NO. 27CR-14-106]
Edward
Joseph Reynolds, pro se appellant.
Leslie
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
REMANDED FOR SUPPLEMENTAL RECORD.
JOSEPHINE LINKER HART, ASSOCIATE JUSTICE
The
State asks this court to dismiss the pending appeal of an
order denying and dismissing appellant Edward Joseph
Reynolds's petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37.1
(2017).[1] Although the file mark on Reynolds's
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), Reynolds's 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. Reynolds's petition included an affidavit
that stated he was incarcerated and identified the unit where
he was incarcerated; stated that he was proceeding pro se;
and indicated that the petition had been placed in the
unit's 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. 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 prison's
legal-mail system because the record does not contain an
envelope or other post-marked documents to verify
Reynolds's 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 clerk's and not
one of Reynolds's duties to fulfill.
The
State also contends that, because the date of swearing for
Reynolds's 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 Reynolds's 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
O'Fallon v. O'Fallon, 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 petition's 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.
If the clerk has failed in her duty to retain the envelope,
then the circuit court is to hold a hearing to settle the
record, to the extent possible, and enter an order that
provides findings on the date that the petition was received
by the clerk, the date of the postmark on the envelope, and
the filing date of the petition. The supplemental record,
including the transcript of any hearing conducted, is to be
returned within thirty days of the date of this order.
Remanded
for supplemental record.
Kemp,
C.J., and Wood and Womack, JJ., dissent.
Rhonda
K. Wood, Justice, dissenting. Appellant, Edward Joseph
Reynolds, appeals the circuit court's order denying his
petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37.1 (2017). The State has filed a motion
to dismiss the pending appeal. Because there is no merit to
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