FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-18-67]
HONORABLE RANDY WRIGHT, JUDGE.
Maurice Trammell, pro se appellant.
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE.
Maurice Trammell appeals from an order of the Hempstead
County Circuit Court denying his petition for postconviction
relief under Rule 37.1 of the Arkansas Rules of Criminal
Procedure as untimely. For reversal, Trammell argues that his
petition was timely filed under the prison-mailbox rule. We
dismiss the appeal.
September 17, 2018, Trammell pleaded no contest to aggravated
robbery in case No. CR-18-67 and theft of property in case
No. CR-18-68, and a sentencing order was entered September
19, 2018. He was sentenced as a habitual offender to twenty
years' imprisonment and five years' suspended
imposition of sentence on the aggravated-robbery conviction
and twenty years' imprisonment on the theft-of-property
conviction to be served concurrently.
December 26, 2018, Trammell filed a petition for
postconviction relief under Rule 37 in the aggravated-robbery
case (CR-18-67). The circuit court entered an order on
January 7, 2019, denying the petition as untimely. A notice
of appeal was filed on January 17, 2019.
Ark. R. Crim. P. 37.2(c), if a conviction was obtained on a
guilty plea, a petition for postconviction relief must be
filed within ninety days of the judgment being entered. Here,
the sentencing order was filed September 19, 2018. The
ninetieth day from that date was December 18,
2018. His petition was file-marked December 26,
2018, and therefore was outside the ninety days allowed.
However, Trammell argues that he deposited his petition in
the prison-mail system on December 19, and therefore his
petition is timely under the prison-mailbox rule set out in
Ark. R. Crim. P. 37.2(g).
supreme court has stated that "a petition under Rule
37.1 is not deemed filed on the date an incarcerated inmate
deposited his or her petition in the prison facility's
legal mail system unless conditions that are set out in the
Rule have been satisfied." McClinton v.
State, 2016 Ark. 461');">2016 Ark. 461, at 2, 506 S.W.3d 227, 228
(citing Anderson v. Kelley, 2016 Ark. 46 (per
curiam)). These are the requirements under Rule 37.2(g): 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 maintains a system designed for legal
mail; the petition is filed pro se; the petition is deposited
with first-class postage prepaid, addressed to the clerk of
the circuit court; and the petition contains a notarized
statement by the petitioner in the following form:
I declare under penalty of perjury: that I am incarcerated in
[name of facility]; that I am filing this petition
pro se; that the petition is being deposited in the
facility's legal mail system on [date]; that
first-class postage has been prepaid; and that the petition
is being mailed to [list the name and address of
each person served with a copy of the
under Rule 37.2(g), the envelope in which the petition is
mailed to the circuit clerk shall be retained by the circuit
clerk and included in the record of any appeal of the
addressing whether Trammell's petition met the
requirements of Rule 37.2(g), according to his notarized
petition, it was deposited in the mail on December 19, which
was one day late. Additionally, the date on the certificate
of service is also December 19. The time limitations imposed
in Rule 37.2(c) are jurisdictional in nature, and the circuit
court may not grant relief on an untimely petition.
Womack v. State, 368 Ark. 341, 343, 245 S.W.3d 154,
155 (2006) (per curiam); see also Blue v. State, No.
CR 07-1329, 2008 WL 660252, at *1 (Ark. Mar. 13, 2008)
(dismissal of appeal from denial of Rule 37.1 petition filed
two days late); Hunt v. State, No. CR 15-793, 2016
WL 552598 (Ark. Feb. 11, 2016) (per curiam) (dismissal of an
appeal from a Rule 37.1 petition filed one day late). Because
the postconviction petition was untimely, the circuit court
lacked the authority under the Rule to grant the relief
sought. Malone v. State, 2016 Ark. 379, at 5, 501
S.W.3d 807, 810. Trammell did not timely seek postconviction
relief, and the circuit court properly denied relief.
alternative basis for affirming, the State suggests that
appellant's petition should be denied as a successive
petition by referencing items not contained in the record but
improperly included in appellant's addendum. These items
include a motion to vacate the judgment and plea filed
October 15, 2018, and an order of the circuit court entered
October 24, 2018, treating the motion to vacate as a Rule
37.1 motion and denying the motion. This court does not
consider matters ...