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Gould v. State

Court of Appeals of Arkansas, Division IV

June 5, 2019

CORTEZ LAMONT GOULD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-961] HONORABLE CHARLES E. CLAWSON, JR., JUDGE.

          James Law Firm, by: Michael K. Kaiser, Megan M. Wilson, and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge.

         Appellant Cortez Lamont Gould appeals after the Faulkner County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37. Gould raises four points on appeal, claiming ineffective assistance by his trial counsel. We remand for the record to be supplemented, and we order appellant to file a supplemental addendum.

         Gould was convicted in a jury trial of aggravated robbery and theft of property, with sentence enhancements for using a firearm in the commission of the offenses. Gould was sentenced to forty years in prison. Gould appealed from his convictions, arguing that the trial court erred in denying his motion for a mistrial due to alleged juror misconduct. We affirmed his convictions in Gould v. State, 2016 Ark.App. 124, 484 S.W.3d 678, and our mandate was issued on March 15, 2016.

         Gould filed in the trial court a pro se petition for postconviction relief under Rule 37, claiming ineffective assistance of counsel and asking for a new trial. Gould's Rule 37 petition was file-marked on May 25, 2016, which was seventy-one days after our mandate issued. The trial court held a hearing on the petition and entered an order denying Rule 37 relief on the merits of the petition on April 19, 2018. Gould appealed from the trial court's April 19, 2018 order denying relief.

         After Gould filed his brief in this appeal but before the case was submitted, the State filed a motion to dismiss Gould's appeal. In its motion, the State argued that Gould's Rule 37 petition was untimely filed in the trial court and that there was a lack of compliance with the prison mailbox rule. The State's motion to dismiss was passed until submission of the case, and we now consider the motion.

         An appeal from an order denying a petition for postconviction relief will not be allowed to proceed when the appellant could not prevail. Justus v. State, 2012 Ark. 91. When a Rule 37 petition is not timely filed, the trial court lacks jurisdiction to consider the petition. Joslin v. State, 2015 Ark. 328. The time requirements are mandatory, and when a petition under Rule 37 is not timely filed, a trial court shall not consider the merits of the petition. Hendrix v. State, 2016 Ark. 168.

         Arkansas Rule of Criminal Procedure 37.2(c)(ii) provides that, "If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate is issued by the appellate court." In this case Gould's Rule 37 petition was filed on May 25, 2016, which was not within sixty days of our mandate.[1]

         However, at the time Gould's pro se Rule 37 petition was filed, he was confined in a correctional facility. Rule 37.2(g), which is sometimes referred to as the prison mailbox rule, provides:

(g) Inmate filing. For purposes of subsection (c) of this rule, a petition filed pro se by a person confined in a correctional or detention facility that is not timely under the provisions of subsection (c) of this rule shall be deemed filed on the date of its deposit in the facility's legal mail system if the following conditions are satisfied:
(i) on the date the petition is deposited in the mail, the petitioner is confined in a state correctional facility, a federal correctional facility, or a regional or county detention facility that ...

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