ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 15, 2001

MILLARD J. RUSSEY

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 00-1376

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF CLARK COUNTY, NO. CR 97-86, HON. JOHN A. THOMAS, JUDGE]

MOTION TREATED AS MOTION FOR RULE ON CLERK AND DENIED

Millard J. Russey was found guilty by a jury of rape and sentenced as a habitual offender to life imprisonment. We affirmed. Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999). Russey subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37. The petition was erroneously denied as untimely, and we reversed and remanded the matter so that the court could make a ruling on the merits of the petition. Russey v. State, CR 99-1363 (February 17, 2000).

The Rule 37 petition was again denied on remand, and Russey filed a timely notice of appeal but did not tender the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a). Now before us is his motion for belated appeal of the order. As the notice of appeal was timely, we will treat the motion as a motion for rule on clerk to lodge the record.

Petitioner Russey contends that he should be permitted to lodge the record belatedly because he made numerous attempts to obtain the record by filing motions in the lower court to obtain the record and for an extension of time to lodge the record here. The trial court denied the motions on the basis that petitioner had not ordered a transcript from the court reporter as he said he had done in the notice of appeal and that there was no need for an extension of time because the record did not contain voluminous material which would make an extension necessary. As the Rule 37 petition was denied without a hearing, the record for the appeal would consist of the Rule 37 petition and any related pleadings, motions, any item in the court's file on which it relied in its ruling, and any orders entered by the court. Petitioner places the fault for the late tender of the record on the circuit clerk's failure to forward this record to him in a timely manner.

A petitioner has the right to appeal a ruling on a petition for postconviction relief. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petition to make a showing of good cause for the failure to comply with proper procedure. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

This court has specifically held that it is not the responsibility of the circuit clerk, circuitcourt, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra. It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). In the event petitioner could not tender the full record, his course was to lodge a partial record here within ninety days of the date of the notice of appeal as required by Rule 5(a) with a petition for writ of certiorari to complete the record. Petitioner did not pursue the course available to him and has not established that there was good cause for his failure to perfect the appeal. Accordingly, the motion to proceed with the appeal is denied.

Motion treated as motion for rule on clerk and denied.