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Trammell v. State

Court of Appeals of Arkansas, Division IV

October 23, 2019



          Maurice Trammell, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't Att'y Gen., for appellee.


         Appellant 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.

         On 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.

         On 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.

         Under 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.[1] 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).

         Our 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 petition].
(Signature) [NOTARY]

         Additionally, 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 petition.[2]

         Without 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.

         As an 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 ...

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