ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 27, 2002

RUSSELL J. BERGER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-350

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL, TO SUPPLEMENT RECORD, AND FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF FAULKNER COUNTY, NO. CR 98-499]

MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION TO SUPPLEMENT RECORD GRANTED IN PART AND MOOT IN PART; MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF GRANTED

Russell J. Berger was found guilty of two counts of rape and sentenced as a habitual offender to two consecutive terms of life imprisonment. We affirmed. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). Berger subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment or have the sentence modified. The petition was denied, and the record on appeal from the order has been lodged here. Appellant Berger, who is in the custody of the Arkansas Department of Correction and proceeding pro se, now seeks an extension of time to file the appellant's brief and appointment of counsel. He also asks that the record on appeal be supplemented with the trial transcript and the record of the Rule 37 evidentiary hearing that appellant tendered after this appeal was lodged.

The motion for appointment of counsel is denied. Postconviction matters are considered

civil in nature with respect to the right to counsel, and there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). We have held, however, that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. See Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989). Appellant here has not demonstrated that there is merit to the appeal.

Appellant's request to consolidate the record in this postconviction appeal with the trial record lodged on direct appeal of the judgment is moot. The transcript of a trial which has been lodged in the appellate court on direct appeal of the judgment is a public record. As such, a motion to incorporate it into the record in a postconviction appeal which stems from the same judgment of conviction is not necessary. Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997).

Appellant's request to supplement the record with the transcript of the Rule 37 evidentiary hearing is granted.

As to the motion for extension of time to file the appellant's brief, which is the first such motion filed by appellant in this appeal, the time is extended to forty days from the date of this opinion.

Motion for appointment of counsel denied; motion to supplement record granted in part and moot in part; motion for extension of time granted.